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IN THE COURT OF 2ND ADDL CIVIL JUDGE

(JD) AND JMFC AT TUMKUR CMIS. 208/2006 PETITIONER VS RESPONDENT

OBJECTIONS FILED BY PETITIONER TO THE APPLICATION OF RESPONDENT UNDER SECTION 91 OF CRPC. 1. The instant application filed by respondent counsel by Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the petitioner. Such aspersions of perfidiousness attributed to the petitioner would amount to the worst form of insult and cruelty. The attitude of respondent counsel in filing such application, by raising some of the new allegations that too jumping out of the facts and allegations available on records before the court is a grave professional misconduct before the Honble court.

2. For what purpose the petitioner has approached this Honble court, She approached for her livelihood, unfortunately the Honble court has also not considered the interim application of monetary relief, and her life has become misery of survival, now on her wound respondent counsel pours strange and new acid allegations. If at all such allegations were true nothing prevented respondent to have produced evidence on such aspect. When he had a chance to do it recently before closing his side of evidence.

3. Neither the counsel for respondent nor the respondent has whispered in both cross examination and chief examination any aspersions of unchastity on petitioner. Now at the time of

arguments only advocate, by crossing his professional limits, raising such baseless allegations. This is not only to harass this petitioner but also to perpetuate fraud on petitioner for subjecting her to further cruelty and forcefully subjecting her to show disgusting reactions and to lose hope for justice. This is grave abuse of process of court, and also fraud excercised by counsel upon court time and petitioners matrimonial rights.

4. The allegation of petitioner coming with a stranger to the court and the fact is being cross examined by respondent counsel is utter false allegations. The petition was filed on 22-06-2006, and on 08-09-2006 respondent counsel appears for respondent and files vakalath and on 20-11-2006 that is after representing three previous hearing dates respondent files his objections. As per the application averments, right from the beginning the petitioner is coming with stranger, nothing prevented respondent from raising such issues in his statement and objections filed on 2011-2006. There is no single averment of such imputations in statement and objections on record.

5. After so many hearing dates respondent counsel had an opportunity for cross examination of petitioner on 24-06-2009. Not even a single allegation of that extent as made in this application is being made by respondent counsel. Now respondent counsel by filing application himself in matrimonial affairs, speaks falsely to mislead this court by subjecting petitioner to great humility. This is a great abuse of process of law and grave assault on the character of deserted and humiliated women.

6. The respondent counsel started his side of evidence on 01-122010, and closed his side of evidence on 02-06-2011, in the span

of seven months, he has not whispered from either respondent mouth or from witness mouth about the present allegation of dated 09-06-2011. When this petitioner counsel filed detail

arguments of facts and law on 06-06-2011, the respondent out of desperation and to avoid further consequences of the result of this petition has took the cross road by attacking this petitioner with false allegations.

7. The instant case is a remanded matter from the file of Fast Track Court V at Tumkur in CRRP 10/2009, dated 22-04-2009, there is specific direction in the order to finalise the case with time bound schedule, unfortunately the schedule was not followed due to no presiding officer for this court for many days and the delaying tactics of respondent side.

8. The petitioner is poor lady with no sufficient means for livelihood. The petitioner is fighting for justice from 10 years, initially an advocate has cheated her, now she was being delayed to have justice by innumerable causes. At last moment this application has struck a death blow to her conscience. Even this counsel is not dare enough to question such allegations, directly to petitioner. But when asked with petitioners mother she says her son was accompanying her daughter to court initially due to the physical threat she had from her in laws. If brother and sister relationships are being suspected as extra-marital relationship without any grounds for it then there is no end for cruelty. This application itself a standard proof for the nature of cruelty forthcoming from petitioners husband and justification for petitioners refusal to stay with him.

9. A leading advocate of prominence in the Bar is filing such an application with false set of facts. This is not the first attempt, the

same counsel through his client files false averred facts in affidavit, which is contrary to documentary averments of petitioner side. Such repeated falsity may be of fighting parties creations, but counsel averring out of record hearsay aspects, that to a newly created one in order to subject an women to her virginity test like a document or thing is a grave insult to women fraternity. It is great pain to my professional conscience, and breach of Advocates Act & code of ethics.

10.

The section 91 of CRPC says like this Whenever any Court

.. considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court , such Court may issue a summons, .. to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. Is the respondent counsel wanted this court to treat petitioner as document or other thing to produce herself to Medical examination of her body that to prove alleged second marriage? In the world of medical science a women cannot be tested by medical examination for knowing whether she is married or not. Only her virginity can be tested. Does that mean respondent is accepting he is impotent and petitioner is virgin? Does that mean respondent want to utilize the fact of virginity test inspite of some sexual harassment by his own brother on petitioner? The truth behind the case lies in the application itself. Let the respondent directly accept he is impotent and has not touched petitioner, without such disclosure of facts respondent at the time of finalization of rights of parties want to make re trial with new and false issues. Let the respondent prove his case by proper complaint before appropriate authorities, and

come before this court under section 127 CrPc, Without taking such course he is alleging through his counsel at this stage is irrelevant and highly derogatory.

11.

There is an allegation of remarriage and living with one

person, Who is that person?, Where is she living? , When did the marriage took place? For what purpose she should appear on each hearing dates? , If such delay of 5 years in providing justice to women victim is going on, is it possible for this counsel to even force her presence without any subsistence allowance. It is very sad and painful, even our status and professionalism is being affected with imputations of bad motives from our many clients due to delay in many proceedings, which is beyond our control.

12.

The fact of false allegation of 2nd marriage cannot be

clarified or proved by medical examination of women. There is separate procedure & proceedings involved for it, if the counsel for respondent is not aware of such procedure, he has no right to mislead the court to use its powers on his baseless, vague, highly derogatory, concocted, created and invented allegations.

13.

The Supreme Court in the case of Vijaykumar Ramchandra

Bhate v Neela Vijaykumar Bhate 2003(3) Supreme 416, observes thus: "Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife would amount to the worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law,.

14.

In a case before Karnataka High Court in Shivakumar vs

Premavathi AIR 2004 Kant 146, 2004 (1) KarLJ 194 it is observed that It is a well-established general principle that if any imputation against the character of any spouse is alleged without any foundation such reckless and baseless allegations of illicit relationship amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to stay away from the other.

15.

In a case before Supreme court in D.P. Satpaty vs B.P. Dixit

and another AIR 1999 SC 3348 It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. The present proceeding does not prevent respondent to file separate civil or criminal proceedings based on his allegations and conclusively prove his allegations, if they are true. Based on such baseless allegations respondent cannot escape from his liability and drag these proceedings.

16.

Similarly, in Santosh (Smt.) v. Naresh Pal [(1998) 8 SCC 447]

dealing with the contention that wife had not proved that she was legally married wife because her first husband was living and there was no dissolution of her marriage, Supreme Court held thus: - In a proceeding for maintenance under Section 125 Cr.P.C. the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt.

17.

In Vimala (K.) Vs. Veeraswamy (K.), (1991) 2 SCC 375,

dealing with the contention of husband that the second marriage with the applicant wife was void on the ground that her first marriage was subsisting, Supreme Court held that Section 125 Cr.P.C. is meant to achieve a social purpose and, therefore, the law which disentitles the second wife from receiving

maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children; the object to prevent vagrancy and destitution; it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife and observed thus:- When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage.

18.

In Ramesh Chander Kaushal v. Mrs. Veena Kaushal and

others, (AIR 1978 SC 1807) Krishna Iyer, J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus:This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out

that interpretation out of two alternatives which advances the cause of the derelicts.

19.

The instant application is not maintainable either on facts

or on law, the application is filed by respondent to further delay the proceedings, to further harass the petitioner, to further complicate the financial crisis of the petitioner. Hence the motive behind this application is of cruel and false allegation in nature and this application needs to be dismissed with imposing heavy penalty upon the respondent.

Where fore, applicant has not made out a strong prima facie case and there is no sufficient material before the Court for the above said countered facts and law applicable to the application, the counsel for petitioner humbly prays this Honble court to dismiss Interim application with heavy penalty on respondent in the ends of justice, equity and good conscience.

Date: 23-06-2011 Place: Tumkur Advocate for petitioner