13 May 2025 Legal Updates

FEW MORAL LAPSES & RETURN TO NORMAL LIFE IS NOT 'LIVING IN ADULTERY': PATNA HC UPHOLDS WIFE'S RIGHT TO MAINTENANCE

(a) Case Title:

• Avadh Kishore Sah @ Awadhesh Sah v. The State of Bihar & Ors.

(b) Court:

• High Court of Judicature at Patna

(c) Date of Decision:

• May 7, 2025

(d) Bench:

• Hon'ble Mr. Justice Jitendra Kumar

Case Summary

This criminal revision petition challenged an order dated January 14, 2020, passed by the Principal Judge, Family Court, Bhagalpur, directing the petitioner (Avadh Kishore Sah) to pay monthly maintenance of Rs. 3,000 to his wife (Soni Devi) and Rs. 2,000 to his daughter (Gudiya Kumari).

Facts:

The marriage between Avadh Kishore Sah and Soni Devi was solemnized on March 18, 2010. Their daughter Gudiya Kumari was born on August 8, 2010. Soni Devi filed a maintenance case under Section 125 CrPC on July 26, 2012. The husband obtained a divorce decree on March 1, 2025, from the Family Court, Munger.

Petitioner/Husband Arguments:

The marriage between him and the Respondent was forcibly solemnized and was therefore invalid. Soni Devi was having an illicit relationship with her brother-in-law. Gudiya Kumari was not his biological daughter as she was born just 4.5 months after marriage. His monthly income was only Rs. 11,000, making the maintenance amount excessive

Respondent/Wife Arguments:

She was subjected to physical assault due to dowry demands. The husband had an illicit relationship with another woman. She had no source of income to maintain herself and her daughter. The husband was earning Rs. 20,000-30,000 per month.

Court's Findings:

1. On Marriage Validity:

The husband never filed for annulment of marriage but filed for divorce, which implies acknowledgment of a valid marriage. The divorce decree means Soni Devi was now a divorced wife, who under Section 125 CrPC Explanation (b) is still entitled to maintenance if she hasn't remarried.

2. On Allegation of Adultery:

The husband made only bald allegations without specific details regarding time, place, or circumstances. "Living in adultery" requires proof of continuous adulterous conduct, not isolated incidents. The husband's willingness to keep his wife with him contradicted his adultery allegations.

3. On Paternity of the Child:

Section 112 of the Evidence Act provides that a child born during a valid marriage is conclusively presumed to be legitimate. This presumption can only be rebutted by proving non-access at the time of conception. The husband failed to provide evidence of non-access.

4. On Maintenance Amount:

The husband was employed in government service. The evidence suggested his income was between Rs. 18,000-30,000 per month. It was also proved that the wife had no source of income. Considering the above scenario, the maintenance amount granted was reasonable.

Key Legal Principles Highlighted:

• A divorced wife is entitled to maintenance under Section 125 CrPC if she hasn't remarried
• Section 112 of the Evidence Act creates a strong presumption of legitimacy for children born during marriage
• "Living in adultery" requires proof of continuous adulterous conduct, not isolated incidents

Final Order:

The High Court dismissed the revision petition, finding no perversity or error in the Family Court's order. The Court clarified that its findings regarding marriage validity and paternity were tentative and subject to any contrary findings by a competent Civil Court or Family Court.

NOT REQUIRED TO HEAR ACCUSED WHILE TAKING COGNISANCE U/S 223 OF BNSS FOR COMPLAINTS MADE UNDER NI ACT: KARNATAKA HC

(a) Case Title:

• Ashok S/o. Siddappa Bankar v. Fayaz Aahmad S/o. Aurangzeb Naikar

(b) Court:

• High Court of Karnataka, Dharwad Bench

(c) Date of Decision:

• April 28, 2025

(d) Bench:

• Hon'ble Mr. Justice Shivashankar Amarannavar (Single Judge Bench)

Key Legal Issue

Whether the procedural requirement under Section 223 of Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 - which mandates giving the accused an opportunity of being heard before taking cognizance - applies to complaints filed under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). Section 138 deals with dishonour of cheques.

Background

The petitioner filed a petition under Section 482 of the Criminal Procedure Code (now Section 528 of BNSS) to quash proceedings in a cheque bounce case (Section 138 of NI Act) pending against him, arguing that the procedural compliance was lacking.

Legal Framework Examined

1. Section 223 of BNSS, 2023 (which replaced Section 200 of CrPC, 1973):

• Contains a new provision requiring that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard"

2. Section 138 of NI Act along with Sections 142-145 which establish:

• Special procedures for cheque bounce cases
• Summary trial provisions
• Specific modes of service and evidence submission

Court's Analysis

1. Nature of NI Act as Special Law:

The court recognized the NI Act as a special statute with its own procedural provisions. Section 5 of BNSS explicitly saves special laws from its general provisions. The court cited Supreme Court decisions describing Section 138 proceedings as "quasi-criminal" and "a civil sheep in criminal wolf's clothing"

2. Special Procedures Under NI Act:

The Court highlighted the expedited summary trial procedure in Ni Act cases. It noted special provisions for conduct o evidence by producing affidavits. It also referred to several Supreme Court guidelines which mandate speedy disposal on 138 Ni Act cases.

Decision

The court held that since the Negotiable Instruments Act is a special law with its own procedural framework, the requirement under Section 223 of BNSS to give the accused an opportunity of being heard before taking cognizance does not apply to complaints under Section 138 of the NI Act.

The petition was accordingly dismissed, confirming that the Magistrate had not committed any error in not issuing notice to the accused prior to taking cognizance in the cheque bounce case.

BEING FOREIGN NATIONAL NO GROUND TO DENY BAIL IN NDPS CASE SPECIALLY WHEN PASSPORT OF ACCUSED IS SEIZED: DELHI HIGH COURT

(a) Case Title:

• Cholpon Bisht vs State Govt of NCT of Delhi

(b) Court:

• High Court of Delhi at New Delhi

(c) Date of Decision:

• May 7, 2025

(d) Bench:

• Hon'ble Ms. Justice Shalinder Kaur

Case Summary

This case involves a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, in connection with an FIR registered for offenses under Sections 20, 25, and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985.

• Section 20 – deals with punishment for contravention in relation to cannabis plant and cannabis.
• Section 25 deals with punishment for allowing premises, etc., to be used for commission of an offence
• Section 29 deals with punishment for abetment and criminal conspiracy.

Facts

The petitioner, Cholpon Bisht, a foreign national, was arrested along with co-accused Akash Bisht (reportedly her husband) when their vehicle was intercepted at Jahangirpuri Metro Station, Delhi. The police recovered 539.5 grams of Charas (an intermediate quantity) concealed in the vehicle's subwoofer and driver's seat headrest. The petitioner had been incarcerated for approximately 6 months, and the trial was yet to commence.

Legal Issues

• Whether the rigors of Section 37 of the NDPS Act apply in cases involving intermediate quantities of drugs?
• Whether foreign nationality of the accused is a valid ground to deny bail?

Court's Analysis

• The Court noted that Section 37 of the NDPS Act (which imposes stringent conditions for bail) does not apply to cases involving intermediate quantities of drugs.
• The Court observed that the petitioner had clean antecedents and satisfactory jail conduct.
• The Court acknowledged but dismissed the prosecution's concerns about flight risk, noting that the petitioner's passport had been seized.
• The Court determined that continued incarceration would serve no purpose as the trial was still in its nascent stages.

Decision

The Court granted regular bail to the petitioner on furnishing a personal bond of ₹30,000 with two sureties of the like amount, subject to several conditions including:

• Not leaving the country without prior court permission
• Weekly reporting to the police
• Informing the court of any change in residential address
• Not contacting prosecution witnesses
• Not tampering with evidence

KEY TAKEAWAY

Being a foreign national is not a ground to deny regular bail under the NDPS Act.