“Seniority cum merit’ means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority. This will not violate Articles 14, 16 (1) and 16 (2) of the Constitution of India.” - It is evident from the material on record i.e. from the counteraffidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement. 1Page 15 Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective. 20. In view of the aforesaid settled legal proposition, in the facts of this case, we have no hesitation in holding that no fault can be found with the High Court’s judgment impugned before us. The appeal lacks merit and is, accordingly, dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1273 OF 2004
Balbir Singh Bedi                                                           …Appellant
Versus
State of Punjab & Ors.                                                   …Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 9.10.2003  passed by the High Court of Punjab and
Haryana at Chandigarh in Civil Writ Petition No. 15672 of 2003 by
way  of  which  the  claim  of  the  appellant  for  promotion  has  been
rejected.
2. The facts and circumstances giving rise to this case are that:Page 2
A. The appellant was appointed as Civil Defence Instructor in the
year 1964, and was promoted as Company Commander in October
1968.  He was later promoted to the post of District Commander in
July 1989.  He, then claimed to have become eligible for substantive
promotion  to  the  post  of  Battalion  Commander  as  per  the  rules
applicable. 
B. The  case  of  the  appellant  was  considered  alongwith  other
eligible candidates, and vide order dated 30.1.2001, a person junior to
him  (Respondent  No.  5),  was  promoted  to  the  said  post  after
considering  his  past  five  years’  Annual  Confidential  Reports
(hereinafter referred to as `ACR’) and other records.
C. The appellant made repeated representations in this regard, but
the same were not considered.  Employees of the other department
governed by the same rules, filed Civil Writ Petition Nos.  4491 and
11011 of 2001  in the Punjab and Haryana High Court contending that
their cases for promotion were not to be considered in the light of
executive  instructions  dated  29.12.2000,  as  the  vacancies  on
promotional  posts  had  occurred  much  before  the  issuance  of  said
executive instructions.  The said writ petitions were disposed of by the
High Court vide judgment and order dated 14.1.2003, by which the
2Page 3
High Court directed the authorities to consider the promotion of the
parties therein, ignoring the instructions dated 29.12.2000.
D. The  appellant  retired  on  31.12.2001  and  filed  Civil  Writ
Petition No.  15672   of 2003, seeking  promotion and quashing  of
executive instructions issued on 29.12.2000 as well as on 6.9.2001.
However, the High Court dismissed the said Civil Writ Petition vide
impugned judgment and order dated 9.10.2003.
Hence, this appeal. 
3. Shri P.S. Patwalia, learned senior counsel appearing on behalf
of the appellant, has submitted that if the criteria for promotion is
“seniority-cum-merit”, the question of ignoring the seniority does not
arise.  Additionally, recruitment to the post of Battalion Commander
is governed by Rule 8 of the Punjab Home Guard, Class-I Rules, 1988
(hereinafter referred to as the `1988 Rules’), which provides that 75
per cent posts of this cadre would be filled up by promotion from the
Battalion  2
nd
-in-Command  consisting  of  District  Commanders,  the
Chief  Instructor,  and  Junior  Officers  at  the  State  Headquarters,
working under the control of the Commandant General, Punjab, all
having  a  minimum  work  experience  of  8  years.   However,  it
3Page 4
prescribes that selection to the post must be made on the principle of
“seniority-cum-merit”.  The High Court committed an error by not
giving  weightage  to  seniority.   Furthermore,  as  the  executive
instructions followed therein were issued subsequent to the date on
which the vacancy occurred, the said instructions must not be applied
to the present case. Appellant was given officiating charge of the post,
and he performed the duties and functions on the said post, he could
not  be  found  unfit  for  any  reason  whatsoever,  at  a  later  stage.
Therefore, the judgment and order impugned is liable to be set aside.
4. On the other hand, Shri Jagjit Singh Chhabra, learned counsel
appearing on behalf of Respondent Nos. 1  to 4, has submitted that the
aforementioned  rule  provides  for  promotion  only  on  the  basis  of
“seniority-cum-merit”.  Therefore, the State, even in the absence of
any executive  instructions, could fix the required benchmark. The
same,  however,  must  be  fixed  prior  to  considering  a  case  for
promotion, as  once the process of promotion begins, it would not be
fair to change the rules of  the game. The fixing of such a benchmark
is completely unrelated to the date on which the vacancy occurred.
Appellant, vide order dated 13.5.1997, was authorised only to sign
4Page 5
bills and vouchers relating to the office, which could not confer any
right  to  the  appellant.   Moreover,  at  the  relevant  point  of  time,
appellant was facing criminal prosecution under the provisions of the
Prevention of Corruption Act, 1988 (hereinafter referred to as `the PC
Act’) as well as for the offences under the Indian Penal Code, 1860
(hereinafter referred to as `IPC’). In view thereof, no fault can be
found with respect to the judgment of the High Court.  The appeal
lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
6.    A Seven Judge Bench of this Court in State of Kerala & Anr. v.
N.M. Thomas & Ors., AIR 1976 SC 490, held:
“Seniority  cum  merit’  means  that  given  the
minimum  necessary  merit  requisite  for
efficiency of administration, the senior, though
less meritorious, shall have priority. This will
not violate Articles 14, 16 (1) and 16 (2) of the
Constitution of India.”
Thus, it is apparent that  this Court has provided for giving
weightage  to  seniority, without any  compromise  being made  with
respect to merit, as the candidate must possess minimum requisite
5Page 6
merit. Efficiency of administration is of paramount importance, and
therefore, whilst adequate weightage is given to seniority, merit must
also be duly considered.
7. In  Sr. Jagathigowda C.N. & Ors.  v. Chairman, Cauvery
Gramin Bank & Ors., AIR 1996 SC 2733, this Court has observed
as under:–
“It  is  settled  proposition  of  law  even  while
making promotion on the basis of seniority cum
merit, the totality of the service record of the
officer  concerned  has  to  be  taken  into
consideration.  The  Performance  Appraisal
Forms  are  maintained  primarily  for  the
purpose  that  the  same  are  taken  into
consideration  when  the  person  concerned  is
considered for promotion to the higher rank.” 
 
8.       In Union of India & Ors. v. Lt. Gen Rajendra Singh Kadyan
& Anr., AIR 2000 SC 2513, it was observed as under:–
“Seniority-cum-merit”  postulates  the
requirement  of  certain  minimum  merit  or
satisfying  a  benchmark  previously  fixed.
Subject  to  fulfilling  this  requirement  the
promotion is based on seniority. There is no
requirement  of  assessment  of  comparative
merit both in the case of seniority-cum-merit.”
The  said  principle  has  also  been  approved,  reiterated  and
followed by this Court in  Syndicate Bank Scheduled Castes and
6Page 7
Scheduled Tribes Employees Association (Regd.) & Ors. v. Union
of India & Ors., 1990 Supp. SCC 350;  Govind Ram Purohit &
Anr. v. Jagjiwan Chandra  & Ors., 1999 SCC  (L&S) 788; The
Central Council for Research in Ayurveda & Siddha & Anr. v.
Dr. K. Santhakumari, (2001) 5 SCC 60; and Bibhudatta Mohanty
v. Union of India & Ors., (2002) 4 SCC 16.
In view of the aforesaid judgments of this Court, it is evident
that even if a promotion is to be made on the basis of “seniority-cummerit”, a person who is lower in the seniority list, can in fact be
promoted,  ignoring  the  claim  of  the  senior  person,  who  failed  to
achieve the benchmark i.e. minimum requisite merit.
9.        In K. Samantaray v. National Insurance Co Ltd., AIR 2003
SC 4422, this Court explained the difference between the principles of
“merit-cum-seniority”,  and  “seniority-cum-merit”,  while  placing
reliance upon its earlier judgments,  and held that for the purpose of
promotion, even on a “seniority-cum-merit” basis, weightage in terms
of numerical marks for various categories is given, and the authority is
permitted to work out the marks for individual as occurring under
each head, otherwise the word ‘merit’ would loose its sanctity. (See
also: State of U.P. v. Jalal Uddin & Ors., (2005) 1 SCC 169; and
7Page 8
Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin
Bank & Ors., AIR 2007 SC 994).
10. This  Court  in  Harigovind  Yadav  v.  Rewa  Sidhi  Gramin
Bank & Ors., AIR 2006 SC 3596, held that promotion, if to be made
on  the  criterion  of  “seniority-cum-merit”,  must  not  be  made
exclusively on the basis of merit. The Court negatived the idea of
selecting the more meritorious where Rules provided for the criterion
of “seniority-cum-merit”, but did not rule out the laying down of
criteria for fixing a minimum benchmark. In paragraph 17 of the said
judgment, the Court has observed as under:–
“Interviews  can  be  held  and  assessment  of
performance  can  be  made  by  the  Bank  in
connection with promotions. But that can be
only to assess the minimum necessary merit.”
11. The  principle  of  “seniority-cum-merit”  and  “merit-cumseniority” are conceptually different, as in the case of the former,
there is greater emphasis upon seniority even though the same is not
the deciding factor, while the case of the latter, merit is the deciding
factor.
8Page 9
12. In Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya
Gramin Bank & Ors., AIR 2010 SC 699, while considering the
aforementioned issue, this Court held that when a promotion is to be
made  on  the  principle  of  “seniority-cum-merit”,  then  the  said
promotion must  be made only after assessing the minimum necessary
merit for such promotion. This must be done on the basis of seniority
among  the  candidates  possessing  such  minimum  necessary  merit,
additionally, it must be ensured that the benchmark fixed is bonafide
and reasonable.  Fixing the benchmark cannot be challenged as being
opposed to the principle of “seniority-cum-merit” and further, cannot
be held to be violative of the concept of promotion by “seniority-cummerit” considering the nature of duties and functions to be performed
on the promotional post. The criteria for selection is not subject to
challenge  generally  as  it  falls  within  the  area  of  policy  making.
Therefore,  the  criteria  for  adjudging  claims  on  the  basis  of  the
principle  of  “seniority-cum-merit”,  depends  upon  various  factors
which  the  employer  may  determine  depending  upon  the  class,
category and nature of posts in the hierarchy of administration, and
the requirements of efficiency for the posts.
9Page 10
13. In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank
& Ors., AIR 2010 SC 787, this Court while considering the earlier
judgments of this Court, held that where promotion is made on the
principle of “seniority-cum-merit”, such promotion cannot be made
on the basis of  seniority alone. Merit also plays some role.  The
standard method adopted by the principle of “seniority-cum-merit”, is
to subject all eligible candidates in the feeder cadre to a process of
assessment of a specified level of minimum necessary merit, and then
to  promote  candidates,  who  are  found  to  possess  the  minimum
necessary merit, strictly in order of seniority.  The minimum merit
necessary for promotion to the said post may be assessed either by
subjecting candidates to a written examination, or an interview, or by
assessment of their work performance during the previous years, or by
a combination of either of the above, or of all the aforesaid methods.
There cannot be any hard and fast rule with respect to how minimum
merit should be ascertained.  For the purpose of assessing the merit of
employees, the employer may proceed with reference to four criteria
(Period of service, educational qualifications, performance during last
three  years  and  interview)  allocating  separate  maximum  marks  as
regards each of the aforesaid counts.
1Page 11
14. In Haryana State Warehousing Corporation & Ors. v. Jagat
Ram & Anr., (2011) 3 SCC 422, this Court considered a similar issue
and reiterated a similar view. The Court also observed that, for the
purpose of according promotion on the principle of “seniority-cummerit”,  a  comparative  assessment  of  all  eligible  candidates  is  not
permissible. Once a person has secured minimum marks with respect
to merit, his seniority would play a significant role. Thus, in the event
that an employee is found to possess minimum requisite merit, he is
entitled to be considered for promotion on the basis of his seniority.
15. In view  of the above, the  law as regards this point can be
summarised to the effect that, where a promotion is to be given on the
principle  of  “seniority-cum-merit”,  such  promotion  will  not
automatically be granted on the basis of seniority alone. Efficiency of
administration cannot be compromised with at any cost. Thus, in order
to meet said requirements, all eligible candidates in the feeder cadre
must be subject to a process of assessment to determine whether or
not an individual in fact possesses the specified minimum necessary
merit, and in the event that he does possess the same, his case must be
considered giving due weightage to his seniority.  Furthermore, the
1Page 12
statutory authority must adopt a bonafide and reasonable method to
determine  the  minimum  necessary  merit,   as  is  required  to  be
possessed by the eligible candidate. It must also take into account his
period of service, educational qualifications, his performance during
his past service for a particular period, his written test, interview, etc.
The  authority  must  further  be  competent  to  allocate  separate
maximum marks on each of the aforesaid counts.  Fixing such criteria,
or providing for minimum necessary merit, falls within the exclusive
domain of policy making. Thus, it cannot be interfered with by courts
in the exercise of their judicial powers, unless the same is found to be
off the mark, unreasonable, or malafide.
16. The  relevant  portions  of  the  executive  instructions  dated
29.12.2000 read as under:
“(iii) In the case of promotion to posts with pay scales
less  than  Rs.12000-16350,  the  benchmark  will  be
‘Good’. This benchmark will determine the fitness of the
officer and person graded ‘Very Good’ or ‘Outstanding’
will not supersede persons graded ‘Good’.
(iv) Henceforth each Annual Confidential Report will
be evaluated as under:-
Outstanding : +A ……………..4 Marks
Very Good : A    ………………3 Marks
1Page 13
Good : +B          ……………….2 Marks
Average : B        ……………….1 Mark
ACRs  for  5  years  are  taken  into  consideration  for
promotion. Out of a total of 20 marks, officers earning 0
to 14 marks will be graded  overall ‘Good’ and those
earning  15  to  17  marks will  be  graded  overall  ‘Very
Good’. Those earning 18 to 20 marks will  be graded as
‘Outstanding’.  Departmental  which  are  ‘Outstanding’
must have been out of the ordinary and reasons for giving
grading must be cogent and well spelt out, to be accepted
and outstanding. If the ACR does not fulfill the above
criteria, the entry of the ‘Outstanding’ should be read as
‘Very  Good’  only.  An  officer  will  not  be  fit  for
promotion if he is rated ‘below average’ in any of the 5
years.”
17. Similarly, the executive instructions dated 6.9.2001 so far as
applicable in the instant case, read as under:
“3. In the case of promotion to posts falling in Group ‘B’
the minimum benchmark will be ‘Good’ and there would
be  no  supercession  i.e.  promotions  would  be  made
strictly on seniority-cum-merit.
4.  For  making  promotion  in  all  the  categories  there
should not be any adverse remarks in the ACRs under
consideration.”
 
18. If, the instant case is examined in light of the aforesaid settled
legal propositions, it becomes evident that even in the absence of the
executive instructions, the State/employer has the right to adopt any
reasonable and bonafide criteria to assess the merit, for the purpose of
1Page 14
promotion on the principle of “seniority-cum-merit”.  The aforesaid
executive instructions are nothing but codification of directions issued
by  this  Court  in  the  cases  referred  to  hereinabove.  Therefore,  a
challenge made to the executive instructions on the ground that they
were issued at a date subsequent to the date on which the vacancy
arose,  is  meaningless.   The  present  case  is  not  the  one  where,
Respondent No. 5 was found to be more meritorious, in fact, the same
is admittedly a case, where the appellant was unable to achieve the
benchmark set, as it is evident from the record that his ACRs were
average, and the benchmark fixed by the State was `Good’.  
19. It is evident from the material on record i.e. from the counteraffidavit filed by the State that appellant faced criminal prosecution as
FIR  No.  25  dated  12.4.1996  had  been  lodged  against  him  under
Sections  7  &  13(ii)  of  the  PC  Act,  1988  and  Sections
467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala,
wherein the appellant faced trial though, acquitted as is evident from
the judgment and order dated 2.5.2006 passed in Sessions Case No. 5
of  10.5.2001.   His  acquittal  took  place  after  five  years  to  his
retirement. 
1Page 15
Be that as it may, for the reason best known to the appellant,
this fact was not disclosed by him either before the High Court or
before this Court.  It is another matter as what could have been the
effect of pendency of the said criminal case so far as this case is
concerned.   Thus,  we  are  of  the  view  that  the  appellant  did  not
approach the court with clean hands, clean mind and clean objective. 
20. In view of the aforesaid settled legal proposition, in the facts of
this case, we have no hesitation in holding that no fault can be found
with the High Court’s judgment impugned before us. The appeal lacks
merit and is, accordingly, dismissed. 
………………………J.
(Dr. B.S. CHAUHAN)
………………………J.
         (V. GOPALA GOWDA)
New Delhi,                                                                                
February 11, 2013
1

whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial Court without examining the question with regard to the maintainability of the suit? = Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”- It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under 1Page 14 Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.

Page 1
REPORTABLE
     
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.  1051  OF 2013
(Arising out of SLP (C) No. 25851 2005)
The Commissioner, Bangalore
Development Authority & Anr.              .... Appellant (s)
Versus
Brijesh Reddy & Anr.                                            ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and final
order  dated  27.07.2005  passed  by  the  High  Court  of
Karnataka at Bangalore in R.F.A. No. 947 of 2003 whereby
the  High  Court  allowed  the  first  appeal  filed  by  the
respondents  herein  and  remitted  the  matter  to  the  trial
Court for fresh disposal.
1Page 2
3) Brief facts:
(a) On 28.09.1965, a notification was issued by the State
Government proposing to acquire several lands including the
suit land being Survey No. 23/10 of Ejipura measuring 22
guntas for formation of Koramangala Layout.  The original
khatedars, who were notified were one Papaiah, Thimaiah,
Patel Narayan Reddy, Smt. Rathnamma,  Smt. Perumakka
(Defendant  No.3  in  the  suit),  Munivenkatappa  and
Chickaabbaiah, the husband of 3
rd
 defendant.  After holding
an enquiry, the Land Acquisition Officer passed the award on
07.09.1969.  Thereafter,  10  guntas  of  land  held  by  Smt.
Rathnamma was taken possession on 28.11.1969 and the
remaining  12  guntas  held  by  defendant  No.3  was  taken
possession on 22.07.1978 and then handed over the entire
land to the Engineering Section.  The layout was formed,
sites were allotted to the intending purchasers.
(b) According to the respondents herein, they purchased
12  guntas  of  land  under  a  registered  sale  deed  dated
15.11.1995  from  Perumakka-3
rd
 defendant  in  the  suit.
2Page 3
Originally  the  said  land  belonged  to  Chikkaabbaiah  –
husband of 3
rd
 defendant.  Chikkaabbaiah mortgaged the
said  property  to  Patel  Narayan  Reddy  on  26.02.1985.
Thereafter, the said property was re-conveyed in favour of
Chikkaabbiah.   After  the  death  of  Chikkaabbiah,  his  wife
Perumakka,  (3
rd
 defendant  in  the  suit)  was  the  absolute
owner and in possession of the property.  
(c) When the Bangalore Development Authority (in short
“the BDA”) tried to interfere with the possession of the suit
property, 3
rd
 defendant in the suit filed O.S. No. 10445 of
1985  for  injunction  and  obtained  an  order  of  temporary
injunction on 15.06.1985 which was in force till 22.05.1994.
Ultimately the said suit was dismissed on the ground that
before filing of the suit, statutory notice had not been given
to the BDA.  Thereafter, another suit being O.S. No. 2069 of
1994 was filed by the third defendant on the file of the Civil
Judge, Bangalore and the same was dismissed as withdrawn
on 14.06.1995 with liberty to file a fresh suit.
(d) In the meantime, the respondents herein purchased the
suit land from the third defendant under a registered sale
3Page 4
deed on 15.11.1995.  After the purchase of the land, the
respondents were put in possession.  When the BDA tried to
interfere with the possession of the respondents herein, they
filed a petition being W.P. No. 41497 of 1995 before the High
Court,  ultimately  the  said  petition  was  dismissed  as
withdrawn by the respondents herein with a liberty to file a
fresh suit.
(e) Thereafter, the respondents herein filed a suit being
O.S. No. 4267 of 1996 on the file of the Court of the XVI Addl.
City  Civil  &  Sessions  Judge  at  Bangalore  for  permanent
injunction.   By  order  dated  18.06.2003,  the  trial  Court
dismissed the said suit as not maintainable.
(f) Challenging the said order, the respondents herein filed
first appeal being R.F.A. No.947 of 2003 before the High
Court.  By impugned order dated 27.07.2005, the High Court
allowed the appeal and remitted the matter to the trial Court
with a direction to dispose of the same after permitting the
plaintiffs to adduce evidence on merits.
(g) Aggrieved  by  the  said  order,  the  appellants  have
preferred this appeal by way of special leave.
4Page 5
4) Heard Mr. Altaf Ahmed, learned senior counsel for the
appellants and Mr. G.V. Chandrashekar, learned counsel for
the respondents.
Discussion:
5) The  only  point  for  consideration  in  this  appeal  is
whether a civil court has jurisdiction to entertain a suit when
the schedule lands were acquired under the land acquisition
proceedings  and  whether  the  High  Court  was  justified  in
remanding the matter to the trial Court without examining
the question with regard to the maintainability of the suit? 
6) It is seen from the plaint averments in O.S. No. 4267 of
1996 that the plaintiffs purchased the suit schedule property
from the third defendant under a registered sale deed dated
15.11.1995 and since then they are in exclusive possession
and enjoyment of the same.  Since other details are not
necessary for our purpose, there is no need to traverse the
entire plaint allegations.
7) The  third  defendant,  who  filed  a  separate  written
statement supporting the case of the plaintiffs, had asserted
that she did had the right, interest and title in the schedule
5Page 6
property  and  she  possessed  every  right  to  transfer  and
alienate it in favour of the plaintiffs.  On the other hand, the
BDA and its officers/defendant Nos. 1 and 2, in their written
statements, specifically denied all the allegations made by
the  plaintiff.   According  to  the  BDA,  the  suit  schedule
property which forms part and parcel of Survey No. 23 of
2010 of Ejipura, totally measuring 22 guntas was notified for
acquisition for the formation of Koramangala Layout.  In their
statements, they specifically pleaded that the notification
came to be issued on 28.09.1965.  The original khatedars
who  were  notified  were  one  Papaiah,  Thimaiah,  Patel
Narayan Reddy, Smt. Rathnamma, Smt. Perumakka (D-3),
Muni Venkatappa and Chickaabbaiah, the husband of D-3.
The  Land  Acquisition  Officer,  after  complying  with  the
provisions  of  the  Land  Acquisition  Act  and  after  holding
enquiry passed an award.  It is further stated that 10 guntas
of land held by Smt. Rathnamma was taken possession on
28.11.1969, remaining 12 guntas held by defendant No.3
was taken possession on 22.07.1978 and thereafter, handed
over the entire land to the Engineering Section.  It is also
6Page 7
stated that as a follow-up action, the lay out was formed,
sites were allotted to the intending purchasers.  According to
defendant Nos. 1 and 2, the entire land vested with them
and the so-called purchase now alleged by the plaintiff from
Defendant No. 3 on 15.11.1995 is bad and in any event, not
binding on the defendants.  It is also stated that the persons
who purchased the sites were issued possession certificates,
khata was changed, khata certificates were issued, building
licences were issued and there were constructions in the
said site.  Pursuant to the same, they had paid tax to the
authority concerned.   Accordingly,  it is asserted that the
plaintiff was not in possession on the date of filing of the
suit.   Before the trial Court, in  order  to  substantiate the
defence, the defendant Nos. 1 and 2 have produced copies
of the Gazette Notification with respect to the acquisition of
the said land.  The award passed by the Land Acquisition
Officer has also been produced and taken on record.  The
perusal of the discussion by the trial Court shows that the
plaintiffs  have  not  disputed  the  contents  of  those
documents, even otherwise it cannot be disputed.
7Page 8
8) Section 9 of the Code of Civil Procedure, 1908 provides
jurisdiction to try all suits of civil nature excepting those that
are expressly or impliedly barred which reads as under:  
“9.  Courts  to  try  all  civil  suits  unless  barred.- The
Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting
suits  of  which  their  cognizance  is  either  expressly  or
impliedly barred.”
From  the  above  provision,  it  is  clear  that  Courts  have
jurisdiction to try all suits of a civil nature excepting suits of
which  their  cognizance  is  either  expressly  or  impliedly
barred.   The  jurisdiction  of  Civil  Court  with  regard  to  a
particular matter can be said to be excluded if there is an
express provision or by implication it can be inferred that the
jurisdiction is taken away.  An objection as to the exclusion
of  Civil  Court’s  jurisdiction  for  availability  of  alternative
forum should be taken  before the  trial Court and at the
earliest  failing  which  the  higher  court  may  refuse  to
entertain the plea in the absence of proof of prejudice.
9) In State of Bihar vs. Dhirendra Kumar and Others,
(1995) 4 SCC 229, the core question was whether a civil suit
is maintainable and ad interim injunction could be issued
8Page 9
where proceedings under the Land Acquisition Act,1894 was
taken pursuant to the notice issued under Section 9 of the
Act and possession delivered to the beneficiary.  On going
through  the  entire  proceedings  initiated  under  the  Land
Acquisition Act, this Court held as under:
“3. … … We are, therefore, inclined to think, as presently
advised, that by necessary implication the power of the
civil Court to take cognizance of the case under Section 9
of  CPC  stands  excluded,  and  a  civil  Court  has  no
jurisdiction to go into the question of validity or legality of
the  notification  under  Section  4  and  declaration  under
Section 6, except by the High Court in a proceeding under
Article 226 of the Constitution.  So, the civil suit itself was
not maintainable…”
After holding so, this Court set aside the finding of the trial
Court that there is a prima facie triable issue.  It also held
that the order of injunction was without jurisdiction.  
10) In  Laxmi  Chand  and  Others vs.  Gram  Panchayat,
Kararia  and  Others, (1996) 7 SCC 218 while considering
Section 9 of the Civil Procedure Code, 1908 vis-à-vis the
Land Acquisition Act, 1894, this Court  held as under:
“2. … It is seen that Section 9 of the Civil Procedure Code,
1908 gives jurisdiction to the civil court to try all civil suits,
unless barred. The cognizance of a suit of civil nature may
either  expressly  or  impliedly  be  barred.  The  procedure
contemplated  under  the  Act  is  a  special  procedure
envisaged  to  effectuate  public  purpose,  compulsorily
acquiring  the  land  for  use  of  public  purpose.  The
notification under Section 4 and declaration under Section
9Page 10
6 of the Act are required to be published in the manner
contemplated  thereunder.  The  inference gives
conclusiveness to the public purpose and the extent of the
land mentioned therein. The award should be made under
Section  11  as  envisaged  thereunder.  The  dissatisfied
claimant is provided with the remedy of reference under
Section 18 and a further appeal under Section 54 of the
Act.  If  the  Government  intends  to  withdraw  from  the
acquisition before taking possession of the land, procedure
contemplated under Section 48 requires to be adhered to.
If possession is taken, it stands vested under Section 16 in
the State with absolute title free from all encumbrances
and  the  Government  has  no  power  to  withdraw  from
acquisition.
3. It would thus be clear that the scheme of the Act is
complete in itself and thereby the jurisdiction of the Civil
Court to take cognizance of the cases arising under the
Act, by necessary implication, stood barred. The Civil Court
thereby is devoid of jurisdiction to give declaration on the
invalidity of the procedure contemplated under the Act.
The only right an aggrieved person has is to approach the
constitutional Courts, viz., the High Court and the Supreme
Court under their plenary power under Articles 226 and
136  respectively  with  self-imposed  restrictions  on  their
exercise of extraordinary power.  Barring thereof, there is
no power to the Civil Court.”
11) In  Commissioner,  Bangalore  Development
Authority vs. K.S. Narayan, (2006) 8 SCC 336, which arose
under the Bangalore Development Authority Act, 1976, was
similar to the case on hand, this Court held that a civil suit is
not maintainable to challenge the acquisition proceedings.
In that case one K.S. Narayan filed Original Suit No. 5371 of
1989 in the Court of the City Civil Judge, Bangalore, praying
that a decree for permanent injunction be passed against
1Page 11
the  defendant  -  Bangalore  Development  Authority,  their
agents and servants restraining them from interfering with
the  plaintiff's  possession  and  enjoyment  of  the  plaint
scheduled  property  and  from  demolishing  any  structure
situate thereon.  The case of the plaintiff is that the plaintiff
purchased the property in dispute bearing No. 46, situated in
Banasawadi village, K.R. Pura Hobli, Bangalore, South Taluk
from S. Narayana Gowda by means of a registered sale deed
dated 17.06.1985.  The erstwhile owners of the property had
obtained conversion certificate from the Tahsildar and the
property is situated in a layout which is properly approved
by obtaining conversion for non-agricultural use from the
competent  authority.  The  plaintiff  applied  for  mutation
entries and the same was granted in his favour. The property
in dispute was not covered by any acquisition proceedings
as neither notice of acquisition had been received nor any
award regarding the said property had been passed. The
defendant had no right, title or interest over the property but
it was trying to dispossess the plaintiff from the same on the
ground of alleged acquisition. The plaintiff issued a notice to
1Page 12
the defendant on 11.07.1989 calling upon it not to interfere
with  his  possession  and  enjoyment  of  the  property  in
dispute.   The  suit  was  contested  by  the  defendant  -
Bangalore Development Authority on the ground  inter alia
that  the  plaintiff  was  not  the  owner  of  the  property  in
dispute.   S.  Narayana  Gowda,  who  is  alleged  to  have
executed  the  sale  deed  in  favour  of  the  plaintiff  on
17.06.1985, had no right, title or interest over the property
in dispute and he could not have conveyed any title to the
plaintiff. It was further pleaded that the disputed land had
been acquired by the Bangalore Development Authority after
issuing preliminary and final notifications in accordance with
the  Bangalore  Development  Authority  Act  and  the
possession had also been taken over and thereafter it was
handed over to the engineering section on 22.06.1988 after
completion of all formalities. The award for the land acquired
had already been made and the compensation amount had
been deposited in the civil court under Sections 30 and 31(2)
of the Land Acquisition Act. It was specifically pleaded that it
was the defendant - Bangalore Development Authority which
1Page 13
was in possession of the plaint scheduled property on the
date of filing of the suit and, therefore, the suit for injunction
filed by the plaintiff was not maintainable and was liable to
be dismissed.
12) It is relevant to note that in the above decision, the
acquisition proceedings in question had been taken under
the  Bangalore  Development  Authority  Act,  1976  and  the
provisions of Sections 17 and 19 are somewhat similar to the
provisions of Sections 4 and 6 of the Land Acquisition Act,
1894.  After noting out all the details, this Court allowed the
appeals and set aside the decision rendered by the High
Court.
13) It is clear that the Land Acquisition Act is a complete
Code in itself and is meant to serve public purpose.  By
necessary  implication,  the  power  of  civil  Court  to  take
cognizance  of  the  case  under  Section  9  of  CPC  stands
excluded and a Civil Court has no jurisdiction to go into the
question of the validity or legality of the notification under
Section  4,  declaration  under  Section  6  and  subsequent
proceedings except by the High court in a proceeding under
1Page 14
Article 226 of the Constitution.  It is thus clear that the civil
Court is devoid of jurisdiction to give declaration or even
bare  injunction  being  granted  on  the  invalidity  of  the
procedure  contemplated  under  the  Act.   The  only  right
available for the aggrieved person is to approach the High
Court under Article 226 and this Court under Article 136 with
self imposed restrictions on their exercise of extraordinary
power.  
14) No  doubt,  in  the  case  on  hand,  the  plaintiffs
approached the civil Court with a prayer only for permanent
injunction restraining the defendant Nos. 1 and 2,i.e., BDA,
their agents, servants and any one claiming through them
from interfering with the peaceful possession and enjoyment
of the schedule property.  It is true that there is no challenge
to  the  acquisition  proceedings.   However,  in  view  of the
assertion of the BDA, in their written statements, about the
initiation of acquisition proceedings ending with the passing
of award, handing over possession and subsequent action
etc.,  the  said  suit  is  not  maintainable.  This  was  rightly
concluded by the trial Court.  For proper compensation, the
1Page 15
aggrieved parties are free to avail the statutory provisions
and approach the court concerned.  All these aspects have
been clearly noted by the trial Court and ultimately rightly
dismissed the suit as not maintainable.  On the other hand,
the learned Single Judge of the High Court though adverted
to the principles laid down by this Court with reference to
acquisition  of  land  under  the  Land  Acquisition  Act  and
Section  9  of  CPC  committed  an  error  in  remanding  the
matter to the trial Court on the ground that the plaintiffs
were not given opportunity to adduce evidence to show that
their vendor was in possession which entitles them for grant
of  permanent  injunction  from  evicting  them  from  the
scheduled  property  without  due  process  of  law  by  the
defendants.  In the light of the specific assertion coupled
with materials in the written statement about the acquisition
of land long ago and subsequent events, suit of any nature
including bare injunction is not maintainable, hence, we are
of the view that the High Court is not right in remitting the
matter to the trial Court for fresh disposal.
1Page 16
15) Having  regard  to  the  fact  that  the  acquisition
proceedings had been completed way back in 1960-70, the
plaintiffs who purchased the suit land in 1995 cannot have
any right to  maintain  the suit of this nature particularly,
against defendant Nos. 1 and 2, namely, the BDA.  The High
Court clearly erred in remanding the matter when the suit
was not maintainable on the face of it.  The High Court failed
to take note of the fact that even in the plaint itself, the
respondents herein/plaintiffs have stated that the suit land
was acquired and yet they purchased the suit land in 1995
and  undoubtedly  have  to  face  the  consequence.   The
possession vests with the BDA way back in 1969 and 1978
and  all  the  details  have  been  asserted  in  the  written
statements, hence the remittal order cannot be sustained. 
16) In  the  light  of  the  above  discussion,  the  impugned
judgment dated 27.07.2005 passed by the  High  Court in
R.F.A. No. 947 of 2003 remitting the matter to the trial Court
is set aside and the judgment dated 18.06.2003 of the trial
Court in O.S. No. 4267 of 1996 is restored. 
17) The appeal is allowed with no order as to costs.    
1Page 17
...…………….…………………………J.
          (P. SATHASIVAM)                                
  .….....…………………………………J.
  (JAGDISH SINGH KHEHAR)      
NEW DELHI;
FEBRUARY 08, 2013.
1

Central Adoption Resource Authority (CARA) - “Child Tina was an older female child (aged 7 years when the NOC was issued) and thus relaxation was permissible as per the guidelines. • The Prospective parent was 54 years of age, which is within the age up to which adoption by foreign prospective parent is permissible after relaxation i.e. 55 years. • The Prospective Adoptive Parent is otherwise also suitable as she is financially stable and there are three reference letters supporting adoption of the child by her. The Home study report of the prospective parent (Ms. Stephanie Becker) shows the child as kind, welcoming, caring and responsible individual with physical, mental emotional and financial capability to parent a female child up to age of seven years from India. • Procedures such as declaration of the child as legally free for adoption by CWC Child Welfare Committee (CWC); ensuring efforts for domestic adoption and clearance of Adoption Coordinating Agency; and taking consent of older child had been followed. • Follow-up of the welfare of the child was to be properly done through Journeys of the Hearts, USA, the authorized agency which had also given an undertaking to ensure the adoption of child Tina according to the laws in USA within a period not exceeding two years from the date of arrival of the child in her new home. The agency has also committed to send follow-up reports as required. • The Biological brother of the prospective parent, Mr. Philip Becker Jr. and his wife Ms. Linda Becker have given anPage 16 16 undertaking on behalf of the single female applicant to act as legal guardian of the child in case of any unforeseen event to the adoptive parent. This is another important safeguard. • Article 5 from the Office of Children’s Issues, US Department of State allowing child Tina to enter and reside permanently in the United States and declaring suitability of the prospective adoptive parent, was available.” 11. In view of the facts as stated above which would go to show that each and every norm of the adoption process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has been adhered to, we find that the apprehension raised by the intervener, though may have been founded on good reasons, have proved themselves wholly unsubstantiated in the present case. If the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also been taken (as in the present case) and the expert bodies engaged in the field are of the view that in the present case the adoption process would end in a successful blending of the child in the family of the appellant in USA, we do not see as to how the appellant could be understood to be disqualified or disentitled to the relief(s) sought by her in the proceedings in question. It is our considered view that having regard to the totality of the facts of the case the proposed adoption would be beneficial to the child apart fromPage 17 17 being consistent with the legal entitlement of the foreign adoptive parent. If the above is the net result of the discussions that have preceded, the Court must lean in favour of the proposed adoption. We, therefore, set aside the orders dated 17.09.2010 in Guardianship Case No. 2 of 2010 passed by the learned Trial Court and the order dated 09.07.2012 in FAO No. 425 of 2010 passed by the High Court of Delhi and appoint the appellant as the legal guardian of the minor female child Tina and grant permission to the appellant to take the child to USA. In view of the provisions of Section 41(3) of the JJ Act and to avoid any further delay in the matter which would be caused if we were to remand the aforesaid aspect of the case to the learned Trial Court, only on the ground that the same did not receive consideration of the learned Court, we deem it appropriate to pass necessary orders giving the child Tina in adoption to the appellant. The CARA will now issue the necessary conformity certificate as contemplated under clause 34(4) of the Guidelines of 2011. The appeal consequently shall stand allowed in the above terms.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.    1053       of 2013
(Arising out of SLP (Civil) No. 29505 of 2012)
Stephanie Joan Becker ... Appellant(s)
Versus
State and Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. The  rejection  of  the  applications  filed  by  the  appellant
under Sections 7 and 26 of the Guardians and Wards Act, 1890
(hereinafter for short the “Guardians Act”) by the learned Trial
Court vide its order dated 17.09.2010 in Guardianship Case No. 2
of 2010 and the affirmation of the said order made by the High
Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal.
By the
application  filed  under  Section  7  of  the  Guardians  Act,  the
appellant had sought for an order of the Court appointing her asPage 2
2
the guardian of one female orphan child Tina aged about 10
years 
whereas by the second application filed under Section 26
of the Guardians Act the appellant had sought permission of the
Court to take the child Tina out of the country for the purpose of
adoption.
3. The  rejection  of  the  aforesaid  two  applications  by  the
learned Trial Court as well as by the High Court is on a sole and
solitary  ground,  namely,  that  the  appellant,  being  a  single
prospective adoptive parent, was aged about 53 years at the
relevant point of time whereas for a single adoptive parent the
maximum permissible age as prescribed by the Government of
India Guidelines in force was 45.  
Though a no objection, which
contained an implicit relaxation of the rigour of the Guidelines
with regard to age, has been granted by the Central Adoption
Resource Authority (CARA), the High Court did not consider it
appropriate to take the said no objection/relaxation into account
inasmuch as the reasons for the relaxation granted were not
evident on the face of the document i.e. no objection certificate
in question.
4. To understand and appreciate the contentious issues that
have arisen in the present appeal, particularly, the issues raisedPage 3
3
by  a  non-governmental  organization  that  had  sought
impleadment  in  the  present  proceedings  (subsequently
impleaded as respondent No. 4) it will be necessary to take note
of the principles of law governing inter-country adoption, a short
resume of which is being made hereinbelow.  But before doing
that it would be worthwhile to put on record that the objections
raised by the Respondent No.4, pertain to the legality of the
practice of inter country adoption itself, besides the bonafides of
the  appellant  in  seeking  to  adopt  the  child  involved  in  the
present  proceeding and the  overzealous role of the different
bodies  involved  in  the  process  in  question  resulting  in  side
stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed, was
in a state of flux until the principles governing giving of Indian
children in adoption to foreign parents and the procedure that
should  be  followed  in  this  regard  to  ensure  absence  of  any
abuse, maltreatment or trafficking of children came to be laid
down by this Court in  Lakshmi  Kant  Pandey  v.  Union  of
India
1
.   The aforesaid proceedings were instituted by this Court
on the basis of a letter addressed by one Lakshmi Kant Pandey, a
1
 (1984) 2 SCC 244Page 4
4
practicing  advocate  of  this  Court  with  regard  to  alleged
malpractices indulged in by social and voluntary organizations
engaged in the work of offering Indian children in adoption to
foreign parents.  After an elaborate consideration of the various
dimensions of the questions that arose/were raised before the
Court and the information laid before it by the Indian Council of
Social Welfare, Indian Council of Child Welfare, SOS Children’s
Villages  of  India  (respondent  No.  2  herein)  and  also  certain
voluntary organizations working in the foreign jurisdictions, this
Court, after holding in favour of inter country adoption, offered
elaborate  suggestions  to  ensure  that  the  process  of  such
adoption  is  governed  by  strict  norms,  and  a  well  laid  down
procedure  to  eliminate  the  possibility  of abuse  or  misuse  in
offering  Indian  children  for  adoption  by foreign  parents  is in
place.  This Court in Lakshmi Kant Pandey (supra) also laid
down the approach that is required to be adopted by the courts
while dealing with applications under the Guardians and Wards
Act  seeking  orders  for  appointment  of  foreign  prospective
parents as guardians of Indian children for the eventual purpose
of adoption.   Such directions, it may be noticed, was not only
confined to hearing various organizations like the Indian CouncilPage 5
5
for Child Welfare and Indian Council of Social Welfare by issuance
of appropriate notices but also the time period within which the
proceedings filed before the Court are to stand decided.  Above
all, it will be necessary for us to notice that in  Lakshmi Kant
Pandey (supra) this Court had observed that :
“Of  course,  it  would  be  desirable  if  a  Central
Adoption  Resource  Agency  is  set  up  by  the
Government of India with regional branches at a
few  centres  which  are  active  in  inter-country
adoptions.  Such  Central  Adoption  Resource
Agency can act as a clearing house of information
in regard to children available for inter-country
adoption  and  all  applications  by  foreigners  for
taking  Indian  children  in  adoption can  then  be
forwarded by the social or child welfare agency in
the  foreign  country  to  such  Central  Adoption
Resource Agency and the latter can in its turn
forward  them  to  one  or  the  other  of  the
recognized social or child welfare agencies in the
country.”
6. Pursuant  to  the  decision  of  this  Court  in  Lakshmi  Kant
Pandey  (supra) surely,  though  very  slowly,  the  principles
governing  adoption  including  the  establishment  of  a  central
body,  i.e.,  Central  Adoption  Resource  Authority  (CARA)  took
shape and found eventual manifestation in a set of elaborate
guidelines  laid  down  by  the  Government  of  India  commonly
referred  to  as  the  Guidelines  For  Adoption  from  India  2006Page 6
6
(hereinafter referred to as “the Guidelines of 2006”).  A reading
of the aforesaid Guidelines indicates that elaborate provisions
had been made to regulate the pre-adoption procedure which
culminates in a declaration by the Child Welfare Committee that
the child is free for adoption.   Once the child (abandoned or
surrendered) is so available for adoption the Guidelines of 2006
envisage distinct and separate steps in the process of adoption
which may be usefully noticed below :
(1) Enlisted  Foreign  Adoption  Agency
(EFAA)
 The applicants will have to contact or register
with  an  Enlisted  Foreign  Adoption  Agency
(EFAA)/Central  Authority/Govt.  Deptt.  in
their country, in which they are resident,
which will prepare the a  Home  Study
Report  (HSR)  etc.  The  validity  of  “Home
Study Report” will be for a period of two
years. HSR report prepared before two years
will be updated at referral.
 The applicants should obtain the permission
of the competent authority for adopting a
child  from  India.  Where  such  Central
Authorities or Government departments are
not available, then the applications may be
sent by the enlisted agency with requisite
documents  including  documentary  proof
that the applicant is permitted to adopt from
India
 The  adoption  application  dossier  should
contain  all  documents  prescribed
in Annexure-2. All  documents  are  to  bePage 7
7
notarized.  The  signature  of  the  notary  is
either  to  be  attested  by  the  Indian
Embassy/High  Commission  or  the
appropriate  Govt.  Department  of  the
receiving country. If the documents are in
any language other than English, then the
originals must be accompanied by attested
translations
 A copy of the application of the prospective
adoptive parents along with the copies of
the HSR and other documents will have to
be forwarded to RIPA by the Enlisted Foreign
Adoption Agency (EFAA) or Central Authority
of that country.
(2)   Role  of  Recognized  Indian  Placement
Agency (RIPA)
 On  receipt  of  the  documents,  the  Indian
Agency will make efforts to match a child
who is legally free for inter-country adoption
with the applicant.
 In case no suitable match is possible within 3
months, the RIPA will inform the EFAA and
CARA with the reasons therefore.
(3) Child  being  declared  free  for  intercountry adoption - Clearance by ACA
 Before a RIPA proposes to place a child in the
Inter country adoption, it must apply to the
ACA for assistance for Indian placement. 
 The child should be legally free for adoption.
ACA will find a suitable Indian prospective
adoptive parent within 30 days, failing which
it will issue clearance certificate for intercountry adoption.Page 8
8
 ACA  will  issue  clearance  for  inter-country
adoption  within  10  days  in  case  of  older
children above 6 years, siblings or twins and
Special Needs Children as per the additional
guidelines issued in this regard.
 In case the ACA cannot find suitable Indian
parent/parents  within  30  days,  it  will  be
incumbent  upon  the  ACA  to  issue  a
Clearance Certificate on the 31
st
day.
 If ACA Clearance is not given on 31
st
day, the
clearance  of  ACA  will  be  assumed  unless
ACA  has  sought  clarification  within  the
stipulation period of 30 days.
 NRI parent(s) (at least one parent) HOLDING
Indian Passport will be exempted from ACA
Clearance, but they have to follow all other
procedures as per the Guidelines.
(4) Matching  of  the Child  Study  Report  with
Home Study Report of FPAP by RIPA
 After  a  successful  matching,  the  RIPA  will
forward  the  complete  dossier  as  per
Annexure  3  to  CARA  for  issuance  of  “No
Objection Certificate”.
(5) Issue  of  No  Objection  Certificate  (NOC)
by CARA
 RIPA shall make application for CARA NOC in
case of foreign/PIO parents only after ACA
Clearance Certificate is obtained.
 CARA will issue the ‘NOC’ within 15 days from
the date of receipt of the adoption dossier if
complete in all respect.
 If  any  query  or  clarification  is  sought  by
CARA, it will be replied to by the RIPA within
10 days.Page 9
9
 No  Indian  Placement  Agency  can  file  an
application in the competent court for intercountry  adoption  without  a  “No  Objection
Certificate” from CARA.
(6) Filing of Petition in the Court
 On receipt of the NOC from CARA, the RIPA
shall file a petition for adoption/guardianship
in the competent court within 15 days.
 The  competent  court  may  issue  an
appropriate order for the placement of the
child with FPAP.
 As per the Hon’ble Supreme Court directions,
the concerned Court may dispose the case
within 2 months.
(7) Passport and Visa
 RIPA has to apply in the Regional Passport
Office  for  obtaining  an  Indian  Passport  in
favour of the child.
 The  concerned  Regional  Passport  Officer
may issue the Passport within 10 days.
 Thereafter  the  VISA  entry  permit  may  be
issued  by  the  Consulate/Embassy/High
Commission  of  the  concerned  country  for
the child.
(8) Child travels to adoptive country
 The  adoptive  parent/parents  will  have  to
come to India and accompany the child back
to their country.
7. Even after the child leaves the country the Guidelines of
2006  contemplate  a  process of continuous monitoring of the
welfare of the child through the foreign placement agency untilPage 10
10
the process of adoption in the country to which the child has
been  taken  is  completed,  which  process  the  Guidelines
contemplate completion within two years.  The monitoring of the
welfare of the child after the process of adoption is complete and
the steps that are to be taken in cases where the adoption does
not materialize  is also contemplated  under  the  Guidelines of
2006.   As the said aspects are not relevant for the purposes of
the present adjudication the details in this regard are not being
noticed.  What, however, would require emphasis, at this stage,
is  that  by  and  large  the  Guidelines  of  2006  framed  by  the
Ministry of Women and Child Development are in implementation
of  the  decision  of  this  Court  in  the  case  of  Lakshmi  Kant
Pandey (supra).
8. Two  significant  developments  in  the  law  governing
adoptions may now be taken note of.  Section 41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter
for  short  the  “JJ  Act”)  was  amended  by  Act  33  of  2006  by
substituting sub-Sections 2, 3 and 4 by the present provisions
contained  in  the  aforesaid  sub-Sections  of  Section  41.   The
aforesaid amendment which was made effective from 22.8.2006
is significant inasmuch as under sub-Section 3 power has beenPage 11
11
conferred  in  the  Court  to  give  a  child  in  adoption  upon
satisfaction that the various guidelines issued from time to time,
either by the State Government or the CARA and notified by the
Central Government have been followed in the given case.  The
second significant development in this regard is the enactment
of the Juvenile Justice (Care and Protection of Children) Rules
2007 by repeal of the 2001 Rules in force.  Rule 33 (2) makes it
clear that “for all matters relating to adoption, the guidelines
issued by the Central Adoption Resource Agency and notified by
the Central Government under sub-section (3) of Section 41 of
the Act, shall apply.”  Rule 33 (3) in the various sub-clauses (a)
to  (g)  lays  down  an  elaborate  procedure  for  certifying  an
abandoned child to be free for adoption. Similarly, sub-rule (4) of
Rule 33 deals with the procedure to be adopted for declaring a
surrendered child to be legally free for adoption.  Once such a
declaration is made, the various steps in the process of adoption
spelt out by the Guidelines of 2006, details of which have been
extracted hereinabove, would apply finally leading to departure
of the child from the country to his/her new home for completion
of the process of adoption in accordance with the laws of the
country to which the child had been taken.  In this regard thePage 12
12
order of the courts in the country under Section 41(3) of the JJ
Act would be a step in facilitating the adoption of the child in the
foreign country.
9. It will also be necessary at this stage to take note of the fact
that the Guidelines of 2006 stand repealed by a fresh set of
Guidelines  published  by  Notification  dated  24.6.2011  of  the
Ministry of Women and Child Development, Government of India
under Section 41(3) of the JJ Act.  The time gap between the
coming into effect of the provisions of Section 41(3) of the JJ Act
i.e. 22.08.2006 and the publication of the 2011 Guidelines by the
Notification dated 24.6.2011 is on account of what appears to be
various  procedural  steps  that  were  undertaken  including
consultation  with  various  bodies  and  the  different  State
Governments.  A reading of the  Guidelines of 2011 squarely
indicate  that  the  procedural  norms  spelt  out  by  the  2006
Guidelines  have  been  more  elaborately  reiterated  and  the
requirements of the pre-adoption process under Rules 33(3) and
(4) have been incorporated in the said Guidelines of 2011.   As a
matter of fact, by virtue of the provisions of Rule 33(2) it is the
Guidelines of 2011 notified under  Section 41(3)  of the JJ Act
which will now govern  all matters pertaining to inter-countryPage 13
13
adoptions  virtually conferring on the said Guidelines a statutory
flavour and sanction.  Though the above may not have been the
position on the date of the order of the learned trial court i.e.
17.9.2010, the full vigour of Section 41(3) of the JJ Act  read with
Rule 33 (2) of the Rules and the Guidelines of 2011 were in
operation on the date of the High Court order i.e. 9.7.2012. The
Notification  dated  24.06.2011  promulgating  the  Guidelines  of
2011 would apply to all situations except such things done or
actions completed before the date of the Notification in question,
i.e., 24.06.2011.  The said significant fact apparently escaped the
notice of the High Court.   Hence the claim of the appellant along
with  consequential  relief,  if  any,  will  have  to  be  necessarily
considered on the basis of the law as in force today, namely, the
provisions of the JJ Act and the Rules framed thereunder and the
Guidelines of 2011 notified on 24.6.2011.  In other words, if the
appellant is found to be so entitled, apart from declaring her to
be natural guardian and grant of permission to take the child
away  from  India  a  further  order  permitting  the  proposed
adoption would also be called for.  Whether the order relating to
adoption of the child should be passed by this Court as the same
was not dealt with in the erstwhile jurisdictions (trial court  andPage 14
14
the High Court)  is an incidental aspect of the  matter which
would require consideration.
10. The facts of the present case, as evident from the pleadings
of the parties and the documents brought on record, would go to
show that the appellant’s case for adoption has been sponsored
by an agency (Journeys of the Heart, USA) rendering service in
USA which is recognized by CARA.  The Home Study Report of
the family of the appellant indicates that the appellant apart
from being gainfully employed and financially solvent is a person
of amicable disposition who has developed affinity for Indian
culture and Indian children.  The appellant, though unmarried,
has the support of her brother and other family members who
have  promised  to  look  after  the  child  in  the  event  such  a
situation becomes necessary for any reason whatsoever.  The
Child  Study  Report  alongwith  medical  examination  Report
prepared by the recognized agency in India has been read and
considered by the appellant and it is only thereafter that she had
indicated  her willingness to adopt the child in question.  Before
permitting  the  present  process  of  inter  country  adoption  to
commence, all possibilities of adoption of the child by an Indian
parent were explored which however did not prove successful.Page 15
15
The matter was considered by the No Objection Committee of
the CARA and as stated in the affidavit of the said agency filed
before this Court, the No Objection Certificate dated 03.02.2010
has  been  issued  keeping  in  mind  the  various  circumstances
peculiar to the present case, details of which are as hereunder :
• “Child Tina was an older female child (aged 7 years when the
NOC was issued) and thus relaxation was permissible as per the
guidelines.
• The Prospective parent was 54 years of age, which is within the
age  up  to  which  adoption  by  foreign prospective  parent  is
permissible after relaxation i.e. 55 years.
• The Prospective Adoptive Parent is otherwise also suitable as
she is financially stable and there are three reference letters
supporting adoption of the child by her. The Home study report
of the prospective parent (Ms.  Stephanie Becker) shows the
child as kind, welcoming, caring and responsible individual with
physical, mental emotional and financial capability to parent a
female child up to age of seven years from India. 
• Procedures such as declaration of the child as legally free for
adoption by CWC Child Welfare Committee (CWC); ensuring
efforts  for  domestic  adoption  and  clearance  of  Adoption
Coordinating Agency; and taking consent of older child had
been followed.
• Follow-up of the welfare of the child was to be properly done
through Journeys of the Hearts, USA, the authorized agency
which had also given an undertaking to ensure the adoption of
child Tina according to the laws in USA within a period not
exceeding two years from the date of arrival of the child in her
new home. The agency has also committed to send follow-up
reports as required. 
• The Biological brother of the prospective parent,  Mr.  Philip
Becker  Jr.  and  his  wife  Ms.  Linda  Becker  have  given  anPage 16
16
undertaking on behalf of the single female applicant to act as
legal guardian of the child in case of any unforeseen event to the
adoptive parent. This is another important safeguard.
• Article 5 from the Office of Children’s Issues, US Department
of State allowing child Tina to enter and reside permanently in
the United States and declaring suitability of the prospective
adoptive parent, was available.”
11. In view of the facts as stated above which would go to show
that each and every norm of the adoption process spelt out
under the Guidelines of 2006, as well as the Guidelines of 2011,
has been adhered to, we find that the apprehension raised by
the intervener, though may have been founded on good reasons,
have proved themselves wholly unsubstantiated in the present
case.  If the foreign adoptive parent is otherwise suitable and
willing, and consent of the child had also been taken (as in the
present case) and the expert bodies engaged in the field are of
the view that in the present case the adoption process would end
in a successful blending of the child in the family of the appellant
in  USA,  we  do  not  see  as  to  how  the  appellant  could  be
understood to be disqualified or disentitled to the relief(s) sought
by her in the proceedings in question.  It is our considered view
that having regard to the totality of the facts of the case the
proposed adoption would be beneficial to the child apart fromPage 17
17
being  consistent  with  the  legal  entitlement  of  the  foreign
adoptive parent.  If the above is the net result of the discussions
that  have  preceded,  the  Court  must  lean  in  favour  of  the
proposed adoption.  We, therefore, set aside the orders dated
17.09.2010 in Guardianship Case No. 2 of 2010 passed by the
learned Trial Court and the order dated 09.07.2012 in FAO No.
425 of 2010 passed by the High Court of Delhi and appoint the
appellant as the legal guardian of the minor female child Tina
and grant permission to the appellant to take the child to USA.
In view of the provisions of Section 41(3) of the JJ Act and to
avoid any further delay in the matter which would be caused if
we were to remand  the  aforesaid aspect  of the  case to the
learned Trial Court, only on the ground that the same did not
receive  consideration  of  the  learned  Court,  we  deem  it
appropriate to pass necessary orders giving the child Tina in
adoption  to  the  appellant.   The  CARA  will  now  issue  the
necessary conformity certificate as contemplated under clause
34(4) of the Guidelines of 2011.  The appeal consequently shall
stand allowed in the above terms.
...…………………………J.
[P. SATHASIVAM]Page 18
18
.........……………………J.
[RANJAN GOGOI]
                                            .........……………………J.
[V. GOPALA GOWDA]
New Delhi,
February 08,  2013.

Sections 306 and 498A, IPC -whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the 18Page 19 society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 15. For the aforesaid reasons, we allow this appeal and set aside the impugned judgment of the High Court and the judgment of the trial court holding the appellant guilty of the offences under Sections 306 and 498A, IPC and direct that the bail bonds executed by the appellant be discharged.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 985 of 2004
Atmaram s/o Raysingh Rathod                           ……
Appellant
Versus
State of Maharashtra                                       …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This  is  an  appeal  against  the  judgment  dated
03.12.2003 of the Bombay High  Court,  Nagpur Bench,  in
Criminal Appeal No.10 of 1991 by which the High Court has
maintained the conviction of the appellant for offences under
Sections 306 and 498A of the Indian Penal Code (for short
‘the  IPC’)  and  the  sentence  of  rigorous  imprisonment  ofPage 2
three years and a fine of Rs.5,000/- for each of the aforesaid
two offences by the Sessions Court.
2. The facts  very  briefly  are  that  a written  report was
lodged by Gorsing Shewa Pawar (hereinafter referred to as
‘the informant’) on 17.07.1988 in the Police Station, Pusad
(Rural).   In  this  report,  the  informant  stated  that  the
appellant got married for the second time to his daughter
Purnabai with the consent of his first wife with a hope to get
a son from Purnabai and he treated her well for the first 2 to
2½  years  but  when  she  delivered  a  female  child,  the
appellant  and  his  family  members  started  beating  and
harassing Purnabai and also did not provide her with meals
and on 16.07.1988, the informant received a message that
Purnabai died by drowning in the well at Bhandari.  The
informant has further stated in the report that he reached
Bhandari in the evening and came to know that Purnabai had
not been given food for two days and was ill-treated with an
intention to ensure that she leave the house and because of
such ill-treatment Purnabai jumped into the well along with
her daughter Nanda and committed suicide.  On the basis of
2Page 3
the written report, an FIR was registered under Sections 306
and 498A of the IPC and after investigation, a charge-sheet
was filed against the appellant, his first wife, his father and
his  mother  and  they  were  all  tried  for  offences  under
Sections 306 and 498A read with Section 34 of the IPC in
Sessions case No.29/1990.
3. At the trial, altogether eight witnesses were examined.
The informant was examined as PW-1, the sister of Purnabai
was examined as PW-4,  the Police Patil of Bhandari was
examined  as  PW-5  and  the  Investigating  Officer  was
examined as PW-8.  At the trial, a written undertaking dated
17.04.1988 signed by the appellant to give equal treatment
to  both  his  wives  was  marked  as  Ext.47  and  a  written
undertaking signed by Purnabai to behave properly in future
was  marked  as  Ext.  48.   The  learned  Sessions  Judge
considered the evidence and, in particular, the evidence of
PW-1  and  PW-4  as  well  as  Ext.47  and  held  that  the
presumption  as  to  abetment  by  the  husband  and  his
relatives  of  suicide  by  a  married  woman  as  provided  in
Section 113A of the Indian Evidence Act, 1872 was attracted
3Page 4
and the appellant, his first wife, his father and his mother
were all guilty of the offences under Sections 306 and 498A
read with Section 34, IPC.  After hearing the accused persons
on the sentence, the learned Sessions Judge sentenced each
of the accused persons to rigorous imprisonment for three
years in respect of each offence and in addition, for a fine of
Rs.5,000/- each in respect of each offence by judgment and
order dated 09.01.1991. Aggrieved, all the accused persons
filed Criminal Appeal No.10 of 1991 before the High Court
and by the impugned judgment dated 03.12.2003, the High
Court set aside the conviction and sentence of the first wife,
the mother and the father of the appellant and acquitted
them of the offences, but maintained the conviction of the
appellant as well as the sentence imposed upon him by the
learned Sessions Judge.
4. Learned counsel for the appellant submitted that the
High  Court  has  relied  on  Ext.47  and  Ext.48  as  well  as
evidence of PW-1 and PW-4 to come to the conclusion that
the  appellant  had  ill-treated  the  deceased  Purnabai  on
account of which she had committed suicide by jumping into
4Page 5
the well along with her daughter.  She submitted that there
is nothing in Exts.47 and 48 to indicate that the appellant
had actually ill-treated Purnabai.  She submitted that Exts.47
and 48 would show that the appellant had undertaken before
the  Panchas to  give  equal  treatment  to  both  his  wives
Purnabai  and  Kesri  and  Purnabai  had  also  similarly
undertaken  before  the  Panchas that  she  would  behave
properly in  future even though  the appellant was having
another wife.  She submitted that the evidence of PW-1 and
PW-4  also  do  not  establish  any  specific  act  of  cruelty
committed  by  the  appellant  because  of  which  Purnabai
committed suicide.  She submitted that the  post mortem
report of the deceased Purnabai (Ext.35) does not show any
injury on her body and it also shows that she had her meals.
She submitted that the appellant has not committed any
cruelty of the nature defined in the Explanation to Section
498A, IPC.  She submitted that the Explanation to Section
113A of the Indian Evidence Act, 1872 is also clear that to
attract  the  presumption  as  to  abetment  of  suicide  by  a
married  woman,  the  husband  must  be  shown  to  have
5Page 6
subjected  the  married  woman  to  cruelty  of  the  nature
defined in Section 498A, IPC and, therefore, the presumption
under Section 113A of the Indian Evidence Act, 1872 was not
attracted in this case.  She submitted that the FIR (Ext.49)
was lodged on 17.07.1988, two days after the drowning took
place on 15.07.1988, because the appellant denied a share
in his properties to PW-1 and this was the defence of the
appellant in his statement under Section 313, Cr.P.C.  She
finally submitted that the evidence of PW-1 and PW-4 would
rather show that Purnabai was depressed and unhappy after
a female child instead of male child was born to her and it is
quite possible that she jumped into the well with the female
child on account of such depression and unhappiness.
5. Learned  counsel  for  the  respondent-State,  on  the
other hand, submitted in his reply that the evidence of PW-1
and PW-4 clearly establishes that the appellant has been
beating the deceased Purnabai and has not been providing
her  with  food  and  because  of  these  cruel  acts  of  the
appellant she committed suicide by jumping into the well
with her daughter. He submitted that the evidence of PW-1
6Page 7
and PW-4 were also corroborated by the FIR lodged by PW-1
as well as the evidence of PW-8.  He submitted that the
presumption  in  Section  113A of the Indian  Evidence Act,
1872 as to abetment of suicide by a married woman is also
attracted  in  this  case  as  the  deceased  Purnabai  has
committed suicide within a period of seven years from the
date of her marriage and the appellant has subjected her to
cruelty.  He submitted that this is, therefore, not a fit case in
which concurrent findings of the trial court and the High
Court with regard to the guilt of the appellant under Sections
306 and 498A, IPC, should be disturbed.
6. Section  498A,  IPC,  and  Section  113A  of  the  Indian
Evidence Act, 1872 are extracted hereinbelow:
“498A. Husband or relative of husband of
a  woman  subjecting  her  to  cruelty.--
Whoever, being the husband or the relative of
the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment
for a term which may extend to three years and
shall also be liable to fine.
Explanation-  For  the  purpose  of  this  section,
"cruelty" means-
7Page 8
(a) any wilful conduct which is of such a nature
as  is  likely  to  drive  the  woman  to  commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical)
of the woman; or
(b)  harassment  of  the  woman  where  such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.”
“113A.  Presumption  as  to  abetment  of
suicide  by  a  married  woman.-  When  the
question is whether the commission of suicide
by a women had been abetted by her husband
or any relative of her husband and it is shown
that she had committed suicide within a period
of seven years from the date of her marriage
and that her husband or such relative of her
husband has subjected her to cruelty, the court
may presume, having regard to all the other
circumstances  of  the  case,  that  such  suicide
had been abetted by her husband or by such
relative of her husband.
Explanation.-- For the purposes of this section,
"cruelty" shall have the same meaning as in
section 498-A of the Indian Penal Code (45 of
1860).”
7. A reading of Section 498A, IPC, would show that if the
husband or relative of the husband of a woman subjected
such  woman  to  cruelty,  they  shall  be  liable  for  the
8Page 9
punishment mentioned therein.  Moreover, the Explanation
to Section 498A, IPC, defines ‘cruelty’ for the purpose of
Section 498A, IPC, to mean (a) any willful conduct which is of
such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or (b)
harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her
to meet such demand.   A reading of Section 113A of the
Indian Evidence Act, 1872 will show that for the purposes of
Section 113A of the Indian Evidence Act, 1872, ‘cruelty’ shall
have the same meaning as in Section 498A, IPC.  Hence, to
convict a husband or any relative of the husband of a woman
or to draw up presumption as to abetment of suicide by a
married  woman  by  her  husband  or  any  relative  of  her
husband in case of suicide committed by a woman within a
period of seven years from the date of her marriage, there
must first be evidence to establish that such husband or the
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relative  of  her  husband  committed  cruelty  of  the  nature
described in clauses (a) or (b) of the Explanation to Section
498A, IPC.
8. Therefore, the main question, which we have to decide
in  this  case,  is  whether  there  is  any  such  evidence  to
establish beyond reasonable doubt that the appellant had
subjected his second wife, Purnabai, to cruelty either of the
nature described in clause (a) or of the nature described in
clause (b) of the Explanation to Section 498A, IPC.  It is not
the case of the prosecution in this case that the appellant
had subjected Purnabai to cruelty of the nature described in
clause (b) of Explanation to Section 498A, IPC, as there is no
allegation  in  this  case  that  the  appellant  had  harassed
Purnabai with a view to coerce her or any person related to
her  to  meet  any  unlawful  demand  for  any  property  or
valuable  security  or  that  he  subjected  Purnabai  to
harassment  on  account  of  failure  by  her  or  any  person
related to her to meet such demand.  We have, therefore,
only to decide whether the appellant treated Purnabai with
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cruelty  of  the  nature  described  in  clause  (a)  of  the
Explanation to Section 498A, IPC.  
9. Clause  (a)  of  the  Explanation  to  Section  498A,  IPC,
defines ‘cruelty’ to mean any wilful conduct which is of such
a nature as is likely to drive the woman to commit suicide or
to  cause  grave  injury  or  danger  to  life,  limb  or  health
(whether mental or physical) of the woman.  Exhibit 47, on
which the High Court has relied on, is the English translation
of the written undertaking given by the appellant before the
Panchas, and is extracted hereunder:
“…. As I was not having son, I got married with
Purnabai from village Bhidongar, in Ganhar for
getting son, about 5 to 6 years back.  As I have
first wife, an bhangad (problems) used to take
place  (between  them)  at  my  home.   As  the
dispute  was  taken  (brought)  before  panchas.
On this day, the panchas advised me to treat
both the wives well.  Henceforth I will give equal
treatment to Purna as well as Kesari, the sisters.
If I commit any mistake in future, I will be bound
by the rules.  Hence this undertaking. ..”
A reading of Ext. 47 would only indicate that the appellant
got married with Purnabai for getting a son and as he had his
first wife also, some problems used to take place between
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Purnabai and his first wife in his house and the dispute was
brought before the  Panchas and the  Panchas advised the
appellant to treat both the wives well.  The appellant had
stated in his undertaking that as the Panchas advised him to
treat both the wives well, he gave an undertaking that in
future he will give equal treatment to Purnabai as well as
Kesari (his first wife) and he will not commit any mistake in
this regard.  Exhibit 48 is an undertaking dated 17.04.1988
given by Purnabai in which she has assured that she would
behave  properly  in  future  but  her  husband  should  also
behave  properly  with  her.   Thus,  Exts.  47  and  48  are
evidence  of  some  misbehaviour  of  the  appellant  towards
Purnabai but the nature of the misbehaviour of the appellant
towards Purnabai has not been stated in these two Exhibits.
10. PW-1 in his evidence, however, has stated that since
the birth of a son from the first wife, the appellant started
beating and ill-treating Purnabai and they were not providing
her food and this he had come to learn from Purnabai.  He
has also stated in his evidence that he had gone to Paradha
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at the house of Shantabai before the death of Purnabai and
some ladies from Bhandari had come there for grinding their
grains in the flour mill and they had reported to him that the
appellant and his family members were beating Purnabai
severely.   He has stated that he, therefore,  went to  the
house of the appellant and found marks of Shiwal on the
hands and thigh of Purnabai and he brought her to Paradha
and he was going to report the matter to the Police Station,
but the appellant and his family members and others came
and told him that the appellant is going to give in writing
that henceforth he will not beat Purnabai.  PW-1 has further
deposed  that  thereafter  the  appellant  executed  the
undertaking  (Ext.47)  dated  17.04.1988  and  Purnabai
executed the undertaking (Ext.48) dated 17.04.1988 before
the  Panchas and  Exts.  47  and  48  were  kept  with  the
Sarpanch and the Police Patil.
11. The aforesaid evidence of PW-1 establishes that the
appellant used to beat Purnabai and was not giving her food
before he executed the undertaking in Ext.47 on 17.04.1988.
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The drowning of Purnabai took place three months thereafter
on  15.07.1988.   For  holding  the  appellant  guilty  of  the
offences under Sections 306 and 498A, IPC, there must be
evidence of wilful conduct of the appellant towards Purnabai
soon before her drowning which could have driven her to
commit  suicide  and  this  is  what  PW-1  has  said  in  his
Examination-in-Chief on what happened before the drowning
of Purnabai:
“Thereafter I took Purana to Bhandari in
the house of accused no.1.  Thereafter I
brought her back to my house for Rasai.
She  complained  that  there  is  illtreatment  going  on  though  it  is
lessened.   She  complained  me  that
accused  was  not  providing  her  with
meals and used to beat her.  She also
told  that  as  accused  do  not  give  her
food she begs for food from others even
then I reached her with the hope that
everything will be settled.   Later on I
received  the  news  of  her  death.   On
hearing dead news of Purana I went to
Bhandari.   I  found  Purana  and  her
daughter dead due to drowning in the
well.  I enquired there at Bhandari and I
came  to  know  that  there  was  lot  of
beating given to Purana and hence she
died on fall in the well.  I came to know
that there was accidental death.  I also
came to know that Purana died along
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with her girl after falling  in the well due
to  ill-treatment  received  by  her  from
accused persons.  Then I went to Rural
P.S. Pusad and reported the matter.  The
report now read over to me is the same.
It’s contents are correct.  It bears my
thumb  impression.   It  is  at  exh.49.
Printed F.I.R. shown to me also bears my
signature.   It  is  at  exh.50.   Police
recorded my statement.”  
12. In the written report (FIR) lodged by PW-1 on which the
prosecution has relied upon for corroboration, it has been
similarly stated:
“So,  I  sent  my  daughter  again  to
Bhandari  and  then  I  brought  my
daughter on the occasion of Rosa.  At
that time I came to know that the said
four  non-applicants  were  again  illtreating and beating my daughter and
not providing her meals too.  I also came
to know that she is required to beg for
food.  Still then, I sent my daughter to
their  house.   On  16.7.88  I  received
message that my grand daughter died
on account of drowning into the well at
Bhandari.  On getting the said message,
I reached there at the time of evening
and  then  I  came  to  know  that  my
daughter Purnabai and grand daughter
died.  On enquiry in the village, I came
to know that my daughter was not given
food  since  last  two  days  and  was  illtreated with an intention that she should
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leave the house and hence my daughter
Purnabai  jumped  into  the  well  and
committed  suicide  with  her  daughter
Nanda.”
It is thus clear from the evidence of the PW-1 and from the
FIR lodged by him that he had no personal knowledge about
the  cause  of  the  death  of  Purnabai  but  on  enquiry  at
Bhandari he had come to learn that there was lot of beating
of Purnabai and no food was given to her and for such illtreatment she had jumped into the well with her daughter.
13. No  witness  of  Bhandari  from  whom  PW-1  made  the
inquiry has been examined by the prosecution to prove such
beating  and  denial  of  food  to  Purnabai  soon  before  she
committed suicide.  PW-4, the sister of Purnabai, has not
deposed that there was any beating and denial of food to
Purnabai soon before her drowning in the well.  PW-5, the
Police Patil of Bhandari, has stated that Purnabai was illtreated by the appellant in his house and he came to learn of
this fact from the father of the appellant Raysingh who also
told him that Purnabai’s father had for this reason taken
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Purnabai to Paradha three months back but the appellant
and his father took four  to five  Panchas to  Paradha and
brought  back  Purnabai.   PW-5  has,  therefore,  also  not
deposed that Purnabai was beaten or not given food because
of which  she jumped into  the well with her  daughter on
15.07.1988.  On the other hand, on a perusal of the  post
mortem examination report (Ext. 35) of deceased Purnabai,
we  find  that  the  Doctor  has  described  Purnabai  as  ‘well
nourished’ and the last meal appears to have been taken by
her  within  six  hours.   Moreover,  the  post  mortem
examination  report  (Ext.  35)  does  not  show  that  the
Purnabai was subjected to any severe beating before her
death.
14. From  the  discussion  of  the  aforesaid  evidence  on
record, we find that the prosecution has not been able to
prove beyond reasonable doubt that the appellant was guilty
of any wilful conduct which was of such a nature as was
likely to drive Purnabai to commit suicide.  Rather, there
appears to be some evidence in the depositions of PW-1 and
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PW-4 (father and sister of Purnabai) that Purnabai was sad
due to a daughter being born to her and a son being born to
the first wife of the appellant.  These circumstances may
have driven Purnabai to commit suicide by jumping into the
well along with her daughter.  Such a consequence from the
mental state of Purnabai cannot be a ground for holding that
the appellant was guilty of cruelty within the meaning of
clause (a)  of the Explanation  to  Section  498A,  IPC.  We,
therefore, hold that the presumption under Section 113A is
not attracted and the appellant cannot also be held guilty of
abetting the suicide of Purnabai.  We have to bear in mind
this note of caution in State of West Bengal v. Orilal Jaiswal
& Anr. [(1994) 1 SCC 73]:
“………the  Court  should  be  extremely
careful  in  assessing  the  facts  and
circumstances  of  each  case  and  the
evidence  adduced  in  the  trial  for  the
purpose of finding whether the cruelty
meted  out  to  the  victim  had  in  fact
induced  her  to  end  the  life  by
committing suicide. If it transpires to the
Court that a victim committing suicide
was  hypersensitive  to  ordinary
petulance,  discord  and  differences  in
domestic  life  quite  common  to  the
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society  to  which  the  victim  belonged
and  such  petulance,  discord  and
differences were not expected to induce
a similarly circumstanced individual in a
given  society  to  commit  suicide,  the
conscience of the Court should not be
satisfied  for  basing  a  finding  that  the
accused charged of abetting the offence
of suicide should be found guilty.” 
15. For the aforesaid reasons, we allow this appeal and set
aside the impugned judgment of the High Court and the
judgment of the trial court holding the appellant guilty of the
offences under Sections 306 and 498A, IPC and direct that
the bail bonds executed by the appellant be discharged.
       
……...……………………….J.
                                                       (A. K. Patnaik)
……..………………………..J.
(Chandramauli Kr. Prasad)
New Delhi,
February 08, 2013.  
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