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Supreme Court: Wife cannot implicate one and all in Domestic Violence case…Quashed against 9 respondents

February 14, 2013 2 comments
Supreme Court of India
Ashish Dixit & Ors. vs State Of U.P. & Anr. on 7 January, 2013
Author: …………………..J.
Bench: H.L. Dattu, Chandramauli Kr. Prasad

, , , ,

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 43 OF 2013

(SPECIAL LEAVE PETITION (CRL.)NO.8522 OF 2010) ASHISH DIXIT & ORS. APPELLANTS VERSUS

STATE OF U.P. & ANR. RESPONDENTS O R D E R

 

1. Leave granted.

 

2. This appeal is directed against the judgment and order dated 05.07.2010 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.8358 of 2008. By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by the respondent no.2-wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the Act, 2005”).

3. In the petition filed by respondent no.2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as

: 2 :

respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.

4. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by respondent no.2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of respondent nos.4 to 12.

5. In view of the above, while allowing this appeal in part, we quash the proceedings as against appellant nos. 4 to 12 in Case No.240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case; only against the husband i.e. Shri Ashish Dixit, S/o. Padmakar Dutt Sharma, her father in law, Shri Padmakar Dutt Sharma, S/o.late Pt.Diwakar Dutt Sharma and Smt.Girja Dixit, W/o.Shri Padmakar Dutt Sharma, her mother in law.

: 3 :

6. We are of the opinion that the direction issued by the High Court, inter-alia, directing the appellants herein to appear before the Trial Court and seek bail is wholly unnecessary. …………………..J.

(H.L. DATTU)

…………………..J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI;

JANUARY 07, 2013.

Madras HC: DV Act : Unless the complainant, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application….Proceedings Quashed

Madras High Court
K. Viswanathan vs Sivamalar on 31 August, 2009

Dated:- 31.08.2009

Coram:-

The Hon’ble Mr. Justice R.REGUPATHI

Crl. O.P. No. 91 of 2009 and

M.P. No. 1 of 2009

K. Viswanathan … Petitioner

vs.

Sivamalar … Respondent

Prayer: Petition filed under Section 482 of the Code of Criminal Procedure for the relief as stated therein.

For Petitioner : Mr.V. Gopinath,

Senior Counsel

For Respondent : Mr. P. Duraisamy

O R D E R

The 5th respondent in the C.M.P filed before the trial court, admittedly driver of the 1st and 2nd respondents is the petitioner herein and he seeks for a direction to call for the records and quash the proceedings in C.M.P. No. 8207 of 2008 filed under Sections 12, 17, 18 and 19 of the Protection of Women from Domestic Violence Act 2005 before the Judicial Magistrate No. 1, Coimbatore, who took the same on file and ordered issuance of summons. The 5th respondent in the C.M.P. No. 8207 of 2008,

3. Learned Senior Counsel for the petitioner submits that admittedly, the petitioner is neither a family member nor having any domestic relationship with the family of respondents 1 and 2 and under such circumstance, he is erroneously included as one of the respondents in the application. By referring to Para 13a of the application, wherein the applicant prays for a declaration to the effect that she is entitled to reside in the shared household and the prayer at Para 13b for a direction to respondents 1 to 5 to hand over gold jewellery and sridhana property in their custody, learned Senior counsel submits that a person can be included as a respondent in an application of this kind only in the event of the aggrieved person establishing the domestic relationship with such person sought to be taken as respondent as a family member living together in the joint family and contended that the petitioner is not a person coming under the purview of "respondent" and he is not in possession and control over the sridhana property; therefore it is a fit case to quash proceedings against him.

4. Per contra, learned counsel for the respondent submits that specific allegations have been made in Para No. 6 of the application to the effect that the petitioner was always acting as if he was also a family member in the household and playing a dominant role by taking important decisions, but curiously respondents 1 to 4 are under the clutches of the petitioner for unknown reasons. It is also alleged that the petitioner even had the audacity to abuse the husband of the respondent herein in front of his parents.

5. Heard the submissions made on either side and perused the materials available on record.

6. The words "respondent" and "domestic relationship" have been defined in 2 (f) (q) of the Protection of Women from Domestic Violence Act, 2005. 2(f): ""Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family" 2(q) ""respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act."

7. Having regard to the operation of the Act as against the person who is sought to be taken as "respondent" in the proceedings initiated thereunder, it must be pointed out that unless the aggrieved person, namely, respondent herein, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application. If the respondent has any grievance against the petitioner, she is always at liberty to initiate proceedings against him before the appropriate forum for any offence committed by him against her, if she is so advised.

8. Considering the facts and circumstance, I do not find any justification on the part of the trial court in including the petitioner as one of the respondents in the application; therefore, the proceeding pending in CMP No. 8207 of 2008 on the file of the learned Judicial Magistrate No. I, Coimbatore is directed to be quashed in so far as the petitioner / 5th respondent is concerned.

9. Accordingly, the Criminal Original Petition is ordered and consequently, miscellaneous petition is closed. Ar

To

1. Judicial Magistrate No. I,

Coimbatore

Categories: DV Judgements

Gujrat HC: DV Act :Family members (respondent 2-6) may not be made to suffer for matrimonial dispute between husband and wife. Relief Granted to them

Gujarat High Court
Mayankkumar vs State on 28 September, 2011
Author: Rajesh H.Shukla,

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Print

 

 

 

 

CR.MA/2422/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

CRIMINAL

MISC.APPLICATION No. 2422 of 2011

=========================================

MAYANKKUMAR

SURESHCHANDRA SHELAT & 5 – Applicant(s)

Versus

 

STATE

OF GUJARAT & 1 – Respondent(s)

========================================= Appearance

:

MR MAYUR RAJGURU for Applicant(s) : 1 – 6. MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR DAKSHESH MEHTA for Respondent(s) : 2,

=========================================

CORAM

:

 

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA

 

 

 

Date

: 28/09/2011

 

ORAL

ORDER

 

 

 

The

present application has been filed by the petitioners, who are the husband and his family members (petitioner No. 1-husband and petitioner Nos. 2-6 – family members) under sec. 482 of the Code of Criminal Procedure for quashing Complaint No. 3026/2010 under the Domestic Violence Act, 2005 pending before the Court of Metropolitan Magistrate, Court No. 1, Ahmedabad, on the grounds set out in the application.

 

 

 

2. Heard

learned advocate Mr. M. Rajguru for the petitioners and learned advocate Mr. Dakshesh Mehta for respondent No. 2.

 

 

3. In

view of rival submissions and considering the details which have been referred giving rise to various litigations and also the facts stated, it requires detailed examination and therefore the matter requires consideration. Submissions have been made by learned advocate Mr. Rajguru that it is an over implication where the complaint has been filed as and by way of abuse of the process of court.

 

 

 

4. On

the other hand, learned advocate Mr. Mehta has pointedly referred to the orders and various details stating that respondent No. 2-wife has been deprived of even legitimate right of maintenance and the husband has not cared to even remain present in the proceedings and has successfully avoided remaining present even in the execution proceedings. He has also stated that the properties have been disposed of denying the right to respondent No.2-wife.

 

 

5. However,

as could be seen, petitioner No.1-husband may be responsible for the quarrel between him and respondent No. 2 wife regarding matrimonial ties, but as it appears, prima facie, that for his defaults the family members may not be made to suffer by such further offshoots and the proceedings. In the circumstances, without any further elaboration, the following order is passed:

 

 

Rule.

Expedited. Ad-interim relief in terms of para 3(b) qua petitioner Nos. 2 to 6 (family members). It is also directed that petitioner No. 1-husband shall be obliged to deposit the amount of maintenance before he could be heard in the matter.

 

 

It

is clarified that it will be open for respondent No. 2 complainant-wife to proceed in accordance with law for recovery of the amount of outstanding maintenance from petitioner No. 1 husband.

 

 

D.S.

permitted.

 

 

 

 

 

(Rajesh

H. Shukla, J.)

(hn)

 

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Categories: DV Judgements

AP HC: Respondents 2 and 3 and the complainant did not live together in a shared house…DV act proceedings quashed

November 3, 2012 1 comment
Andhra High Court
State Of A.P., Rep. By P.P. &Amp; … vs Counsel For The Petitioner: Sri …

CRIMINAL PETITION No.4140 of 2010

2-8-2012

Nagamuthula Kondaiah

State of A.P., rep. by P.P. & another.

Counsel for the Petitioner: Sri P.SRIDHAR REDDY

Counsel for the Respondent No.1: The Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

ORDER:

1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of II Additional Judicial Magistrate of First Class, Kothagudem.

2. The petitioner is the respondent and the second respondent is the complainant in the DVC case. The respondent filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioner herein with a plea to restrain him from dispossessing her from shared household and also to pay compensation.

3. For the sake of convenience, I refer the parties as arrayed in the DVC. It is pleaded and alleged in the complaint as follows.

4. (a) The complainant is the legally wedded wife of Chembeti Chinna Koteshwar Rao, whereas their marriage took place as per Hindu Rites and Customs on 15.11.2008. In fact, her husband was first married to one Uma Maheshwari, daughter of the respondent on 11.8.2000 and a girl by name Keerthi who is aged 7 years was born to them. On 7.3.2008 Uma Maheshwari died. The respondent used to reside in their house as family member. In fact he was looking after the affairs of the house. Her husband reposed implicit confidence on the respondent in all respects. Factually, the husband of the petitioner married her as she was a relative of him and also for taking necessary care of the minor. According to the complainant, further she and her husband have been taking care of the minor. The respondent got no interest in the welfare of the minor. On the other hand, he made several efforts to grab the amounts kept in the name of the minor girl.

(b) She alleges that apart from that, the respondent has also been making efforts to subject her to domestic violence one way or the other for the purpose of ruining the matrimonial house. The petitioner is always under threat and danger in the hands of the respondent. While such circumstances existed, on 30.6.2009 the respondent along with some anti-social elements entered the house and threatened her with dire consequences and expressed his intention to kidnap the minor. Apart from that on 1.7.2009, the respondent attempted to kidnap the minor and in that context, criminally intimidated her again threatening her with dire consequences. Later, she informed about the incident to her husband, following which they gave a report in Palvancha Police Station, which was registered in Cr.No.170 of 2009 under Sections 363, 511, 506 read with Section 34 IPC and then the respondent was arrested by the police. She claims that because of the conduct of the respondent, her health is endangered. It is also stated that the respondent left the sharing roof of the petitioner’s matrimonial house, but he is continuously making an onslaught to wreck vengeance against the family.

5. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.

6. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Act’ are important.

(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. So existence of domestic relationship and living in shared house as defined in Sections 2(f) and 2(s) of the Act are the conditions precedent for the aggrieved party to initiate proceedings under the Act. (b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. The meaning of the proviso can be better understood while analyzing what is meant by domestic relationship.

(c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thereby to constitute domestic relationship in between two parties, they should have lived in a shared house and they are related by consanguinity marriage or through a relationship in the nature of marriage, adoption or as members of a joint family. The person aggrieved, covered by the proviso under Section 2(q) falls within the ambit of the definition of domestic relationship being a relative of the respondent by marriage.

(d) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. Section 3 of the Act contemplates "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if-

(a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."

(e) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Significantly, it is emphasized that to constitute a shared household, it must be a household where the aggrieved person lives or lived in a domestic relationship subject to the other formalities incorporated therein.

7. Thereby the main requirements here are as to whether the complainant and the respondent lived together in a shared house and whether the complainant is related to the respondent by consanguinity, marriage or through a relationship in the nature of marriage, adoption or being a member of a joint family who lived together as envisaged in Section 2(f) with regards to domestic violence. Pertinently, the daughter of the respondent i.e the first wife of the husband of the complainant died, thereby the first marriage of the husband of the complainant does not exist now. Thus, the complainant is altogether a different person, who got no relationship with the respondent by virtue of any marriage otherwise or by consanguinity or by being a member of a joint family within the meaning of section 2(f). What is envisaged under the proviso in Section 2(q), which section defines what is meant by ‘respondent’ that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against a relative of the husband or male person is well within the ambit of the definition of domestic relationship only. In other words, when domestic relationship as defined in Section 2(q) is one of the conditions to file an application under the Act, a relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent in this case.

8. With regards to the question of living in a shared house as defined in Section 2(s), the respondent must have a right to live in the house or allowed to live in the house under an obligation having domestic relationship as contemplated in Section 2(f) with the other inmates of the house which is one of the conditions to initiate the proceedings under the Act. Importantly in the definition of shared house also it is emphasized that the person aggrieved must have lived in a shared house having got domestic relationship which in fact does not include a person like the respondent herein subject to the formalities mentioned. That apart, neither the complainant nor her husband got any obligation to allow him to reside in the house. It is not a case of husband keeping the respondent in the house aiding the respondent to harass the complainant, rather it is admittedly a case of both the complainant and her husband living together harmoniously and both of them facing the alleged conduct of the respondent. If he is residing in the house unwantedly, they can take measures to send him out. Thus, as the respondent cannot be brought within the purview of the provisions enumerated that debars the complainant to file the complaint.

9. In addition to the discussion made above, the complaint is based only on surmises and conjectures. There are no specific allegations, in other words, there are only bald allegations against the respondent. It clearly appear that false allegations were made against the respondent for some purpose. It is something unbelievable in view of the circumstances of the case that the respondent preferred to stay in the house of the complainant and her husband after the death of his daughter, who was the first wife of the husband of the complainant. It is claimed by the respondent that the husband of the complainant has filed D.W.O.P.No.777 of 2009 on the file of the Court of Principal District Judge, Khammam for appointing him as the Guardian of the minor and he has also filed O.S.No.169 of 2009 on the file of the Court of Principal Senior Civil Judge, Kothagudem for damages against him on the ground that he made derogatory allegations against him in another legal proceedings and he also gave report to the Station House Officer, Palvancha Police Station and got him arrested, which establish that the complainant and her husband are bent upon to harass him to force him to accept their terms.

10. Hence good grounds are made out to quash the proceedings in the DVC. No body should be tried or enquired into unnecessarily in any proceeding. If it is done, it is nothing but abusing the process of law and harassing him or her.

11. In the result, the criminal petition is allowed and the impugned proceedings in the D.V.C.No.1 of 2010 are quashed.

______________________

G. Krishna Mohan Reddy, J

Date: 2.8.2012

Note:

L.R. copy be marked.

B/o

DA

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.4140 of 2010

2.8.2012

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.4140 of 2010

Date: 2.8.2012

Between:

Nagamuthula Kondaiah

.. Petitioner/Accused

And

The State of A.P., rep. by its

Public Prosecutor and another.

.. Respondents

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.5558 of 2009

ORDER:

1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of Additional Judicial Magistrate of First Class, Armoor, Nizamabad district.

2. The petitioners are the respondents 1 to 3 and the second respondent herein is the complainant in the DVC case. For the sake of convenience, I refer the parties as arrayed in the DVC.

3. The complainant filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioners herein to pass protection orders, residence order, maintenance order, custody order and to pay monetary relief compensation order and any other reasonable order respectively.

4. The claim of the complainant is as follows.

Her marriage with the first respondent was performed on 14.7.2008 at Tirupati. Before the marriage, the first respondent was engaged to another girl belonging to Ramadugu, by reason of which, he expressed his unwillingness to marry her and therefore the engagement was cancelled subject to paying damages. For two days after the marriage, the first respondent was cordial with her. Later, the parents of the first respondent i.e. respondents 2 and 3 started harassing her expressing that she was not suited to the first respondent and if another girl was married to the first respondent, they would have got a dowry of Rs.20.00 lakhs with the help of which, the husband of their daughter i.e. the fourth respondent could have been sent to foreign countries for getting better jobs. Further it is alleged that the respondents 1 to 4 harassed her asking her to leave the house voluntarily and also suggested her to marry another male person. Further, she was not allowed to take coffee, breakfast and launch by the respondents and she was also not allowed to speak to the first respondent and lead marital life with him. It is further alleged that whenever she was wearing good clothes, they used to irritate her saying where you were going. It is also alleged that the fourth respondent pushed the complainant out of the house while asking her to leave the house expressing that they would conduct another marriage to the first respondent after getting rid of her. It is further alleged unable to bear the torture of the respondents, the complainant left the house and has been staying with her parents house.

5. Learned counsel for the respondents would contend that the marriage between first respondent and the complainant is in dispute, by reason of which alone, the domestic violence case is not maintainable. Further the complainant and the first respondent never lived together and there was no consummation of marriage.

6. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.

7. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) are to be considered.

(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. Thereby the main criteria to file the case is that there should be domestic relationship between the person aggrieved and the respondent. It necessitates to understand what is domestic relationship in this context.

(b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; (c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. So, to satisfy this definition both should have lived or live in a shared house and they are related by consanguinity marriage etc.

(d) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

(e) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. This is the criteria in fact to grant the reliefs under the Sections 18 to 22.

(f) Section 3 of the Act reads – "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if- (a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."

8. From the pleas taken, it appears that after the marriage, the first respondent and the complainant lived together. There is no basis to say that the respondents 2 and 3 and the complainant lived together in a shared house as defined though no doubt the other ingredients are satisfied. On this ground, the complaint is not tenable and hence ultimately the proceedings are to be quashed so far as the respondents 2 and 3 are concerned. In the result, the petition is dismissed so far as the first respondent is concerned and is allowed so far as the other respondents are concerned.

______________________

G. Krishna Mohan Reddy, J

Categories: DV Judgements

Bombay HC: DV act proceedings cannot be inititated against grand sons to claim monetary and medical relief

Bombay High Court
Ganesh S/O. Rajendra Kapratwar vs The State Of Maharashtra on 10 February, 2010
Bench: P. R. Borkar

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 892 OF 2009

 

1. Ganesh s/o. Rajendra Kapratwar .. Petitioners Age. 50 years, Occ. Business,

R/o. Talgalli, Degloor,

Tq. Degloor, Dist. Nanded.

2. Abhijeet s/o. Ganeshrao Kapratwar

Age. 24 years, Occ. Service,

R/o. As above.

3. Parijeet s/o. Ganeshrao Kapratwar

Age. 21 years, Occ. Education,

R/o. As above.

Versus

1. The State of Maharashtra .. Respondents

2. Sow. Shantabai w/o. Rajendra Kapratwar

Age. 66 years, Occ. Household,

R/o. Talgalli, Degloor,

Tq. Degloor, Dist. Nanded.

Shri Y.R. Barhate, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent No.1/State. Shri B.G. Deshmukh, Advocate for respondent No.2. CORAM : P.R. BORKAR,J.

DATED : 10.02.2010

(2)

ORAL JUDGMENT :-

 

1. This is a petition for quashing and setting aside proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” for brevity), against the petitioners at the behest of respondent No.2 bearing Misc. Criminal Application No. 75 of 2009, pending before the Judicial Magistrate, First Class, Degloor and also for quashing and setting aside order dated 26.08.2009, taking cognizance of the complaint and issuing notice to the petitioners.

2. Brief facts giving rise to this petition may be stated as below :-

. Admittedly respondent No. 2 is mother of petitioner No.1 and petitioner No.1 is father of petitioner Nos. 2 and

3. It is also not disputed that respondent No.2 has two more sons besides petitioner No.1. Respondent No.2 approached the Court of Judicial Magistrate, First Class, Degloor under section 12 (1) of the Domestic Violence Act. It is stated (3)

therein that respondent No.2 is residing with her second son Anil. Her youngest son Ram is serving at Chandigarh, Haryana along with his family. Petitioner No.1 has his business of finance. His elder son Abhijeet who is petitioner No.2 is serving in Delhi as an Engineer and earning Rs. 30,000/- per month. However, the petitioners are not providing maintenance to respondent No.2. It is further stated that the petitioners are disputing with respondent No.2 on trifle matters and causing her mental torture. The husband of respondent No.2 purchased a plot at Vishal Nagar, Degloor and constructed a house. But the petitioners were threatening to dispossess her forcibly and she is likely to lose shelter. It is further stated that respondent No.2 is suffering from so many diseases such as blood pressure. As there is cataract in her eye, doctor advised surgery. Due to lack of money, respondent No.2 is unable to undergo surgery and therefore she wanted maintenance, so also medical expenses from the petitioners.

 

3. Along with petition the original application under Domestic Violence Incident Report, Application under Section 23 (1) of the Domestic Violence Act and affidavit are (4)

enclosed. Considering the documents the learned Judicial Magistrate, First Class, Degloor, issued notices to the petitioners by order dated 26.08.2009 and same is challenged in this matter.

 

4. This Court by order dated 1st October, 2009 refused to entertain the petition so far as petitioner No.1 is concerned and therefore the petition was dismissed as against petitioner No.1. So far as petitioner Nos. 2 and 3 are concerned, they being grand-sons of respondent No.2, the petition is to be considered and notice before admission was issued to respondent No.2

 

5. Heard Adv. Shri Y.R. Barhate for the petitioners, A.P.P. Shri K.M. Suryawanshi for respondent No.1 and Adv. Shri B.G. Deshmukh for respondent No.2.

 

6. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission.

7. The learned advocate for the petitioner argued that (5)

petitioner Nos. 2 and 3 are grand-sons of respondent No.2 and as such during lifetime of petitioner No.1 i.e. their father, they are not liable to pay maintenance, nor they are duty bound to provide medical expenses for cataract operation of respondent No.2. He also pointed out that it is not case of respondent No.2 that the petitioner No.1 is not in a position to pay maintenance or he is not able to pay medical expenses because of old age, unemployment or disability etc. It is further argued that when petitioner No.1 is there, respondent No.2 will not be entitled to get medical expenses or maintenance from petitioner Nos. 2 and 3. Thus proceedings under the provisions of Domestic Violence Act against petitioner Nos. 2 and 3 is an abuse of process of law.

8. It is argued that petitioner No.2 is residing at Nioda, (U.P.) and he is serving there and not residing at Degloor; whereas petitioner No.3 is residing with petitioner No.1 at Degloor. On the other hand the learned advocate for respondent No.2 argued that as per Section 2-A of the Domestic Violence Act “aggrieved person” is defined as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any (6)

act of domestic violence by the respondent. Phrase “domestic relationship” is defined under section 2 (f) of the said Act as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. “Domestic violence” is defined in section 3 of the Act.

9. The only allegation regarding domestic violence is that the petitioners quarreled with respondent No.2 on petty matters and/or threatened to dispossess her from the house, which was constructed by her husband on the plot purchased by him. It is nobody’s case that the cataract which requires surgical operation is a result of any domestic violence. So far as maintenance and medical expenses are concerned, section 20 of the Domestic Violence Act is relevant and it lays down that while disposing of application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic (7)

violence and such relief may include, but not limited to the medical expenses.

 

10. In this case there is no dispute that petitioner No.1 Ganesh was liable to pay maintenance and he would also be liable to incur medical expenses as mentioned in section 20 (1) (b) of the Domestic Violence Act. However, so far as petitioner Nos. 2 and 3 are concerned, under Hindu Adoptions and Maintenance Act, 1956, as grand-sons they would have been liable to pay maintenance under section 22 (1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not not been alive. When the father of petitioner Nos. 2 and 3 is alive and is capable of paying maintenance, section 22 (1) of the Hidu Adoptions and Maintenance Act, will not be applicable and under section 20 of the Hindu Adoptions and Maintenance Act, petitioner No.1 would be liable to pay maintenance to his mother i.e. respondent No.2. As per section 20 (b) of the Domestic Violence Act, the maintenance includes even medical attendance and treatment.

11. So in the above said circumstances, the proceedings under section 12 (1) may not be tenable against petitioner (8)

Nos. 2 and 3 so far as relief of maintenance and medical expenses are concerned. However, residence order under section 19 of the Domestic Violence Act can be passed against all the petitioners. Section 17 which recognizes right to reside in a shared house. It is argued before this Court by the learned advocate for the petitioners that respondent No.2 has been residing separately for 10 years. In-fact, in the Domestic Violence Incident Report, in para 4 it is specifically stated that applicant has been residing with her second son Anil. However, this would be a question of fact and the parties will have to go before the Magistrate, so far as direction is sought against forcible dispossession is concerned. It would be a question of fact whether for 10 years respondent No.2 has been residing separately, and there is threat of her dispossession from the house as claimed.

12. So, in these circumstances, this petition is allowed partly. The petition is dismissed so far as petitioner No.1 is concerned as stated earlier. The proceedings against petitioner Nos. 2 and 3 may proceed, further only in respect of reliefs which could be granted in sections 18 and 19 of the Domestic Violence Act. (9)

 

13. The Criminal Writ Petition accordingly disposed of. [P.R. BORKAR,J.]

snk/2010/FEB10/crwp892.09

Categories: DV Judgements

Delhi HC: If Family members did not stay together with complainnant as joint family and stayed separately, cannot be made respondent to the DV act

Delhi High Court
Sonia Chauhan Raghove vs Sanjive Raghove & Ors on 7 February, 2012

$~18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 452/2012

% Judgment delivered on: 7th February, 2012

SONIA CHAUHAN RAGHOVE ….. Petitioner Through : Mr.M.B. Singh, Adv.

versus

SANJIVE RAGHOVE & ORS ….. Respondent Through : NEMO.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

Crl.M.A. 1565/2012(Exemption)

Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.

Crl.M.A. 1566/2012(Delay)

Delay condoned.

Criminal M.A. stands disposed of.

+ Crl. M.C. 452/2012

1. Vide the instant petition, the petitioner has challenged the impugned judgment dated 15.11.2011 passed by ld. ASJ (01), District- West Delhi and order dated 16.08.2010 passed by ld. MM in

Crl.M.C.No.452/2012 Page 1 of 6 Complaint Case no. 278/01/2010, filed under Section 12(1)(3(4)(5) read with Sections 18,19,20 and 22 read with Rule 6(1) of the Domestic Violence Act, has issued summons only against respondent no. 1 i.e. husband of the complainant and declined to issue summons against respondent no. 2 to 5.

2. I note in order dated 16.082010, ld. MM of Mahila Court, West Delhi has recorded that respondent no. 1 Dr. Sanjeev Raghav, husband of the applicant, who is residing at Rewari, Haryana. Respondent no. 2 and 3 are residing separately and cannot be stated to be in domestic relationship with the applicant. Therefore, ld. Trial Judge not preferred to issue summons against the aforesaid respondents.

3. Similarly, respondent no. 4 is residing in Delhi. She is the married sister in law, who does not share any domestic relationship with the applicant. Therefore, respondent No.4 has also not been summoned.

4. As far as the respondent no. 5 is concerned, who is stated to be the friend of respondent No.1 and not a relative, therefore respondent No.5, has also been summoned.

5. Being aggrieved by the order dated 16.08.2010 the petitioner has challenged the aforesaid order passed by ld. MM before the court of Sessions.

6. Vide order dated 15.11.2011, ld. ASJ after considering the fact has held that respondent no. 1 is the husband of the applicant and respondent no. 2 to 4 are the father-in-law, mother-in-law and sister-in- law of the applicant respectively and respondent no. 5 is the colleague of respondent no. 1. It is alleged in the application that petitioner had

Crl.M.C.No.452/2012 Page 2 of 6 married with respondent no. 1 on 10.03.2004. After the marriage, they lived together as husband and wife at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. It is further alleged that she was harassed, humiliated and ill-treated by respondent no. 1 to 4 for not fulfilling their demands of dowry. They hatched a conspiracy to turn the complaint out of the matrimonial home and while acting on the same, respondent no. 1 had started applying for the job outside Chandigarh.

7. I note that ld. ASJ, has perused the impugned order dated 16.08.2010, wherein it is recorded that respondent no. 2 to 4 cannot be summoned as they cannot be stated to be in domestic relationship with the complainant. Respondent no. 5 has not been summoned as he is a friend of respondent no. 1 and not the relative.

8. I note ld. ASJ has also dealt the issue raised by ld. Counsel for the petitioner and has referred Section 2 (f) of the Act that respondent no. 2 to 4 being the blood relatives of respondent no.1 and with whom petitioner lived immediately after her marriage fall within the domestic relationship.

9. It is further submitted by the ld. Counsel for the petitioner that as per the provisions of Section 2 (q) of the Act, the male partner of the respondent is liable for violation of the Act. Respondent no. 5 being the business partner of the respondent no. 1 is liable to summoned.

10. Section 2 (a) of the Act defines aggrieved persons. For the convenience, said Section is reproduced as under:- “Aggrieved person means any woman who is, or has been in a domestic relationship with the respondent

Crl.M.C.No.452/2012 Page 3 of 6 and who alleges to have been subjected to any act of domestic violence by the respondent”

11. I note, ld. Addl. Sessions Judge has been guided by the case titled as Vijay Verma vs. State N.C.T of Delhi & Anr. decided by this Court in 2010 (4) JCC 2377 wherein it is recorded as under:

“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:

“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become Crl. M.C. No. 3878 of 2009 Page 3 of 7 aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot Crl.M.C.No.452/2012 Page 4 of 6 be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married Crl. M.C. No. 3878 of 2009 Page 4 of 7 and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time”.

Crl.M.C.No.452/2012 Page 5 of 6

12. It is clear from the judgment recorded by ld. ASJ that complainant had admitted in her application under Section 12 of the Act, that had stayed together at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. However, respondent no. 2 & 3 are living together separately from the petitioner. Respondent no. 4 is the married sister and is also living separately from the petitioner.

13. There is no allegation in the application, which would show that petitioner along with respondent no. 1 and respondent no. 2 to 4 had lived together as a joint family.

14. As respondent no. 5 is concerned, he is alleged to be a business partner of the respondent no. 1. Respondent no. 5 being the business partner of the respondent no. 1 does not fall under the category of the male partner as provided by the proviso to Section 2 (q) of the Act.

15. In the view of above, I find no discrepancy in the order passed by the ld. Trial Courts, therefore I refrain to interfere with the same.

16. Accordingly, the instant petition is dismissed.

17. No order as to cost.

SURESH KAIT, J

FEBRUARY 07, 2012

Jg

Crl.M.C.No.452/2012 Page 6 of 6

Categories: DV Judgements

AP HC: Proceedings under the DV Act are not maintainable against the female members, the proceedings are liable to be quashed

November 2, 2012 1 comment
Smt. Menakuru Renuka And Others. vs Smt. Menakuru Mona Reddy. on 22 October, 2008

THE HON’BLE SRI JUSTICE P.SWAROOP REDDY

Criminal Petition No. 4106 of 2008

22-10-2008

Smt. Menakuru Renuka and Others.

Smt. Menakuru Mona Reddy.

2.State of A.P. rep. By Public Prosecutor,

High Court of Andhra Pradesh, Hyderabad.

Counsel for Petitioners : C.Praveen Kumar.

Counsel for Respondent1: K.M.Mahender Reddy.

:Order:

This petition under Section 482 Cr.P.C. is filed by the petitioners, who are respondent Nos. 2 to 4 in D.V.C. No. 1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The first respondent herein, who is the complainant (herein after called as the complainant) in the above D.V.C., filed the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) claiming reliefs under Sections 18, 19 and 20 of the Act.

2. According to the complainant, her marriage with M.S. Mahender Reddy son of the first and second petitioners and the brother of the third petitioner herein was performed on 29.06.1997. According to the complainant, huge amount to a tune of Rs.1.00 crore was given to the petitioners apart from several other articles. After the marriage,

the spouses lived in United States of America for some time. There was harassment by the husband, even after the birth of a child. Even after they returned to India, there was harassment by the husband, as well as parents-in-law, including the sister-in-law. It is the case of the complainant that not only she, but her father was assaulted by the present petitioners. In the D.V.C., she sought reliefs of separate residence, compensation of Rs.8.00 crores and Rs.1.50 Lakhs towards house hold expenses.

3. The contention of the petitioners is that even if the entire allegations in the complaint are taken to be true also, the provisions of the Act would not attract against present petitioner Nos. 1 and 3, as under Section 2 (q) of the Act, women are not liable and the reliefs that are now being claimed by the petitioners can be granted against the husband only and not from any other member of the family, including the present second petitioner, father-in-law. It is also the contention of the petitioners that the complainant has also filed a case against the petitioners and her husband under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act in Crime No.77 of 2008 of Pulivendula Police Station that was registered on 12.6.2008, which perhaps is a counter blast to the report given by the second petitioner herein at Varthuru Police Station, Bangalore City on 6.6.2008.

4. A reading of the complaint given to the Protection Officer would show that the complainant was continuously harassed at USA, as well as in India, in several ways. While they were in USA, the present petitioners – parents-in-law and sister-in-law were instigating her husband to harass her and after they came to India also, all the family members of the husband, including the sister-in- law harassed her and they even assaulted her and her father. In the DVC, the complainant claimed protection under Section 18; provision for residence under Section 19; maintenance under Section 20 and compensation under Section 22 of the Act.

5. In the counter filed on behalf of the first respondent, the allegations in her complaint are repeated mostly and it is contended that the acts of the present petitioners and her husband attract the provisions of the Protection of Women from Domestic Violence Act, 2005; proviso to Section 2 (q) makes women also liable, her husband, parents-in-law and sister-in-law are liable under this Act. According to her, the third petitioner herein, her sister-in-law, used to influence her husband and other family members; she along with her parents instigated and abetted physical violence against her and that criminal cases by both sides have nothing to do with the present case.

6. Learned Senior Counsel – Sri C. Padmanabha Reddy, appearing for the petitioners contends that in view of the provisions of Section 2 (q) of the Act, women are not liable and for that reason the proceedings against them have to be quashed. It is the next contention of the learned senior counsel that the relief claimed in the DVC cannot be claimed against any of the petitioners and for that reason also the proceedings have to be quashed against the petitioners.

7. On the other hand, Sri D. Prakash Reddy, learned Senior counsel appearing for the respondent, contends that in view of proviso to Section 2 (q) of the Act, the DVC is maintainable against women i.e., petitioner Nos.1 and 3 also and the claims made by the first respondent are maintainable against all the petitioners herein, who are the

parents-in-law and sister-in-law.

8. Now, two questions would arise for consideration: — First is whether the proceedings under the Domestic Violence Act are maintainable against women in view of Section 2 (q) of the Act; and

– Second would be whether the reliefs claimed by the first respondent- complainant are maintainable against the petitioners herein.

9. As far as the first question is concerned, Section 2 (q) of the Act reads as under:

“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”.

10. Thus, the Section says “respondent” means any adult male person, there by excluding women altogether; but the proviso provides for filing complaint against the relatives of the husband or a male partner. In view of the same, the learned senior counsel appearing for the first respondent wife contends that women are also liable.

11. As contended, the proviso to Section 2(q) is giving scope for including female relatives of the husband also. Here, any doubt as to whether a female relative can be included, perhaps, is clear from the main Section 2 (q), it covers, the persons having domestic relationship.

As per Section 2 (f) of the Act, “domestic relation” would “include persons that any time lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family”. Thus, this would cover close members of the husband’s family like mother-in-law, sister-in-law, co-sisters etc. Thus, thereby excluding them (female members of the domestic relationship) from being the respondents, when the Section says adult male persons of the domestic relationship are included, female members of the domestic relationship have to be automatically excluded or else Section 2 (q) of the Act would have been “respondent’ means “any adult person” instead of “any adult male person”. Thus, the question of selfsame female member in domestic relationship excluded as respondent in view of the contents of the main provision again being included under the proviso to the Section may not arise. Therefore, it has to be treated that the proviso intends to include only male persons other than those in domestic relationship also. There appears to be unintentional omission to specifically excluding women in the proviso or it may be because main Section makes it clear that only male persons can be respondents, it is not again specified in the proviso.

12. Clause 4 (1) of the Statement of Objects and Reasons of the Act reads as follows:

“It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Event hose women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

Thus, it would not enable a female relation of husband or a male partner to file a complaint against wife or female partner.

13. As per Section 2 (a) of the Act, “aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. As per Section 2 (f) “domestic relationship” as already referred is “a relationship between two persons, who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Thus, when Section 2 (a) and (f) of the Act are read together, a case of Domestic Violence can be filed by any woman in Domestic relationship, not only by the wife. Wife is generally taken as the wife of the main respondent, who again is, mostly, a son in the family. The above referred Clause 4 (1) of the Statement of Objects and Reasons and Section 2(a) of the Act clarifies that even those women, who are sisters, widows, mothers and single women, living with the abuser are entitled to legal protection under the Act. Thus aggrieved sisters and mothers also can file a DVC and when the intention of the Act is to prevent any female relation of the husband or the male partner to file a DVC against the wife or the female partner, when a DVC is filed by a wife against the brother of her husband, when a sister or mother filed a DVC under the Act against several male members of the family, the question would be who would be wife or female partner that would be entitled to immunity. In such an event, all the wives against whose husbands the DVCs are filed are obviously entitled to immunity. Here, a question may arise as to when DVC is filed only against a female without including her husband like the third petitioner herein or against unmarried girls, what would be the position. My answer is, the intention of the Act is to altogether exclude women, when most women are excluded there is no question of the Act intending to include people like unmarried girls. Thus, it appears that the intention of the Act is to exclude women altogether.

14. In Ajay Kant v. Alka Sharma1, a single Judge of Madhya Pradesh High Court held that “the persons referred to in the proviso of Section 2 (q) of the Act are the persons against whom a complaint can be filed under Sections 31(2) and 33 of the Act, that as there is no definition for the word “complaint” in the Act and, since as per Section 2(d) Cr.P.C., complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under Cr.P.C. that some person, whether known or unknown, has committed an offence, but does not include a police report, that a complaint can be filed for two offences mentioned in Sections 31(2) and 33 of the Act and the word “complaint” that appeared in proviso to Section 2(q) of the Act is only to give right to the aggrieved women to give complaint for contravention of Sections 31(2) and 33 of the Act, but not to include them as respondents in a DVC.

15. There appears to be some confusion in the above decision, as 31(1) of the Act reads that “a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable………”, which again shows that the penalty can be only against the respondent and the question is who is respondent. Section 33 of the Act contemplates action against protection officer, who fails to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause. Here again, the question of failing to discharge the duties of protection officer would arise only in relation to a respondent in the DVC, thereby leading to the same confusion as to who is respondent.

16. Here, it is pertinent to refer to Section 2 (o) of the Act, which says “protection order” means an order made in terms of Section 18′ and Section 18 of the Act provides that the order is contemplated only against the respondent.

17. In the above circumstances, the decision in Ajay Kant’s Case (Supra 1) may not be of any substantial guidance.

18. In view of my above discussion, I hold that female members cannot be made respondents in the proceedings under the Act.

19. Coming to the question of the reliefs claimed by the first respondent before the trial court under Sections 18 to 22 of the Act are concerned – Section 18 of the Act deals with grant of a protection order from domestic violence; from alienating any assets, operating bank lockers etc. which can be definitely granted against the present second petitioner – father-in-law. An order under Section 19, an order for residence, can also be granted against the second petitioner. The reliefs under Sections 20 and 22 also can be granted against the second petitioner, father-in-law.

20. Learned senior counsel appearing for the second petitioner relied on a decision of our High Court in Mohammed Maqeenuddin Ahmed v. State of A.P.2. This is a case where compensation for medical expenses was granted against father-in-law. Perhaps, the above decision is not applicable to the facts of the present case, in view of the nature of the claims made by the complainant herein. In the circumstances, I hold that the reliefs can be granted against the second petitioner.

21. In view of the above finding, as the question of maintainability of the proceedings against the female members is held in favour of petitioner Nos. 1 and 3 herein, holding that proceedings under the Act are not maintainable against the female members, the proceedings are liable to be quashed, as far as petitioner Nos.1 and 3 herein are concerned. Accordingly, the present petition is allowed to the extent of petitioner Nos.1 and 3, quashing the proceedings pending against them in D.V.C. No.1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The petition in so far as it relates to the second petitioner is hereby dismissed.

22. In the result, the Criminal Petition is ordered accordingly.

?1 2008 CRLJ 264

2 2007 CrlLJ 3361

http://indiankanoon.org/doc/634933/

Categories: DV Judgements

Panjap&Harayana HC: Disowning son will not help him in matrimonial cases

Rajinder Kumar Dhingra And Others vs Sunaina on 1 August, 2012

CRM No.M-9277 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM No.M-9277 of 2012

Date of decision : 01.08.2012

Rajinder Kumar Dhingra and others

…Petitioners

Versus

Sunaina

…Respondent

CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: None.

JITENDRA CHAUHAN, J. (Oral)

The present petition under Section 482 Cr.P.C. is for quashing of complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005, titled as ‘Sunaina Versus Abhishek Dhingra and others’ bearing case No.152 dated 28.05.2010 (Annexure P-1).

It is averred in the petition that petitioner Nos.1 and 2 are the parents of the husband of the complainant-Sunaina and they have already disowned their son. A public notice was also issued in this regard. Petitioner No.3 is the married sister-in-law whereas petitioner No.4 is the husband of petitioner No.3. Their marriage was solemnized in the year 1998. It has been averred that the petitioners have no CRM No.M-9277 of 2012 -2- relation with the accused-husband. To fortify their contentions, ration cards, Annexure P-2 to P-5 have been placed on record. It is further contended that after leaving the matrimonial home, the respondent-wife made a complaint to the Superintendent of Police, Amritsar, against the petitioners.

From the perusal of the complaint, specific entrustment to the petitioners is made out. There are specific allegations of violence against the petitioners. FIR No.69 dated 27.04.2010 under Sections 498-A, 406 and 506 IPC stands registered against the petitioners. Keeping in view the averments made in the complaint and the fact that the FIR is lodged way back in the year 2010, not case for grant of relief sought is made out.

Dismissed in limine.

01.08.2012 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes / No

Categories: DV Judgements

If notice is returned as “Unclaimed” then it is “deemed as served” DV Case – Karnataka HC

Categories: DV Judgements

Wife fined 2 lakh wrt DV Act proceedings for “making mockery of the judicial process”, Contempt and for suppression of facts!!

February 27, 2012 1 comment

Delhi High Court
Douglas Breckenridge vs Jhilmil Breckenridge on 21 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 20.12.2011

% Judgment delivered on: 21.02.2012 + CONT.CAS(C) 815/2011 and C.M. No. 20360/2011 DOUGLAS BRECKENRIDGE ….. Petitioner Through: Mr. Neeraj Kishan Kaul, Senior

Advocate, with Mr. P. Banerjee &

Mr. Atreyi Chatterjee, Advocates.

versus

JHILMIL BRECKENRIDGE ….. Respondent Through: Ms. Geeta Luthra, Senior Advocate,

with Mr. Harish Malik, Advocate.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

JUDGMENT

VIPIN SANGHI, J.

1. The present petition has been preferred under Sections 10 and 12 of the Contempt of Courts Act, 1973 read with Article 215 of the Constitution of India, with the allegations to the effect that the respondent has deliberately and willfully disobeyed the orders dated 30.09.2010 and 05.04.2011 passed by the Guardianship Court, Saket Courts, New Delhi, CONT.CAS(C) 815/2011 Page 1 of 57 passed in Guardian Case No.66/2010 and also the orders of the Metropolitan Magistrate dated 13.10.2011 in CC No.332/1, and of the Additional Sessions Judge dated 19.10.2011 passed in Protection of Women from Domestic Violence Act, 2005 (DV Act) proceedings.

2. The petitioner and the respondent are husband and wife. Out of their wedlock, they have four sons. The petitioner has preferred a divorce petition against the respondent.

3. The petitioner filed a custody petition before the Guardianship Judge, Saket, New Delhi. In the petition the petitioner stated that he resides with his three elder children at C-87, Anand Niketan, New Delhi, of whom he has custody, whereas the respondent resides with her parents at 68, Friends Colony (West), New Delhi. According to the petitioner, the respondent abandoned the matrimonial home on Raksha Bandhan day, i.e. 24.08.2010. She left the three elder children with the petitioner, and took away the youngest child Liam with her. The custody petition had been preferred to seek custody of the youngest son Liam from the respondent wife. The petitioner also moved an application in those proceedings to seek interim custody under Section 12 of the Guardians and Wards Act, 1890. CONT.CAS(C) 815/2011 Page 2 of 57

4. The petitioner apprehended that the respondent would take the child Liam with her to U.K., where she was allegedly having an adulterous relationship with one Dr. Nooruddin Ahmed of Aylesbury, U.K. On 09.09.2010, the Guardianship Judge recorded the undertaking of the respondent that she shall not take the child Liam from the territorial jurisdiction of the Court, without the permission of the Court.

5. The proceedings before the Guardian Court were fixed on 30.09.2010. The respondent had, in the meantime, left for U.K. to allegedly meet her alleged paramour. She could not take the child Liam with her on account of her undertaking given to the Guardianship Judge on 09.09.2010. According to the petitioner, the child Liam, who was left by the respondent with her parents in Friends Colony, was handed over by his parents-in-law to him.

6. Accordingly, on 30.09.2010, the child Liam was produced by the petitioner before the Court. The learned Guardianship Judge saw for himself that the petitioner had the custody of the child Liam, who was produced in Court by the petitioner. Consequently, the learned Guardianship Judge, upon consideration of the matter and looking to the facts and circumstances of the case, that the custody of the child Liam had come into the hands of the CONT.CAS(C) 815/2011 Page 3 of 57 petitioner, disposed of the application under Section 12 of the Guardian and Wards Act., 1890.

7. The order dated 30.09.2010 is relevant and, therefore, reproduced herein below:

“G No 66/10

30.09.2010

Present: Sh.P. Banerjee and Liza Baruah advocate for petitioner with petitioner.

None for respondent.

In the morning one advocate appeared on behalf of respondent and filed reply to the petition of the petitioner along with extra copy for the petitioner. The copy of the petition has been supplied to petitioner.

It is informed by counsel for petitioner that

respondent left Delhi and went to U.K. On 16.09.2010 by leaving the child Liam at her father’s home. It is further submitted that the parents of respondent dropped the child at the residence of petitioner and since, then the child in the custody of petitioner. It is further submitted that since the child has already come in the custody of petitioner, therefore, the application for interim relief may kindly be disposed of. Considered. The petitioner is present with the child in the court. Keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody therefore the prayer made in an application under Section 12 of the Guardian and Wards Act stands satisfied, thus, the application under Section 12 is disposed of.

CONT.CAS(C) 815/2011 Page 4 of 57 Petitioner seeks time for filing rejoinder to the reply of the respondent. Heard. Allowed. Let the same be file within three weeks from today with advance copy to opposite party. Be put up for rejoinder the petitioner, if any, otherwise admission denial of documents and framing of issues on 27.11.2010.” (Emphasis supplied)

8. In December 2010, the respondent moved an application before the Guardianship Judge. In this application, the respondent contended that the petitioner had, inter alia, “barred access of the applicant to all four children of the parties….. ….. …..” She complained that she is denied the use of any room in the matrimonial house, and she is forced to stay only in the living room. She also complained that the keys of the house are not provided to her. She also complained that she is not allowed to join her children and the petitioner on family outings. The prayer made by the respondent in this application was to seek a direction “that the children of the parties are allowed to access to the Applicant and be permitted to interact with her and that no inconvenience, interference or annoyance be caused in her relationship with their children and that the Non-Applicant not assume to himself the unilateral authority to decide how the children should behave or when and which manner the Applicant, subject to his absolute discretion, associates and interacts with them”.

CONT.CAS(C) 815/2011 Page 5 of 57

9. While this application was pending, the matter again came up before the learned Guardianship Judge on 05.04.2011. The parties, with a view to amicably settle their disputes, agreed to refer the matter to the Mediation Centre, Delhi High Court, New Delhi. The Court, inter alia, gave the following directions on the said date:

“Heard. Till the parties explore the possibility for amicable resolution of dispute before the Mediation Centre, the following arrangement is made with respect to the visitation rights of the respondent with the minor children without prejudice to the rights and contentions of both the parties.

1. The petitioner has agreed that he will hand over the key of the house to the respondent for having free access to the house.

2. It has been agreed between the parties that the respondent will have free access to all the minor children so that she may have healthy relationship with the children and she may offer motherly affection to them.

3. The respondent is not permitted to take the minor children out of NCR.

The aforesaid arrangement shall continue till further orders.

Matter be put up for compromise between the parties, if any, otherwise for arguments on application under Order 7 Rule 11 CPC moved by the respondent and other pending applications of parties, if any, on 20.05.2011. Copy of order be given dasti to both the parties.” (Emphasis supplied) CONT.CAS(C) 815/2011 Page 6 of 57

10. While the aforesaid orders were holding sway, the respondent, it is alleged, picked up Liam from the school on 13.10.2011 at about 1:30 p.m. and disappeared without intimating as to where she was taking Liam. Upon enquiry, it transpired that Liam had been taken by the respondent to her place of residence, i.e. 68, Friends Colony (West), New Delhi.

11. The respondent, it appears, instituted proceedings under Section 12 of the DV Act on 12.10.2011, and moved an interim application in those proceedings to seek a restraint against the petitioner from interfering in the respondent’s custody of the minor son Liam. The definite case of the respondent was that she had the actual custody of child Liam.

12. This petition under Section 12 of the DV Act was registered as CC No.332/1 and came up before the learned Metropolitan Magistrate on 13.10.2011. The respondent/complainant was represented through her senior counsel Ms. Geeta Luthra with Mr. Sanjeev Sahay, Advocate. The petition had been filed by Sh. Shashank Kumar Lal, Advocate on behalf of the respondent. The learned Metropolitan Magistrate, after hearing the arguments of the respondents counsels, passed, inter alia, the following order:

CONT.CAS(C) 815/2011 Page 7 of 57 “Present; Complainant and child with Sr. Adv. Geeta Luthra and Sanjeev Sahay, Adv.

Arguments heard. It is stated by Sr. counsel that there is imminent apprehension that the respondent may remove the youngest child namely Liam from the custody of aggrieved person unlawfully.

I have gone through the petition filed by the complainant as well as considered the submissions carefully. In para no. 68 of the petition filed by the aggrieved person there is reference to the proceedings filed by the respondent herein with regard to the youngest child Liam in Guardianship court. However, the language used in the said para is ambiguous and does not reflect clearly the orders passed by the Ld. Judge in the Guardianship court. Counsel for complainant seeks time to file amended petition and also seeks liberty to file orders passed in the Guardianship court in the petition filed by the respondent.

Put up for consideration on 14.10.2011 at 3:00 pm.” (emphasis supplied)

13. From the aforesaid, it is clear that the learned Metropolitan Magistrate noticed the averment made in para 68 of the petition preferred by the respondent under Section 12 of the DV Act and, as the same appeared to be ambiguous, granted time to the respondent/complainant to file an amended petition, and also to file orders passed in the guardianship petition by the Guardianship Court.

CONT.CAS(C) 815/2011 Page 8 of 57

14. It appears the respondent filed an application to seek amendment, inter alia, in para 68 of the petition under Section 12 of the DV Act. After incorporating the aforesaid corrections, the corrected para 68 of the said petition reads as follows. For the sake of better understanding, the words which have been replaced have also been incorporated, but have been struck of.

“68. In order to succeed in his purpose to discredit the complainant by fabricating and creating evidence, the respondent had filed two petitions against the complainant (1) guardianship of the youngest child under Section 7 and 10 of the Guardians and Wards Act. The said child was of around 4 years of age and the petition was filed in August, 2010. Although the respondent had sought directions for handing over the custody of the child Liam to from the complainant, no such Order was made however, the

respondent complainant did not have any objection to the Order regarding Non removal of child Liam from the territorial jurisdiction of the Hon’ble Court as the complainant is residing and has been working for gain within the territorial jurisdiction of the Hon’ble Court. (2) Petition under Section 27(1) (d) (e) of the Special Marriage Act for Decree of Divorce of Marriage on the alleged ground of cruelty, unsoundness of mind and adultery. The said petition was filed on 07.01.2011″. (amended words have been shown in bold)

15. It appears, the respondent produced only an uncertified copy of the statement made by her on 09.09.2010 in the guardianship proceedings, before the learned Magistrate dealing with the D.V. Act proceedings. The CONT.CAS(C) 815/2011 Page 9 of 57 respondent/complainant did not file the order dated 09.09.2010, and also did not file the subsequent orders passed in those proceedings, including the orders dated 30.09.2010 and 05.04.2011, as aforesaid.

16. On 14.10.2011, the learned Metropolitan Magistrate passed the order, the relevant extract whereof reads as follows: “C.C. No.332/1

14.10.2011

Present; Complainant with Sr. Adv. Ms. Geeta Luthra along with Adv. Jatin Sehgal, Shashank

Kumar Lal.

An application has been filed now on behalf of

complainant seeking permission to correct the typographical errors in the petition filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). It is stated by counsel for complainant that due to inadvertence, certain typographical errors have occurred in the petition which are stated in the instant applications. The counsel for complainant further requests that correct complaint may be taken on record. Heard. The errors stated by the

complainant in the instant application appear to be only typographical errors and do not change the cause of action in any manner. Therefore, application is allowed. Amended/corrected petition under Section 12 of DV Act is taken on record. Counsel for complainant has also filed uncertified copy of statement dated 09.09.2010 made by the complainant in the court of Ms. Ravinder Bedi, JSCC CUM ASJ Guardian Judge. However, the complainant has not filed any order dated 09.09.2010 passed by Ld. Guardian Judge.

CONT.CAS(C) 815/2011 Page 10 of 57 File perused. Arguments heard. This is a petition under Section 12 of DV Act. There are sufficient grounds to summon the respondent.

xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

At this stage, it is stated by counsel for complainant that complainant and respondent are residing together

presently at C-87, Anand Niketan, New Delhi. It is also stated by counsel for complainant that there is imminent apprehension that the respondent, who is a US citizen, may remove the youngest child of the parties namely Liam Dorje Breckenridge outside the territorial jurisdiction of the court. Therefore, counsel for complainant has sought ex-parte interim protection to the respondent not to interfere in the custody of minor son Liam Dorje

Breckenridge aged about 5 years with the complainant. xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

I have bestowed my careful consideration to the

submissions of Ld. Sr. Adv. for complainant and also perused the petition filed under Section 12 of DV Act along with documents. The respondent has already filed petition before the Guardianship court under Section 7 and 10 of Guardians and Wards Act with regard to the custody of minor son Liam Dorje Breckenridge, which is pending consideration before Ld. Guardian Judge. In the

circumstances of the case, I am of the opinion that the aggrieved person is entitled for some ex-parte interim protection order under Section 21 of DV Act. Accordingly, respondent is restrained from removing the child Liam Dorje Breckenridge from the territorial jurisdiction of this court till further orders. No ground is made out for passing any other order at this stage. The applicant is directed to serve the instant ex-parte order passed today on the respondent forthwith by way of RC and filed an affidavit to CONT.CAS(C) 815/2011 Page 11 of 57 this effect within 3 days. Copy of this order be given dasti to the aggrieved person.” (Emphasis supplied)

17. According to the petitioner, the aforesaid order did not satisfy the respondent, as this order merely injuncted the petitioner from removing the child Liam from the territorial jurisdiction of the Court till further orders. However, the said order did not vest custody of the child Liam in the respondent, which had passed into the hands of the petitioner, as observed by the learned Guardianship Judge in his order dated 30.09.2010. The respondent, therefore, preferred an appeal before the District and Sessions Judge, Saket under Section 29 of the DV Act.

18. The grievance made by the respondent in her appeal under the DV Act was to the following effect:

“The Ld. Trial Court without taking into consideration the facts and circumstances and the apprehension of the appellant passed an erroneous impugned order whereby the Ld. Trial Court after considering that the appellant has the custody of minor child, restrained the respondent from removing the minor child outside the territorial jurisdiction of this Hon’ble Court and by inadvertently not mentioning that the respondent should also be restrained from removing the child from the custody of the

Appellant. Copy of the Domestic Violence Complaint along with all the annexures is annexed as ANNEXURE P-2. Furthermore, the Ld. Trial Court committed an error while passing the impugned order by not granting a stay CONT.CAS(C) 815/2011 Page 12 of 57 to the appellant from dispossession, even after taking into consideration that the appellant is living in the shared household with the respondent and all four children, where she has a legal right. Therefore, the appellant being aggrieved from the impugned order is filling the present appeal as there is no other efficacious remedy available.”

19. From the aforesaid, it is clear that the definite and positive case of the respondent before the appellate court was that she had the actual physical custody of the child Liam, when the petition under the DV Act was preferred and also when she preferred the appeal under the aforesaid Act.

20. The learned ASJ dealing with the respondents said appeal passed an order on 19.10.2011. The relevant extract from the said order reads as follows:

“19.10.2011

Present: Ms. Geeta Luthra Senior Advocate with Sh. Jatin Sehgal, Ld. Counsels for the

applicant/appellant.

xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx I have heard the submissions of the Ld. Counsel. The only urgent relief on which the ld.Counsel for the applicant/appellant had laid emphasis is regarding the custody of the child namely Master Laim Dorge

Breckenridge aged about five years. This child is already with the applicant/appellant namely Jhilmil Breckenridge. It is mentioned in the complaint under Section 12 of the Act in Para 68 that respondent Doughlas Breckenridge has filed a CONT.CAS(C) 815/2011 Page 13 of 57 petition under Section 7 and 10 of the Guardian and Wards Act for the custody of the minor child namely Master Liam Dorge Breckenridge. In the proceedings before the Guardian Judge the applicant/appellant Jhilmil

Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge

Breckenridge is with the applicant/appellant.

Ld. Counsel for the applicant/appellant has submitted that the applicant/appellant has genuine apprehension that the respondent in the Appeal namely Doughlas Breckenridge may not deprive her from the custody of the child Master Liam Dorge Breckenridge forcefully and illegally. Therefore, she has sought for some interim protection till Appeal heard on merit.

I have considered the facts and circumstances of the case and gone through the Trial Court Record and the urgency of the relief which has been sought.

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.

Since the matter is now listed for 11.11.2011 before the concerned court, the matter will be taken up on the said date. keeping in view the nature of the matter, I deem it appropriate to issue notice to the respondent on filing of CONT.CAS(C) 815/2011 Page 14 of 57 PF/RC regarding the Appeal for the date already fixed. File be sent back to the concerned court.” (emphasis supplied)

21. In the aforesaid background, the submission of Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner is that the respondent has blatantly, deliberately and willfully breached the orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge, which clearly acknowledge and recognize the fact that the custody of the child Liam had passed into the hands of the petitioner, and was with the petitioner. The Respondent mis-stated and misrepresented before the Ld. MM as well as before the Ld.ASJ dealing with the DV Act proceedings, that she had the custody of the child Liam, by only producing her own undertaking recorded before the Ld. Guardianship Judge on 09.09.2010, and by suppressing the subsequent proceedings and orders of the Guardianship Court, and in particular the orders/ proceedings dated 30.9.2010 and 05.04.2011. Under the cover of the orders obtained from the learned Metropolitan Magistrate in proceedings under the DV Act, which have been obtained by suppression of the proceedings and orders of the learned Guardianship Judge, the respondent has sought to take away the child Liam from the custody of the petitioner, and into her own custody. Mr. Kaul, therefore, submits that the CONT.CAS(C) 815/2011 Page 15 of 57 orders dated 30.09.2010 and 05.04.2011 stand blatantly and willfully breached by the respondent.

22. He further submits that the conduct of the respondent in not disclosing the proceedings and orders passed in the guardianship case on 30.09.2010 and 05.04.2011, despite the directions of the learned Metropolitan Magistrate dealing with the DV Act complaint, as well as her conduct in not filing the said proceedings of the guardianship case in her appeal under the DV Act before the learned ASJ, clearly tantamount to gross abuse of the process of the Court on account of suppression of the said proceedings; to playing a fraud upon the court, and; also amounts to contempt of court. In this regard, he places reliance on the decision of a Division Bench of this Court in Satish Khosla v. Eli Lilly Ranbaxy Limited & Anr., 71(1998) DLT 1 (DB).

23. Ms. Geeta Luthra, learned senior counsel appearing for the respondent has argued that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not qualify to be termed as “order” as defined in Section 2(14) of the Civil Procedure Code (CPC). She submits that an “order” within the meaning of the CPC mean the formal expression of any decision of a civil court which is not a decree. She submits that the so-called order CONT.CAS(C) 815/2011 Page 16 of 57 dated 30.09.2010 does not contain any decision of the learned Guardianship Judge. In fact, the said so-called order was obtained by the petitioner behind the respondents back by making a self serving statement before the Court. She submits that there was no question of the respondent agreeing to the petitioners claim that he had got the custody of the minor child Liam, as the respondent on the same day, i.e. 30.09.2010 filed her reply in the guardianship proceeding clearly stating that the custody of the child Liam was with her.

24. Ms. Luthra submits that even the so-called order dated 05.04.2011 is not an order within the meaning of Section 2(14) CPC. These proceedings merely record that the parties have agreed that the matter be referred to the Mediation Centre, and the order also records the arrangement arrived at by the Court with regard to visitation rights of the respondent qua the minor children.

25. She submits that even the petitioner admits that the custody of the minor child Liam was with the respondent, and it is precisely for this reason that the petitioner preferred the guardianship petition. She submits that the respondent never ever gave up the custody of her minor child. The respondent continued to have the custody of the minor child Liam CONT.CAS(C) 815/2011 Page 17 of 57 inasmuch, as, she was staying in and out of the matrimonial home, i.e. C-87, Anand Niketan, New Delhi with her children and, in particular, the minor child Liam.

26. In para 13.3 of the guardianship petition, the petitioner himself acknowledges that the respondent left the matrimonial home on 24.08.2010 and had taken with her child Liam. It is an acknowledgment of the fact that the custody of the child Liam was with the respondent, and it is for this reason that the respondent was asked to give an undertaking to the Court that she would not remove the child Liam from the territorial jurisdiction of the Guardianship Court without the permission of the said Court, on 09.09.2010. She further submits that there is no order of any Court divesting the custody of the child Liam from the respondent, and vesting the same with the petitioner.

27. Ms. Luthra submits that the respondent, being the mother of the said minor child, is his natural guardian. She submits that even if the respondent had gone out of town leaving the child Liam with her parents, the same does not mean that the respondent has lost the custody of the minor child Liam. She submits that even a perusal of the order dated 05.04.2011 shows that the respondent had unrestricted access to the matrimonial home, CONT.CAS(C) 815/2011 Page 18 of 57 where the petitioner was residing with the children. In fact, the respondent had preferred an application under Order 7 Rule 11 CPC on 27.11.2010 on the premise that the respondent was living in her matrimonial home with the petitioner and her four children. In response to the aforesaid application, the petitioner admitted that the respondent has been residing at the matrimonial home.

28. She submits that the respondent had preferred an application for directions in December 2010 before the Guardianship Judge, as the petitioner was trying to forcefully divest the custody of the children from the respondent. Reference is also made to the reply filed by the petitioner to said application, wherein the petitioner himself admits that the respondent has access to all the four children. In para 11 of the said reply, the petitioner does not dispute the respondents case that Liam is allowed to meet the respondent, and is allowed to sleep with the respondent. She submits that the respondent had filed a second application under Order 7 Rule 11 CPC in the guardianship proceedings. In his reply to the said application filed in July 2011, the petitioner admitted that the respondent has been residing in the matrimonial home with the children. According to the respondent, the parties are leading a normal life. Reference is made to the averments made CONT.CAS(C) 815/2011 Page 19 of 57 by the respondent in her rejoinder to the second application under Order 7 Rule 11 CPC before the learned Guardianship Judge.

29. Ms. Luthra points out that the conduct of the petitioner himself is not aboveboard, inasmuch, as, the petitioner filed an amended petition under the Guardianship Act in July 2011, wherein the petitioner, without the permission of the Court, introduced an averment in Column 4 as follows: “Custody of minor is with Mr. Douglas Breckenridge. At the time of filing of the petition Liam was in the illegal possession of the Respondent. However, on 30.09.2010 the custody of minor Liam has been reverted to the Petitioner”.

30. Ms. Luthra submits that the respondent, being the mother, is entitled to protect her custody of the children under Section 21 of the DV Act. She defends the averments made by the respondent in her petition in para 68 under Section 12 of the DV Act. In support of her submissions aforesaid, she places reliance on the following decisions: i) Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., (1963) Supp. SCR 242;

ii) Dr. Manju Varma v. State of U.P. & Ors., 2004 (9) Scale 463;

iii) Devarkonda Edl. Society V. All India Council for Technical Education & Ors., AIR 1997 A.P. 389; and

CONT.CAS(C) 815/2011 Page 20 of 57 iv) Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR 1964 SC 1099.

31. Ms. Luthra submits that the respondent, in any event, did not understand the proceedings of 30.09.2010 and 05.04.2011 before the learned Guardianship Judge as “orders” within the meaning of Section 2(14) CPC. In these circumstances, there is no contempt made out, on account of the alleged suppression of the so-called orders from the Courts dealing with the DV Act proceedings. In support of this submission, she places reliance on the following decisions:

i) Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., 2010 (10) Scale 647;

ii) Anshuman Sharma v. Manika Jain, 114 (2004) DLT 47; iii) Dr. Ashish Ranjan v. Dr. Anupama Tandon,

2010 (12) Scale 577.

32. Ms.Luthra has also sought to make submissions that the petitioner abused the respondent physically, sexually and mentally, and was responsible for wrong treatment of her bi-polar disorder. These allegations, in my view, are of no relevance to these proceedings and are, therefore, not being gone into.

CONT.CAS(C) 815/2011 Page 21 of 57

33. In his rejoinder, Mr. Kaul has submitted that the entire submission of the respondent fails to take note of the manner in which “civil contempt” has been defined under the Contempt of Courts Act. Civil contempt is defined as:

” (b) “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. He, therefore, submits that civil contempt is defined very widely to not only take within its ambit willful disobedience to decrees, directions and orders, but also other processes of a Court.

34. Mr. Kaul submits that the order dated 30.09.2010 is, even otherwise, an “order” within the definition of that expression contained in Section 2(14) of the CPC. He submits that merely because the respondents counsel chose not to appear before the learned Guardianship Judge on 30.09.2010, when the matter was taken up, would not mean that the proceedings held before the learned Guardianship Judge, and recorded by him, do not amount to an order. He submits that the petitioner had moved an application under Section 12 of the Guardians and Wards Act to seek interim custody of the minor child Liam. On 30.09.2010, the petitioner had CONT.CAS(C) 815/2011 Page 22 of 57 appeared before the learned Guardianship Judge with the child Liam, and the Court saw for itself that the custody of the said minor child was with the petitioner. Mr. Kaul submits that the Court recorded the petitioners submissions and duly considered the same and also appreciated the factual position placed before it. Thereafter, the learned Guardianship Judge gave his decision that, keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody, the prayer made in the application under Section 12 of the Guardians and Wards Act stands satisfied. In the light of the aforesaid position, the learned Judge disposed of the petitioners application under Section 12, as aforesaid.

35. Mr. Kaul, therefore, submits that the order dated 30.09.2010 has all the ingredients of an order under Section 2(14) of the CPC. Mr. Kaul submits that it is not necessary that the formal expression of the decision of the civil court has necessarily to pertain to a final decision. He submits that the respondent did not either seek review of the said order, or challenge it before a higher court. The said order, in so far as it deals with the aspect of interim custody of the minor child Liam, has attained finality, until and unless it is disturbed/ changed due to material change of circumstances. CONT.CAS(C) 815/2011 Page 23 of 57

36. With a view to counter the allegations of the respondent regarding her alleged ill treatment by the petitioner, Mr. Kaul has also drawn the attention of the Court to the email communication sent by the father of the respondent to the petitioner on 07.08.2010, wherein he expressed the apprehension that the respondent may take Liam with her to U.K. The respondent’s father himself advised the petitioner to keep Liam’s passport and that of the other boys too, under lock and key. Reference is also made to email communications allegedly exchanged between the respondent and her alleged paramour, to submit that the respondent, in any event, is not fit to retain even temporary custody of the minor children on account of her alleged adulterous relationships.

37. I first proceed to consider the submission of the respondent that the proceedings of 30.09.2010 and 05.04.2011 recorded before the learned Guardianship Judge do not tantamount to an “order” within the meaning of Section 2(14) C.P.C. Section 2(14) C.P.C defines “an order” to mean “the formal expression of any decision of a Civil Court which is not a decree”. “Decree” has been defined inter alia, to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either primary or final”. The CONT.CAS(C) 815/2011 Page 24 of 57 distinction between an “order” and a “decree”, therefore, is that, whereas a decree is the result of an “adjudication”, an order is the “expression of any decision” of a Civil Court. Moreover, while a decree conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit, as regards the Court expressing it, an order may not be a conclusive determination of the rights of the parties, as regards the Court formally expressing its decision.

38. Reliance placed by the learned senior counsel for the respondent on Jaswant Sugar Mills Limited (supra), Dr.Manju Varma (supra), Devara Konda Educational Society (supra) and Vidya Charan Shukla (supra) does not advance the submission of learned senior counsel for the respondent that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not amount to orders. Jaswant Sugar Mills Limited (supra) was a case wherein the Supreme Court was examining the issue whether an appeal may be entertained in exercise of powers under Article 136 of the Constitution of India against the direction of a Conciliation Officer issued in disposing of an application under Clause 29 of the order promulgated by the Government of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, when an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. In that context the Supreme Court examined CONT.CAS(C) 815/2011 Page 25 of 57 the issue as to what constitutes a decision judicial. The criteria that must be satisfied to make a decision judicial is stated as follows:- “(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”

39. There can be no manner of doubt that the proceedings before the learned Guardianship Judge are judicial proceedings. Therefore, the decision in Jaswant Sugar Mills is not relevant for the present purpose. Dr.Manju Varma (supra) merely restates the aforesaid criteria laid down in Jaswant Sugar Mills Limited. In Deverakonda (supra) the Andhra Pradesh High Court held that while rendering its decision under Section 23 of the All India Council for Technical Education (AICTE) Act , 1987, the AICTE acts as a quasi judicial authority. It is required to act objectively, judicially and judiciously. In that context the High Court observed in Para 27 as under:- CONT.CAS(C) 815/2011 Page 26 of 57 “Normally speaking, ‘decision’ means “making up one’s mind, may be even personal decisions leading to real and true conclusions. Actually it is a judgment based on conclusions” (Page 309 of Oxford Advanced Learner’s-Dictionary supra). As a verb, ‘decide’ means to “to give a judgment in a case”, and as a noun ‘decision’ means “Judgment in a Civil Court, making up one’s mind to do something, act of coming to a decision, it is a decision making process” (Page 67 of Dictionary of Law by P.H; ColI in supra). In the legal sense of the meaning; a ‘decision’ is a “determination arrived at after consideration of facts and in the legal context of law, a popular rather than technical or legal word, a comprehensive: term having, no fixed, legal meaning. It may be employed as referring to- ministerial acts as well as to those that are judicial or of a judicial character.”

40. Once again, I do not see how the aforesaid observations of the Andhra Pradesh High Court advance the respondent’s submission with regard to the nature/character of the two orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge. In Vidya Charan Shukla the Supreme Court was, inter alia, examining the manner in which an order may be framed by a Tribunal under Section 98 or Section 99 of the Representation of the People Act, 1951. It was held that the Election Tribunal may issue two documents – one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the later its order. It may issue both in the same document in which case the CONT.CAS(C) 815/2011 Page 27 of 57 judgment as well as the order is embodied in the same document. I fail to appreciate how this decision has any relevance to the case at hand.

41. Keeping in mind the aforesaid position, a perusal of the order/proceedings dated 30.09.2010 leaves no manner of doubt that the same qualifies as an “order” within the meaning of Section 2(14) of the C.P.C. The learned Guardianship Judge gave its decision on the petitioner’s application under Section 12 of the Guardian and Wards Act while passing the said order, after appreciating the factual position presented before him that the child Liam was in fact in his custody on the said date. The application under Section 12 of the Guardian and Wards Act had been preferred to seek interim custody of the said child from the respondent. As the said interim custody had, by turn of events, vested in the petitioner, the prayer made in the interim application under Section 12 of the Guardian and Wards Act stood satisfied and, consequently, that application was disposed of by the learned Guardianship Judge after considering all the aforesaid aspects. Merely because the order was passed in the absence of the respondent or her representative, the said order does not cease to be a “decision” of the Court. By this decision, the Court recognized the factual position that the interim custody of the child Liam had passed into the hands of the petitioner. The learned Guardianship Judge has recorded his reason CONT.CAS(C) 815/2011 Page 28 of 57 for disposing of the application under Section 12 of the Guardian and Wards Act.

42. So far as the proceedings/order dated 05.04.2011 is concerned, the same in my view also tantamounts to an “order” within the meaning of Section 2(14) of the C.P.C. Firstly, the same has been passed after hearing the parties. Secondly, the same contains a decision in so far as the aspect of the visitation rights of the respondent are concerned in relation to the minor children. This decision was made without prejudice to the rights and contentions of both the parties, since the parties had expressed their readiness and willingness to settle their disputes amicably and for that purpose to appear before the Judge In-Charge, Mediation Centre, Delhi High Court.

43. The Gujarat High Court in Vijaya Park Co-operative Group Housing Society V. Trivedi Bhartiben w/o. S.S.Trivedi & Ors., (2003) 1 GLR 190, rejected a similar contention that because the trial Court had not given any reason in its order rejecting an application under Order 1 Rule 10 read with Order 6 Rule 17 C.P.C., the same did not amount to an order. The High Court held that while detailed reasons have not been assigned by the learned Judge while dismissing the application, the learned trial Judge had CONT.CAS(C) 815/2011 Page 29 of 57 indicated his reasons by observing that by seeking amendment in the cause title of a plaint, a new person is sought to be introduced as plaintiff in place of the original plaintiff and therefore, the amendment was not competent. The Gujarat High Court held that whether, or not, the High Court may agree with the aforesaid reasons of the trial Court, it cannot be said that the order has been passed without any reasons.

44. In the present case as well, the order dated 05.04.2011 does not explicitly state the reasons for the arrangement worked out by the Court with respect to the visitation rights of the respondent in relation to the minor children. However, that, by itself, would not reduce the force of the said proceeding/order as the said order contains a binding decision, which the learned Guardianship Judge directed, shall continue till further orders.

45. In any event, whether or not the proceedings/orders dated 30.09.2010 and 05.04.2011 constitute an “order” within the meaning of Section 2(14) C.P.C, or not, is of no avail to the respondent. As pointed out by Mr. Kaul, civil contempt has been broadly defined to mean “willful disobedience of decree, judgment, direction, order writ or other process of a Court……………” (emphasis supplied). The proceedings of 30.09.2010 and 05.04.2011, even if assumed for the sake of argument as not constituting CONT.CAS(C) 815/2011 Page 30 of 57 “orders”, within the meaning of Section 2(14) of the C.P.C, certainly are processes of a Court inasmuch, as, they record the proceedings of the learned Guardianship Court in the petitioner’s guardianship petition before it.

46. When the matter was finally heard on 20.12.2011, I had directed the counsel for the respondent, who represented the respondent in proceedings under the D.V. Act to file an affidavit disclosing whether, or not, the said counsel for the respondent was aware of the passing of the orders dated 30.09.2010 and 05.04.2011 in the Guardianship proceedings when the proceedings under the D.V. Act were filed initially, as well as at the appellate stage. An affidavit was also called from the respondent, disclosing whether she had made her counsel aware of the said orders of the Guardianship Court before filing the petition under the D.V Act, or at any time thereafter.

47. Two affidavits dated 28.12.2011 have been filed, one, of the respondent and the other of Mr. Sashank Kumar Lal, Advocate.

48. Mr. Sashank Kumar Lal, in his affidavit has stated that the orders dated 30.09.2010 and 05.04.2011 were not in his knowledge, and the respondent had not instructed him about these orders. He has stated that due CONT.CAS(C) 815/2011 Page 31 of 57 to absence of instructions and due to bona fide belief, he did not place the orders dated 30.09.2010 and 05.04.2011 before the learned M.M and the Ld. ASJ at the time of filing and hearing of the complaint under the D.V. Act and the appeal arising therefrom.

49. So far as the respondent is concerned, she has filed a detailed affidavit which goes far beyond the direction issued by the Court. In this affidavit, the respondent has, for the first time, asserted that she was not at all aware of the order dated 30.09.2010 when she preferred the complaint under the D.V. Act and the appeal arising therefrom. She states in para 15 of this affidavit that “I did not give any instructions to my present counsel with regard to orders dated 30.09.2010 and 05.04.2011. Even otherwise, I had no knowledge of order dated 30.09.2010″. She states that she did not produce the orders dated 30.09.2010 and 05.04.2011 before the learned M.M, and before the learned Additional Sessions Judge, as she did not have copies of the said orders. She has also sought to tender an unconditional apology “for any act which may have caused hindrance to the administration of justice”. This stand taken by the respondent, taken in her affidavit dated 28.12.2011, is strikingly at variance from her stand taken in her reply filed to the contempt petition.

CONT.CAS(C) 815/2011 Page 32 of 57

50. I have perused the entire reply filed by the respondent and there is not an iota of averment made by her in the said detailed reply to state that she was not aware of the order dated 30.09.2010 passed by the learned Guardianship Judge at the time of filing of her complaint under the D.V. Act, and the appeal arising therefrom. All that she says is that, firstly, the order dated 30.09.2010 was obtained behind her back and, secondly, that the said order was passed on a self serving statement made by the petitioner. Thirdly, she further states that it is not an “order” within the meaning of Section 2(14) of the C.P.C. In this regard, I consider it appropriate to set out paragraphs 12, 14 and the relevant extracts of para 30 of the contempt petition, and the corresponding reply given by the respondent herein below:- Petitioner’s averment

“12. On 30.09.2010 the said child was reverted to the custody of the petitioner as the respondent had left for UK to meet her paramour and could not take the child with her as apprehended due to her undertaking to the Guardian Judge on 09.09.2010. The said fact was duly recorded by the Learned Guardian Judge a copy of which is annexed herewith as Annexure-D. In sum and substance, the said order clearly held that as the custody of the said child had already come in the hands of the petitioner therefore, the relief sought in the interim application under Section 12 of the said Act stood satisfied and the application was accordingly disposed of. A copy of the said interim application under Section 12 of the said order is annexed hereto as Annexure-E.”

CONT.CAS(C) 815/2011 Page 33 of 57 Reply to the above para

“12. That the contents of para 12 of the petition are wrong and hence denied. It is denied that on 30.09.2010 or before that Liam was reverted to the custody of the petitioner. At the outset it is denied that the child was reverted to the custody of the petitioner vide order dated 30.09.2010. The said order is not an order in terms of Section 2 (14) of the Civil Procedure Code as the same has been passed in the absence of the respondent and not on merits. The said order is based on self serving statement of the petitioner which cannot be interpreted in any manner through which it can be said that the Court has granted custody to the petitioner. The circumstance under which the said order has been passed has been explained, and hence the same are not repeated for the sake of brevity.” Petitioner’s averment

14. That accordingly, the said orders were governing the custody and visitation with respect to the said child qua the parties. The said orders are still subsisting and have not been either vacated or modified by either the learned Guardian Judge or any appellate Court.

Reply to the above para

“14-15. That the contents of para 14 and 15 of the petition are wrong and hence denied. It is submitted that the orders governing the custody and visitation of the child in question are still in subsistence. At the outset it is submitted that the petitioner is trying to mislead this Hon’ble Court by intentionally making contemptuous statement as the Ld. Guardian Judge has not passed any speaking order in respect of the custody and visitation of the minor child. The petitioner is intentionally interpreting the orders dated 30.9.10 and 5.4.11 passed by the Ld. Guardian Court in order to mislead this Hon’ble Court in order to get an order which he failed to get from the Ld. Guardian Judge.”

CONT.CAS(C) 815/2011 Page 34 of 57 Extract of Petitioner’s averment

“30. A bare perusal of the said petition and the application would reveal that an off the cuff reference has been made with respect to the pendency of the petition filed by the petitioner before the Guardian Judge under Section 7, 10 and 25 of the said Act in para 68 of the aforesaid application. There is not even whisper about the passing of the said order nor has a copy of the said order been annexed to the petition. ….. ….. ….. …..” Reply to the above para

“30. The contents of para 30 of the petition are a matter of record and need no reply. However at the outset, it is submitted that the respondent had disclosed and placed on record the undertaking given by her on 9.9.2010.”

51. Pertinently, the respondent in her reply does not specifically deal with the “grounds” urged by the petitioner in the contempt petition, wherein too, the petitioner has made categorical assertions that the respondent has suppressed, concealed and mis-stated the material facts and documents, namely, the orders dated 30.09.2010and 05.04.2011 passed by the learned Guardianship Judge while pursuing the proceedings under the D.V. Act before the learned M.M. and the learned ASJ.

52. The stand now taken by the respondent in her affidavit, filed in response to the order dated 20.12.2011 that she was not aware of the order dated 30.09.2010 therefore, cannot be accepted. This is clearly an afterthought on the part of the respondent and an attempt on her part to get CONT.CAS(C) 815/2011 Page 35 of 57 out of the tight spot that she finds herself in, because of her acts of suppression and concealment of the orders dated 30.09.2010 and 05.04.2011 from the concerned Courts dealing with the D.V Act proceedings. This stand is now being taken for the first time after the close of the hearing, which means that the petitioner has no occasion or opportunity to say anything in the matter. Moreover, this stand is belied by the fact that in the amended guardianship petition, the petitioner had stated that “….. On 30.09.2010, the custody of the minor Liam has been reverted to the petitioner”. This amended petition was filed by the petitioner some time around 13.08.2011, whereas the D.V. Act proceedings were launched by the respondent only in October, 2011. From the said averment, it is clear that the respondent was put to notice that the petitioner claimed himself to be in actual custody on and from 30.09.2010. Pertinently, in relation to the order dated 05.04.2011, the respondent has no such explanation to offer, as she has taken benefit of the said order. However, even this order was suppressed and concealed from the learned M.M and the learned ASJ dealing with the D.V Act proceedings, evidently for the reason that this order too would have betrayed the fact that it was the respondent who was being granted visitation rights, and not the petitioner. This obviously would have meant that the actual custody of the children, including the child Liam was with the CONT.CAS(C) 815/2011 Page 36 of 57 petitioner and not the respondent. If this order had been produced before the Ld. MM and the Ld. ASJ in the D.V. Act proceedings, the claim of the respondent- that she has custody of the child Liam, would have been belied. In the light of the aforesaid discussion, I have no hesitation in rejecting the affidavit now filed by the respondent on 28.12.2011 as per the direction of the Court. In my view, the same further compounds the dubious conduct of the respondent in trying to play hide and seek with the courts.

53. Turning to the examination of the affidavit filed by Shri Sashank Kumar Lal Advocate, I find that his conduct too does not appear to be completely beyond suspicion. He discloses that he was engaged by the respondent as her counsel in proceedings before the Guardianship Judge in May, 2011. This means that he had access to the case file of the proceedings pending before the learned Guardianship Judge. Access not only to the counsels file but even to the Court record. He would have been aware of the fact that the respondent had moved an application in December, 2010 to seek access to the children, meaning thereby that the respondent was actually not having custody of any of the four children, including the child Liam.

CONT.CAS(C) 815/2011 Page 37 of 57

54. I have called for the Guardianship case record from the family court where the same is pending. It is seen that the Vakalatnama has been filed by Mr. Jatin Sehgal and the Mr. Jai Kush Hoon on 20.05.2011. In fact, Mr. Shashank Kumar Lal has not filed any Vakalatnama. I have also called the inspection application register. The inspection application register does not shows that an application for inspection was made by the aforesaid newly engaged counsel upto 01.07.2011, when the case was transferred to the Court of the Principal Judge, Family Court. The case was assigned to the Court of Smt. Renu Bhatnagar, Judge 2, Family Court, Saket, where it is now pending. It appears that no inspection application register is being maintained in her court. An intimation to this effect has been received from her.

55. Pertinently the proceedings under the D.V.Act were initiated in October, 2011 i.e., five months after the aforesaid counsels were engaged by the respondent as her counsel in the guardianship proceedings. I may note that Mr. Shashank Kumar Lal, Mr. Jatin Sehgal and Mr. Jai Kush Hoon share the same chamber, i.e. 109 Lawyers Chambers, Delhi High Court, New Delhi, and while Mr. Shashank Lal has appeared in the Guardianship proceedings, Mr. Jatin Sehgal has appeared in the DV Act proceedings. Mr. Shashank Lal has inspected the Guardianship proceedings on 11.01.2012. It CONT.CAS(C) 815/2011 Page 38 of 57 is, therefore, clear that they work jointly on matters and belong to the same chamber.

56. It is also pertinent to note that when the D.V. Act proceedings were drafted, in Para 68 the same counsel made ambiguous and unclear averments. It is even more pertinent to note that when the D.V. Act proceedings were taken up by the learned M.M. on 13.10.2011, she specifically raised the issue with regard to the ambiguous averments made in Para 68 of the petition, whereupon the counsel for the complainant sought time to file an amended petition and also to file orders passed by the Guardianship Court. Despite the aforesaid, the counsel did not clearly amend the petition to make a complete disclosure of the orders passed by the learned Guardianship Judge, including the orders dated 30.09.2010 and 05.04.2011. He also did not file these orders before the learned Magistrate dealing with the D.V. Act proceedings. Inconsequential amendments were carried out in Para 68 of the petition which concealed the aforesaid orders of the Guardianship Judge.

57. It is not for a litigant to spoon feed his counsel with regard to earlier proceedings undertaken before a court, once he is engaged as the counsel in a pending case, even if it were to be assumed that the litigant may be either CONT.CAS(C) 815/2011 Page 39 of 57 ignorant, or may not deliberately disclose the earlier proceedings undertaken in the case to his counsel. It becomes the obligation of the counsel who accepts the responsibility from a litigant, in an already pending proceeding, or when he is engaged to file a fresh proceeding, to acquaint himself with all that has transpired on the record. It is clear that Mr. Sashank Kumar Lal was acting as the respondent’s counsel in the guardianship proceedings since May 2011. It was his obligation to inspect the orders passed in the guardianship proceedings to acquaint himself fully with all such proceedings, particularly when he was preparing another proceeding under the DV Act, to claim an overlapping relief. No counsel worth his salt can proceed to deal with a case in which he is engaged, without fully acquainting himself of the orders and proceedings in the case which may have already been undertaken. Mr. Sashank Kumar Lal could not have assumed that the custody of the minor child Liam was with the respondent in the face of: (i) the fact that in the amended guardianship petition the petitioner had himself categorically stated that since 30.09.2010 he had the custody of the minor child Liam; (ii) the fact that the respondent did not actually have the custody of the minor child Liam, ever since the engagement of the counsel Mr. Sashank Kumar Lal/Mr. Jatin Sehgal/Mr. Jai Kush Hoon in May, 2011; (iii) the fact that after the passing of the order CONT.CAS(C) 815/2011 Page 40 of 57 dated 13.10.2011 by the learned M.M in the D.V. Act proceedings, wherein the Court had raised the issue about the ambiguous averments made in Para 68 of the complaint, the counsel had sought time to file the amended petition as also to file orders passed by the guardianship court in the guardianship proceedings.

58. It is not explained, why Mr. Sashank Kumar Lal did not inspect the record of the case to obtain the knowledge and copies of the order dated 30.09.2010 and 05.04.2011, in spite of taking time from the learned Magistrate to file the same before him. This omission on his part is suggesting of the fact that he had copies of these orders in his record.

59. If the claim of the respondent’s counsel Mr. Sashank Kumar Lal, that he was not aware of the orders dated 30.09.2010 and 04.10.2011, were to be accepted, for the sake of argument, the only other conclusion one can draw is that he has acted with gross negligence, which is unbecoming as an officer of this Court. Shri Sashank Kumar Lal in his affidavit relies upon the prayer made by the petitioner in his amended guardianship petition which was to the effect that he seeks a direction to the respondent to hand over the custody of the minor child to the petitioner. However, he conveniently omits to take note of the averment made in the amended petition to the effect that CONT.CAS(C) 815/2011 Page 41 of 57 the custody of the child Liam, since 30.09.2010, was with the petitioner. As a counsel Shri Sashank Kumar Lal should have known that interim custody, or defacto custody, of the minor child is one thing, whereas permanent custody or dejure custody- upon adjudication of the relevant issues by the guardianship court, is quite another thing. The prayer made in the amended guardianship petition was to seek the permanent custody of the child Liam.

60. I have great difficulty in accepting the affidavit of Shri Sashank Kumar Lal, Advocate and to swallow his solemn averment that he had no knowledge of either the order dated 30.09.2010 or the order dated 05.04.2011 passed in the guardianship proceedings when he prepared, presented and pursued the D.V. Act proceedings.

61. The two orders dated 30.09.2010 and 05.04.2011 were highly relevant and material, and ought to have been placed before the learned M.M and learned ASJ dealing with the D.V. Act proceedings. A material fact would mean a fact which is material for the purpose of determination of the lis. The logical corollary of this is, whether , the same was material for grant or denial of the relief (See Arunima Baruah vs. UOI: (2007)6 SCC 120). Had the learned M.M and the learned ASJ dealing with the D.V. Act proceedings been made aware of the aforesaid two orders passed by the learned CONT.CAS(C) 815/2011 Page 42 of 57 Guardianship Judge there, obviously, would have been no occasion for either of them to have passed any orders restraining the petitioner from removing the child Liam from within the jurisdiction of the Court, or directing that the custody of the child Liam (falsely claimed to be with the respondent) shall not be disturbed except by due process of law. A perusal of the orders passed by the learned M.M. and the learned ASJ dealing with the D.V. Act proceedings clearly shows that by calculatedly producing the statement made by the respondent before the learned Guardianship Judge on 09.09.2010 – to the effect that she shall not remove the child from within the jurisdiction of the Guardianship Court without the permission of the Court, she sought to mislead the learned M.M as well as the learned ASJ that she had actual custody of the child Liam. This is clearly recorded in the order passed by the learned ASJ on 19.10.2011. As noticed hereinabove, he observes as under:-

“……………In the proceedings before the Guardian Judge the applicant/appellant Jhilmil Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge Breckenridge is with the applicant/appellant. ……………………………..

Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil CONT.CAS(C) 815/2011 Page 43 of 57 Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.” (emphasis supplied).

62. As aforesaid, it is not explained by the respondent or her counsel as to why, despite the learned M.M requiring the production of the orders passed in the guardianship proceedings, and despite a statement being made that the respondent shall produce the orders passed by the Guardianship Court, the same were not produced. Even the order passed by the learned ASJ discloses that he was not satisfied with the conduct of the respondent in not producing the orders passed by the Guardianship Court, and that is why he specifically observed in his order dated 19.10.2011 that the order passed by him is subject to orders, if any, passed by the Guardianship Judge “because the applicant/appellant has not conveyed any order passed by the Guardianship Judge in this regard to this Court”.

63. From the above discussion it is clear that the respondent has deliberately and willfully sought to breach and disobey the orders dated 30.09.2010 and 05.04.2011 by concealing the said orders while filing the CONT.CAS(C) 815/2011 Page 44 of 57 proceedings under the D.V. Act before the learned M.M. and the appeal proceedings before the learned ASJ, with a view to legitimize her conduct of taking away the custody of the child Liam from the petitioner under the garb of the orders obtained in those proceedings by sheer concealment and deliberate and calculated mis-statements made by her.

64. I had occasion to deal with another case involving suppression of relevant and material facts by a party while preferring a writ petition in Ayodhya Devi vs. DDA & Anr., 156(2009) DLT 346. Unfortunately, like in the present case, in that case too, the conduct of the counsels was not completely above board, and they appeared to have played a role in the suppression and concealment of relevant facts. In the course of that decision, I had occasion to consider the judgment of the Division Bench of this Court in Satish Khosla vs. M/s. Eli Lilly Ranbaxy Ltd. & Anr.: Vol.71 (1998) DLT 1 (Division Bench) which in turn deals with other relevant judgments including those of the Supreme Court. I consider it apposite to quote relevant extracts from the said decision:-

“21. In Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. & Anr. 71 (1998) DLT 1 (DB), a Division Bench of this Court dealt with a similar situation. The respondent preferred an earlier suit being Suit No.3064/1996. It sought ex parte interim orders to restrain the appellant from giving on hire the lawns, adjoining the cottage in the tenancy of the respondent, for CONT.CAS(C) 815/2011 Page 45 of 57 marriages and private parties. The respondent failed to obtain any ex parte orders. Thereafter, the respondent preferred a subsequent suit, being Suit No.261/1997 making a similar prayer for interim relief. On 06.02.1997 the learned Single Judge passed an ex parte ad interim order of injunction against the appellant. The appellant preferred an appeal before the Division Bench and also filed a contempt petition for initiating criminal contempt proceedings against the respondents for having intentionally and deliberately filing the proceedings and application being Suit No.261/1997 and I.A. No.1124/1997. After comparing the various averments made in the two suits, the Court considered the issue whether it was obligatory for the respondent to have disclosed to the Court in the subsequent suit, the earlier suit filed by it and the factum that the Court had not granted any stay in favour of the respondent in the earlier suit. The Court referred to S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853, wherein the Supreme Court held that the Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. “It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”

22. The Division Bench held that:

“……………..by withholding the plaint and the application in the earlier suit from the court and by not disclosing to the Court about the

proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.”

CONT.CAS(C) 815/2011 Page 46 of 57

23. The Division Bench relied upon the following passage from S.P. Chengalvaraya Naidu (supra):

“……………………… We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and

prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean

hands. We are constrained to say that more often

than not, process of the Court is being abused.

Property-grabbers, tax-evaders, bank- loan-

dodgers and other unscrupulous persons from all

walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on false- hood, has no right to approach the Court. He can be summarily thrown out at any

stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents

executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the

opposite party.”

24. The Division Bench further observed that:

“………………… A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival

contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the

documents which are relevant to the litigation and he must also disclose to the court about the

CONT.CAS(C) 815/2011 Page 47 of 57 pendency of any earlier litigation between the part is and the result thereof. …………..It was only after 20th January, 1997 when the case was

adjourned to May, 1997 that the respondent filed

the second suit and though in one of the

paragraphs it is mentioned that it had filed an

earlier suit for injunction, however, it did not

disclose to the Court either in the plaint or in the application as to what had transpired in the Court on the dates when the said suit was fixed nor it was disclosed to the Court that injunction has not been granted in its favor by the Court and the relief

claimed in the application in the earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was

obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing

before it, may be Hon’ble the Single Judge was

persuaded not to grant any exparte stay in favor of the respondent. ……………… We are, therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed

material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over-reaching the Court.”

25. On the aspect of role of the counsel for the respondent, the Division Bench held that:

“As held by the Supreme Court in T.

Arivandandam Vs. T.V. Satyapat and Another,

AIR 1977 SC 2421, the pathology of litigative

addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of

parties to launch frivolous and vexatious cases. “It CONT.CAS(C) 815/2011 Page 48 of 57 may be a valuable contribution to the cause of

justice if Counsel screen wholly fraudulent and

frivolous litigation refusing to be beguiled by

dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of

India, we hope will activate this obligation. We are constrained to make these observations and hope

that the co-operation of the Bar will be readily

forthcoming to the beach for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain

litigation is the gullible grant of ex-parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex-parte pressure in

unmerited cases helps devalue the judicial

process.” 20. We are of the opinion that the above noted passage of the aforesaid judgment in T.

Arivandandam Vs. T.V. Satyapal’s case is fully

applicable to the facts and circumstances of the

present case. Having not succeeded in getting stay in Suit No. 3064/96, in our view, the Lawyer should have refused to move an application for stay in the second suit.”

26. The Division Bench held that the respondents were guilty of contempt and that they had made an attempt to overreach the Court by playing a fraud upon the Court and the opposite party. The respondent was, therefore, non suited in respect of the subsequent suit and was warned to be more careful in future. To the same effect is the decision of this Court in Holy Health and Educational Society (Regd.) v. Delhi Development Authority 80 (1999) DLT 207.

Xx xx xx xx xx xx

CONT.CAS(C) 815/2011 Page 49 of 57

32. In T. Arivandandan v. T.V. Satyapal (1977) 4 SCC 467, the Supreme Court cautioned lawyers by observing that “It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.” Unfortunately, I regret to observe that the counsels for the petitioners have not heeded to the aforesaid advice of the Supreme Court.

33. The facts of this case compel me to take note of what the Supreme Court had the occasion to observe in Sanjiv Datta, Dy. Secretary, Ministry of Information & Broadcasting, In re v. (1995) 3 SCC 619:

“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a

model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the

stalwarts in the profession to strengthen them. They took their profession seriously and practised it with CONT.CAS(C) 815/2011 Page 50 of 57 dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the

members of the profession to introspect and take

the corrective steps in time and also spare the

courts the unpleasant duty. We say no more.

Need I say more?”.

65. The Supreme Court in A.V. Pappaya Sastry & Anr. Vs. Govt. of A.P & Ors., (2007) 4 SCC 221 has held that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Such a judgment, decree or order which is obtained by playing a fraud on court or on Tribunal or authority is a nullity and non-est in the eyes of law. The Court observed that fraud and justice cannot dwell together, and fraud and deceit ought to benefit none. In Para 26 the Supreme Court observed as under:-

CONT.CAS(C) 815/2011 Page 51 of 57 “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants”.

66. It is evident that the respondent, seemingly with the aid and advice of her counsel had sought to mislead the courts dealing with the D.V. Act proceedings by suppressing material facts and orders passed by the learned Guardianship Judge with a view to gain advantage in the proceedings under the D.V. Act. It is clear that the respondent sought to overreach the Guardianship Court, and the orders passed by the said Court. The conduct of the respondent, seemingly aided and supported by conduct of her counsel, clearly tantamounted to playing a fraud upon the Court dealing with the D.V. Act proceedings as well as upon the petitioner. The respondent had abused the process of the Court by filing the D.V. Act proceedings with concealment of the orders, and proceedings already passed and undertaken before the learned Guardianship Judge. This concealment was calculated to hamper the due course of justice i.e to interfere with the order dated 30.09.2010 passed by the learned Guardianship Judge. CONT.CAS(C) 815/2011 Page 52 of 57

67. The respondent has made a mockery of the judicial process that undermines the dignity of the Court and the majesty of law. The conduct of the respondent tends to bring the authority and administration of law into disrespect and disregard. It seriously interferes with the rights of the petitioner. Abuse of the process of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice tantamount to contempt of Court (see Advocate General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 and Delhi Development Authority V. Skipper Construction & Anr, JT 1995(2) SC 391). Accordingly, the respondent is clearly guilty of contempt of Court.

68. The respondent cannot be heard in these proceedings unless she purges herself of the contempt so committed by her by forthwith placing the child Liam in the custody of the petitioner. As aforesaid, the proceedings launched under the D.V. Act are tainted by fraud, suppression and concealment and the orders passed therein by the learned M.M and learned ASJ are therefore a nullity.

69. So far as the conduct of the respondent’s counsel is concerned, the same is highly suspicious. If he is given the benefit of the doubt, his conduct is highly negligent and unprofessional, and the same deserves to be CONT.CAS(C) 815/2011 Page 53 of 57 deprecated in the strongest terms. It is such conduct of counsel which brings the noble legal profession into disrepute and erodes the confidence of the litigating public and the courts in the professionals practicing the legal profession. The administration of judicial process and dispensation of justice by the Courts would become extremely difficult, if the members of the Bar do not maintain the highest standards of integrity and professionalism in pleading their cases before the Courts. Justice would become a casualty, even if temporarily. Though the law provides remedies to tackle such conduct on the part of litigants and their lawyers, and such myopic street smartness invariably eventually fails, it consumes a tremendous amount of material and other resources of the litigant who is a victim of such fraud, and also leads to immense waste of productive time of the Court which would otherwise be utilized in dealing with more deserving cases.

70. Now I may deal with two other decisions relied upon by the respondent. The reliance placed on the decision in Dinesh Kumar Gupta (supra) by the respondent is wholly misplaced. In this case, upon examination of facts the Court came to the conclusion that no case of contempt of court was made out. It was in this background that the Court observed that if an order is capable of more than one interpretation giving CONT.CAS(C) 815/2011 Page 54 of 57 rise to variety of consequences, non-compliance of the same cannot be held to be willful disobedience of the order so as to make out a case of contempt entailing serious consequences. In the present case, it is evident that the orders dated 30.09.2010 and 05.04.2011 were unambiguous and clearly brought out the fact that the defacto custody of the child Liam was with the petitioner. There was no question of there being any ambiguity in those orders, or of their being interpreted in any other manner.

71. For the same reason, reliance placed on the decision in Anshuman (supra) is also of no avail to the respondents. The decision in Dr. Ashsih Ranjan (supra) has absolutely no relevance to the facts of the present case. That was a case where the visitation rights of the father had been frustrated by the respondent-mother who had the custody of the child. The Supreme Court held that on account of the denial of the visitation rights and the tutoring of the minor child, and in the light of the changed circumstances, the petitioner-father could seek review/modification of the orders regarding custody before the appropriate Court. The decision in the aforesaid case does not mean that in every case where there is willful and deliberate breach of the orders of the Court, or orders are obtained by playing a fraud upon the Court and the opposite party, the party guilty of committing contempt of CONT.CAS(C) 815/2011 Page 55 of 57 Court can be allowed to get away with such contempt without being suitably dealt with by the Court.

72. In the light of the aforesaid discussion, I allow this petition. The respondent is found guilty of committing contempt of Court.

73. The respondent is guilty of disobeying the orders dated 30.09.2010 and 05.04.2011 passed by the leaned Guardianship Judge by removing the child Liam from the custody of the petitioner and by taking the said child into her own custody. The respondent is guilty of contempt of Court as she has abused the process of the Court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice. She has made mockery of the judicial process.

74. I direct the respondent to purge the contempt by forthwith restoring the custody of the child Liam with the petitioner. I hold the orders passed by the learned Metropolitan Magistrate and learned ASJ in the proceedings initiated by the respondent under the D.V Act, in so far as they deal with the aspect of custody of the minor child Liam, to be null and void. I call upon the respondent to show cause as to why she should not be punished for contempt of Court. Let the requisite notice issue to her for this purpose. CONT.CAS(C) 815/2011 Page 56 of 57

75. The counsel for the respondent, Mr. Sashank Kumar Lal is cautioned for minding his conduct in future. He is advised to adhere to the highest standards of professionalism, ethics and integrity as an Advocate.

76. I subject the respondent to costs of Rs. 2,00,000/-, out of which Rs.1,00,000/- be paid to the Delhi Legal Services Committee and the remaining amount be paid to the petitioner within four weeks from today. (VIPIN SANGHI)

JUDGE

FEBRUARY 21, 2012

sr/ms

CONT.CAS(C) 815/2011 Page 57 of 5

http://indiankanoon.org/doc/127422124/

Categories: DV Judgements, Judgement

Domestic Violence Act is being used to settle property dispures

Uttaranchal High Court
Rafat Araa vs Kamar Mirja on 4 January, 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISC. APPLICATION (C-482) No. 600 of 2011

Rafat Araa

W/o Jafar Khan @ Darban Singh

R/o Mohalla Katortal Nai Basti

Near Lashkhar Kashipur

District Udham Singh Nagar

………………..Applicant

Versus

Kamar Mirja

S/o Kaishar Mirja

R/o Mohalla Katortal Nai Basti

Near Lashkhar Kashipur

District Udham Singh Nagar

………………Respondent

Shri D.C.S.Rawat, Advocate, present for the petitioner. Shri Abhishek Verma, Advocate, present for the respondent.

Hon’ble Prafulla C. Pant, J.

Heard.

(2) By means of this petition, moved under section 2

482 of Code of Criminal Procedure, 1973, the petitioner has quashing of the judgment and order dated 16.05.2011, passed by Additional Sessions Judge, Kashipur, in Criminal Appeal No. 133 of 2010, Qamar Mirja vs. Rafat Araa, filed under section 29 of Protection of Women from Domestic Violence Act, 2005.

(3) Brief facts of the case, are that, the petitioner Rafat Araa is real aunt (BUA) of the respondent Qamar Mirja. She moved an application under Protection of Women from Domestic Violence Act, 2005, against the respondent pleading that she was being subjected to physical cruelty by the respondent to oust her from the house, they are living together. It is also pleaded by the petitioner Smt. Rafat Araa that the house was purchased by her husband through a registered sale deed from Kaisar Mirja (father of the present respondent), and allowed Qamar Mirja (nephew of the petitioner) to stay in the house as a goodwill gesture. On the other hand, the respondent pleaded before the trial court that where abouts of his father are not 3

known, and the alleged sale deed is a forged document. The respondent further pleaded that it was he who allowed the petitioner Smt Rafat Araa as she was his aunt to stay in the house.

(4) In the above circumstances, the pleading of the parties suggest that it is a dispute of ownership of the house in question. However, what is to be seen for the purposes of this case, is whether the property is a shared household, or not.

(5) The definition of “shared household” is mentioned in clause (s) of section 2 of Protection of Women from Domestic Violence Act, 2005. It reads as under:-

” shared household ” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of 4

them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

The above definition makes it clear that the aggrieved must have lived in a domestic relationship with the respondent. The definition of “domestic relationship” is given in clause (f) of section 2 of the Act. Said definition reads as under :-

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

5

From the above definition of domestic relationship it appears that it is necessary that the aggrieved person should have related to the respondent by consanguinity, marriage or through the relationship in the nature of marriage, adoption or as a member of joint family. It is nobody’s case that there was a joint family of the petitioner and her brother Kaisar Mirja (father of the respondent). Nor, the petitioner and respondent are related by consanguinity, marriage, or relationship in the nature of marriage, or adoption.

(6) ” Aggrieved person” is defined in clause (a) of section 2 of the Act. The same reads as under:-

” aggrieved person” means any woman who is , or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.;

(7) In the above circumstances, having gone through the definition of ” aggrieved person” 6

given in clause (a) of section 2, and that of “domestic relationship” and ” shared household”, quoted above, this court comes to the conclusion that the aunt (BUA), and her nephew can not be said to be the persons living together in a shared household, under the domestic relationship. That being so, the appellate court has committed no illegality in allowing the appeal, and setting aside the order passed by the Magistrate in favour of the petitioner.

(8) Accordingly, this petition filed under section 482 of Cr.P.C., is dismissed.

(Prafulla C. Pant, J.)

Dt.04.01.2012

N.P

http://indiankanoon.org/doc/168447031/

Categories: DV Judgements

Wwomen’s maintenance rejected by Dlhi High Court under Domestic violence act

Delhi High Court
Poonam Khanna vs V P Sharma & Anr on 30 January, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. No.2602/2010

% Judgment reserved on : 06th January, 2012 Judgment delivered on:30th January, 2012

POONAM KHANNA ….. Petitioner Through : Petitioner in person.

versus

V P SHARMA & ANR …. Respondents Through : Respondent No.1in person.

Mr.Navin Sharma, APP for State/R-2.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. Instant petition is being filed under Section 482 Cr.P.C. against the impugned order dated 29.07.2010 passed by learned Additional Sessions Judge, whereby the revision petition of respondent No.1 was allowed and the order dated 23.01.2010 passed by learned Magistrate granting interim maintenance to the tune of ` 5,000/- per month to the petitioner was set aside.

2. Being aggrieved, on 24.02.2010, respondent No.1 filed Revision Petition No.19/2010 under Section 397 Cr. P.C. seeking dismissal of interim order of maintenance. The same was disposed of vide impugned order dated 29.07.2010 while setting aside the interim Crl.M.C.No.2602/2010 Page 1 of 12 maintenance and allowed the revision petition of respondent.

3. It is pertinent to mention that petitioner and respondent No.1 both are appearing in person.

4. Petitioner has raised the issue that as per the settled law, the interlocutory order being the interim maintenance order cannot be challenged by way of revision petition under Section 397 Cr. P.C. Secondly, she has raised the issue that learned Additional Sessions Judge, while setting aside the order passed by learned Magistrate has ignored the fact that on the presumption that respondent may be able to prove the means of petitioner in future by placing additional material on record, which is against settled law that the interim maintenance must be decided on the material available on record and not on the hypothecation that the material likely to be adduced at the time of evidence.

5. Further petitioner has submitted that in Revision Petition No.19/2010, learned Additional Sessions Judge, has not considered this fact that petitioner being the wife of respondent is unemployed and is not earning her livelihood. Learned Additional Sessions Judge, has ignored the submission made by petitioner that the respondent / husband is having rental income from the properties.

6. Vide order dated 23.01.2010, interim maintenance was awarded in favour of petitioner on the basis of the material placed on record by both the parties. However, vide the impugned order, learned Additional Sessions Judge, has set aside the award of interim maintenance on the

Crl.M.C.No.2602/2010 Page 2 of 12 presumptive and hypothecated ground that the respondent may placed the requisite material required to cancel the interim maintenance before learned Trial Court. She has referred to Savitri v. Govind Singh Rawat AIR 1986 SC 984 and relied upon para No.6 thereof which reads as under:-

“In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express

prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under

section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant

pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary

intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. P.1797). Whenever anything is

required to be done by law and it is found

impossible to do that thing unless something not Crl.M.C.No.2602/2010 Page 3 of 12 authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on

affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim

maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted Crl.M.C.No.2602/2010 Page 4 of 12 as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim

maintenance subject to the other conditions

referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to

transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family

Courts constituted under the said Act.”

7. The instant petition is being filed on the ground that the respondent has not placed any material on record showing the earning or employment of the petitioner. By quoting the qualification of the petitioner to earn is not contemplated under Section 125 (1) (a) Cr. P.C. and a wife, who sacrifices her lucrative career for the sake of her children besides herself being ill cannot be denied maintenance by her husband/respondent as held by various Courts in the decisions; Vijay Singh Yadav v Rajesh Yadav & Anr 2009 (III) DRJ 516 wherein para No.5 reads as under:-

“5. I have carefully considered the submissions made by counsel for the petitioner. There is no doubt that no revision is permissible under Section 397(2) Cr. P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is

competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice. For this purpose, the judgments which have been relied upon by counsel for the petition in case of Krishnan & Crl.M.C.No.2602/2010 Page 5 of 12 Anr. v. Krishnaveni & Anr. & in case titled Delhi Labour v. Raj (supra) are not in dispute.”

8. She also relied upon Rakhi v. Pankaj Kumar 123 (2005) DLT 262 wherein in para No.5 this Court has held as under:- “5. Looking at the matter as it stands it appears that the judgment under challenge is erroneous and that the learned Additional Sessions ought not to have interfered at a stage when the

Metropolitan Magistrate fixed only the interim amount in the proceedings under Section 125 Cr. P.C.”

9. Petitioner has further pointed out that learned Additional Sessions Judge, vide the impugned order has cancelled the award of interim maintenance to the petitioner not on the basis of any material placed on record, but on the hypothecation that required material may be placed before the Court by respondent/husband later on in future.

10. On the other hand, respondent No.1 has filed his reply whereby he has taken preliminary objection about the maintainability of petition. He has submitted that the petitioner has concealed important / material facts from this Court because these facts render this petition to be non-maintainable. The said facts are as under:- (i) The petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No. N-15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties. Crl.M.C.No.2602/2010 Page 6 of 12 (ii) The petitioner backtracked from the said settlement and continued with the litigation vigorously. Another settlement was executed on 02.04.2003 which was ultimately registered. Only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent.

(iii) On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life. (iv) The petitioner filed the application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.

(v) On the basis of settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 a petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed, thus adding sanctity to the settlement.

11. Respondent has further stated in the reply on question of law that learned Additional Sessions Judge cancelled the interim maintenance on the basis of material placed on record including the registered Crl.M.C.No.2602/2010 Page 7 of 12 settlement deed dated 02.04.2003 and para No.30 of the Trial Court order dated 24.07.2009 reads as under:-

“Thus, it is clear that grant of maintenance under Section 125 Cr. P.C. certain conditions are

required to be fulfilled and it would be a matter of trial whether the respondent has refused or

neglected to maintain the petitioner, whether the petitioner is unable to maintain herself and whether the respondent has sufficient means to maintain the petitioner ……”

12. It is further submitted that the question of law is not against the orders of learned Additional Sessions Judge dated 04.06.2010 as alleged and the petitioner has received most of the interim maintenance till the said order dated. Learned Additional Sessions Judge in para No.13.0 observed as under:-

“It is pertinent to mention here that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”

13. Respondent has also filed additional submissions and submitted that in para No.12.2 of the impugned order, learned Additional Sessions Judge has opined as under:-

“I consider that in view of these peculiar fats and circumstances, parties are required to prove whether the settlement arrived into between them was only illusory and sufficient arrangement not made for the future maintenance of the

respondent/ wife or that whether respondent/wife is unable to maintain herself or whether the petitioner/husband has sufficient means or not. I consider that parties are required to lead

evidence in this regard.”

Crl.M.C.No.2602/2010 Page 8 of 12

14. Respondent had handed over the shop in property No.N-15, Malviya Nagar, New Delhi and DDA flat in Khirki Village at the time of settlement / divorce by mutual consent. The petitioner has sold off these properties and purchased a double story 250 yards house bearing No.758, Sector 7, Punchkula and is getting rent of around ` 40,000/- per month. Proof thereof is annexed as Annexure R-1.

15. The petitioner continuously living in the same house and is maintaining the same living standard in contrast to the respondent, who has been forced to live in an unauthorised colony and that too on rent.

16. Learned Additional Sessions Judge in para No.13.0 observed that “that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”

17. During her cross-examination, in the petition under Section 125 Cr. P.C. on behalf of son, petitioner while asserting that she is living on the mercy of relatives, friends, but failed to name even a single person from whom she had taken debt or loan and this fact goes to prove that she has sufficient means to maintain herself.

18. Petitioner has filed her income tax returns till the year 2007-08. And declared her income to be ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent. Annexure R-3 has been placed on record in this regard.

19. It is further stated that because she initiated litigation on her income and the income of a practicing gynaecologist is always in cash, therefore, stopped filing her tax returns. Failing in her endeavour to Crl.M.C.No.2602/2010 Page 9 of 12 fulfil her greed under Prevention of Domestic Violence against Women Act, because the case was ruled to be non-maintainable in the background of settlement dated 02.04.2003, she took the shelter of Section 125 Cr. P.C. and filed the petition, therein.

20. It is stated, the petitioner has concealed the fact that just before filing the petition mentioned above, she got admitted her adopted daughter to a prestigious, high end public school and is spending more than ` 30,000/- per month upon her.

21. The respondent has stated in the reply to the instant petition that the wife should maintain standard of living, comparable to the husband as per the provision enshrined under Section 125 Cr. P.C. In the instant case, the petitioner is living in partially self owned house, whose monthly rental is ` 80,000/- whereas respondent is living in a rented house in an unauthorised colony whose rental is ` 8,000/- per month. Moreover, she is running a nursing home in the basement of property No.C-18, Shivalik, New Delhi whose monthly rent is ` 25,000/- per month.

22. I note that the petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No.N- 15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.

23. Another settlement was executed on 02.04.2003 which was

Crl.M.C.No.2602/2010 Page 10 of 12 ultimately registered. The only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent. On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life.

24. Thereafter, the petitioner filed another application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.

25. It is pertinent to mention here that on the basis of the settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed.

26. It is also pertinent to mention that learned Trial Court recorded in its order dated 24.07.2009 that for grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether respondent has refused or neglected to maintain the petitioner whether the petitioner is capable to maintain herself and whether the respondent has sufficient means to Crl.M.C.No.2602/2010 Page 11 of 12 maintain the petitioner.

27. Moreso, in the aforesaid order, learned Additional Sessions Judge has recorded his opinion that parties are required to prove that whether the settlement arrived at between them was only illusory and sufficient arrangements not made for the future maintenance of the wife or that whatever wife is unable to maintain herself or whether the husband has sufficient means or not. To this effect, parties are required to lead evidence. The petitioner during her cross- examination in petition under Section 125 Cr. P.C. on behalf of her son deposed that she was living on the mercy of the relatives, friends, however failed to name even a single person from whom she had taken debt or loan.

28. Moreso, annexure R-3 shows that her income tax returns till the year 2007-08 and her income was ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent.

29. In view of above, I find no perversity in the impugned order passed by learned Additional Sessions Judge. I conquer with the same.

30. Keeping the above discussion into view, I find no merit in the case. Accordingly, Criminal M.C. No.2602/2010 is dismissed.

31. No order as to costs.

SURESH KAIT, J

JANUARY 30, 2012

Mk

Crl.M.C.No.2602/2010 Page 12 of 12

http://indiankanoon.org/doc/86616093/

Categories: DV Judgements

HC: Merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other of law under which the order could be validly made.

Syed Naim S/O Syed Vajir vs Samina Syed Naim on 27 September, 2011
Bench: A. V. Potdar

{1} CWP No.482/2011

drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.482 OF 2011

Syed Naim s/o Syed Vajir PETITIONER Age-31 years, Occ-Private Service

As a Driver, R/o Bank Colony,

Parali Road, Ambajogai,

Tq-Ambajogai, Dist-Beed

VERSUS

1. Samina Syed Naim RESPONDENTS Age-27 years, Occ-Household

R/o Pimpalner, Tq & Dist-Beed

2. Syed Ayan s/o Naim Syed

Age-5years, Since Minor

u/g of respondent No.1

3. Syed Anam s/o Naim Syed

Age-7 years, Since Minor

u/g of respondent No.1

…….

Mr.S.S.Thombre, Advocate for the petitioner Mr.N.L.Jadhav, Advocate for the respondents

…….

[CORAM : A.V.POTDAR, J.]

th September 2011

DATE: 27

ORAL JUDGMENT:

 

1. Rule. Rule made returnable forthwith. Heard finally by {2} CWP No.482/2011

consent.

 

2. This petition, under Article 227 of the Constitution of India, is directed against the judgment dated 30.05.2011 passed by Sessions Judge, Beed in Criminal Revision No.92/2010 by which the learned Sessions Judge has confirmed the order dated 29.10.2010 passed below Exhibit-22 in Criminal Miscellaneous Application No.586/2008.

 

3. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus-

Respondent No.1 has filed an application under the Domestic Violence Act before JMFC, Beed bearing Miscellaneous Criminal Application No.205/2008. A separate application, seeking interim maintenance and certain other directions was filed on 18.06.2008. Application for interim maintenance was contested by the petitioner-husband, however the same came to be allowed on 21.08.2008. It is observed by the trial court that the petitioner to pay financial assistance @ Rs.5000/- u/s 20 of the Domestic Violence Act to the respondents. It appears that thereafter an {3} CWP No.482/2011

application for execution of the said order came to be filed by respondent No.1 in the trial Court. The application for execution was filed on 29.11.2008 for recovery of the maintenance amount for 3 months totaling to Rs.15,000/-. It further appears that along with the said application one more application was moved by the respondent u/s 465 of the Criminal Procedure Code, seeking correction of the operative part of the order dated 21.08.2008 as it remained to be mentioned that the financial assistance @ Rs. 5000/- ‘per month’ be paid. The words “per month” are remained to be mentioned in the operative order. It appears that on 06.08.2010, the petitioner-husband raised objection that the Magistrate cannot correct or modify his own order, once the same is declared and signed. Vide order dated 29.10.2010, the application moved by the respondent came to be allowed by the Magistrate by observing that the correction sought by the respondent is a typographical error and it can be corrected under the powers vested in the Magistrate. It appears that being aggrieved by the said order, the petitioner filed Criminal Revision Application No.92/2010 before Sessions Court, Beed. The said Criminal Revision came to be dismissed vide order dated {4} CWP No.482/2011

30.05.2011, which is impugned in the present petition.

4. Learned counsel for the petitioner urged that in the given circumstances the learned Magistrate has no power to carry out the corrections in the order passed u/s 465 of the Criminal Procedure Code as those powers are vested with the appellate or revisional court. Learned counsel for the petitioner relied on section 362 of the Criminal Procedure Code, which prohibits the Court from making any correction in the judgment and order once the same is signed. Therefore, it is urged that the impugned order, being illegal, be quashed and set aside.

 

5. It is further urged that the application is filed by the respondent in the execution proceedings and hence the same is not maintainable. I am not in agreement with this submission as the execution proceedings is continuation of the original proceedings and hence to file an application in the execution proceedings, which is part of the original proceedings, is perfectly legal. Therefore, the submissions of learned counsel for the petitioner, in this behalf are turned down.

{5} CWP No.482/2011

 

6. While opposing these submissions, learned counsel for the respondents urged that the correction carried out on the application moved by the respondents are not modification or alteration of the order passed by the learned Magistrate, but he has only corrected the clerical error and has not changed the text of the order. It is further urged that perusal of section 362 would indicate that though the order or judgment is signed by the concerned criminal court, yet on noticing any clerical or typographical error, the same can be rectified and the same would not amount to any illegality.

 

7. Considering these submissions, at this juncture, it may be useful to refer the observations in “State of Karnataka V/s Muniyalla” 1985 AIR SC 470, wherein it is observed that “merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of {6} CWP No.482/2011

invalidating an order which is otherwise within the power of authority making it.”

 

8. In the light of the ratio laid down by the Apex Court in the judgment cited supra, though the trial court could not have passed the impugned order u/s 465 of the Criminal Procedure Code yet the Sessions Court has rightly observed that the correct provision to modify the order is not u/s 465 but u/s 362 of the Criminal Procedure Code. Perusal of the text of section 362 Criminal Procedure Code indicates that it prohibits the Court to modify or alter the judgment once signed, however it also makes it clear that if any clerical or typographical mistake is noticed then it is within the powers of the Court concerned to correct the typographical error. Admittedly, what is corrected by the trial Magistrate is an arithmetical and typographical mistake. It is to be considered that this application is maintainable u/s 362 of the Criminal Procedure Code, which is the correct provision to be applied for carrying out the correction of the typographical error in the operative part of the impugned order. Therefore, I do not notice any illegality in the impugned orders in allowing the prayer of the {7} CWP No.482/2011

respondent and hence the petition is liable to be dismissed.

9. Consequently, the petition, which is sans merits, stands dismissed. Rule stands discharged.

[A.V.POTDAR, J.]

drp/B11/c2p482-11

http://indiankanoon.org/doc/1625581/

Categories: DV Judgements

NO need to prove Domestic relation or Domestic violence to get maintenance…..all you need to prove is husband’s Income

Shanker vs Meena on 20 September, 2011
Author: Suresh Kait

$~6

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C.No.1814/2011

% Judgment delivered on:20th September,2011

SHANKER ….. Petitioner Through: Ms.Saahila Lamba, Adv

versus

MEENA ….. Respondent Through: Mr.Ashok Kumar &

Mr.R.M.Tatia, Advs.

Inspector Jai Kishan Gautam, SHO

police station Uttam Nagar in

person.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may be allowed to see the judgment? No.

2. To be referred to Reporter or not? No.

3. Whether the judgment should be reported in the Digest? No.

SURESH KAIT, J. (Oral)

1. On 16.08.2011, this Court has passed following order:-

“1. The present petition is filed against the order dated 18.03.2011 passed by ld. Addl. Sessions Judge.

2. The learned counsel for the petitioner submits that vide order dated 05.10.2007

Crl.M.C.No1814/2011 Page 1 of 15 the learned MM had directed that a sum of Rs.2,000/- each per month would be paid by the petitioner, to the respondent/ complainant for her maintenance and also for the maintenance of the minor daughter namely Bhavna, as an interim measure till the disposal of the petition.

3. Further the learned counsel for the petitioner submits that the application was filed for clarification of the said order dated 05.10.2007 that typographically it was directed that Rs.2,000/- each instead of Rs.2,000/- total in favour of the respondent for her maintenance and for the maintenance of her minor daughter. The same was dismissed on 18.12.2010 and confirmed the order dated 05.10.2007.

4. Being aggrieved the petitioner challenged the same before the Sessions Court vide order dated 18.03.2011, the learned Sessions Judge, Tis Hazari Courts, Delhi has also confirmed the order dated 05.10.2007 passed by the learned MM.

5. Learned counsel for the petitioner submits that learned ASJ has not dealt with the relevant points on the petition and has Crl.M.C.No1814/2011 Page 2 of 15 only given the opinion that learned Magistrate had no power to rectify the order passed on 05.10.2007.

6. Learned counsel for the petitioner has drawn the attention of this court to order dated 25.02.2008 passed by the learned ASJ wherein in para 5 as on page 19 it is stated as under :

“5. I have also gone through the provisions of Section 23(2) of the said Act. Under the Section learned Magistrate can grant even an exparte order on the basis of the affidavit filed by the petitioner/ aggrieved person under the said Act. In the present

case the learned Trial Court has duly considered the averments of both the parties. It is purely the interim order till the final decision of the case. The learned Trial Court shall come to the conclusion for grant of maintenance only after the evidence is lead by both the parties. The petitioner had his brothers also who could very well

maintain his parents. Even as per

minimum wages of an unskilled

labour, the wages are approximately 3,500/- per month.”

7. Learned counsel for the petitioner submits that the petitioner is earning Rs.5,000/- per month. Therefore, he cannot afford to pay Rs.4,000/- i.e. Rs.2,000/- each when he is also maintaining one daughter

Crl.M.C.No1814/2011 Page 3 of 15 aged about 6 years. The petitioner has drawn attention to order dated 18.12.2010 passed by learned trial court for the rectification of the order as under : “In support of the said contention, it is point out by Ld. Counsel for the

respondent that the respondent had

been continuously making payment of Rs.2,000/- per month to the petitioner w.e.f. 5.10.10.07 till 4.4.10 and no objection has been raised on behalf of the petitioner that the complete

payment is not being made.

It is also pointed out that even

some of the order sheets of my Ld.

Predecessor like order sheet dated

29.1.07, 30.1.08 clearly reflect that payment of Rs.2000/- towards the

month of November and December

respectively. It is thus stated that the petitioner now cannot be permitted

claim the additional maintenance @

Rs.2000/- per month and from the

conduct of the parties as pointed out hereinabove, it is very clear that the order of interim maintenance was

only for Rs.2000/- per month and not @ Rs.2000/- per month for each of the petitioners.”

8. Keeping in mind the monthly wage of the petitioner/husband @ Rs.5,000/- per month and since he is also maintaining one daughter as the respondent. It is only fair that both children are provided with the right environment for a proper upbringing.

Crl.M.C.No1814/2011 Page 4 of 15 Therefore, in equity I deem it appropriate to modify the order to the extent that the petitioner shall continue to pay Rs.3,000/- per month to the respondent as maintenance till the disposal of the application. The arrears, if any, shall also be cleared as per the rate of Rs.3,000/- per month.

9. CRL.M.C. 1814/2011 is partially allowed. Order dated 05.10.2007 passed by the learned trial Judge is modified.

10. At this stage, the petitioner, who is present in person, submits that he is ready to keep his wife with him and he will keep her happy.

11. At his request, re-notify on 23rd August, 2011.

12. The notice be served to respondent through SHO concerned and ensure the presence of the respondent on the next date of hearing in the Court.”

2. Since, the SHO concerned could not serve the

respondent on 23.08.2011, therefore, she did not appear,

hence the matter was adjourned.

Crl.M.C.No1814/2011 Page 5 of 15

3. On 24.08.2011, respondent appeared in person with

her learned counsel, and inter alia, following order was

passed:-

“….. She submits that the petitioner is a man of means; apart from shirts business, he is also in the business of property dealing. He also owns some properties in Delhi. She further submits that before the separation she was staying with her husband at 331, J. J. Colony, Raghubir Nagar along with her brother-in-law namely Arjun, who is younger to the petitioner.

2. Respondent further submits that the said brother-in-law has left his first wife and he has kept another lady without taking divorce and he has three sons from his new wife, whereas, the first wife has one girl child and living separately.

3. She further submits that the petitioner is intending to repeat the same with her also, therefore, due to this reason she is not ready to go with the petitioner.”

4. Inspector Jai Kishan Gautam, SHO police station Uttam

Nagar, New Delhi was present in person and was directed to

Crl.M.C.No1814/2011 Page 6 of 15 verify the total income earned by the petitioner and whether

or not is there any property in his name.

5. Pursuant to the order dated 24.08.2011, SHO, police

station Uttam Nagar, filed the status report and submits that

on inquiry it is found that the property No.M-331, Raghubir

Nagar, New Delhi, is registered in the name of father of

petitioner, Shri Lalu Ram, which was purchased after selling

his earlier House No.A-641 and A-646, Raghubir Nagar, New

Delhi.

6. Further it is stated that, one Jhuggi No.W-52, R-144,

near water tank, Raghbubir Nagar, Delhi was also found to

be registered in the name of the father of the petitioner,

which was purchased on 23.08.2005. One tenant Krishan

s/o Sh.Laxman is stated to be in possession of said Jhuggi at

a monthly rent of `1,200/-.

7. On inquiry it is further found that one Janta Flat No.268,

Type GRP-1, Sector B-4, Pocket – 3, Narela, Delhi was

allotted in the name of petitioner on 27.09.2007. However,

same was disposed on 10.10.2008 for a sale consideration of

` 3.5lacs; a copy of the sale deed is produced by SHO, police Crl.M.C.No1814/2011 Page 7 of 15 station Uttam Nagar, New Delhi to prove the same. The

photocopy seen and returned to the SHO concerned.

8. Learned counsel for respondent further submitted that

the said Janta Flat at Narela was purchased during the

pendency of the proceedings under the Protection of Women

from Domestic Violence Act, 2005. However, the petitioner

neither has paid the arrear nor the installments.

9. However, learned counsel for the petitioner has

clarified that the petitioner is paying ` 2,000/- per month as

understood by both the parties. Further, she submits that

the opposite party never raised any objection.

10. Learned counsel for the petitioner further submits that

an order for the maintenance was passed on 05.10.2007.

Thereafter, the petitioner continued to pay to the respondent

a maintenance amount of ` 2,000/- per month. She also

continued to accept the same without any protest, till the

filing of the execution petition on 04.04.2010. Further she

submits that under Rule 6(5) of the Protection of Women

from Domestic Violence Rules, 2005, which reads as under:-

“6.Applications to the Magistrate.–(1) Crl.M.C.No1814/2011 Page 8 of 15 Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.

(2) xx xx xx

(3) xx xx xx

(4) xx xx xx

(5) xx xx xx

(6) The application under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973.”

11. Further submitted that under Section 12(2) of the

Protection of Women from Domestic Violence Act, 2005, the

relief sought for under sub-section (1) may include a relief

for issuance of an order for payment of compensation or

damages without prejudice to the right of such person to

institute a suit for compensation or damages for the injuries

caused by the acts of domestic violence committed by the

respondent.

12. Further submitted that, the application has to be

disposed of as per the provisions under Section 125 (3) of

the Code of Criminal Procedure, 1973; wherein it is

Crl.M.C.No1814/2011 Page 9 of 15 enumerated as under:-

“125. Order for maintenance of wives, children and parents. -

(1) xx xx xx

(2) xx xx xx

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be

issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it

became due:

Provided further that if such person

Crl.M.C.No1814/2011 Page 10 of 15 offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under the section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

13. Learned counsel for the petitioner submits that learned

Magistrate has the power to issue any order for the amount

which is due for a period of one year only from the date it

became due.

14. Further, pointed out that the amount became due on

05.10.2007 and the execution petition filed on 04.04.2010, is

barred by the provisions mentioned above.

15. It is submitted that when the respondent moved an

application for execution before learned Metropolitan

Magistrate; the petitioner simultaneously, also filed an

application for clarification.

16. Vide order dated 18.12.2010, the application for

clarification of the petitioner was dismissed whereas; the

execution application filed by respondent was allowed and Crl.M.C.No1814/2011 Page 11 of 15 directed to pay the difference amount of ` 2,000/- per month

from the date of order passed by learned Metropolitan

Magistrate.

17. Thereafter, the petitioner filed the revision petition

before the Sessions Court and the same was dismissed vide

order dated 18.03.2011 on technical ground that the

Magistrate has no powers to rectify its order, therefore,

same was dismissed.

18. Vide the instant petition, the petitioner has assailed

said order dated 18.03.2011 passed by learned Additional

Sessions Judge.

19. Though, vide order dated 16.08.2011, on equity, this

Court directed to reduce the amount from ` 4,000/- to

` 3,000/- per month, to which, petitioner had no objection.

20. Since, learned counsel for the petitioner was of the

view that there are chances of the reconciliation in the

matter, therefore, this matter was further adjourned and the

SHO concerned was directed to ensure the presence of the

respondent.

Crl.M.C.No1814/2011 Page 12 of 15

21. After hearing learned counsel for respondent, I am of

the view that the chances for reconciliation are bleak; and

just to clarify whether the petitioner is earning the same

amount as he has agitated before the Trial Court, therefore,

just for substantial justice, I directed the concerned SHO for

the purpose as mentioned above.

22. After perusing the status report and hearing both

counsels, it is emerged that the petitioner is in the vocation

of repairing and selling old shirts in Bazar. He is living with

his parents and four children. Though, the father of the

petitioner is having two Jhuggis in his name; one is occupied

by tenant at a monthly rent of ` 1,200/- and the other one

is being used as their residence.

23. Therefore, I am of the view that he is not a man of a

high means, therefore, the order passed by this Court on

16.08.2011 is maintained; whereby the petitioner was

directed to pay the arrears of maintenance @ ` 3,000/- per

month.

24. On instructions, learned counsel for the petitioner

submits that within ten days, the petitioner shall pay an Crl.M.C.No1814/2011 Page 13 of 15 amount of ` 7,000/- towards arrear and within 1½ months

thereafter he shall clear the outstanding arrears from the

date of the order till its realisation. The technical plea taken

by the learned counsel for the petitioner being time barred is

now, not to be pressed before the Trial Court.

25. If the petitioner fails to pay the said arrear amount

within the specified period i.e. maximum two months then

the respondent is entitled to simple interest @ 9% per

annum on outstanding arrears.

26. I make it clear that this order has been passed with the

consent of learned counsels for both parties. However, this

order will not come in the way of respondent for the relief

under Section 125 Code of Criminal Procedure.

27. Before parting with this order, I record my appreciation

for the counsels for both parties, who have assisted the

Court in reaching to the amicable settlement. In addition, I

also record my appreciation for Inspector Jai Kishan Gautam,

SHO police station Uttam Nagar, New Delhi who had

submitted the report on pros and cons of income and

property of the petitioner, in a very fair manner. Crl.M.C.No1814/2011 Page 14 of 15

28. In view of above, Criminal M.C.No.1814/2011 is

disposed of accordingly.

SURESH KAIT, J

September 16, 2011

Mk

Crl.M.C.No1814/2011 Page 15 of 15

Categories: DV Judgements

HC: Marriage need not be proved to file DV, 11000 cost imposed on Husband

Surender Pathak vs Maya Devi on 23 September, 2011
Author: Pradeep Nandrajog

$~21

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision : 23rd September, 2011

+ CRL.M.C. 1241/2010

SURENDER PATHAK ……Petitioner Through: Mr.Ajit Nair, Advocate.

versus

MAYA DEVI ….. Respondents Through: Mr.Amit Singh, Advocate.

CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

1. In the complaint filed under Section 12 of the Protection of Women from Domestic Violence Act 2005, the respondent has alleged against the petitioner that after her late husband Sh.Harpal Singh died, she and the petitioner got married on 28.1.1992 and since then had lived as husband and wife at House No.B-115, Gali No.6, Subhash Vihar, Ghonda, Delhi-110053, which house she claims is the shared household and makes a grievance that on 30.9.2008, the petitioner threw

Crl.M.C.No.1241/2010 Page 1 of 4 her out and started living with another lady named Sangeeta.

2. The petitioner has been summoned in the said complaint and raises the issue in the instant petition that the summoning order as also the complaint be quashed on the premise that the complaint is motivated. He alleges that petitioner and the respondent are not husband and wife.

3. Learned counsel for the petitioner states that the respondent annexed no proof with her complaint of being married to the petitioner. Learned counsel states that if on mere assertions by women, men have to be summoned to face trial pertaining to the law of domestic violence, it would create a chaos and thus would urge that some prima facie proof in support of marriage needs to be filed when a complaint under the Protection of Women from Domestic Violence Act 2005 is filed.

4. Now, if a wife is thrown out lock, stock and barrel from her matrimonial house, it may happen that proof of her marriage would lie in the house and till she has access thereto, she may not be able to furnish prima facie proof of the same, but at the trial may lead credible evidence.

5. Learned counsel for the petitioner responds by saying that at least in some record this fact could be mentioned, for example, a bank account, a passport, a driving license, a pan card, a credit card or the like, and which may be produced.

6. How many women in India possess such kind of documents?

7. Along with the counter affidavit filed, the respondent Crl.M.C.No.1241/2010 Page 2 of 4 has filed photographs which she has obviously obtained from her daughter who got married on 26.11.2007. From the photographs it is apparent that the petitioner and the respondent are sitting at the wedding ceremony and performing rituals which are performed by the parents of a bride. For example, it is to be seen that holding rice in her hands with the palm cupped, respondent has extended her hands towards the petitioner who has put his hand above that of the respondent. Photographs show the petitioner and respondent making the ritual offerings at wedding ceremonies. The two are standing with their hands on the head of the bride and the groom, as is to be seen when parents bless the newly married couple. Photographs show that after the wedding rituals were over and the daughter was bid farewell along with the groom, the respondent is at the back of her daughter in tears and the petitioner, with the grief of a daughter parting company writ larde on his face is seen escorting the daughter of the respondent. Another photograph shows the crying daughter placing her head on the shoulder of the petitioner akin to what we normally see when the girl leaves from the house after marriage.

8. I have repeatedly asked learned counsel for the petitioner whether he claims the photographs to be fabricated or contrived. Counsel admits the authenticity of the photographs but states that the petitioner participated in the wedding as a neighbour.

9. The photographs did not show a male neighbour Crl.M.C.No.1241/2010 Page 3 of 4 participating in the marriage of the daughter of a female neighbour.

10. Besides, the CD of the marriage which has been produced and perused shows complete participation by the petitioner as a father in a marriage ceremony.

11. Highlighting that the daughter in question is the one born to the respondent from her previous husband, I conclude by holding that the respondent has prima facie shown evidence that the petitioner and she were having a relationship as husband and wife.

12. Prima facie evidence being shown by the respondent to justify her claim, rest being a matter of evidence, the petition is dismissed imposing costs in sum of `11,000/- upon the petitioner which he shall pay to the respondent.

PRADEEP NANDRAJOG, J.

SEPTEMBER 23, 2011

dk

Crl.M.C.No.1241/2010 Page 4 of 4

http://indiankanoon.org/doc/1651052/

Categories: DV Judgements

A mother-in-law being an “aggrieved person” can file a complaint against the daughter-in-law as a respondent

Kusum Lata Sharma vs State & Anr. on 2 September, 2011
Author: Mukta Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay)

% Reserved on: 19th July, 2011

Decided on: 2nd September, 2011

KUSUM LATA SHARMA ….. Petitioner Through: Mr. Atul Verma, Advocate

versus

STATE & ANR. ….. Respondents Through: Mr. Pawan Bahl, APP for the State

Mr. M.S. Jadhav, Adv. for R-2.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported Yes in the Digest?

MUKTA GUPTA, J.

1. The Petitioner, one of the Respondents in a Complaint Case No.

40/2011, PS Hauz Khas, New Delhi titled as “Ms. Shakuntala Sharma vs.

Nagender Vashishtha & Ors” received summons from the Court of learned

Metropolitan Magistrate under Section 12 of the Protection of Women from

Crl. M.C. 725/2011 Page 1 of 10 Domestic Violence Act, 2005(in short the „Act‟) to appear on 8th March, 2011.

The Petitioner states that the Complainant/Respondent No. 2 is her mother-in-

law who is having property dispute with the Petitioner‟s husband since 2005

and in order to coerce the Petitioner‟s husband to forego his share in the

property left behind by Petitioner‟s father-in-law, the Respondent no.2 has

filed the complaint.

2. It is contended that the object of the Act was for redressal of married

women who were subjected to cruelty by their husband or in-laws. The object

of the Act clearly states that it does not enable any relative of the husband or

the male partner to file a complaint against the wife or the female partner.

Thus in a nutshell the contention is that a mother-in-law cannot take recourse

to the proceedings under Section 12 of the Act to file a complaint against the

daughter-in-law.

3. The learned counsel for the Petitioner relies upon the object of the Act

and contends that as per para „2‟ and „4‟ of the Statements of Objects &

Reasons of the Act, the Act was enacted to address to the phenomena of

cruelty inflicted under Section 498A IPC in its entirety. It is further

contended that as per Section 2, the Respondent means any adult male person

who is or has been in a relationship with the aggrieved person and against

whom any relief has been sought under this Act. The proviso to Section 2(q)

Crl. M.C. 725/2011 Page 2 of 10 which provides that an aggrieved wife or female living in a relationship in the

nature of marriage may also file a complaint against a relative or the husband

or the male partner does not include a female relative.

4. The issue whether the „females‟ are included or not in the definition of

„Respondent‟ in Section 2(q) of the Act came up for consideration before the

Hon‟ble Supreme Court in Sou. Sandhya Manoj Wankhade vs. Manoj

Bhimrao Wankhade & Ors., 2011 (3) SCC 650 wherein their Lordships held:-

13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression “Respondent” in the main body of Section 2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15 th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No. 588 of 2009 are set aside.

Crl. M.C. 725/2011 Page 3 of 10 Consequently, the trial Court shall also proceed against the said Respondent Nos. 2 and 3 on the complaint filed by the Appellant”

5. Division Bench of this Court in “Varsha Kapoor vs. UOI & Ors. 2010

VI AD(Delhi) 472 interpreting Section 2(q) of the Act also came to the same

conclusion. Thus the issue whether under Section 2(q) of the Act “the female

relative” would be inclusive in the definition is no more res integra. The

Division Bench held as under:-

“12. When we interpret the provisions of Section 2 (q) in the context of the aforesaid scheme, our conclusion would be that the petition is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. No doubt, the provision is not very satisfactorily worded and there appears to be some ambiguity in the definition of „respondent‟ as contained in Section 2 (q). The Director of Southern Institute for Social Science Research, Dr. S.S. Jagnayak in his report has described the ambiguity in Section 2(q) as “Loopholes to Escape the Respondents from the Cult of this Law” and opined in the following words:

“As per Section 2 Clause (q) the respondent means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of the Act would show that an application will not lie under the provisions of this Act against a female. But, when Section 19(1) proviso is perused, it can be seen that the petition is maintainable, even against a lady. Often this has taken as a contention, when ladies are arrayed as respondents and it is contended that petition against female respondents are not maintainable. This is a loophole which should be plugged.”

13. But then, Courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court to give correct interpretation to such a provision having

Crl. M.C. 725/2011 Page 4 of 10 regard to the purpose sought to be achieved by enacting a particular legislation. This so expressed by the Supreme Court in the case of Ahmedabad Municipal Corpn. Anr. Vs. Nilaybhai R. Thakore & Anr. [(1999) 8 SCC 139 in the following words:

“14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the Rule in question is only a subordinate legislation and by declaring the Rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this Rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher [1994] 2 All ER 155 wherein he held : “When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give ‘force and life’ to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases”. This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. : [1961]2SCR295 and followed as recently as in the case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996CriLJ3237 . Thus, following the above Rule of interpretation and with a view to iron out the creases in the impugned Rule which offends Article 14, we interpret Rule 7 as follows : “Local student means a student who has passed H.S.C./New S.S.C.

Crl. M.C. 725/2011 Page 5 of 10 examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of Ahmedabad

Municipality who acquires the above qualifications from any of the High School or College situated within Ahmedabad Urban Development Area.”

14. This Court also followed the aforesaid principles in the case of Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and Ors. [146 (2008) DLT 445 (DB) in the following words:

“28. It is also a firmly entrenched principle of interpretation of statutes that the Court is obliged to correct obvious drafting errors and adopt the

constructive role of ‘finding the intention of Parliament… not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it’ as enunciated in State of Bihar v. Bihar Distillery Ltd.: AIR1997SC1511 . The Court should also endeavor to harmoniously construe a statute so that provisions which appear to be

irreconcilable can be given effect to, rather than strike down one or the other. It must also not be forgotten that jural presumption is in favor of the

constitutionality of a statute.”

15. Having regard to the purpose which the DV Act seeks to achieve and when we read Section 2 (q) along with other provisions, out task is quite simple, which may in first blush appear to be somewhat tricky. We are of the considered view that the manner in which definition of „respondent‟ is given under Section 2(q) of DV Act, it has to be segregated into two independent and mutually exclusive parts, not treating proviso as adjunct to the main provision. These two parts are:

a) Main enacting part which deals with those aggrieved persons, who are „in a domestic relationship‟. Thus, in those cases where aggrieved person is in a domestic

Crl. M.C. 725/2011 Page 6 of 10 relationship with other person against whom she has sought any relief under the DV Act, in that case, such person as respondent has to be an adult male person. Given that aggrieved person has to be a female, such aggrieved person in a domestic relationship can be a mother, a sister, a daughter, sister-in-law, etc.

b) Proviso, on the other hand, deals with limited and specific class of aggrieved person, viz. a wife or a female living in relationship in the nature of marriage. First time by this legislation, the legislator has accepted live in relationship by giving those female who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or a female in a live in relationship. In their case, the definition of „respondent‟ is widened by not limiting it to „adult male person‟ only, but also including „a relative of husband or the male partner‟, as the case may be.

What follows is that on the one hand, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person only. But on the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.

16. Having dissected definition into two parts, the rationale for including a female/woman under the expression „relative of the husband or male partner‟ is not difficult to fathom. It is common knowledge that in case a wife is harassed by husband, other family members may also join husband in treating the wife cruelty and such family members would invariably include female relatives as well. If restricted interpretation is given, as contended by the petitioner, the very purpose for which this Act is enacted would be defeated. It would be very easy for the

Crl. M.C. 725/2011 Page 7 of 10 husband or other male members to frustrate the remedy by ensuring that the violence on the wife is perpetrated by female members. Even when Protection Order under Section 18 or Residence Order under Section 19 is passed, the same can easily be defeated by violating the said orders at the hands of the female relatives of the husband.

19. It is also well-recognized principle of law that while interpreting a provision in statute, it is the duty of the Court to give effect to all provisions. When aforesaid provisions are read conjointly keeping the scheme of the DV Act, it becomes abundantly clear that the legislator intended female relatives also to be respondents in the proceedings initiated by wife or female living in relationship in the nature of marriage.”

6. The next issue which arises for consideration is whether the word

„aggrieved person‟ in Section 2(a) of the Act has to be given a restricted

meaning in view of the Statement of Objects & Reasons so as to include the

daughter-in-law only and excludes only a mother-in-law, sister-in-law or

daughter from its ambit. The relevant Sections read as under:-

“2(a) “aggrieved person” means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(b)…………………..

(c)…………………..

(d)………………….

(e)………………….

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a

Crl. M.C. 725/2011 Page 8 of 10 shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

7. Thus, a perusal of Section 2(a) and 2(f) of the Act shows that any

woman who is in a domestic relationship, the said domestic relationship being

one between two persons who lived at any point of time together in a shared

household related by consanguinity, marriage or through a relationship in the

nature of marriage, adoption or family members living as a joint family and

alleges that she has been subjected to any domestic violence by the

Respondent is entitled to relief under the Act.

8. The word „aggrieved person‟ cannot be given a restricted meaning in

view of para „2‟ of the Statement of Objects & Reasons which states that:-

“The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

Thus, it is evident that phenomenon which was sought to be addressed was

“domestic violence” and not “domestic violence qua the daughter-in-law or

the wife only as contemplated under Section 498A.

9. As a matter of fact, para „4(i)‟ clarifies that even those women who are

sisters, widows, mothers, single woman or living with the abuser are entitled

Crl. M.C. 725/2011 Page 9 of 10 to legal protection under the proposed legislation. A mother who is being

maltreated and harassed by her son would be an “aggrieved person”. If the

said harassment is caused through the female relative of the son i.e. his wife,

the said female relative will fall within the ambit of the „respondent‟. This

phenomenon of the daughters-in-law harassing their mothers-in-law especially

who are dependent is not uncommon in the Indian society.

10. In view of the authoritative pronouncement of the Hon‟ble Supreme

Court, para „4‟ of the Statement of Objects and Reasons cannot be stated to

have excluded a female relative of the male partner or a respondent and thus, a

mother-in-law being an “aggrieved person” can file a complaint against the

daughter-in-law as a respondent.

11. Thus, I find that no case for quashing of the complaint is made out.

Petition and application are dismissed.

(MUKTA GUPTA)

JUDGE

SEPTEMBER 02, 2011

vkm

Crl. M.C. 725/2011 Page 10 of 10

http://indiankanoon.org/doc/1272794/

Categories: DV Judgements

Heavy misuse of DV Act, wife obtains monetary relief of 5000/- from her in laws, husband died in 1992 :(

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1111 OF 2009

Smt.Banu Hashim Warunkar,

Age 35 years, Occ.: Household,

Residing at:- School Mohalla,

Mahabaleshwar, Taluka : Mahabaleshwar,

District: Satara …Applicant

(Original Applicant)

vs.

1) Abdul Rahiman Amin Warunkar,

Age 65 years, Occ.: Business,

2) Mrs.Mumtaj Abdul Rahiman Warunkar,

Age 60 years, Occ.: Household

and Business,

3) Shri Alimoon Abdul Rahiman Warunkar,

Age 30 years, Occ.: Business,

All residing at: 196B, School Mohalla,

Mahabaleshwar, Tal.: Mahabaleshwar,

District : Satara,

4) The State of Maharashtra …Respondents

(Original Opponents)

Mr.A.V. Anturkar i/b. Mr.Sugandh B. Deshmuch for the

Applicant.

Mr.A.V. Sakhare with Mr.Siddharth Karpe i/b.

M/s.Y.K.S. Legal for Respondent Nos.1 to 3.

Smt.V.R. Bhosale, APP for Respondent No.4-State.

2

 

CORAM : J.H. BHATIA, J.

DATED : AUGUST 17, 2010

ORAL JUDGMENT :-

1 Heard the learned Counsel for the parties.

2 Deceased Hashim, husband of the present

applicant, was son of respondent nos.1 and 2 and

elder brother of respondent no.3. According to the

applicant, she was married to Hashim on 28th March,

1989 and after the marriage, she was living with him

along with respondent nos.1, 2 and 3 in the same

house. On 3rd September, 1992, her husband died in a

motor accident. According to her, since 1985 her

husband was carrying on business of hotel at Mahatma

Gandhi Mini Market at Mahabaleshwar. He had obtained

licence in respect of gala/shop no.2 in the said

Mahatma Gandhi Mini Market from Municipal Council in

the name of the present applicant. After the death

3

 

of her husband, the applicant was carrying on the

business of hotel from gala no.2. Gala no.5 was

taken by Viren Veera on licence from the Municipal

Council. In the year 2006, father of the applicant

secured the said shop no.5 from Viren Veera in the

name of Aawez Hashim Warunkar, the son of the

applicant for which amount of Rs.1,27,000/- was paid

to said Viren Veera and thus, shop no.5 also came

in possession of the applicant and she was carrying

on business from shop no.5 also since 24th May, 2006.

According to her, respondent no.3 was not doing any

business or work and she was maintaining the whole

family including the respondents. From 14th March,

2007, respondent nos.1 to 3 began to sit in the

galas no.2 and 5. She objected the same. On 26th

March, 2007, when she was going to open the shop,

respondent no.3 abused and assaulted her for which

she lodged a report at the police station. On that

day, the respondent no.3 also took forcible

possession of galas no.2 and 5 and tried to remove

4

 

her from the room in which she was living.

3 In view of this circumstance, she filed

Application No.4 of 2007 on 23rd April, 2007 before

the Judicial Magistrate, First Class, Wai, under

Section 12 of The Protection of Women from Domestic

Violence Act, 2005 (_ Domestic Violence Act_ in

brief) in respect of Shop No.2 and on 27th April,

2007, she filed Application No.5 of 2007 under

Section 12 of the Domestic Violence Act before the

JMFC, Wai in respect of shop no.5. The learned

Magistrate called the report from the Protection

Officer under the provisions of the Act. The

evidence was led by both the parties. On the basis

of the material placed before him, the learned

Magistrate passed a common order in Application Nos.

4/2007 and 5/2007 on 23rd September, 2008 and

directed the respondent nos.1, 2 and 3 to handover

possession of the galas no.2 and 5 to the applicant.

However, the learned Magistrate rejected the prayer

5

 

of the applicant for compensation.

4 Being aggrieved by the said order, the

respondents filed Criminal Appeal Nos.138/2008 and

139/2008 while the applicant filed Criminal Appeal

Nos.145/2008 and 146/2008. The appeals filed by the

applicant came to be dismissed. The appeals filed by

the respondent nos.1 to 3 were allowed and the order

passed by the Magistrate directing the respondents

to hand over possession of galas no.2 and 5 to the

applicant was set aside. The learned Sessions Judge

held that the applicant had failed to prove that she

was running the hotel from galas no.2 and 5 and that

she was treated with violence and was dispossessed

causing monetary loss to her and her children. She

also noted that the applicant had nowhere claimed

any specific maintenance nor she had disclosed since

when she was living separately from the respondents.

The said order is challenged in the present

application under Section 482 of the Cr.P.C.

6

 

5 On perusal of the record, it appears that

there were in all three galas. Gala no.3 stands in

the name of respondent no.3. Gala no.2 stands in the

name of applicant and gala no.5 stands in the name

of her son. The learned Magistrate had appointed

Tahasildar as Protection Officer, as per the

provisions of Section 8, to make inquiry about these

galas and to submit a report. Accordingly, the

protection officer submitted the report. The report

was also sought from the Municipal Council,

Mahabaleshwar, by the Protection Officer about gala

no.2 as per his letter dated 29th July, 2007, Exhibit

75. The Municipal Council by letter dated 30th July,

2007 informed that shop no.2 had been given to the

applicant as a licensee. The receipts Exhibit 76 to

88 go to show that on 26th March, 2007, she was in

possession of Shop no.2. Similarly, the Protection

Officer_ s report also reveals that she is in

possession of Shop Nos.2 and 5 but now the

7

 

respondents are carrying on business at the same

place. The record also reveals that one Bharat Virji

Shah had transferred the said gala no.5 in the name

of Aawez. In view of the material on record, the

trial court came to the conclusion that the

applicant was in possession of gala nos.2 and 5 till

26th March, 2007 when she was driven out from the

same and at present, respondent nos.1, 2 and 3 are

carrying on the business at the same place. After

going through the oral and documentary evidence as

well as the protection officer_ s report, I find that

the findings of the trial court in this respect were

correct and the applicant was in possession of gala

nos.2 and 5 and she was dispossessed from the same.

6 The learned Sessions Judge observed that

the applicant had not established till what date she

was living together with the respondents, however,

if her applications are seen carefully, she has

clearly stated that from the time of death of her

8

 

husband in 2002, she was living jointly with the

respondents till 26th March, 2007 when she was driven

out from the shops and attempt was made to remove

her from the room, where she was living. In view of

the definition given in Section 2(f), _ Domestic

Relationship_ means a relationship between two

persons who live or have at any point of time, lived

together in a shared household, when they are

related by consanguinity, marriage, or through a

relationship in the nature of marriage, adoption or

are family members living together as a joint

family._ The applicant is related to the respondent

nos.1 to 3 due to her marriage with son of

respondent nos.1 and 2 and as per her evidence, she

was living with her husband since the date of

marriage on 28/3/1989 and though her husband died in

2002, she continued to live with the respondents

till 26th March, 2007. Section 3 defines domestic

violence and it provides that any act, omission or

commission or conduct of the respondent shall

9

 

constitute domestic violence in case it harms or

injures or endangers the health, safety, life, limb

or well-being, whether mental or physical, of the

aggrieved person or tends to do so and includes

causing physical abuse, sexual abuse, verbal and

emotional abuse and economic abuse. The _ economic

abuse_ is further explained in Explanation I (iv) as

follows :-

_ (iv) economic abuse_ includes-

(a) deprivation of all or any

economic or financial resources to

which the aggrieved person is

entitled under any law or custom

whether payable under an order of a

court or otherwise or which the

aggrieved person requires out of

necessity including, but not limited

to, household necessities for the

aggrieved person and her children, if

any, stridhan, property, jointly or

separately owned by the aggrieved

person, payment of rental related to

the shared household and maintenance;

(b) disposal of household effect,

any alienation of assets whether

movable or immovable, valuables,

shares, securities, bonds and the

like or other property in which the

10

 

aggrieved person has an interest or

is entitled to use by virtue of the

domestic relationship or which may be

reasonably required by the aggrieved

person or her children or her

stridhan or any other property

jointly or separately held by the

aggrieved person; and

(c) prohibition or restriction to

continued access to resources or

facilities which the aggrieved person

is entitled to use or enjoy by virtue

of the domestic relationship

including access to the shared

household._

7 In the present case, the applicant was

deprived of the possession of the shops/galas no.2

and 5 and thus, she was deprived of the income and

financial resources which were necessary for

maintenance of herself and her children and

therefore, the act and conduct of the respondent no.

3 in ousting her from gala nos.2 and 5 amounts to

economic abuse and therefore, it amounts to domestic

violence.

8 Section 18 of the Act provides for certain

11

 

protection orders to prohibit the respondent from

committing the domestic violence, etc. Thus,

Section 18 makes a provision for prohibitory orders.

Section 19 provides that while disposing of

application under Section 12(1), the Magistrate may,

on being satisfied that domestic violence has taken

place, pass a residence order to restrain the

respondent from dispossessing the aggrieved person

from the possession of the shared household and also

to secure the aggrieved party same level of

alternate accommodation as enjoyed by her in the

shared household or to pay rent for the same.

Section 19 does not make any provision for granting

injunction or any order for possession of any

commercial premises in favour of the aggrieved

party.

9 Section 20(1) provides that the Magistrate

may direct the respondent to pay monetary relief to

meet the expenses incurred and losses suffered by

12

 

the aggrieved person and any children of the

aggrieved person as a result of the domestic

violence and it includes the loss of earning,

medical expenses, loss caused due to destruction,

damage or removal of any property from the control

of the aggrieved person, etc. The applicant was

deprived of her possession over the gala nos.2 and

5, thus, loss of income has been caused to her.

Therefore, under Section 20(1)(a), the Magistrate

could pass an order to provide monetary relief or

compensation to her but there is no provision in the

Act under which the Magistrate could have passed an

order directing the respondents to give possession

of the commercial premises to the applicant.

10 In view of the legal position, the learned

Magistrate was wrong in directing the respondents to

hand over possession of the galas no.2 and 5. The

Sessions Court was right in setting aside the order

about possession but the Sessions Judge also

13

 

committed error in not passing any order granting

any monetary relief in respect of the deprivation of

the applicant from the possession of gala nos.2 and

5, which were source of income and the source of

maintenance for herself and her children. Therefore,

in my considered opinion, in the given

circumstances, certain monetary reliefs could have

been granted to the applicant. As far as the title

and possession of gala nos.2 and 5 are concerned,

that could not be decided under the provisions of

the Domestic Violence Act and the parties could be

relegated the remedy before the civil court.

11 At the time of hearing, Mr.Sakhare, learned

Counsel for the respondents, after taking

instructions made an offer to pay Rs.4000/- per

month as monetary relief to the applicant till her

title and right over the said shop is established by

appropriate civil court. However, Mr.Anturkar,

learned Counsel for the applicant contended that by

14

 

running business in the said shop, she could have

earned about Rs.10,000/- and therefore, monetary

relief of Rs.10,000/- per month should be awarded.

For this, the applicant would be required to work

for the whole day in the shops and after the hard

work, she could earn something. Besides this, during

the monsoon season, there may not be much business

at Mahalabeshwar and therefore, it be possible that

she could not earn anything during that period.

Taking into consideration all the facts and

circumstances, it would meet the ends of justice if

the respondents are directed to pay Rs.5000/- per

month as monetary relief to the applicant.

12 For the aforesaid reasons, the application

is allowed partly. While the order passed by the

Sessions Court setting the order passed by the

Magistrate is hereby maintained, the order passed by

the Sessions Court stands modified and the

respondents are hereby directed to pay monetary

15

 

relief at the rate of Rs.5000/- per month from May

2007. The arrears shall be paid by the respondents

within three months from this day and the monetary

relief in future shall be paid regularly upto 10th

day of the following month.

13 The applicant shall be at liberty to file

suit before the civil court to establish her title

and to secure possession of the gala nos.2 and 5. In

case, such a suit is filed, the trial court shall

expedite and dispose of the same, as early as

possible, on its own merits without being influenced

by any observation made in this judgment or by any

observations made by the courts below.

(J.H. BHATIA, J.)

http://bombayhighcourt.nic.in/data/judgements/2010/CRAPPLN111109.pdf

Categories: DV Judgements

DV Act and wife staying forcibly in Govt. Allotted quarters of Husband….Read further what happened :)

Ifci Limited vs Narender Kumar on 17 August, 2011
Author: Rajiv Sahai Endlaw

1$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CONT.CAS(C) 520/2011

IFCI LIMITED ….. Petitioner/Relator Through: Mr. Dinkar Singh, Adv.

Versus

NARENDER KUMAR ….. Respondent/Alleged Contemnor

Through: Mr. Amandeep Joshi, Adv.

CORAM:

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

ORDER

% 17.08.2011

1. This order is in continuation of the earlier order dated 21 st July, 2011. The counsel who was earlier appearing for the respondent / alleged contemnor states that he is no longer appearing in this matter and has returned the file. He however identifies the respondent / alleged contemnor and his wife Smt. Pushpa, present in Court in person.

2. The respondent / alleged contemnor appearing in person states that the Flat No.C-203, IFCI Staff Colony, Paschim Vihar, New Delhi is in occupation of his wife Smt. Pushpa and he himself was ousted from the said flat four years ago and has been residing at Faridabad for the last four years.

3. Smt. Pushpa appearing in person also confirms that the respondent / alleged contemnor is not residing in the said accommodation and states that he is residing with his parents. She also states that she has filed legal proceedings for maintenance and under the Protection of Women from Domestic Violence Act, 2005 against the respondent / alleged contemnor and which proceedings are still pending. She further states that the respondent / alleged contemnor has intentionally given an undertaking in this Court to vacate the accommodation so as to oust her from the said accommodation.

4. The counsel who had appeared for the respondent / alleged contemnor on 7th February, 2011, states that he was not instructed of the said position when the undertaking was given on that date to vacate the accommodation within two weeks.

5. The counsel for the petitioner / relator invites attention to the order dated 25th February, 2011 in complaint case filed by Smt. Pushpa under the Domestic Violence Act, in which, it was clarified that there is no stay against the dispossession of Smt. Pushpa from the aforesaid accommodation. He also invites attention to an undertaking dated 7 th April, 2011 stated to have been given by Smt. Pushpa to vacate the accommodation before 31st May, 2011.

6. On enquiry, the counsel for the petitioner / relator informs that on vacation of the accommodation aforesaid, the payment of pension to the respondent / alleged contemnor of approximately `15,000/- to `17,000/- per month shall commence. Finding that in the order dated 25 th February, 2011 (supra), it is recorded that petitioner / relator is holding retiral benefits of about `6,00,000/- of the respondent / alleged contemnor, the status thereof was enquired. It is stated that the same are towards arrears of pension / computation pension and which would also become payable to the respondent / alleged contemnor immediately on delivery of possession of the accommodation aforesaid.

7. The respondent / alleged contemnor appearing in person, after understanding from the counsel who was earlier appearing for him, has stated that for the lapse committed by him in not informing to the Court on 7th February, 2011 that in fact it was his wife who was in possession, he is willing that all the arrears of `6,00,000/- or more which are due to him from petitioner / relator, be released directly to his wife Smt. Pushpa for her benefit and benefit of his daughter, who is of marriageable age, and which amount be taken into consideration by the Courts where the other proceedings between the respondent / alleged contemnor and his wife Smt. Pushpa are pending.

8. Smt. Pushpa contends that the said amount of `6,00,000/- or more would not get her alternate accommodation. She states that the alleged contemnor is only 50 years of age and has another eight years of service left and should be made to work so that she can continue in the official accommodation.

9. However, neither can any such direction be given specially in these proceedings nor can Smt. Pushpa be allowed to continue in official accommodation when the alleged contemnor has sought retirement.

10. In the facts and circumstances, it is deemed expedient to grant time till 30th September, 2011 to Smt. Pushpa to vacate the aforesaid accommodation. She states that besides herself and her daughter Ms. Yogita aged about 27 years, none else is in possession of the said house.

11. Accordingly, it is directed:

(i) Smt. Pushpa to vacate the accommodation aforesaid on or before 30th September, 2011;

(ii) If she fails to so vacate the accommodation, the SHO, Police Station Paschim Vihar is directed to have the said accommodation vacated latest by 7th October, 2011; (iii) Upon vacation of the said accommodation, whether voluntarily or through police, the petitioner / relator to release the entire amount of `6,00,000/- or more due to the respondent / alleged contemnor in favour of said Smt. Pushpa on or before 31 st October, 2011. It is clarified that the respondent / alleged contemnor having made the statement in Court, the release of the said amount in favour of Smt. Pushpa will not be dependent upon the respondent / alleged contemnor signing any document or applying for computation of pension as was contended. It was further clarified that the arrears if any of licence fee / rent due with respect to the said accommodation be not deducted from the said amount and are to be adjusted / deducted out of the pension due in future to the respondent / alleged contemnor. (iv) As far as the future pension payable to the respondent / alleged contemnor is concerned, the release thereof by the petitioner / relator shall be subject to orders of the Courts in the other proceedings filed by Smt. Pushpa against the respondent / alleged contemnor. In the said proceedings, regard be also had to the amount of `6,00,000/- or more to be received by Smt. Pushpa under this order.

12. The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW, J

AUGUST 17, 2011

http://indiankanoon.org/doc/51122/

Categories: DV Judgements

Agrieved person is not necessarily required to approach the Service Provider or the Protection Officer, she can approach magistrate directly

Shri. Maroti S/O. Dewaji Lande vs Both R/O. Sonapur, Tahsil : … on 9 August, 2011
Bench: A.P. Bhangale

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

Criminal Writ Petition No. 542/2010

Shri. Maroti s/o. Dewaji Lande,

Age 47 years, Occupation : Service,

R/o. Peth Ward No. 2, Near Old Bus Stand,

Rajura, Tahsil – Rajura, District : Chandrapur. ….Petitioner Versus

1) Sau. Gangubai w/o. Maroti Lande,

Age 40 years, Occupation : Nil,

2) Shri. Prashant s/o. Maroti Lande,

Age 18 years, Occupation : Student,

Both R/o. Sonapur, Tahsil : Pombhurna,

District : Chandrapur. …RESPONDENTS —————————————————————————————————————– Mr. Rajnish Vyas, Counsel for Petitioner

Mr. S. V. Sirpurkar with Mr. Nazbile, Counsel for Respondent No.1 —————————————————————————————————————– Coram: A.P. Bhangale, J

Dated : 9th August 2011

ORAL JUDGMENT:

 

1. Heard Mr. Rajnish Vyas, learned Advocate for the Petitioner and Mr. S. V. Sirpurkar, learned Advocate for the Respondent No.1.

2. Rule, made returnable forthwith. Heard by consent of the parties.

 

3. The petitioner questioned the order dated 07/10/2009 passed by learned Judicial Magistrate, First Class, Pombhurna in Misc. 2

Criminal Application No. 17/2008, as also order dated 09/08/2010 passed by the learned Additional Sessions Judge, Chandrapur in Criminal Appeal No. 132/2009.

 

4. It is the case of the petitioner that he had married with respondent no. 1 namely Gangubai about 19 years back, she resided with him for 3 years at Rajura, District Chandrapur and, then left matrimonial home and started residing with her parents. Respondent No. 2 is son of the petitioner, who according to the petitioner, has already attained the age of majority i.e. 18 years and is not entitled for the maintenance. The petitioner is facing proceedings initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), which was registered as Criminal Application No. 17/2008, in the Court of Judicial Magistrate, First Class, Pombhurna, District Chandrapur. Sau. Gangubai and her son Prashant, had claimed maintenance at the rate of Rs. 5,000/- per month to the applicant no. 1 – Gangubai and Rs. 5,000/- per month to the applicant no. 2 – Prashant i.e. son of the petitioner, who was aged about 16 years when the application was filed. It is further prayed that petitioner shall provide rented house to his wife and son and, to pay costs of litigation.

 

5. The petitioner had objected grant of relief by filing a reply to the application disputing the allegations made against him 3

regarding the alleged addiction of liquor, cruel treatment, late night coming, assault etc. He also denied that he drove her out of the matrimonial home as alleged in the year 1994 or about.

6. It appears case of the respondent Gangubai that she had sent notice dated 11/07/2008, by R.P.A.D., demanding amount of maintenance to which reply dated 29/07/2008 was sent by the petitioner (as claimed by him). Under these circumstances, the respondent had claimed maintenance by alleging that they were ill- treated, petitioner had assaulted his wife under the influence of the liquor and driven her out of the house with warning not to return. It is also contention of the respondent that the applicant had married with one Shobha 26-27 years ago, out of that wedlock, he had two daughters namely Vaishali and Vanmala. According to the petitioner, respondent no. 1 is also married with one Shamrao Tajne.

7. Considering all these contentions and counter contentions, the application preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was allowed partly with direction against the petitioner requiring him to pay maintenance in the sum of Rs. 1,000/- to Gangubai and sum of Rs. 500/- to his son namely Prashant, with further direction to arrange for rental accommodation for residence of Gangubai and her son Prashant and, Rs. 500/- towards cost of litigation. The aforesaid order dated 07/10/2009, by learned 4

Judicial Magistrate, First Class, Pombhurna was carried in Appeal before the learned Sessions Judge, Chandrapur, which came to be dismissed by reasoned Judgment and Order, which petitioner has impugned herein.

 

8. The main contention of the petitioner is that the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was inordinately delayed and there was no reasonable explanation for the delay and, secondly, that petitioner is not liable to pay maintenance particularly to the son who is already attained age of majority. According to the learned Advocate for the petitioner, since the alleged desertion by the petitioner, Gangubai and her son have resided separately for more than 12 years and, therefore, they are not entitled to claim amount of maintenance. It is further submitted that the impugned Judgment and Order by the Court be quashed.

9. Learned Advocate for the respondent submitted that there is no question of limitation as submitted by the learned Advocate for the petitioner as there is continuous cause of action for a wife to claim maintenance and avail of residence and protection orders under the Domestic Violence Act. He submitted that the respondent no. 2 was aged about 16 years when application was filed and he being unable to maintain himself, is entitled to maintenance.

5

10. The contention as to whether the Protection of Women from Domestic Violence Act, 2005 is retrospective needs to be considered in the light of settled legal position in this regard. It is true that Penal Statute which creates new offence or introduce an increased penalty will be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution of India. The question as to whether the provisions of Domestic Violence Act has a retrospective effect or not is already answered by reasoned Judgment of this Court, in Criminal Writ Petition No. 252/2011.

 

11. The Apex Court in the case of Vanka Radhamanohari vs. Vanka Venkata Reddy [1993 (3) SCC 4], while considering bar of limitation for taking cognizance of offence as also prayer for condonation of delay, considered matrimonial offences as exceptional causes wherein the Court would not throw out the complaint solely on the ground of delay. In view of the Section 473 of the Code of Criminal Procedure, the Court can take cognizance of an offence not only when it is satisfied on the facts and circumstances of the case that the delay has been properly explained or but also when that is necessary so to do in the interests of justice. Section 473 has non obstante clause which means that the said section has overriding effect over Section 468 if the Court is satisfied in the facts and circumstances of the particular case that either the delay has been properly explained or that it is necessary so to condone it in the interest of justice. Thus, in 6

respect of matrimonial offences when allegations are of cruelty, torture, assault by the husband or members of the family to the complainant, a Court will consider that it is a matter of common experience that the victim who is subjected to a such acts of cruelty repeatedly is more or less suffering from continuing offence it is only as a last resort that wife would approach the Court to unfold the day- to-day torture and cruelty forced upon her inside the house, as most of the victims are reluctant to make their grievances public.

12. The protection of Women from Domestic Violence Act, 2005 came into force on 26/10/2006 vide S.O. 1776(E), dated 17/10/2006. The Act was brought into force to provide for more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Thus, any women who or has been in a Domestic relationship who is subjected to Domestic Violence by the respondent i.e. her husband, she can apply under Section 12 of the Act as an “aggrieved person” complainant of Domestic Violence and seek orders under the Act i.e. maintenance, protection orders etc. Thus, the respondent in such application pursuant to the complaint under the Domestic Violence Act, cannot be allowed to defeat the provisions of Act by continuously depriving his wife or applicant with whom he was in the Domestic relationship from the benefits under the Act i.e. shared household, maintenance, 7

monetary benefits in this regard. There shall be continuing causes of action, therefore, there is no question of putting a stop to the relief sought for on the ground of continuous breach of legal right, since the continued deprivation of economic or Financial resources and continued prohibition or denial of access for the shared household, maintenance etc. to the aggrieved person can come within definition of “Domestic Violence” explained in Chapter II of the Act. Protection under the Act becomes available to the wife/applicant, who was driven out from her husband’s shared household prior to coming into effect of the Act of 2005, but if the deprivation continued even after the Act came into force. Thus, as held by this Court in Smt Bharati Naik Vs. Shri Ravi Ramnath Halnarkar reported in 2011 ALL MR (Cri) 224, with reference to the Act of 2005, an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Thus, even if the Woman was in the past in relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action.

13. Perusal of Section 26 of the Domestic Violence Act, indicate that relief under the Act is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the respondent. Section 12 which require application before the Magistrate for obtaining order or reliefs under the Act contains proviso to the effect 8

that before passing any order on such application, the magistrate shall take into consideration any Domestic incident report received by him from the Protection Officer or the service provider. The word ‘any’ in the proviso would indicate that if such report is received, if any, because before receiving such report it is essential that for the area concerned State Government must have appointed Protection Officer. In view of the Section 7 of the act and such appointment must be notified in the area for which such Protection Officer shall exercise powers and perform the duties in accordance with the Act, while service provider is required to register himself under Section 10 of the Act. In the absence of notification of a Protection Officer or registered Service Provider, it may not be possible for Magistrate to receive Domestic Incident Report before disposing of application made by the aggrieved person under Section 12 of the Act. This question was dealt with by Karnataka High Court in the ruling of Narayankumar Vs. State of Karnataka & Anr reported in 2010 ALL MR (Cri) Journal 158 wherein it is observed that thus;

“In other words if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. Therefore, the Section does not say that in every case an aggrieved person is bound to go 9

before either the Protection Officer or the Provider. On the other hand, the scheme of the act make it clear that it is left to the choice of the aggrieved person to go before the Service Provider or the

Protection Officer or to approach to the Magistrate under Section 12 of the Act.”

Under these circumstances, it appears that an aggrieved person is not necessarily required to approach the Service Provider or the Protection Officer. It is left to the choice of the aggrieved person to approach the Magistrate with an application under Section 12 of the Act. Therefore, one cannot say the Magistrate must wait for notification for appointment of the Protection Officer for the area or registration of Service Provider before disposing of the application under Section 12 of the Act filed by an aggrieved person. When aggrieved person has chosen to approach the Magistrate directly as observed by the Karnataka High Court that the proviso Section 12 makes it clear that the Magistrate shall have to take in to account any incident report received by him before passing any order of the application filed by the aggrieved person. In other words, if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Service Provider then only it is obligatory for the Magistrate to take note of the same before passing final order of the application made by the aggrieved person. 10

14. For all these reasons, the orders passed by the Courts below do not require any interference and hence petition is dismissed. JUDGE

Punde

http://indiankanoon.org/doc/1194540/

Categories: DV Judgements

HC: Domestic violence Act can be applied retrospectively

Karimkhan S/O. Sailanikhan vs 2) Nahid Akhtar W/O. Karimkhan on 5 August, 2011
Bench: A.P. Bhangale

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO.252 OF 2011

Karimkhan s/o. Sailanikhan,

Aged about 47 yrs., Occ. Labour,

r/o. Ward No.20, Bazarfail, Shegaon,

Tq. Shegaon, Distt. Buldana………. PETITIONER. // Versus //

1) State of Maharashtra,

through P.S.O., Khamgaon,

Shivajinagar, Tq.Khamgaon,

Distt. Buldana.

2) Nahid Akhtar w/o. Karimkhan,

Aged about 45 yrs., Occ. Private

Work, r/o. c/o. Nurullakhan

Amirullakhan, Lohar Galli, Juna

Fail, Khamgaon, Tq. Khamgaon,

Distt. Buldana. ………. RESPONDENTS. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri. A.J.Thakkar, Adv. for Petitioner. Mrs.K.R.Deshpande, A.P.P. for Respondent No. 1/State.

Shri S.S.Shingne, Adv. for Respondent No.2. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 2

Date of reserving the Judgment : 1.8.2011. Date of pronouncement of the Judgment : 5.8.2011. CORAM : A.P.BHANGALE, J.

JUDGMENT :

 

1. Heard Shri. A.J.Thakkar, Adv. for Petitioner. Mrs.K.R.Deshpande, A.P.P. for Respondent No.1/State and Shri S.S.Shingne, Adv. for Respondent No.2.

2. Rule. Rule is made returnable forthwith. By consent, the matter is taken up for final hearing.

3. This is a Criminal Writ Petition against the judgment and order dated 22.01.2010 passed by the Learned Additional Sessions Judge, Khamgaon in Criminal Appeal No. 35 of 2009 affirming thereby the order dated 05.11.2009 passed by the Learned Judicial Magistrate Court no 3, Khamgaon below Ex. 15 in Criminal Case No. 118 /2009, under Sections 12, 18, 19 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 ((hereinafter referred to as the ‘Act of 2005′). 3

4. The facts, briefly stated, are as under :- The Respondent no.2 /wife/aggrieved person filed afore-mentioned Criminal Case bearing No.118 of 2009 under Sections 12,18,19,20,and 22 of the Act alleging that she was married with the Petitioner on 24.01.1993 as per the custom prevailing in the Muslim community. The Father of the respondent no.2 had spent Rs Two lacs in the marriage of the Respondent no.2 and also gifted cash in the sum of Rs. 40,000/-, valuable articles including the golden ornaments worth Rs 50,000/- to the Respondent no.2. After the marriage, they lived together as husband and wife in the matrimonial home. Out of the wedlock, two daughters namely Ms Bushra and Ms Uzama were born. The Petitioner and his family members used to ill-treat Respondent no.2 physically and mentally. She was driven out from the matrimonial home on 09.06.2001. The Petitioner is selling Clothes and general articles and earns Rs 20,000/- per month from the business. The Petitioner had demanded a sum of Rs. 1,00,000/- for his business. The Respondent no.2 showed her inability and therefore, the Petitioner started giving physical and mental torture to the Respondent no.2 and drove her out of the house 4

compelling her to stay with her parents. The Petitioner had come to the house of Respondent’s parents and demanded the cash of Rs one lac and upon refusal, had beaten the Respondent no.2 mercilessly. The Respondent no.2 had lodged complaint to the Khandwa Police Station. The case is still pending in the Khandwa Court. Financial condition of the parents of the Respondent no.2 is very poor and they can not fulfill the demands of the Petitioner. The Respondent no.2 became psychotic patient due to torture. She is unable to bear the medical expenses as she is living at the mercy of her parents. She has prayed for monthly maintenance @ Rs. 5,000/- per month for herself with two children and a further sum of Rs. 1,00,000/- in lumpsum towards the medical expenses and litigation expenses and Rs.2,00,000/- towards compensation.

5. The Petitioner, on 22.09.2009, by filing an application at Ex .15 in the proceedings pending on the file of the Court of Judicial magistrate, First Class, Court no.3 Khamgaon, had raised an objection as to maintainability of the proceedings filed by the Respondent no.2 on the ground that the Act of 2005 has no retrospective effect, 5

since it came into force on 26.10.2006. It is contended that the respondent no.2 made the allegations of ill treatment, misbehavior by the Petitioner till date, though she left the company of the Petitioner on 09.05.2001. According to the Petitioner, the respondent no.2 had also filed an application under Section 125 of the Code of Criminal Procedure in the court at Khandwa and hence, the Complaint proceedings are filed by the respondent no.2 to harass the Petitioner and is not legally maintainable. The learned Judicial Magistrate, First Class rejected the objection as to maintainability of the proceedings under the Act of 2005 on the ground that the marital relationship between the parties is still subsisting. The Act was enacted pursuant to the Vienna Accord of 1994 and Beijing declaration and the platform for action (1995) which recognized that the domestic violence is, undoubtedly, a Human Right issue and a serious deterrent to development. The United Nations Committee on Convention on elimination of all forms of Discrimination against women (CEDAW) in its General recommendation No. XII (1989) has recommended that the State parties should act to protect women against violence of any kind 6

especially in case of those occurring within the family since the phenomenon of domestic violence, though widely prevalent, remained invisible in public domain.

6. The learned counsel appearing for the petitioner submits that the circumstances of alleged domestic violence, as stated in her complaint by the aggrieved person, occurred prior to the coming into force of the Act of 2005. It is the contention of the learned counsel that the said Act has no retrospective effect and, as such, the circumstances which allegedly occurred prior to the coming into force of the Act of 2005 cannot be taken into consideration for granting any relief under the said Act of 2005. The learned counsel for the petitioner submits that the Respondent/ Wife had previously filed a matrimonial suit for divorce with Darul Quaza – undertaking of all India Muslim Personal law Board, but it was dismissed. The learned counsel for the Petitioner submitted with reference to the rulings in Jayesh Uttamrao Khairnar & Ors. vs. State of Maharsashtra & Ors., 2010 ALL MR (Cri) 2259 and Kishor s/o. Shrirampant vs. Sou. Shalini w/o Kishor Kale & Ors. reported in 2010 ALL MR (Cri) 1386 that the complaint by the respondent/wife ought to be 7

quashed for the reason that the same is filed with mala fide intention and that too, after a long gap to harass the Petitioner.

7. The learned counsel appearing for the Respondent/ wife submits that the acts of torture, cruelty, domestic violence etc. although committed prior to the coming into force of the Act of 2005, are continuous causes of action and, as such, the question of retrospective effect of the Act of 2005 does not arise at all. It is contended on behalf of the Respondent/wife that the Learned Magistrate has jurisdiction to pass an order ex-parte under Section 23 of the Act of 2005 restraining the husband from alienating the property. It is contended that since the marital knot has not yet been dissolved by decree of divorce, the wife has the lawful right in the shared household.

8. It is true that the Penal Statute which creates new offence or introduce an increased penalty will be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution of India. The question as to whether the Act has a retrospective effect or not is not material at all in view of the decision reported in 8

the case of Vanka Radhamanohari vs. Vanka Venkata Reddy, [1993 (3) SCC 4]. Taking into consideration the submission of the learned counsel appearing for the parties and keeping in view the ratio laid down by the Apex Court in Vanka Radhamanohari’s case (supra), this Court is of the considered view that there is a continuing cause of action for filing the said case i.e. Criminal case 118 of 2009 in the Court of Judicial Magistrate, First Class, Khamgaon by the present Respondent/wife. Admittedly, the Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006 vide S.O. 1776(E), dated 17.10.2006. Since there is a continuing cause of action, for the reasons discussed above, this Court is of the firm view that the provisions of the said Act of 2005 are attracted in the present case; and accordingly, the Respondent-wife filed the said case i.e. Criminal Case No. 118 of 2009 under the Act of 2005. The Petitioner can not be allowed to defeat the provisions of the Act continuously by depriving the Respondent/wife, who is legally entitled to a shared household in terms of the provisions of the Act of 2005. The denial of access to shared household to the respondent/wife took place prior to coming into force of 9

the Act of 2005, but such denial continued even thereafter. As the act complained of by the petitioner is a continuing breach of legal right, as envisaged in the Act of 2005, there is no question of putting a stop to the relief sought for. Therefore, giving relief to the Respondent/wife for such continuous breach of the legal right, which has accrued to her, would not amount to giving retrospective effect to the Provisions of the Act of 2005. In view of this discussion, I have no hesitation to hold that continued deprivation of economic or Financial resources and continued prohibition or denial of access for the shared household to the aggrieved person is a domestic violence and the protection under the Act of 2005 will be available to the Respondent/wife who was driven out from her husband’s shared household prior to coming into effect of the Act of 2005, but the deprivation continued even after the Act came into force.

9. In the instant case, it has been alleged in the petition under Sections 12 & 22 of the Act of 2005 that, even after torture upon the aggrieved person in her matrimonial home, the Petitioner/husband visited her parental home, threatened and abused the aggrieved party 10

for which the aggrieved party lodged written complaints with the Khandwa Police Station. It is alleged that, on 22.05.2002, the respondent became violent and aggressive towards the aggrieved party and beaten her mercilessly. The said proceeding is pending in the Khandwa Court.

10. In Paras 3 to 5 of the petition, the Respondent/wife alleged that, in the matrimonial home, she was subjected to mental cruelty, physical torture, abuse and misbehavior. In Para 6 of her application, she stated that she want separate accommodation.

 

11. In view of the ruling in Smt Bharati Naik Vs. Shri Ravi Ramnath Halnarkar reported in 2011 ALL MR (Cri) 224, this Court, with reference to the Act of 2005, held that an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Thus, even if the Woman was in the past in a relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action.

11

12. The impugned Judgment and order is well reasoned and sound. It does not require any interference as no any infirmity is seen. It is well settled that the Writ Court cannot transpose itself as an Appellate Court unless the decision impugned is wrong, perverse and smacks of mala-fide motive. The Petition, therefore, lacks merits and deserves dismissal. It is dismissed with costs. JUDGE

jaiswal

Categories: DV Judgements

HC: On non payment of maintenance, employer of husband can be directed to deduct amount and deposit to wife’s account

Pooran Mal vs State And Anr on 20 July, 2011

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

O R D E R

S.B. CRIMINAL REVISION PETITION NO.0574/2007

POORAN MAL Vs. STATE OF RAJASTHAN & ANR.

DATE: 20.07.2011

HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN

None present for the petitioner.

Ms. Rekha Madnani, Public Prosecutor

for the State.

****

The present revision petition was filed way back on 16.10.2007. Registry pointed out three defects way back on 06.11.2007, but the same have not been removed despite grant of time on 23.09.2008, 23.10.2008, 17.12.2008 and 07.01.2009, therefore, revision petition deserves to be dismissed for non-prosecution.

2. However, I examined the matter and from the impugned order dated 20.08.2007 passed by the Additional District & Sessions Judge No.7, Jaipur City, Jaipur in Criminal Appeal No.38/2007, it appears that respondent-wife filed an application under Section 23 of The Protection of Women From Domestic Violence Act, 2005 in the trial Court, wherein vide order dated 19.04.2007, it was directed that a sum of Rs.4,000/- per month towards maintenance will be paid w.e.f. 09.04.2007. Since amount was not paid, therefore, respondent Laxmi Devi filed an application that Employer of petitioner Pooran Mal may be directed to deduct the amount of Rs.4,000/- per month from his salary and to deposit the same in her bank account. The application was allowed by the trial Court on 21.06.2007 and necessary directions were issued to the Employer of petitioner. Being aggrieved with the same, an appeal was preferred, which was dismissed by the Additional District & Sessions Judge No.7, Jaipur City, Jaipur vide order dated 20.08.2007. Being aggrieved with the same, the present revision petition has been filed.

3. From the above facts, it is clear that the learned trial Court as well as Appellate Court, both, were right in passing the impugned orders by directing the Employer of petitioner to deduct the amount of maintenance from the salary of petitioner and to deposit the same in the bank account of respondent. I do not find any illegality in the impugned order so as to interfere with the same.

4. Hence, there is no merit in this revision petition and the same is, accordingly, dismissed. (NARENDRA KUMAR JAIN),J.

/KKC/

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

O R D E R

S.B. CRIMINAL MISC. STAY APPLICATION INWARD NO.1340/DATED 16.10.2007 IN

S.B. CRIMINAL REVISION PETITION NO.0574/2007

POORAN MAL Vs. STATE OF RAJASTHAN & ANR.

DATE: 20.07.2011

HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN

None present for the petitioner.

Ms. Rekha Madnani, Public Prosecutor

for the State.

****

Since the revision petition itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J.

/KKC/

Categories: DV Judgements

HC: Husband showed monthly income as 10000 and Family court/HC fixed monthly maintenance as 20000!!!

Mumbai HC

Mr Harish S/O Nandlal Gaba vs Smt. Monica Harish Gaba on 19 July, 2011
Bench: R. M. Savant

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT NAGPUR, NAGPUR.

WRIT PETITION NO. 1249 /2011

Mr Harish s/o Nandlal Gaba

Aged 42 years, occu: Business

R/o 44/17A, Saraswati Vihar

Opp: Reliance Web World Mall Road

Amritsar (Punjab). .. …PETITIONER v e r s u s

Smt. Monica Harish Gaba

Aged 39 years, occu: Hosuewife

R/o C/o Laxmandas Narang,

Op: Avanti Hospital, Dhantoli,Nagpur

Tah. & Dist. Nagpur. …RESPONDENT ……………………………………………………………………………………………………………. Mr. H D Dangre, Advocate for the petitioner

Mr.K M Nankani, Advocate for respondent

……………………………………………………………………………………………………….. CORAM: R.M.SAVANT, J.

DATED : 19TH JULY,2011,

ORAL JUDGMENT :

Rule. With the consent of the parties, made returnable forthwith and heard.

2

2. The above petition takes exception to the order dated 2.12.2010 passed by the learned Principal Judge, Family Court, Nagpur by which order, the petitioner-herein has been directed to pay Rs.20,000/- per month towards maintenance pendente lite from the date of the application till the disposal of the main petition.

 

3. The facts involved can be stated thus : The marriage between the petitioner and the respondent was solemnized on 29.11.1993. The petitioner-husband is resident of Amritsar (Punjab); whereas the respondent-wife was residing with her parents at Nagpur. The petitioner and the respondent have a daughter by name, Taniya, who is aged about 15 years. It appears that on account of the marital discord, the respondent left the matrimonial house on 1.4.2009 along with her daughter Taniya. The petitioner thereafter filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights in the Court of learned Civil Judge, Sr.Dn.,Amritsar. It appears that the relations between the parties came to such a pass that criminal complaints were filed against the petitioner and his family members. It appears that thereafter the respondent-wife filed a petition u/s 13 (1) (ia) of the Hindu Marriage Act for dissolution of marriage and return of stridhan which petition was numbered as A-445/2009 before the Family Court at Nagpur. In the said petition, the respondent-wife filed an application which was 3

numbered as Exh. A under section 24 of the said Act for grant of maintenance @ Rs. 25,000/- pendente lite and Rs. 50,000/- as litigation expenses.

 

4. It was the case of the respondent-wife that the petitioner was doing business in the name and style of “Taniya Jewellers” and was dealing in gold and diamond jwellery. It was the case of the respondent that the monthly income of the petitioner was Rs.1,25,000/- ;wheres the respondent was at the mercy of her parents and her friends for survival. It was further the case of the respondent that considering the lifestyle to which she was used to while staying with the petitioner, a sum of Rs. 25,000/- be fixed as maintenance pendente lite so that she could take care of herself and her daughter who is now past 15 and who is studying in X standard, so that they could have the same life-style which she was used to while staying with the petitioner. To the said application, the petitioner filed his reply and inter alia denied the claims and contentions of the respondent. It was denied that the petitioner was doing the business in the name and style of “Taniya Jewellers”. It was further denied that his income was Rs.1,25,000/-. The petitioner annexed the Income Tax return form for the assessment year 2007 -08 wherein his income was shown as Rs.1,07, 037/- for the assessment year in question. It was further the case of the petitioner that the respondent was running 4

a Boutique, out of which she was earning approximately Rs.12,000 per month.

 

5. The Family Court considered the said application Exh.8 filed by the respondent for maintenance pendente lite and considering the respective cases thought it fit to fix the interim maintenance at Rs.20,000/- per month. The gist of the reasoning of the Family Court was that the petitioner herein has not filed any document to show that his income was Rs.10,000/- per month and on the basis that the income out of the jewelery shop must be more than Rs.1,00,000/- per month, the Family Court deemed it fit to fix the maintenance pendente lite in the said sum of Rs.20,000/- by the impugned order dated 2.12.2010 as indicated above. It is the said order which is the subject-matter of challenge in the above petition.

 

6. Heard learned counsel for the parties. Mr. H D Dangre, learned counsel for the petitioner sought to raise three contentions: Firstly that the petition filed in the Family Court, Nagpur was not maintainable in view of Section 19 of the Hindu Marriage Act, 1955 ; secondly that there are no pleadings in support of the claim of Rs.25,000/- as maintenance and thirdly that he has never deserted the respondent and an order of Rs.5000/- was already operating against him in the domestic violence 5

proceedings adopted by the respondent.

 

7. Per contra, it is submitted by Shri Nankani, learned counsel appearing for the respondent-wife that the impugned order passed by the Family Court need not be interfered with in the facts and circumstances of the case, when the petitioner admittedly is not working and has to look after a 15-year old daughter who is studying in X standard. Learned counsel would contend that the petitioner herein has very cleverly not disclosed his income from the business of Taniya Jwellers and has sought to merely rely upon the return filed under the Income Tax Act. Learned counsel would contend that in the facts and circumstances of the case, the interim maintenance fixed at Rs.20,000/- need not be interfered with.

8. Having heard learned counsel for the parties, in my view, the order fixing interim maintenance need not be interfered with save and except to the extent that would be mentioned hereinafter:

9. It is pertinent to note that from the documents which the petitioner himself has filed in the trial Court, it is ex-facie clear that the petitioner is carrying on business in the name and style of “Taniya Jewellers”. If it was the case of the petitioner that his income from the said Jewellery business was Rs.10,000/-, he should have 6

produced the relevant documents in that behalf. The trial Court in the absence of any material produced by the respondent was right in drawing an inference that it is impossible to accept that the income from the jewelery business is only Rs.10,000 per month. It is further pertinent to note that the petitioner has specifically averred as regards the life-style which she was enjoying while she was staying with the petitioner in the matrimonial home. The petitioner also does not dispute the fact that their daughter is now 15 years old and is studying in X standard in a reputed school in the city of Nagpur. Considering the said facts, in my view, the Family Court has proceeded on the correct premise that the respondent would be entitled to the same standard which she enjoyed while she was in the matrimonial home.

 

10. The fact that the daughter is studying in X standard would also be a relevant fact while considering the issue of maintenance pendente lite as the maintenance is sought in respect of respondent-wife as also the daughter. Learned counsel for the respondent-wife in the course of arguments submitted that the fees of the school wherein the daughter of the petitioner and the respondent studying is in the sum of Rs.80,000/- per year. Considering the said aspect the maintenance pendente lite has to be commensurate with the said expenses that the respondent wife is incurring for her own maintenance as well as the maintenance of the 7

daughter. However, one fact cannot be lost sight of is that the respondent wife is already getting Rs.5000/- in the proceedings filed under the Domestic Violence Act by the respondent at Nagpur. Hence, the maintenance pendente lite is required to be interfered with to the extent of reducing it by Rs.5,000/- to make it Rs. 15,000/- per month. In my view the issue of the jurisdiction of the Family Court at Nagpur need not be gone into while considering the issue of interim maintenance. Save and except the modification as aforesaid, no interference is called for with the impugned order dated 2.12.2010 passed by the Family Court. The Writ Petition is, therefore, allowed to the extent above. Rule is accordingly made partly absolute. Parties to bear their respective costs. JUDGE

sahare

Categories: DV Judgements, Judgement

HC: Non-payment of maintenance amount is required to be viewed very seriously

Print

SCR.A/1113/2010 5/5 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

With

CRIMINAL MISC.APPLICATION No. 3592 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 1113 of 2010

=========================================================

SHILPA MITESHBHAI PATEL – Applicant

Versus

STATE OF GUJARAT & 2 – Respondents

========================================================= Appearance : MS SM AHUJA for Applicant

PUBLIC PROSECUTOR for Respondent: 1,

MR SATYAJIT SEN for Respondent : 2,

RULE NOT RECD BACK for Respondent : 3,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

Date : 10/05/2011

ORAL ORDER

1. This petition is filed by the petitioner against the order dated 22.04.2010 passed by learned Additional City Sessions Judge, Court No. 8, Ahmedabad in Criminal Appeal No. 17 of 2010 and also against the order dated 21.12.2009 passed by learned Metropolitan Magistrate, Court No. 9, Ahmedabad in Criminal Misc. Application No. 321 of 2008 as the court did not appreciate the provisions and the protection required to be accorded to the Women under Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005.

2. This Court (Coram: A.S. Dave, J.) on 13.9.2010 passed the following order:

“Heard learned advocate for the parties.

Rule. Mr. Satyajit Sen, learned advocate, waives service of rule on behalf of respondent No.2.

Admittedly, both the courts below have failed to consider provisions of Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005, which provides residence orders and monetary reliefs.

Even, the respondent-husband has not provided any residential accommodation to the petitioner-wife on the ground that, residential house is owned by respondent’s mother. The amount of Rs.3,000/- awarded towards maintenance is not adequate, fair and reasonable and also not consistent to the standard of living, to which, aggrieved wife is accustomed.

In view of the above, in addition to the amount awarded by learned Magistrate, the respondent-husband to pay Rs.5,000/-p.m. to the petitioner-wife till final disposal of this petition.”

2. The petitioner, through her advocate has contended that maintenance amount is not paid despite their being specific order. Even the amount originally accorded by learned Magistrate namely Rs.3000/- p.m has not been paid and respondent no. 2 is in arrears so far as maintenance amount is concerned. The application for modification of the interim order made by this Court (Coram : A.S. Dave, J.) dated 13.09.2010 was made by way of Criminal Misc. Application No. 12303 of 2010 in Special Criminal Application No. 1113 of 2010, which came to be rejected by this Court (Coram: Akil Kureshi, J.) by passing the following order on 14.10.2010: “No case, for modification / recall of the order dated 13.09.2010, is made out, since, the same was passed after bipartite hearing. This application is, therefore, not accepted. However, looking to the averments made in this application, Special Criminal Application No. 1113 of 2010 is ordered to be placed for hearing on 26^th November, 2010.

This application is disposed of, accordingly.”

3. The petitioner has also filed one application being Criminal Misc. Application No. 3592 of 2011 in Special Criminal Application No. 1113 of 2010, wherein, this Court (Coram: M. D. Shah, J.) on 08.04.2011 passed the following order :

“Office is directed to list Special Criminal Application No. 1113 of 2010 along with this application. S.O to 20-4-2011.”

4. Learned advocate for the petitioner submitted that this Court (Coram: S.R. Brahmbhatt, J.) passed the following order on 04.05.2011:

“Ms. Ahuja, learned advocate appearing for the applicant has made serious grievance with regard to deliberate attempt on the part of husband in avoiding paying of maintenance. She, therefore, requested for taking up the matter on priority basis out of turn. It is informed that learned advocate Shri Sen, who is appearing for respondent no. 2 has filed sick note. In view of sick note, the Court is of the view that matter be ordered to be listed on 6.5.2011 with a specific observation that in case if the advocate is unable to appear on 6.5.2011, than, appropriate arrangement shall be made. Copy of this order be made available to Ms. Ahuja for her onward communication to the advocate for respondent no. 2. At her request, matter is adjourned to 6.5.2011.”

5. Today, when the matter is called out, none is present for respondent no.2. The Court is of the view that non-payment of maintenance amount for no reason is required to be viewed very seriously. The petitioner has made avements on oath indicating that the amount of maintenance is not paid since September, 2010 and this averments have not been controverted in any manner nor has the respondent no. 2 taken care to see to it that he is being represented in the matter as no one is present when the matter is called out. These facts collectively are capable of indicating that the respondent no. 2 is avoiding the payment of maintenance without any justifiable ground. The Court is therefore of the view that bailable warrant in the sum of Rs.12,000/- (Rs. Twelve Thousand only) be issued so as to procure and bring the presence of respondent no. 2 before this court on 12.05.2011. The Court is constrained to observe that if the respondent no. 2 is not available before the Court on 12.05.2011 pursuant to the bailable warrant, then the Court would pass appropriate orders taking serious view of the matter.

S.O to 12.05.2011.

(S.R.BRAHMBHATT, J.)

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Categories: DV Judgements

HC: Application under section 12 of the DV Act cannot be filed in family court

Equivalent citations: AIR 2008 Chh 1
Bench: L Bhadoo, S K Sinha

Smt. Neetu Singh vs Sunil Singh on 28/9/2007

JUDGMENT

L.C. Bhadoo, J.

1. By this appeal under Section 19(1) of the Family Courts Act, 1984, appellant Smt. Neetu Singh has questioned legality and correctness of the order dated 15-6-2006 passed by the Judge, Family Court, Bilaspur on an application filed by the appellant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act, 2005′) whereby learned Judge, Family Court held that since application has been filed under Section 12 of the Act, 2005, which ought to have been filed before the Magistrate and the relief sought for falls under the jurisdiction of the Civil Court, therefore, it be returned to the appellant for filing the same before the competent Court having jurisdiction.

2. Brief facts necessary for the disposal of this appeal are that the appellant herein filed an application under Section 12 of the Act, 2005 read with Section 7 of the Family Courts Act, 1984, in the Court of Judge, Family Court, Bilaspur on 13-6-2006 with the averments that the appellant was married to respondent on 28-4-2003 as per the Hindu custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and neglect behaviour. In connection with demand of money in-laws started beating the appellant and she was thrown out of the matrimonial house, against which reports were lodged in the Police Station on 7-8-2003 and 16-9-2004. On 9-11-2004, the appellant sent a notice to the respondent reminding him about his matrimonial duties, thereafter the appellant filed an application under Section 125 of the Cr. P.C. in the Court of Chief Judicial Magistrate, Bilaspur, from where same has been transferred to the Family Court, Bilaspur. The Family Court vide its order dated 20th April, 2005 passed an order for interim maintenance to the tune of Rs. 1500/- per month. Her husband is earning about Rs. 20,000/-per month. The in-laws have refused to return her articles which were given to her by her parents in her marriage. On the contrary, they have levelled false allegation of character assassination against the appellant, complaint of which was made by her in the Police Station. Ultimately, the appellant demanded Rs. 2 lakhs which were spent by her parents on arrangement of the marriage i.e. on tent, shamiyana & food, an amount of Rs. 1,56,792, value of articles, which were given to her in the dowry and Rs. 1 lakh for subjecting her to cruelty and character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence of the appellant, passed the impugned order.

3. We have heard Shri Rahul Birtharey and Shri Sachin Singh Rajput, counsel for the appellant and Shri Anurag Dayal Shrivastava, counsel for the respondent.

Learned Counsel for the appellant in-viting attention of the Court towards the provisions of Section 26 of the Act, 2005, argued that the Family Court is competent to entertain the said application as per the provisions of Section 26 of the Act, 2005, there-fore order impugned suffers from illegality.

4. In order to appreciate the controversy, in our opinion, it would be beneficial to have a glance on the relevant provisions of the Act, 2005. Section 12 of the Act, 2005, envisages that:

12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under Sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under Sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.

(5) The Magistrate shall endeavour to dispose of every application made under Sub-section (1) within a period of sixty days from the date of its first hearing.

26. Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

5. In order to appreciate issue involved in this matter, it will be profitable to have a glance on the scheme of the Act, 2005. The Act, 2005 has been enacted, as the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The civil law does not address this problem in its entirety. Even though where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the IPC. Therefore, in order to provide a remedy in the civil law for the protection of women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society for the protection of women from domestic violence, the Act, 2005 has been enacted by the Parliament. Considering the fact that domestic violence is undoubtedly a human right issue and serious deterrent to development, this law has been enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore, in order to grant minimum relief to the aggrieved person who is subjected to domestic violence, the above Act, 2005 has been enacted. Aggrieved person as defined in Section 2(a) of the Act, 2005 is subject of domestic violence as defined in Section 3 of the Act, 2005, she is entitled to move an application before a Magistrate under Section 12 of the Act, 2005 for seeking relief for issuance of the order for payment of compensation or damages without prejudice to right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.

6. Sub-section (4) of Section 12 contemplates that ‘the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond 3 days from the date of receipt of the application by the Court. Sub-section (5) further cast duty on the Magistrate to dispose of every application made under Sub-section (1) within a period of 60 days from the date of its first hearing. Section 17 envisages that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. It further envisages that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent. Section 18 contemplates that after hearing aggrieved person and the respondent, on being satisfied that domestic violence has taken place or is likely to take place, the Magistrate has to pass a protection order in favour of the aggrieved person and prohibit the respondent under situations enumerated in Clauses (a)

7. Section 19 envisages that the Magistrate on being satisfied that domestic violence has taken place, pass order in respect of residence of aggrieved person in the situations mentioned in Clauses (a) to (f) of Sub-Section (1) of Section 19 and also pass order as contemplated in Sub-section (2) to (8) of Section 19. As per Section 20, the Magistrate can grant monetary reliefs in respect of and in situations enumerated in Section 20. Section 21 authorizes the Magistrate to pass orders in respect of the custody of the child or children to the aggrieved person. Section 22 authorizes the Magistrate to pass compensation orders on an application being made by the aggrieved person directing the respondent to pay compensation or damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent.

8. Section 26 of the Act has been inserted with an objective that in addition to the provisions of Section 12 the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Sub-section (2) of Section 26 further envisages that any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) cast duty on the aggrieved person that in case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under Section 12 of this Act, she shall be bound to inform the Magistrate of the grant of such relief. Therefore, as per Section 26 of the Act, the aggrieved person is also entitled to seek relief as provided under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court, or a criminal Court in which the aggrieved person and respondent are party & that relief is in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding. Therefore, an option has been given to the aggrieved person to avail reliefs available to her under Sections 18, 19, 20, 21 and 22 in a legal proceeding pending in a civil Court, criminal Court or family Court in addition to filing of the application under Section 12.

9. In view of the above scheme of the Act, specially as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant is required to move an application under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application.

10. In the circumstances, we do not find any illegality or infirmity in the order impugned passed by the learned Judge, Family Court. The appeal is, therefore, liable to be dismissed and it is hereby dismissed. Still the appellant is entitled to move an application under Section 12 of the Act, 2005 before the Family Court in the maintenance proceeding said to be pending before that Court.

Categories: DV Judgements

HC: Under DV Act it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance

Crl.Misc.No.M-25966 of 2008

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.No.M-25966 of 2008.

Decided on: March 25, 2010.

Navrose Singh and others

.. Petitioners

VERSUS

State of Haryana and another

.. Respondents

***

CORAM: HON’BLE MR.JUSTICE M.M.S.BEDI ***

PRESENT Mr.Raghujeet Singh Madan, Advocate, for the petitioners.

Ms.Shubhra Singh, DAG, Haryana.

M.M.S. BEDI, J. (ORAL)

Petitioners seek quashing of proceedings under the complaint initiated by respondent No.2 Parminder Kaur, against the petitioners under the provisions of the Protection of Women from Domestic Violence Act, 2005, inter alia, on the grounds that the proceedings have been initiated with an oblique motive to aggravate the agony by adding another litigation to the earlier cases filed by the respondent. Besides this, it has been argued that the ladies cannot be added as respondents in proceedings under the Protection of Women from Domestic Violence Act, 2005, as per definition of respondent under Section 2 (q) of the Act, which reads as follows: -

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved …1

Crl.Misc.No.M-25966 of 2008

person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

I have heard counsel for the petitioners as well counsel for the respondent.

The summoning order Annexure P-1, indicates that the petitioners have been merely summoned and given a liberty to either appear in person or through duly authorized counsel in the Court to show why the reliefs claimed by the respondent should not be granted. It is made clear that under the provisions of the Protection of Women from Domestic Violence Act, 2005, it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance. The appearance of respondents under the provisions of the Protection of Women from Domestic Violence Act, 2005, is not the requirement of law unless and until, the Court exercises discretion to direct the parties to appear in person for some specific purpose. It is the wish of the petitioners either to appear in person or engage a counsel and pursue the proceedings before the Judicial Magistrate, Dabwali. It is also open to the petitioners to avoid the appearance on behalf of female respondents in the light of definition of respondent under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, laid down in Ajay Kant and others Vs. Smt.Alka Sharma, 2007 (4) RCR (Crl.), Page 930. Disposed of.

(M.M.S.BEDI)

JUDGE

March 25, 2010.

rka

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Categories: DV Judgements

HC: husband has to maintain wife at any cost…Both staying separately from 7 years

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Om Prakash Vs. State of Rajasthan & Anr.

(S.B. Criminal Revision Petition No.1220/2010)

S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C.

Date of Order :- April 29, 2011

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr.Arvind Gupta, for the petitioner.

Mrs.Alka Bhatnagar, Public Prosecutor.

Mr.Laxmi Kant Sandilya, for the respondent.

REPORTABLE

BY THE COURT:

Aggrieved by the order dated 07.02.2009, passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, Jaipur, whereby the learned Magistrate has allowed the application of the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’, for short) and aggrieved by the order dated 23.10.2010, passed by the Additional District and Session Judge No.2, Jaipur District Jaipur, whereby the learned Judge has upheld the former order, the petitioner has approached this Court.

The brief facts of the case are that the respondent-wife filed an application under Section 12 of the Act against the petitioner-husband before the trial court wherein she claimed that she got married with the petitioner twelve years back in Jaipur. But ever since her marriage, her in-laws and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since last seven years. Thus, she prayed for maintenance. The respondent-husband filed reply to the application and denied the contents thereof. After hearing both the parties, vide order dated 07.02.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.800/- per month as maintenance to the respondent-wife. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 23.10.2010, the learned appellate court upheld the order dated 07.02.2009 and dismissed the appeal. Hence, this petition before this Court.

Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently contended that according to the complainant herself, she was married with the petitioner twelve years prior to 2008. Moreover, according to her, the petitioner and the respondent are living separately ever since 2001. Therefore, ever since 2001, no act of domestic violence has been committed. Yet, both the learned courts below have allowed an application under Section 12 of the Act. Since the Act came into force on October 26, 2006, the Act cannot be given a retrospective effect and cannot be made applicable to the alleged acts of domestic violence, which may have taken place prior to 2001. In order to buttress this contention, the learned counsel has relied upon the case of Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291].

On the other hand, Mr. Laxmi Kant Sandilya, the learned counsel for the respondent-wife, has strenuously contended that Section 3 of the Act defines the term domestic violence which includes economic abuse. An explanation in Section 3 of the Act defines the term economic abuse as the denial of maintenance and denial of Stridhan. Although it is true that the parties have been living separately since 2001, but the fact remains that after the Act came into force in 2006, even thereafter, the respondent-wife is not being maintained by the petitioner-husband. Therefore, her economic right to maintenance is being violated. Since the civil wrong is continuously being violated, therefore the Act is certainly applicable. Hence, the question of retrospective application of the Act does not even arise. In rejoinder, Mr. Gupta has contended that since the respondent-wife is not living with him, the Act cannot be applied upon him. Moreover, since he happens to be a handicapped person, the direction to pay Rs.800/- per month, imposes a harsh financial burden upon him, which he cannot possibly discharge.

Heard the learned counsel for the parties, perused the impugned order as well as the case law cited at the Bar.

Section 3 of the Act defines the term domestic violence as under :

3. Definition of domestic violence.-

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-

For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband. In case the said right is violated as a civil wrong the Act provides a remedy to the aggrieved person. Admittedly, even after coming into force of the Act on October 26, 2006, the respondent-wife is not being maintained by the petitioner-husband. Therefore, she is being subjected to economic abuse. Since a civil wrong is continuously being committed after October 26, 2006, obviously the Act would apply to the petitioner. Therefore, the question of retrospective application of the Act does not even arise in the present case. The case of Hema @ Hemlata (Smt.) (Supra), does not come to the rescue of the petitioner-husband. For, the case of Hema @ Hemlata (Smt.) (Supra) and the present case are distinguishable on the factual matrix itself. In the case of Hema @ Hemlata (Smt.) (Supra), admittedly the couple was divorced in the year 2003 and the act of domestic violence alleged against the husband was prior to the year 2003. Since the couple was divorced in 2003, since the couple was living separately since 2003, the question of committing domestic violence post 2006 did not even arise. Therefore, this Court had opined that the Act cannot be given retrospective effect and cannot be applied to pre-2006 acts and omissions. However, in the present case, the marriage continues to subsist; the parties are living separately since 2001. But the facts remains that after 2006, no maintenance is being paid by the respondent-husband to the respondent-wife. Thus, as stated above, the economic rights are being violated by the petitioner-husband post-2006. Hence, the Act is certainly applicable in the present case. Therefore, the ratio laid down in the case of Hema @ Hemlata (Smt.) (Supra) is inapplicable to the present case. The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Therefore, the contention that merely because the petitioner-husband happens to be a physically challenged person, the Act is inapplicable to him, the said contention is unsustainable.

Moreover, poverty is not a defence against the right of a woman. Therefore, the petitioner is both legally and morally bound to pay maintenance of Rs.800/- per month to the respondent-wife.

Furthermore, the Act does not require that the aggrieved person must stay with the offending husband. Hence, merely because the respondent-wife is not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act. Therefore, the contention raised by the learned counsel for the petitioner is without any foundation.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned orders. This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed.

(R.S. CHAUHAN) J.

Manoj solank

Categories: DV Judgements

HC: Husband screwed in DV Act, 75000/- maintenance per month

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 29.04.2011

+ CS (OS) 1307/2010

EVENEET SINGH ….. Plaintiff Through : Sh. Y.P. Narula, Sr. Advocate with Ms. Shobhana

Takiar, Advocate.

Versus

PRASHANT CHAUDHRI AND ORS. ….. Defendants Through : Ms. Geeta Luthra, Sr. Advocate with Sh. Jatin Sehgal, Advocate, for Defendant No. 1.

Sh. Ankur Mahindro, Advocate, for Defendant No.2.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers YES

may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

I.A. No. 1401/2011 (Under Section 151 CPC) in CS (OS) 1307/2010

%

1. This Court had by its judgment and order dated 20.12.2010 disposed of certain applications in the two pending suits.

2. By the directions contained in that judgment, the Court had upheld the right of the plaintiff in one of the suits, (hereafter referred to as “Eveneet”) to residence in terms of Section 17 of The Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as “the Domestic Violence Act”). However, the Court, on a consideration of the other materials on record formed the opinion that it would be in the best interest of the parties that Eveneet should

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 1 not continue to reside in the shared household, drawing inspiration from the judgment in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors. FAO (OS) 341/2007 (decided on 26.10.2010), as well as Section 19(1)(f) of the Domestic Violence Act, and instead directed that she ought to be given alternative accommodation. As an interim measure, she was held entitled to ` 30,000/- per month (towards rent) over and above the monthly maintenance amount determined at ` 45,000/-.

3. The operative portion of the Court’s directions contained in paras 19 to 21 are as follows: “XXXXXX XXXXXX XXXXXX

19. In the present case, Eveneet and Prashant were living together. No doubt, the suit premises are not owned by either of them; the documents on record prima facie disclose that exclusive title and right is of Kavita, the mother-in-law. Yet, having regard to the previous discussion, Kavita is undoubtedly a “respondent” in whose household, the couple lived together. The Court here cannot be oblivious of the circumstance that Prashant moved out when the relationship became stormy; the possibility of the eviction suit having been filed as a pre-emptive move, to bring it within the Batra formulation cannot be ruled out at this stage. In the context,the Court holds that what cannot be done directly, cannot be achieved indirectly through stratagem. If the Court can look beyond the facts, and in a given case, conclude that the overall conspectus of circumstances, suggests manipulation by the husband or his relatives, to defeat a right inhering in the wife, to any order under Section 19, such “lifting of the veil” should be resorted to. Therefore, the plaintiff indeed has a right of residence under the Domestic Violence Act.

20. Now the question is what should be the order that the Court should make. As held earlier,though Eveneet has made a complaint under the Domestic Violence Act, in which orders have not been made, yet this Court also has concurrent jurisdiction under Section 26 to make appropriate orders in this regard, and mould the relief. The documentary evidence also suggests that Kavita is suffering from an acute cardiac condition; though Eveneets counsel submitted that the illness has been exaggerated, the Court cannot rule out aggravation, if the daughter-in-law continues in the premises, under a Court order, or the Court mandate. In this context, it has been observed by a division bench of this Court in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors., (F.A.O. (OS) 341/2007, Decided On: 26.10.2010) that

“the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property.”

The above approach is consistent with the power under Section 19 (1) (f), which enables the Court to direct “the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require “. The

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 2 plaintiff is thus, entitled to residence in a property commensurate with her lifestyle and her current residence, keeping in mind Kavitas health condition.

21. The documentary evidence and pleadings suggest that Prashants monthly outgoings in respect of the New York property are US$ 4500/-, which works out to Rs.2,05,000/-. He is also paying rent to the tune of Rs.27,000/- per month. With this expenditure, the Court can safely incur that his personal expenses would not be less than about Rs. 40,000/- per month. In these circumstances, to support this kind of lifestyle, Prashants average monthly income would not be less than Rs.450,000/- to Rs. 500,000/-. On the other hand, Eveneets income is about Rs. 50,000/- per

month; Prashant alleges it to be more. Having regard to his offer to pay Rs. 20,000/- per month towards alternative accommodation, the Court is of opinion that she should be entitled to an amount of Rs. 30,000/- per month towards rent, for alternative accommodation, and an amount of Rs. 45,000/- per month maintenance. In order to facilitate and effectuate this order, the parties are directed to appear before the Court handling the complaint under the Domestic Violence Act, on 4th January, 2011, which shall oversee that Prashant complies with Section 19 (1)(f), within ten weeks from today. Till such alternative accommodation is made available, Eveneet would be entitled to continue in the suit premises, and also entitled to receive Rs. 45,000/- per month. The application for maintenance is allowed with effect from the date it was filed; arrears shall be paid within six weeks.

4. It appears that both Eveneet and her husband Prashant have carried the said matter in appeal. Eveneet contests the operative portions, contending that she has the right to reside in the shared household whereas Prashant’s grievance in respect of the order apparently is that Eveneet is not entitled to the amounts or the alternative accommodation, as directed by the Court. Learned senior counsel for the parties have also brought to the notice of this Court that by an order dated 11.02.2011, the Division Bench had left it open to Eveneet to shift into the flat leased by Prashant which was then being used by him.

5. Learned senior counsel for Eveneet contends that since the appeals are pending, it would not be appropriate for this Court to make any determination or clarification as is being sought by Prashant in this case. It is pointed-out that Eveneet’s rights having been declared in Para 19 of the judgment, and the matter has to be relegated for appropriate effectuation by the Magistrate dealing with the complaint under the Domestic Violence Act. It is also argued that even though the Division Bench by its order of 11.02.2011 gave an option to Eveneet to shift to the premises in Defence Colony, it was just that (only an option), which she was free to accept or reject.

6. Learned senior counsel for Prashant argues that this Court ought to clarify explicitly

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 3 having regard to the directions in paras 20 and 21 that once alternative accommodation is made available or offered to Eveneet and she chooses not to accept it, her right to reside in the premises would not continue. It is submitted that this follows from a fair reading of paras 20 and 21, particularly latter portion of para 21 where even the time limit of 10 weeks has been specified.

7. This Court has considered the submissions of parties. Whilst there can be no two views on the issue that the Court upheld Eveneet’s right to shared household, equally the Court had given due consideration to Kavita’s (i.e. the mother-in-law) cardiac condition, and therefore, required that Eveneet should be given alternative accommodation within the specified time. As an interregnum, the Court had mandated that she would be entitled to ` 45,000/- per month. The reference to the Court dealing with the complaint under the Domestic Violence Act was purely a facilitating mechanism. If the rights of the parties as spelt-out in the order are understood in this perspective, it is clear that Eveneet’s right to continue in the premises was for a period of 10 weeks. Prashant is no doubt under an obligation to offer alternative accommodation this process was to be monitored by the Court dealing with the complaint under the Domestic Violence Act.

8. This Court is conscious of the further events which took place by way of an order of the Division Bench dated 11.02.2011, when Eveneet was given yet another option to move into premises leased by Prashant. Apparently, that option is still open even though she has chosen not to exercise it. Having regard to the overall circumstances, the Court clarifies that the judgment and order necessarily implied that in the event of alternative accommodation being offered “made available” to Eveneet before the concerned Court, her right to continue in the premises would cease.

9. In the light of the above clarification, the parties are relegated to the concerned Magistrate Ms. Priya Mahindra, learned MM (Saket), who is dealing with the Complaint No. 98/1. The said Court shall consider the option furnished by Prashant to Eveneet in line with this Court’s order, and make suitable orders as to whether Eveneet accepts the same or not. In the event of the Court’s determination of any premises to be appropriate or suitable, Eveneet shall be given reasonable time of two weeks to shift to the same. In the event of her failing to do so, it is open to the Defendant No. 2 to take appropriate proceedings for the implementation of the order of Court. The parties are directed to be present before the concerned Magistrate on 02.05.2011.

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 4 The said officer shall endeavor to complete the proceedings within four weeks. I.A. No. 1401/2011 is disposed of in the above terms. Order Dasti.

S. RAVINDRA BHAT

(JUDGE)

APRIL 29, 2011

‘ajk’

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 5

Categories: DV Judgements

HC: CrPC 125 & DV Act together are not Double Jepordy but DV quashed as husband already got divorce

THE HONOURABLE SRI JUSTICE K.G.SHANKAR

CRIMINAL PETITION No.7124 OF 2008

01-04-2011

A.Sreenivasa Rao and others

The State of A.P., rep. by its Public Prosecutor,High Court of A.P., Hyderabad and another

Counsel for the Petitioners: Sri D.Madhava Rao

Counsel for the Respondent No.1: Public Prosecutor

Counsel for the Respondent No.2: M/s. K.Ananda Rao

:ORDER:

1. There is no representation for the 2nd respondent-wife. The petitioners are Accused Nos.1 to 5 in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. The 1st accused is/was the husband of the 2nd respondent. Alleging that A-1 to A-5 committed matrimonial offences, the 2nd respondent/wife laid D.V.A.No.18 of 2007.

2. As there is prior litigation between the parties, the 2nd respondent laid M.C.No.175 of 2003 seeking for maintenance from the 1st petitioner herein. She was indeed successful in obtaining an order from the Court granting maintenance in her favour. It would appear that the order has become final.

3. While so, the 2nd respondent laid C.C.No.226 of 2003 on the file of the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad. She made allegations against the petitioner herein in C.C.No.226 of 2003 under Section 498-A and other matrimonial offences. The case had ended in acquittal. The judgment was pronounced on 30.4.2007.

4. In the interregnum, the 1st petitioner/husband laid O.P.No.366 of 2004 on the file of the Family Court, Hyderabad seeking the dissolution of his marriage with the 2nd respondent by divorce on the ground of cruelty on the part of the wife. The learned Judge, Family Court, Hyderabad granted divorce in favour of the petitioner through orders in O.P.No.366 of 2004 on 5.5.2006.

5. It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 Cr.P.C.

6. At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.

7. I wholly agree with the contention of the learned Counsel for the petitioners that the proceedings in D.V.A.No.18 of 2007 are not maintainable in view of the divorce between the 1st petitioner and the 2nd respondent having been granted by a competent Civil Court. Proceedings against the petitioners herein are quashed in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad.

Categories: DV Judgements, Judgement

HC: Whether a marriage between a Brahmin and muslim women is valid?

IN THE HIGH COURT OF JHARKHAND, RANCHI.

Cr.M.P. No. 1577 of 2010

Ayushman Pandey Petitioner

Versus

1.The State of Jharkhand

2. Shaista Huma Opposite party

CORAM :-HON’BLE MR. JUSTICE D.K. SINHA

For the Petitioner :-M/s Anil Kumar

Shashi Kant

Rita Kumari Advocates

For the State :- Mr. R.C.P. Sah A.P.P. For the O.P. No.2 :- Mr. Delip Zerath

Mr. Vivek Kumar Singh

Mr. Vineet Kumar Vashistha Advocates

C.A.V. on 24.1.2011 Delivered on 28 -3-2011

7/ 28 -03-2011 The petitioner has invoked the inherent jurisdiction of this Court under section 482 Code of Criminal Procedure for quashment of the order dated 6.10.2010 passed by the SDJM Ranchi in Complaint Case No. 772 of 2010 by which preliminary objection raised on the point of maintainability by the petitioner accused.

2. The prosecution story in short as per the complaint petition filed by the complainant-opposite party No.2 on 6.5.2010 in the court of CJM Ranchi under section 12 of the Protection of Women from Domestic Violence Act, 2005 was that she was a Muslim woman by faith whereas the petitioner Ayushman Pandey was a Brahmin(Hindu) and both solemnized love marriage on 8.12.2008 itself before the Marriage Officer under the Act XLIII of 1954 at Neturis Block, Purulia(West Bengal), to which a certificate of marriage was granted to both spouse .It was alleged that the husband- petitioner started torturing since the very day of marriage over telephone and in person in connivance with his relatives and coerced her as well as her father to deliver Rs. Twenty lakhs to enable him to set up his own consultancy service. The father of the complainant was holding a senior managerial post in the State Bank of India. She alleged that her father was picked up from the bank in which he was working at Ramgarh and was put under confinement illegally at Jamshedpur by putting pressure to impress upon the complainant to agree for annulment of marriage for the reasons that the parents of Ayushman Pandey had selected another girl of their own caste which could fetch a sum of Rs. One crore as dowry. The petitioner was compelled to leave Jamshedpur where she was undergoing intership at the Mahatma Gandhi Memorial Medical College, and was keen to get employment in the said hospital as a House Surgeon. Humiliation, insults and threats to cause hurt continued to the complainant by the accused petitioner. It was further stated that such threats were made every day in person or telephone till 31st March, 2009 when he left for Singapore to work and to pursue higher studies at S.P. Jain Centre for management. The petitioner failed to take care of the complainant, misutilized his position and had been constantly inflicting mental and physical abuses on the complainant and thereby he committed an offence as described under section 3 of the Act, as such liable for punishment. She claimed relief under sections 18 to 22 of the Act, particularly for monetary relief, residence and protection as also compensation. She further requested that interim ex-parte relief may be granted to her under the provision of Section 23 of the Act.

3. The complainant sought for her residence of at least two bedrooms flat near her parental house at P.P Compound with security guard for her protection and also sought for Rs.23,000/- to meet out personal expenses with one time compensation to the extent of Rs. 8,60,000/- under the provision of section 19 of the said Act .She further demanded Rs.50 lakhs as compensation under section 22 of the said Act and additional payment of Rs. 82,000/- by the respondent as monitory relief under section 20 of the Act. Enquiry was initiated on the complaint of the complainant by the Protection Officer.

4. The learned counsel appearing for the petitioner submitted that the acknowledgement of filing of Title suit No. 35 of 2009 by the husband-petitioner would clearly indicate that complaint filed by the complainant was a counter blast to the suit which was filed on 30.3. 2009 before the Civil Judge(Junior Division) Raghunathpur, Distt. Purulia (W.B) by which the validity of so-called marriage was challenged as she had fraudulently procured marriage certificate. The husband-petitioner had prayed in the suit for annulment of the so-called marriage by passing a decree of nullity. As a matter of fact, signature of the respondent-petitioner was obtained by putting him under intoxication by mixing intoxicant in the cold drink and subsequently the petitioner discovered that his signature was used by the complainant and her friends in procuring marriage certificate illegally from the marriage officer of the Purulia district and for that suit was filed under section 25 of the Special Marriage Act 1954.However,the said suit was transferred to the court of Principal Judge Family Court Ranchi where it was renumbered as M.T.S. No. 156 of 2010.The petitioner appeared in the complaint filed under Protection of Women from Domestic Violence Act, 2005 before the SDJM Ranchi as respondent on 13.9.2010 and filed his preliminary objection on the point of maintainability of the complaint case on the ground that the complaint, which was filed, did not project a prima facie case that she was an aggrieved person as defined in Section 2(a) of the said Act. A rejoinder to the preliminary objection was filed on behalf of the complainant. The learned SDJM rejected the preliminary objection of the petitioner by observing that complaint of the complainant was maintainable.

5. Raising the point of law Mr.Anil Kumar, the learned counsel submitted that the learned SDJM failed to appreciate that the complaint case would be maintainable only if it could reflect a prima facie case in favour of the complainant that she was an aggrieved person in domestic relationship between the complainant and the respondent and fulfilled the requirement of ‘shared household’. The petition was rejected merely on the ground of pendency of matrimonial title suit and existence of the marriage certificate which did not draw inference to presume that in the given allegation, an offence could be made out under the Protection of Women from Domestic Violence Act,2005.As a matter of fact, the complainant could not be stated to be an aggrieved person as defined under Section 2(a) of the d Act as she never lived with the petitioner-husband in domestic relationship as defined in Section 2(f) or in a shared household as defined in Section 2(s) of the Act , as such, complaint of the complainant was liable to be rejected on the point of maintainability . Mr. Anil Kumar further asserted that it would be evident from perusal of the complaint petition and domestic incident report that neither the marriage of the complainant with the respondent was solemnized according to the customary rites nor the same was consummated at any point of time as the respondent-husband had deserted the complainant soon after registration of the marriage on 8.12.2008 which was registered by playing fraud .The certificate of the marriage was obtained from Purulia district where none of the parties ordinarily resided, an essential ingredient under the provision of Section 25 of the Special Marriage Act.

6. Mr. Delip Zerath, the learned counsel appearing for the O.P. No.2 strongly controverted that marriage between parties cannot be denied which finds support from the admission of the husband petitioner that he filed petition under section 25 of the Special Marriage Act for annulment of the marriage but no judgment has been passed and that the matter is still subjudice. Mr. Zerath asserted that unless marriage between the parties is declared nullity it would be presumed that there was a valid marriage under the Special Marriage Act. The report of Protection Officer dated 28.5.2010 would indicate that there was love marriage between the parties and that no money was provided for her maintenance and that she was driven out from her matrimonial home as per column 15 and 17 of the report.

7. Having regard to the facts and circumstances of the case and arguments advanced on behalf of the parties I find that preliminary objection which was raised on behalf of the petitioner-husband on the point of maintainability of the complaint petition filed by the complainant-opposite party no.2 under section 12 of the Protection of Women From Domestic Violence Act, 2005 was turned down by the SDJM Ranchi on the ground that the marriage between the parties was not disputed though same has been challenged under section 25 of the Special Marriage Act and that she was driven out from her matrimonial home and therefore, he found that complaint as brought about by the complainant under section 12 of the said Act was maintainable and the learned counsel appearing for the petitioner failed to satisfy this court so as to call for interference in the order impugned recorded by the SDJM on 6.10.2010 in Complaint Case no. 772 of 2010.There being no merit, this petition is dismissed.

(D.K.Sinha, J)

SD

Categories: DV Judgements

HC on confusion due to simultaneous proceeings in DV Act and CrPC 125

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 593 of 2009

Akhilesh Kumar Applicant. Versus

Smt. Sarita Respondent.

Mr. Prashant Khanna, Advocate holding brief of Mr. R.P. Nautiyal, Advocate for the applicant.

Mr. Pawan Mishra, Advocate for the applicant / respondent. Date of Order: 29.03.2011

BARIN GHOSH, CHIEF JUSTICE

Clarification Application No. 278 of 2011 The words, “If any amount is paid under Section 125 of Criminal Procedure Code by the petitioner to the respondent, the same shall be adjusted against the amount of Rs. 5,000/- per month directed to be paid by this Court” is causing the confusion. In fact, a proceeding was initiated under Section 125 of the Criminal Procedure Code. In that proceeding, there was a direction to pay maintenance. Such maintenance was paid for sometime. Subsequent thereto, that proceeding was compromised. When no order was passed for payment of maintenance, in as much as the husband and the wife represented to the Court that they will henceforth live together. Subsequent thereto, wife was compelled to initiate a proceeding under the provisions of the Protection of Women from Domestic Violence Act, 2005. In that, the Magistrate awarded maintenance of Rs. 7,000/-. The Sessions Judge, at the instance of the husband, refused to interfere. This Court, as an interim measure, reduced the quantum of such maintenance from Rs. 7,000/- to Rs. 5,000/-. While doing so, the above observation was made. The said observation was made only for the purpose of ensuring that wife does not get anything more than Rs. 5,000/- per month. The Court did not permit the husband to adjust amount paid on earlier occasions in a closed proceedings with the amount directed to be paid by the Court by its order dated 14th June, 2010.

2

2. With the above clarification, the application made therefor is disposed of.

(Barin Ghosh, C.J.)

29.03.2011

Amit

Categories: DV Judgements, Judgement

Gujrat HC PIL final order of DASHRATH M DEVDA

MCA/596/2011 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

MISC.CIVIL APPLICATION – FOR REVIEW No. 596 of 2011

In

SPECIAL CIVIL APPLICATION No. 14922 of 2010

=========================================

DASHRATH M DEVDA – Applicant(s)

Versus

HON’BLE CHIEF MINISTER

SHRI (GUJARAT) & 2 – Opponent(s)

========================================= Appearance :

PARTY-IN-PERSON for Applicant(s) : 1, None for Opponent(s) : 1 – 3.

=========================================

CORAM :

HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA

and

HONOURABLE MR.JUSTICE K.M.THAKER

Date : 30/03/2011

ORAL ORDER

(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)

The petitioner Dashrath M. Devda has filed an affidavit and sought for unconditional apology for making certain observations before the Court on 25.11.2010 in SCA No. 14922/10. By the said order, the Court having found no case made out in public interest, and having found the case frivolous, imposed a cost of Rs. 1 lakh on the petitioner. Today in the affidavit, he had made the following statement:-

“I respect the whole women fraternity. I adore women’s role as mother, sister, daughter and wife too for the well being of family and society. I only oppose those women who misuse the laws like IPC 498A, Cr.P.C 125, 24 HMA, and Domestic Violence Act, 2005 etc. and take revenge on their husbands and others and just destruct the family structure which in the long run harmful to society.”

In view of such apology sought for, and in absence of any opposition made by the learned Government Pleader, we recall last portion of our order dated 25.11.2010 passed in SCA No. 14922 of 2010, whereby we imposed costs of Rs. 1 lakhs on the petitioner. The petition being frivolous, costs is assessed to Rs. 5,000/- to be paid within three months in favour of Self Employed Women’s Association (SEWA), Ahmedabad in place of Rs. 1 lakh. The said order stands modified to the above extent. MCA stands disposed of.

(S.J. Mukhopadhaya, C.J.)

(K.M.Thaker, J.)

*/Mohandas

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Family court order removal of husband from flat. HC upheld order

Bench: R S Dalvi

1 WP-576

PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

Writ Petition No.576 of 2011

Mr.Ishpal Singh Kahai … … Petitioner v/s.

Mrs.Ramanjeet Kahai … … Respondent

Mr.U.P. Warunjikar for Petitioner

Mr.Harihar Bhave for Respondent

—–

CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the judgment : 23rd February 2011 Date of pronouncing the judgment : 23rd March 2011

JUDGMENT :

Rule. Returnable forthwith.

1.The Petitioner/husband has challenged the order of the learned Judge, Family Court, Mumbai, directing him to remove himself from the residential flat in which he resides being flat No.2102, 21st floor, Beverly Hills, Shastri Nagar, Lokhandwala Complex, Andheri (West), Mumbai (the suit flat) and from creating nuisance by attempting to enter in the suit flat until the hearing and final disposal of the Petition. The Respondent/wife sued the Petitioner/husband for divorce and other incidental reliefs, being inter alia a mandatory order directing her husband to remove himself, from entering into the suit flat and disturbing her possession. She applied for temporary injunction for the aforesaid 2 WP-576

reliefs in which the impugned order came to be passed.

2.Though the Petition is not expressly stated to be filed under the provisions of the Protection of women against Domestic Violence Act (DV Act), the substantial interim reliefs are available to the wife under it and it is gratifying to note that the learned Judge has impliedly treated the interim application as one also under the DV Act and granted reliefs.

3.The wife s essential case is that her husband is an inveterate and consummate alcoholic. She has lodged several complaints with Versova Police Station. It is her case that her husband displays uncontrolled aggression due to excessive consumption of alcohol and abuses her and her children. The relief of injunction claimed by her is essentially upon the domestic violence caused to her by her husband s behaviour which makes it impossible for her to continue to reside in the matrimonial home with her children if her husband continues to live there as before. She, therefore, claims protection against domestic violence, a statutory right granted to women under DV Act.

4.Though only the relief of prohibitory injunction against disturbance of possession has been granted to wives, as in the case of B.P. Achala Anand vs. Appi 3 WP-576

Reddy 2005 3 SCC 313, since prior to the enactment of the DV Act, in this case the wife has claimed and been granted the injunction against the entry of the husband in the matrimonial home. She has made out a case that her husband is a habitual alcoholic, unable to improve or withdraw from the symptoms of alcohol constituting domestic violence and entitling her and her children to the relief of protection from such onslaught in the matrimonial home under the impugned residence order. She must, therefore, show prima facie the case of alcoholism as would constitute domestic violence. Her case must be appreciated to see whether she would be entitled to the injunctions sought.

5.Aside from her oral statement as also her criminal complaint, which would be tested in trial, she has relied upon and produced the case papers of her husband of Holy Spirit Hospital, Mahakali Caves Road, Andheri (East), Mumbai-400 093, where he was hospitalised for treatment of alcohol dependence. The documentary evidence shown by her is not disputed as incorrect and untruthful. It shows the husband being hospitalised on 5th December 2007 under the treatment of Dr.Prabhu and Dr.Rai. The case papers show alcoholic dependence since 15-20 years. It shows that the husband drinks in the morning as well as in the evening, as shown by the expression:

4 WP-576

Morn drinks + Eve drinks, concomitant smoking on going and aggravating stressers etc.

His case history shows two attempts at abstinence 9 years prior to the hospitalisation after father s death, after which he returned to alcoholism. The conclusion of the case history shows

Imp : Alcohol dependence in withdrawal.

It advises urgent admission to hospital. Hence started the treatment of the phase of retoxification.

6.This documentary evidence corroborates the case of the wife that the husband is abusive and violative. Judicial notice is required to be taken of the fact that persistent alcoholic husbands are invariably violative.

7.The wife has given an instance of the after effects of the husband s alcoholism. The instance is also admitted by the husband. He has justified it on the ground that it was his mistake. The incident took place in the evening of 10th January 2010. The husband had been to 5 WP-576

Juhu Club. The wife and children were not at home. He consumed alcohol and returned home with a food parcel. He heat it up on the cooking gas. He ate and went to sleep. He found somebody knocking on the door but did not get up. Fire brigade was called who broke open the door, entered the kitchen and closed the gas cylinder knob. The husband realised his mistake.

8.This shows that the case of the wife that the husband had left the cooking gas on in his alcoholic stupor when he collapsed to sleep leaving the gas on and requiring their neighbour one Mr.Tanna to call the fire brigade is not only correct but also accurate. The requirement of calling the fire brigade shows the gravity of the situation. The wife was not in the house. She had to be called. Therefore, it stands to reason that despite knocking and banging the door, the Respondent was unable to bring himself to open it requiring the fire brigade to break it down.

9.It is in this situation that the statutory rights of protection of a wife in her matrimonial home under the DV Act are required to be considered.

10.It is the contention of the husband that the wife is not the full and complete owner of the flat in which he also resides and hence could not be granted the relief 6 WP-576

of injunction against him. The entire case of the husband is based upon ownership rights. Incidentally, in this case, the matrimonial home, in which the parties reside and for which the wife has applied for injunction, temporary as well as permanent, is in the name of the wife and her mother-in-law. That is, however, the most immaterial and even redundant consideration. Human Rights of the person of a wife has little to do with her ownership rights in property. It is, therefore, not material to consider in whose name the matrimonial home stands. What has to be only considered and appreciated in a case of domestic violence of a wife of an alcoholic and abusive husband is the protection against such violence.

11.It is in this light that the evolution of the law of Domestic Violence has to be considered.

12.At common law in England a mere desertion of a wife entitled her to peaceable occupation of and protection in the matrimonial home. This was held to fall within the doctrine of The Deserted Wife s Equity in the case of National Provincial Bank Ltd. vs. Hastings Car Mart Ltd. & ors., (1964) 1 Ch. D. 665.

13.The Matrimonial Homes Act, 1967 granted the right to both the spouses to enter into and occupy the 7 WP-576

matrimonial home and in certain cases to have the other spouses right to live there terminated despite the fact that she/he did own, fully or partly, the matrimonial home. The right was, therefore, available irrespective of the title to the house.

14.In the case of Gurasz v. Gurasz (1969) 3 WLR 482 CA = (1969) 3 AER 822, Lord Denning, as he then was considered the case of the wife who was a joint owner with her husband. Holding that the right to protection of her occupation extended to a wife who was also a part owner of the house, (though her husband was also a part owner in that case), he restrained the husband, who caused cruelty upon her, from the occupation rights thus:

It is true, of course, that the husband is also a joint owner, and by virtue thereof, the husband has a right to occupy it. But that is a right which the courts, for the protection of the wife, can restrict; just as it can restrict this right if he were the sole owner. Such a power to restrict arises out of her personal right, as a wife, to occupy the house. If his conduct is so outrageous as to make it impossible for them to live together, the court can restrain him from using the house even though he is a joint owner.

15. Hence the precedent law in England held that financial interest of a husband has nothing to do with the equity of protecting a wife in cases of cruelty or 8 WP-576

abuse. Their respective contributions to the purchase of the house could be considered only in cases where the marriage broke up requiring considerations of alimony and provisions for residence.

16.The right of a battered wife was statutorily recognised under the Domestic Violence and Matrimonial Proceedings Act, 1976 (the said Act) in England.

The relevant provisions of the said Act show thus:

Under Section 1 of the said Act, an injunction could be issued (termed as a matrimonial injunction). The breach of the injunction empowered the Police to arrest the violator.

Under Section 1(1) of the said Act, an injunction could be issued restraining the other party from molesting the Applicant or her children as also from excluding the other party from the matrimonial home or any part thereof and from permitting the Applicant to enter into the matrimonial home or any part thereof.

Under Section 2 of the said Act, where an injunction restraining violence or excluding the other party is issued and bodily harm is caused to 9 WP-576

the Applicant or the child a power of arrest would be attached to the injunction so as to empower a constable to arrest without warrant the person reasonably suspected of causing breach of injunction and further incidental orders could be passed.

Under Section 3 of the said Act, the order of regulating the exercise of the right of occupation by a spouse in the dwelling house as granted under Section 1(2) of the Matrimonial Homes Act, 1967 came to be substituted by the order of prohibiting, suspending or restricting such a right. Further the positive permission to exercise the right of occupation by the Applicant came to be specifically granted by incorporation of that right.

Under Section 4 of the Act, in the case of spouses, who are joint owners of the matrimonial home, the right to occupy it or to prohibit, suspend or restrict the other party could be granted by an order of the Court.

17.Hence the order of regulating the exercise of the right of occupation by a spouse in the dwelling house under common law came to be substituted by the order of 10 WP-576

prohibiting, suspending or restricting such a right. Further the permissive right of occupation by the Applicant came to be specifically granted by incorporation of that right.

18.The Matrimonial Homes Act, 1967 was repealed by the Matrimonial Homes Act, 1983 (M.H. Act) brought into force from 9th May 1983.

19.The 1983 Act dealt with the consolidation of the rights of a husband or wife to occupy a dwelling house which was their matrimonial home. Section 1(1), (2), (3), (4) and (10) determined the statutory rights along with Section 9 thereof.

Under Section 1(1) where one spouse was entitled to occupy a dwelling house by virtue of a beneficial estate, interest or contract or an enactment and the other spouse was not so entitled, then such other spouse would have a right of occupation. Under that right of occupation, he or she had a right not to be evicted or excluded therefrom and had a right to enter upon and occupy it.

Under Section 1(2) either spouse may apply for declaring, enforcing, restricting or terminating 11 WP-576

those rights, or for prohibiting, suspending, or restricting the right of the other.

Under Section 1(3), the Court could make any just and reasonable order having regard to the conduct of the spouses, the respective needs, financial resources and the needs of their children in that behalf as also to make periodical payments to the other spouse in respect of such occupation and for repayment and maintenance of the dwelling house.

Under Section 1(4), such order would remain in force for a specified period or until further orders.

Under Section 1(10), the Act would have no application to any dwelling house which was not the dwelling house of the spouses. The spouse s rights of occupation would continue until the marriage subsisted.

Under Section 9(1) of the Act, where any spouse has the right of occupation in a matrimonial home, he or she could apply for an order prohibiting, suspending or restricting the exercise of the right by the other or requiring the other spouse to permit its exercise by the Applicant. 12 WP-576

Under Section 9(3), if the spouse had a right under a contract or an enactment to remain in occupation of the dwelling house, Section 9 would apply where they would be entitled by virtue of the legal estate vested in them jointly.

20.Hence in terms, the new legislation conferred a complete right of occupation to both the spouses to remain in their matrimonial home peaceably and without disturbance by the other. This was despite any other contractual or statutory right and also when they were joint owners. The Parliament, therefore, granted by law what Lord Denning ruled in the case of Gurasz (supra) since overturned by the House of Lords.

21.The Law in India developed much the same. Title of parties was oft considered in grant or refusal of the relief of injunction against an abusive husband.

22.The DV Act came to be enacted essentially to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights so that the civil law protection could not be availed by them.

23.The DV Act is an Act to provide for more effective protection of the rights of women guaranteed under the 13 WP-576

Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

The relevant portion of the objects and reasons of the Act inter alia provides for :

(i)…….

(ii)…….

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass

protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her

assistance from the domestic violence.

(v) ……

The Act, therefore, provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife 14 WP-576

against violence and at prevention of recurrence of acts of violence.

24.Under Section 2(s) of the DV Act, shared household is a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person OR the respondent or both jointly OR singly have any right, title, interest OR equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

25.Her right to reside in the shared household is under Section 17(1) of the DV Act which runs thus:

17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

15 WP-576

The statute, therefore, expressly excludes the consideration of ownership rights as a condition for determining whether or not a particular property is a shared household.

26.The DV Act grants protection to women in a shared household (or matrimonial home) in case of any domestic violence perpetrated upon her therein.

27.Under the relevant portion of Section 3 of the DV Act, domestic violence is defined inter alia as the omission or commission or conduct of the respondent which:

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b). . . .

(c). . . .

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Under Explanation I to Section 3, physical abuse is any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or 16 WP-576

development of the aggrieved person and includes assault, criminal intimidation and criminal force.

Under Explanation II to Section 3 for determining the commission of an act constituting domestic violence the overall facts and circumstances of the case shall be taken into consideration.

The DV Act thus grants protection against any form of aggression mental, physical, or emotional in a shared household which may not belong to the woman who is a victim of violence therein, but who only resides therein WITHOUT having any title thereto.

28.A wife who owns a property can even otherwise exclude any person, including her abusive or violative husband therein under civil law. The enactment of the DV Act would not be required to give such a wife any added protection by way of any injunctive relief in respect of a residential property owned by her. The DV Act steps in to protect the women who were otherwise left unprotected under the general law. This is expressly clarified under:

(1) the statement of objects and reasons: 17 WP-576

…..whether or not she has any title or rights in such home or household.

(2) the definition of shared household under Section 2(s):

whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them.

(3) the right to reside in the shared household under Section 17:

whether or not she has any right, title

or beneficial interest in the same.

as also

(4) the residence order under Section 19(1)(a):

whether or not the respondent has a legal or equitable interest in the shared

household

29.It can, therefore, be seen that there is no place for proprietary rights under the DV Act. The Act is an extension of the deeper and profounder principle of Women s Rights as a part of Human Rights. The matrimonial home or the shared household of a person does not require it to be owned or co-owned by the person who has been violated. It could be any household 18 WP-576

whether owned or tenanted, either jointly or by either of them as specifically set out in Section 2(s) above. It is the household in which the victim and the violator may be having rights, singly or jointly. Consequently, they may or may not have title to the property and hence the victim can apply for a residence order to the Court in respect of a shared household, which includes their matrimonial home, whether or not she has any right, title or beneficial interest therein. The very consideration of ownership rights would put materialism before matrimony.

30.In fact, the lesser the entitlement to property rights, the more is the entitlement to protection of human rights against violence. It may not be out of place to rethink the depth of the words of none other than Mahatma Gandhi reaching out to the most vulnerable of humankind in generic terms:

I hold that the more helpless a creature, the more entitled it is to protection by men, from the cruelty of men.

31.Though this law grants her protection, it goes only thus far and not without reason. It is essentially a temporary remedy. It is entirely a protectionist and not an empowering legislation. It holds fort until the parties work out their differences and disputes and 19 WP-576

until the husband makes the reasonable alternate arrangement contemplated in the legislation itself. Section 19(1)(f) which shall be considered presently. Consequently this law itself does not confer proprietary rights in the matrimonial home. This law does not need/require her to have any title, because it does not confer upon her any title. It can, therefore, be seen why she requires to show the Court nothing more than her residential rights to the disputed premises which is her matrimonial home or the shared residence.

32.The case made out by either of the parties with regard to the joint or co-owned residence by the wife is, therefore, completely alien to the mischief that is sought to be remedied by the DV Act. The argument on behalf of the husband that his mother owns the suit flat along with wife etc. must, therefore, be ignored as redundant to the issues required to be adjudicated in this case.

33.The right is claimed by the lawfully wedded wife in this case. The husband, who subjects his wife to domestic violence in a marital relationship (as much as in any other domestic relationship), would require a protection as well as a residence order passed against him.

20 WP-576

34.The wife applied for what is now statutorily called a residence order in terms of the injunctions, temporary as well as permanent, as set out above in respect of the shared household which is her matrimonial home. The residence orders claimed by her are grantable under Section 19(1) of the DV Act, the relevant portion of which runs thus:

19. Residence orders. (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a)restraining the respondent from dispossessing or in any other manner

disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or

equitable interest in the shared household;

(b)directing the respondent to remove himself from the shared household;

(c)restraining the respondent or any of

his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d)restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e)…….

21 WP-576

(f)directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the

same, if the circumstances so require :

……..

(2)The Magistrate may impose any additional conditions or pass any other

direction which he may deem reasonably

necessary to protect or to provide for the safety of the aggrieved person or any

child of such aggrieved person.

(3) ……

(4) ……

(5)While passing an order under sub-

section (1), sub-section (2) or sub-

section (3), the Court may also pass an

order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an

application on her behalf in the implementation of the order.

(6)While making an order under sub-section (1), the Magistrate may impose on the

respondent obligations relating to the

discharge of rent and other payments,

having regard to the financial needs and resources of the parties.

(7)The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been 22 WP-576

approached to assist in the implementation of the protection order.

35.Hence notwithstanding the law relating to ownership of immovable property any victim of domestic violence in a domestic relationship would require to be granted the protective right of residence in the shared household, including the protection against dispossession therefrom whether or not she has any legal or equitable interest therein . This right to reside contains within itself not only an injunction for protection against her dispossession, but statutorily follows as a matter of corollary, the order of injunction of the Court for removal of the violator from such household and thereafter restraining him from entering thereupon. The order of removal of the violator and an order of injunction restraining him from entering upon the shared household is, therefore, conditioned upon his abusive behaviour violating the person of his wife or any other woman in domestic relationship and not upon his proprietary rights therein. Consequently, the right to reside without having any title to the property contains within itself the right to reside peaceably and to the exclusion of the violator. Further since the Act puts the woman s personal rights above proprietary interest, even if the Respondent who is the violator has title to the property, he would be restrained by a Court from 23 WP-576

exercising unrestrained domain over his ownership property by an order of injunction restraining him from alienating or disposing of or encumbering the shared household or the matrimonial home in which the victim has been granted the right of peaceful residence for her protection. This further brings within its sway, the servants, agents, assigns, who may be the relatives of the violator since what cannot be done directly also cannot be allowed to be done indirectly. This, of course, would be until and subject to the violator securing the same level of alternate accommodation for the victim as was enjoyed by her in the shared household and upon he paying for the same. Consequently, reading sub-sections (a), (b), (c), (d) and (f) of Section 19(1) together, a holistic view of the protection of the victim is granted under the beneficial social legislation which seeks to remedy the malaise of domestic violence in a domestic relationship.

36.It may be mentioned that the orders required to be passed by a Magistrate can also be passed by the Family Court, as the jurisdiction under Section 26 of the DV Act is conferred upon Civil Court, Family Court or Criminal Court alike.

37.It is this protection that the learned Judge has 24 WP-576

sought to grant the violated wife in this case against her violative husband. As aforesaid, the fact of his alcoholism not only having been shown, but admitted and justified and the instance shown by the wife not only having been stated, but substantiated by the fact of the fire brigade assistance having had to be sought, a case of her protection in future against the expected aftermath of the disease to which the husband has succumbed as well as for the protection of her minor children is more than prima facie made out. In fact, the learned Judge has considered the aggressive attitude of the husband in even breaking a glass in a fit of rage upon the Petitioner having filed the Petition and applied for reliefs. The learned Judge has also considered the police complaints filed by her. She has appreciated the apprehension in the mind of the wife of further disturbance at the hands of her husband. The learned Judge has, however, also considered the joint ownership of the wife and her mother-in-law in the matrimonial home. It may be mentioned that is the only immaterial aspect in considering the relief of injunctions granted by the learned Judge.

38.The wife has made out a fit case for grant of the reliefs sought by her. The husband has not shown any apparent error on the part of the learned Judge. No 25 WP-576

interference whatsoever is called for.

39.The Writ Petition is, therefore, dismissed and Rule is discharged accordingly.

40.However, upon the application on behalf of the Petitioner/husband, the stay already granted by the trial Court, which has been continued pending the Writ Petition, shall be continued for a further period of two weeks from today.

(SMT.ROSHAN DALVI, J.)

Categories: DV Judgements

HC: Even if wife leaves matrimonial home on her own she is eligible for maintenence

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Bhavesh Gangwani Vs. State of Rajasthan & Anr.

(S.B. Criminal Misc. Petition No.495/2011)

S.B. Criminal Misc. Petition under Section 482 Cr.P.C.

Date of Order :- March 04, 2011

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr.Peush Nag, for the petitioner.

Ms.Alka Bhatnagar, Public Prosecutor.

BY THE COURT:

The petitioner has challenged the order dated 11.10.2010, passed by the learned Judicial Magistrate (First Class) No.3, Ajmer, whereby the learned Magistrate had granted an interim maintenance of Rs.2,000/- p.m. under the Provisions of Domestic Violence Act, 2005 (‘the Act, 2005′, for short) to the respondent No.2, Smt. Deepa Lalwani @ Hansika Gangwani. He has also challenged the order dated 13.11.2010, passed by the learned Sessions Judge, Ajmer, whereby the learned Judge has confirmed the order dated 11.10.2010 passed by the learned Magistrate. The brief facts of the case are that the petitioner, Bhavesh Gangwani and the respondent No.2, Smt. Deepa Lalwani, were married on 27.03.2008 according to Hindu rites and customs. However, due to certain matrimonial disputes, the couple parted. Subsequently, Smt. Deepa Lalwani, filed an application under the Act, 2005 and sought a maintenance of Rs.4,000/- p.m. Vide order dated 11.10.2010, the learned Magistrate granted a maintenance of Rs.2,000/- p.m. to the respondent No.2. Since the petitioner was aggrieved by the said order, he challenged the same before the learned Sessions Judge by way of filing an appeal. However, vide order dated 13.11.2010, the learned Judge upheld the order dated 11.10.2010 and dismissed the appeal. Hence, this petition before this Court. Mr. Peush Nag, the learned counsel for the petitioner, has contended that since the respondent No.2 had left the matrimonial home of her own volition, she is not entitled to receive any maintenance. Heard the learned counsel and perused the impugned orders.

There is no bar in the Act, 2005, which debars a lady from seeking maintenance even if she had left the matrimonial home of her own volition. Moreover, no evidence has been produced by the petitioner to substantiate this contention. According to respondent No.2, she had been turned out from her matrimonial home. Hence, considering the facts of the case, the learned trial court was certainly justified in granting a maintenance of Rs.2,000/- to the respondent No.2. Even the order dated 13.11.2010, does not suffer from any illegality or perversity. Hence, this petition is devoid of any merit. It is, hereby, dismissed.

(R.S. CHAUHAN) J.

Manoj solank

Categories: DV Judgements

HC: 4200 PM maintenance on income of 15000 PM (assessed income by HC)

February 26, 2011 1 comment

SCR.A/1627/2010 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1627 of 2010

=========================================================

PARESHBHAI ARVINDBHAI PATEL – Applicant(s)

Versus

REKHABEN BABUBHAI PATEL & 2 – Respondent(s)

========================================================= Appearance :

MR PRADIP D BHATE for Applicant(s) : 1, None for Respondent(s) : 1 – 2.

MS CHETNA SHAH ADDL PUBLIC PROSECUTOR for Respondent(s) : 3, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 17/09/2010

ORAL ORDER

Petitioner is husband of the respondent No.1 and father of the minor respondent No.2. He is required to pay monthly maintenance of Rs.2200/- to his wife and Rs.2000/- to his minor son by order dated 30^th November 2009 passed by the learned Magistrate, Dahod. His revision application against the said order came to be dismissed by the Sessions Court vide order dated 27^th July 2010. He has, therefore, filed the present petition.

Counsel for the petitioner submitted that the Courts below have wrongly assessed income of the petitioner going against the documents on record. He submitted that amount of maintenance is excessive and calls for interference.

From the orders under challenge and in particular one passed by the learned Magistrate, it clearly emerges that the petitioner is only son of his father. His mother is also passed away. Father has retired from Railways Department which is a pensionable service. Sister of the petitioner is married in USA and settled there. His father has been frequently visiting her in USA. He has also in past traveled to London for some social reasons.

It further emerges that the petitioner in his cross examination admitted that he is owner of one residential house which is in his exclusive name. Admittedly the father of the petitioner is also co-owner of piece of agricultural land.

Averments of the wife before the Courts below was that the husband is doing electrical work since he has done technical course in this field and has two shops from where he operates. Husband, however, has produced certificate of Mamlatdar suggesting that his yearly income is only Rs.20,000/-.

Two courts below have assessed income of the petitioner much higher on the basis of the evidence, some of which, I have recorded hereinabove.

These are purely factual findings. I have no reason to take different view though version of the wife is that he is earning Rs.50,000/- per month was discarded by the Courts. However, the Courts below believed that the petitioner is able bodied person and has been involved in the electrical work, would be earning about Rs.15,000/- per month. Other family circumstances and living style lead by the family convince me not to interfere with the impugned orders.

Petition is, therefore, not entertained and stands dismissed accordingly.

( AKIL KURESHI, J. )

kailash

Categories: DV Judgements, Judgement

Multiple maintenance not allowed: Gujrat HC

SCR.A/2080/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 2080 of 2010

=========================================================

HEMLATABEN MAHESHBHAI CHAUHAN – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR HEMANT B RAVAL for Applicant(s) : 1, MR KARTIK PANDYA ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 21/10/2010

ORAL ORDER

Petitioner is wife of the respondent No.2. She has challenged the order dated 25^th August 2010 passed by the learned Additional Sessions Judge, Ahmedabad allowing the appeal of the respondent No.2.

Wife had prayed for interim maintenance before the learned Magistrate in proceedings arising out of the Protection of Women from Domestic Violence Act. Such prayer was granted. Husband challenged the said order dated 19.12.2009. Learned Additional Sessions Judge allowed the said appeal and set aside the order of the learned Magistrate.

Upon hearing the learned advocate for the petitioner and perusing the documents on record, it emerges that the wife had already instituted proceedings for maintenance under Section 125 of Code of Criminal Procedure wherein the competent Court has granted maintenance to the tune of Rs.750/- in favour of son, whereas no maintenance was granted to the wife since it was found that she was serving in a factory earning Rs.2500/- every month, she was able to maintain herself.

When initial order under Section 125 of the Cr.P.C. was already passed by the competent court which has also attended finality by way of interim arrangement, unless and until strong reasons, learned Magistrate could not have granted maintenance to the wife. In the event of change in the circumstances, it is always open to the wife to seek modification of the maintenance order under Section 127 of the Cr.P.C.. Learned Additional Sessions Judge has, therefore, committed no error in passing the impugned order.

Learned Magistrate shall, however, dispose of the pending proceedings under the Domestic Violence Act unmindful of this order since I am concerned only with the interim stage in this matter.

Petition is, therefore, dismissed.

( AKIL KURESHI, J. )

kailash

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Categories: DV Judgements, Judgement

Delhi HC: DV act can be filed where the person aggrieved permanently or temporarily resides or carries on business or is employed

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. M.C. No. 1784/2009

% Judgment delivered on: 12.10.2009 Manish Tandon & Ors. …… Petitioners Through: Mr. Varun Goswami, Advocate

versus

State & Anr. ….. Respondent Through: Mr. Sanjay Lao, APP for State.

Mr. Ayush Gupta, Advocate for

R-2.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported

in the Digest? Yes KAILASH GAMBHIR, J.

*

1. By way of the present petition filed under Section 482 Code of Criminal Procedure, 1973 petitioners seeks quashing of complaint case bearing no. 156/1 titled as “Ms. Gunjan Tondon Vs. Sh. Manish Tondon & Crl. M.C. No. 1784/09 Page 1 of 10 Ors.” filed by the respondent No. 2 against the petitioners under Section 12 of the Protection of Women from the Domestic Violence Act, 2005.

2. The brief facts of the case relevant for deciding the present petition as set out by the petitioners are as under:

That the marriage of the petitioner No. 1 was solemnized with the respondent No. 2 on 23.01.2009 at the Community Centre in Sector-52, Noida (UP) according to Hindu rites and customs. All the petitioners are the permanent residents of the State of Uttar Pradesh. In fact, admittedly, the respondent No. 2 is also a permanent resident of Noida (UP) being Mahagun Manor, Flat No. 417, Plot No. F-30, Sector-50, Noida.

3. That the marriage of the petitioner No. 1 and Respondent No. 2 was an arranged marriage and the acquaintance between them came through a popular matrimonial website known as “Jeevansathi.com”.

4. That after the aforesaid marriage, the respondent No. 2 joined the conjugal company of the petitioner No. 1 at her matrimonial home in Bareily (UP), at H.No. 17, Madaari Gate, Bada Bazaar. However on account of his employment with M/s. Malayalam Manorma, in Delhi, the petitioner Crl. M.C. No. 1784/09 Page 2 of 10 No. 1 has been living in a rented accommodation in Ghaziabad at the aforesaid address.

5. That on 16.03.2009, the respondent No. 2 left her matrimonial home in Uttar Pradesh and started living with her relatives including parents, in Noida Flat No. 417, Plot No. 30, NOIDA.

6. That thereafter on 24.03.2009, loaded with patently frivolous, false and vexatious averments, despite being permanently residing in Noida, the respondent No. 2 in a most cunning and malicious manner, with the sole objective to cause undue harassment, hardships and mental torture to the petitioners, filed the impugned complaint in the court of the Additional Chief Metropolitan Magistrate, New Delhi which was subsequently marked to Ms. Veena Rani, MM, Patiala House, New Delhi for trial in accordance with law. The said complaint is now posted on 02.07.2009 for further proceedings.

7. Feeling aggrieved with the said complaint filed by the respondent under Section 12 of the Protection of Women from the Domestic Violence Act, 2005 the petitioners have approached this Court seeking quashing of the said complaint.

Crl. M.C. No. 1784/09 Page 3 of 10

8. The contention of counsel for the petitioners is that the courts in Delhi have no territorial jurisdiction to entertain and try the impugned complaint as the same has been filed by the respondent no. 2 in a court which lacks jurisdiction. He urged that none of the alleged acts of domestic violence qua respondent no. 2 took place in Delhi and as per the admission of the respondent no. 2 the marriage was solemnized at Noida, and her matrimonial home was either in Bareily or Ghaziabad. Respondent no. 2 even admitted having been staying at Noida after she left her matrimonial home on 16/3/2009 and reason placed for residing residing temporarily at Delhi is that, her acutely ill paralytic mother’s condition may deteriorate upon seeing her daughter staying with her. The counsel averred that, after 16/3/2009 alleged domestic violence are not in continuance. The counsel for petitioner submitted that the respondent no. 2 is misusing and abusing the provision of Section 27 of the Protection of Women From Domestic Violence Act has been laid down for beneficial support of needy and destitute persons and certainly not for a person like respondent no. 2 who is a malafide litigant with all vexacious claims and thus the proceedings pending before the trial court should be quashed. The counsel relied on decisions in following judgments in support of his contentions: Crl. M.C. No. 1784/09 Page 4 of 10

1. Surjit Singh Kalra vs. UOI (1991) 2 SCC 87;

2. S.R. Batra vs. Tarun Batra 2007 (2) SCC (Cri) 56;

3. Harman Electronics vs. National Panasonic 156 (2009) DLT 160 (SC);

4. K.D. Mathpal vs. State 132 (2006) DLT 398 (DB);

5. P.C. Jain vs. P.K. Soni 156 (2009) DLT 760;

6. Harmanpreet vs. State of Punjab JT (2009) 6 SC 375; and

7. Y. Abraham vs. Inspector of Police (2004) 8 SCC 100.

9. Per contra, counsel for respondent no. 2 contended that the present petition is nothing but an abuse of the process of the court merely taking up the precious time of the court and should be dismissed forthwith. The counsel drew attention of this court to Clause (b) of sub-section (1) of Section 27 of Protection of Women From Domestic Violence Act to contend that the section provides that jurisdiction to try the case under the Act also lies where the respondent resides or carries on business or is employed. The counsel for respondent No. 2 relied on decision in Smt. Darshan Kumari vs. Surinder Kumar 1996 SCC (Cri) 44 in support of his contentions.

Crl. M.C. No. 1784/09 Page 5 of 10

10. I have heard Ld. Counsel for the parties at length and perused the record.

11. It is a well settled principle that the under provisions of S. 482 Code of Criminal Procedure, 1973, exercise of power should be an exception and not the rule. Explaining the scope of S. 482 Code of Criminal Procedure, 1973, the Hon’ble Apex Court observed as under in Ashabai Machindra Adhagale v. State of Maharashtra,(2009) 3 SCC 789:

8. The scope for interference on the basis of an application under Section 482 of the Code is well known.

9. “8. [Section 482] does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of [the Code]. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under [the Code], (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of ‘quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest’ (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of Crl. M.C. No. 1784/09 Page 6 of 10 justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab6 this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 [of the Code], the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.

12. Thus, clearly the inherent jurisdiction may be exercised by this court, (i) to give effect to an order under [the Code], (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.

13. At this juncture it would be relevant to refer to S. 27 of the PWDV Act, which is as under:

Crl. M.C. No. 1784/09 Page 7 of 10

27. Jurisdiction.-(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India.

14. A bare perusal of the aforesaid provision clearly brings out, that the court, where the respondent resides or carries on business or is employed has territorial jurisdiction to entertain the case under the Protection of Women From Domestic Violence Act. The fact that the petitioner/husband’s place of work is at Malyalam Manorama, 56, II Floor, Janpath, New Delhi is not disputed and is admitted by the petitioner husband.

15. The Protection of Women from Domestic Violence Act, 2005 is a piece of legislation brought in by the Parliament as the Parliament felt that the civil law does not provide reliefs to a victim woman subjected to domestic violence. It is in these circumstances, to provide for a remedy under the civil law for protection of women from being victims of domestic violence, that the Act was brought in by the Parliament. It will be apposite to take note of the fact that though it is a piece of civil law, evidently in the Crl. M.C. No. 1784/09 Page 8 of 10 interests of expedition and to cut down procedural delays, the forum provided for enforcement of rights under Protection of Women From Domestic Violence Act is that of the Magistrate Courts constituted under the provisions of the Cr. P.C.

16. The Act seeks to cover those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption; in addition relationship with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or are living with the abuser are entitled to get legal protection under the Act.

17. Keeping in mind the said objects of the Act, it has to be considered that the legislature has provided the women covered under the Act with such wide options to institute a case against the unscrupulous persons who harass or abuse her at the places covered under Section 27 of the Act with an intent that women may opt for the place which best suited their convenience, comfort and accessibility.

18. The decisions relied upon by the counsel for the petitioners are of no assistance to them as the said cases do not pertain to interpretation of Crl. M.C. No. 1784/09 Page 9 of 10 provision of Section 27 of PWDV Act. Be that as it may, when the language of the Section is so clear and unambiguous then the court cannot interpret or construe the same differently just to give effect to the wishes of the party.

19. In view of the foregoing discussion, I do not find any merit in the present petition and the same is hereby dismissed.

12th October,2009 KAILASH GAMBHIR, J. Crl. M.C. No. 1784/09 Page 10 of 10

Categories: DV Judgements

Whether live-in women eligible for maintenance in CrPC 125: CJI to make bench for it

February 22, 2011 5 comments
Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._____ OF 2010

(Arising out of SLP (Civil) No.15071 of 2009) Chanmuniya ..Appellant(s) Versus

Virendra Kumar Singh Kushwaha & Anr. ..Respondent(s) J U D G M E N T

GANGULY, J.

1. Leave granted.

2. One Sarju Singh Kushwaha had two sons, Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son and the first respondent). The appellant, Chanmuniya, was married to Ram Saran and had 2 daughters-Asha, the first one, was born in 1

1988 and Usha, the second daughter, was born in 1990. Ram Saran died on 7.03.1992.

3. Thereafter, the appellant contended that she was married off to the first respondent as per the customs and usages prevalent in the Kushwaha community in 1996. The custom allegedly was that after the death of the husband, the widow was married off to the younger brother of the husband. The appellant was married off in accordance with the local custom of Katha and Sindur. The appellant contended that she and the first respondent were living together as husband and wife and had discharged all marital obligations towards each other. The appellant further contended that after some time the first respondent started harassing and torturing the appellant, stopped her maintenance and also refused to discharge his marital obligations towards her.

4. As a result, she initiated proceedings under Section 125 of the Cr.P.C. for maintenance (No.20/1997) 2

before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. This proceeding is pending.

5. She also filed a suit (No.42/1998) for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the Court of 1st Additional District Judge, Ghazipur.

6. The Trial Court decreed the suit for restitution of conjugal rights in favour of the appellant on 3.1.2004 as it was of the opinion that the appellant had remarried the first respondent after the death of Ram Saran, and the first respondent had deserted the appellant thereafter. Thus, it directed the first respondent to live with the appellant and perform his marital duties.

7. Hence, the first respondent preferred a first appeal (No.110/2004) under Section 28 of the Hindu Marriage Act. The main issue in appeal was whether there was any evidence on record to prove that the appellant was the legally wedded wife of the first respondent. 3

The High Court in its judgment dated 28.11.2007 was of the opinion that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not been performed between the first respondent and the appellant and held that the first respondent was not the husband of the appellant and thus reversed the findings of the Trial Court.

8. Aggrieved by the aforesaid judgment of the High Court, the appellant sought a review of the order dated 28.11.2007. The review petition was dismissed on 23.01.2009 on the ground that there was no error apparent on the face of the record of the judgment dated 28.11.2007.

9. Hence, the appellant approached this Court by way of a special leave petition against the impugned orders dated 28.11.2007 and 23.01.2009.

10.One of the major issues which cropped up in the present case is whether or not presumption of a 4

marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under Section 125 Cr.P.C. In other words, the question is what is meant by `wife’ under Section 125 of Criminal Procedure Code especially having regard to explanation under clause (b) of the Section.

11.Thus, the question that arises is whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.

12.On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers [(1849) II HLC 331], in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law 5

will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.

13.In Lieutenant C.W. Campbell v. John A.G. Campbell [(1867) Law Rep. 2 HL 269], also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General [(1876) 1 AC 686], that the presumption of marriage is much 6

stronger than a presumption in regard to other facts.

14.Again in Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. 15.In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy [AIR 1927 P.C. 185], in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

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16.In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. [AIR 1929 PC 135], the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 17.In the case of Gokal Chand v. Parvin Kumari [AIR 1952 SC 231], this Court held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 18.Further, in the case of Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy 8

burden lies on him who seeks to deprive the relationship of legal origin.

19.Again, in Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

20.Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy’s Council, described the object of Section 125 of the Code (it was Section 536 in 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

21.Then came the 1898 Code in which the same provision was in Chapter XXXVI Section 488 of the Code. The exact provision of Section 488(1) of the 1898 Code runs as follows:

“488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the 9

District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.”

22.In Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521], the Supreme Court observed with respect to Chapter XXXVI of Cr.P.C. of 1898 that provisions for maintenance of wives and children intend to serve a social purpose. Section 488 prescribes forums for a proceeding to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief.

23.In Nanak Chand v. Chandra Kishore Aggarwal & Ors. [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the older Cr.P.C, virtually came to the same conclusion that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties.

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24.In Captain

Ramesh

Chander Kaushal v. Veena Kaushal

and Ors. [AIR 1978 SC 1807], this Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- “We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts.” (Para 9 on pages 1809-10)

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25.Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife’ the Court held:

“…The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife’ consistent with the objective… ” 26.Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage 12

without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent. 27.The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word `wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period. 28.The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum & Ors. reported in [(1985) 2 SCC 556], considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The 13

Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. 29.In a subsequent decision, in Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr. [(1999) 7 SCC 675], this Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. (See para 9)

14

30.However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. (See para 6). The learned Judges also held (paras 4 & 8) that the expression `wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

31.Again in a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and others, reported in AIR 2005 SC 1809, this Court held however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife’. The Bench held that this inadequacy in law can be amended only by the Legislature. While coming to the aforesaid finding, 15

the learned Judges relied on the decision in the Yamunabai case (supra).

32.It is, therefore, clear from what has been discussed above that there is a divergence of judicial opinion on the interpretation of the word `wife’ in Section

125.

33.We are inclined to take a broad view of the definition of `wife’ having regard to the social object of Section 125 in the Code of 1973. However, sitting in a two-Judge Bench, we cannot, we are afraid, take a view contrary to the views expressed in the abovementioned two cases.

34.However, law in America has proceeded on a slightly different basis. The social obligation of a man entering into a live-in relationship with another woman, without the formalities of a marriage, came up for consideration in the American courts in the leading case of Marvin v. Marvin [(1976) 18 Cal.3d 660]. In that context, a new expression of 16

`palimony’ has been coined, which is a combination of `pal’ and `alimony’, by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson.

35.In the Marvin case (supra), the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” The parties allegedly further agreed that Michelle would “render her services as a companion, homemaker, housekeeper and cook.” Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows:

(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision.

17

(2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

36.Though in our country, law has not developed on the lines of the Marvin case (supra), but our social context also is fast changing, of which cognizance has to be taken by Courts in interpreting a statutory provision which has a pronounced social content like Section 125 of the Code of 1973. 37.We think the larger Bench may consider also the provisions of the Protection of Women from Domestic Violence Act, 2005. This Act assigns a very broad 18

and expansive definition to the term `domestic abuse’ to include within its purview even economic abuse. `Economic abuse’ has been defined very broadly in sub-explanation (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources.

38.Further, Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. [Section 20(1)(d)]. 39.Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act.

40.In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, family court or a 19

criminal court, affecting the aggrieved person and the respondent.

41.Most significantly, the Act gives a very wide interpretation to the term `domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of `domestic relationship’ under Section 2(f) of the Act.

42.Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act. 43.We are thus of the opinion that if the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.

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44.We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and accordingly, a broad interpretation of the same should be taken. 45.We, therefore, request the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

21

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

46.We are of the opinion that a broad and expansive interpretation should be given to the term `wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section

125.

47.We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual. 22

…………………J.

(G.S. SINGHVI)

…………………J.

(ASOK KUMAR GANGULY)

New Delhi

October 07, 2010

Categories: DV Judgements, Judgement

DV Act: HC: Magistrate should not blindly call all family members as respondents

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/10/2010

CORAM

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.O.P.(MD).No.10280 of 2010

and

M.P.(MD) Nos.1 and 2 of 2010

1.Vijaya Baskar

2.Mariappan

3.Sorna

4.Vijayakumar

5.Balamurugan

6.Mohana … Petitioners

Vs.

Suganya Devi … Respondent

Prayer

Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in Domestic and Violence Case in Crl.M.P.No.2307 of 2010 on the file of the Judicial Magistrate No.II, Madurai and quash the same.

!For Petitioners … Mr.M.Venkateswaran

^For Respondent … Mr.L.Murugan

Government Advocate (Crl. Side)

* * * * *

:ORDER

Heard both sides.

2. The germane facts absolutely necessary for the disposal of this petition would run thus:

The respondent herein preferred a complaint under Section 12 of the Protection of Women from Domestic Violence Act making allegations as against the husband and his relatives. The respondents 1 to 6 therein preferred this Crl.O.P.(MD) No.10280 of 2010 to get quashed the said application filed by the respondent Suganya Devi on various grounds.

3. The learned counsel for the petitioners in the present petition placing reliance on the grounds of the petition filed under Section 12 of the Protection of Women from Domestic Violence Act would submit that ex-facie and prima-facie no case has been made out so as to attract the provisions of the Protection of Women from Domestic Violence Act; certain false statements are found set out in the application that she had been driven out of the matrimonial home; she also lodged a complaint against the petitioners invoking Section 498(A) I.P.C. and other sections and the petition under Section 125 Cr.P.C. claiming maintenance was filed by her; being not satisfied with those proceedings, she has come forward with the petition under the Protection of Women from Domestic Violence Act arraying all the petitioners without any ground whatsoever; there are self contradictory statements also between the version as found set out in the Domestic Violence Act and in the previous cases. Accordingly he prays for quashment of the petition on the ground that it is filed only to harass the husband viz. the 1st petitioner and his relatives, who are in no way concerned with the actual matrimonial dispute between the husband and wife.

4. Whereas the learned counsel for the respondent would oppose the move for quashment on various grounds by pointing out that this is not a fit case for quashment and according to him, the matter has to be gone into by the Magistrate.

5. The point for consideration is as to whether there are sufficient grounds for quashment under Section 482 Cr.P.C.?

6. At this juncture, I would like to recollect and hark back to the decisions of the Honourable Apex Court as under:

1.Kunga Nima Lepcha and others v. State of Sikkim and others reported in (2010) 2 Supreme Court Cases (Cri) 878;

2.Rubabbuddin Sheikh v. State of Gujarat and others reported in (2010) 2 Supreme Court Cases (Cri) 1006.

3.Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 Supreme Court Cases 322.

4.State of Haryana v. Bhajan Lal reported in AIR 1992 SUPREME COURT 604. Certain excerpts from it, would run thus:

“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary powers under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with male fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In fact, the raison d’etre of Section 482 Cr.P.C., is based on the maxim “Quando aliquid mandatur, mandatur et omne per quod perventur ad ilud.” (When anything is commanded, everything by which it can be accomplished is also commanded.)

7. The learned counsel for the petitioner has invited the attention of this Court to the averments in the application filed under Section 12 of the Protection of Women from the Domestic Violence Act and has argued that those are all mere narrations and not backed by probable or possible evidence. According to him, the summons issued also to the petitioners is one nomenclatured as summons to the accused person, which itself is not tenable. The petitioners are having avocation of their own and if they are dragged to the Magistrate Court, then they will not be able to carry on with their day to day work.

8. At the outset the Magistrate was not right in issuing the summons to the accused person in this case invoking Section 61 of the Code of Criminal Procedure. The learned counsel for the petitioners in this petition would appropriately and appositely refer to Section 13 of the Protection of Women from Domestic Violence Act, which is extracted hereunder for ready reference: “13.Service of notice. – (1) A notice of the date of hearing fixed under Section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.

(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.”

Along with that, I would like to refer to Section 28 of the said Act, which reads as follows:

“28. Procedure. (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub- section (2) of section 23.”

9. A mere reading of Section 13 of the said Act would amply make the point clear that at the initial stage, the Magistrate was not justified in treating the respondents in this case as accused and as such, hereafter relating to applications under Section 12 of the Protection of Women from Domestic Violence Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating the respondents as accused. What is contemplated under Section 13 of the Act is a notice specifying the date etc., The endeavour should be on the part of the officer concerned is to deal with the matter gently and treating the respondents in a gentle manner and that should not be lost sight of. Unless the appearance of the respondents are absolutely necessary on a particular date, they should not be simply harassed by compelling them to appear as though they are offenders. The Magistrate should not loose sight of the fact that so long as the case is anterior to the protection order being passed, they should be treated only as respondents. However, after the order under Section 18 of the Act is passed and if there is violation, then the proceedings might get changed and become criminal proceedings. As such, the Magistrates hereafter would scrupulously adhere to the mandates contained in the Act itself.

10. The contention of the learned counsel for the petitioner in this Criminal Original Petition is that the case of the petitioner in the petition filed under the Protection of Women from Domestic Violence Act is false. The truth or falsity of the averments made in the petition filed under domestic violence case cannot be gone into, now in this criminal original petition in view of the dicta as found set out in the decisions cited supra. In fact, before passing the Protection Order under Section 18 of the said Act enquiry has to be conducted, only with an intention to bring together the parties. The protection officer as well as the Magistrate should encourage and enthuse the parties to burry the hatchet and have peaceful living mixed with harmony and understanding. This Court while exercising its jurisdiction under Section 482 of Cr.P.C. at this stage is not expected to interfere and stall the proceedings also.

11. Paramount, it is, to consider the gamut and the scope of the Act, namely The Protection of Women from Domestic Violence Act, 2005; certain excerpts from the objects and reasons are of immense importance which would run thus:

“2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under Section 4980A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

12. The term ‘civil law’ twice used therein is not an empty formality and that would exemplify and demonstrate, display and convey that the proceedings at the first instance should be civil in nature. The legislators were conscious of the fact that all of a sudden if criminal law is enforced on the husband and his relatives, certainly that might boomerang and have deliterious effect in the matrimonial relationship between the husband and wife. The object of the Act is that the victim lady should be enabled by law to live in the matrimonial family atmosphere in her husband/in-laws’ house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate and keeping that in mind alone in the Act, the initiation of action is given the trappings of civil proceedings which the authorities including the Magistrate responsible to enforce the said Act should not loose sight of.

13. The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Keeping that in mind alone, Section 13 of the Act would contemplate only service of notice on the respondents and Rule 6(5) of the Protection of Women from Domestic Violence Rules, would contemplate that the applications under Section 12 shall be dealt with inconformity with Section 125 of the Code of Criminal Procedure, 1973.

14. It is obvious that the proceedings under Section 125 Cr.P.C are not in stricto sensu criminal proceedings.

15. After the passing of the protection order, if there is any violation, then only, such violation would constitute an offence under Section 31 of the said Act and Section 32 of the Act would indicate that such violation would amount to a cognizable and non-bailable offence.

16. It is, therefore, clear that the initial proceedings are civil in nature and the learned Magistrate should be extraordinary careful in selecting the appropriate persons as the respondents. Simply because the application under Section 12 of the Act might refer to large number of persons as respondents, the learned Magistrate is not duty bound to issue notice to all of them and there should be application of mind on the part of the Magistrate in selecting the respondents as to whom notice should be sent, as otherwise having too many respondents before the learned Magistrate, would constitute a stumbling block for arriving at a conclusion in summary proceedings. The famous adage “Too much of anything is good for nothing” should not be forgotten.

17. As such, keeping in mind the spirit of the Act and the purpose sought to be achieved, the learned Magistrate should process the application.

18. As such, at this stage, this Court cannot simply quash the proceedings under the Protection of Women from Domestic Violence Act on the ground that the petitioners in the Criminal Original Petition state that the allegations made in the Domestic Violence Act are all false.

19. The learned counsel for the petitioners would submit that the parties are at Chennai and the 1st petitioner is the husband, the second petitioner is the father of A1, the 3rd petitioner is the mother of A1, the 4th and 5th petitioners are the brothers of A1 and the 6th petitioner is the wife of A5 and it is difficult for them to appear before the Magistrate on every hearing.

20. Ex-facie and prima-facie, it is clear that the husband, his parents and his relatives have been summoned as accused, which the Magistrate could have avoided. Hence, I would like to sensitize that let the Magistrate apply his mind as to whether the presence of the respondents is absolutely necessary on a particular date and accordingly, send notice to such of those persons whose presence are absolutely necessary. The Magistrate shall see that the matter is dealt with as expeditiously as possible. Whenever any one or more of the respondents seek to get excuse from their absence in the proceedings, they are at liberty to petition the Magistrate which shall be considered sympathetically, but without detriment to the proceedings.

21. With the above observations, this petition is closed. Consequently, connected M.Ps. are closed.

sj

To

1.The Judicial Magistrate No.II,

Categories: DV Judgements

Domestic violence Act: Gujrat HC on retrospective aspect

CR.MA/750/2011 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 750 of 2011

=========================================================

KANTILAL JUTHABHAI VAGHELA & 1 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR BHAVESH D HAJARE for Applicant(s) : 1 – 2. Ms CM Shah, Addl. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 08/02/2011

ORAL ORDER

1. Heard the learned Advocate for the petitioners.

It is submitted that the impugned proceedings initiated under section 12 of the Protection of Women against Domestic Violence Act, 2005 (for short, “the Act”) are of incidence which took place in the year 1991 and thereafter the petitioners and respondent No.2 stayed separately. The Act of 2005 has no retrospective operation and prima facie, according to the learned Advocate for the petitioners, the impugned proceedings deserves to be quashed and set aside.

2. Having considered the above aspects, issue NOTICE returnable on 11th March, 2011. Meanwhile the impugned complaint of initiating the proceedings under section 12 of the Act shall remain stayed.

[ANANT S DAVE, J.]

Categories: DV Judgements

Maintenance order with with prospective effect: Gujrat HC

CR.MA/5242/2010 4/4 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 5242 of 2010

=========================================================

MODI KAMLESHKUMAR SEVANTILAL – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR YM THAKORE for Applicant(s) : 1,

MR DC SEJPAL, APP for Respondent(s) : 1,

MR MEHUL H RATHOD for Respondent(s) : 2,

MR JAYKAR B PATEL for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 04/02/2011

ORAL ORDER

Petitioner is husband of respondent No.2. He seeks quashing of Criminal Misc. Application No.474/09 filed by wife under the provisions of the Protection to Women from Domestic Violence Act (‘the Act’ for short). In the said application, the wife has prayed for several reliefs including enhancement of maintenance, arrangement for premises for residence, etc. The petitioner opposed the said proceedings on various grounds including the ground that he has been regularly paying maintenance as fixed by the court below under section 125 of the Criminal Procedure Code. On 15.6.2010 while issuing notice, the following order was passed:

“Heard learned advocate for the applicants.

It is submitted that as per the order dated 01.04.2009 passed in Criminal Revision Application No.678 of 2008, amount as agreed upon is being paid regularly. The impugned complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 is nothing but an offshoot with a view to harass the applicants, and therefore, the impugned complaint deserves to be stayed.

In view of the above, issue notice returnable on 12.07.2010.

In the meanwhile, ad-interim relief in terms of para 11(B).

Direct service is permitted.

Service of the notice issued by this Court is permitted to be served through the In-charge Police Officer of the area concerned.”

Subsequently on 31.1.2011 as well as today, I have heard the learned advocates appearing for the parties on various issues. The main contention of the petitioner was that proceedings under the Act are not maintainable since the husband and wife are residing separately long before the Act was brought into force. On the other hand, counsel for the wife submitted that there are allegations of domestic violence even after the Act was brought into force. Be that as it may, during the course of hearing both sides agree to certain formula. Husband had agreed to increase maintenance and make some provision for rent in lieu of residential premises for the wife. Wife agreed to accept said amounts in lieu of the reliefs made in the proceedings under the Act which are challenged in this petition.

I had on previous occasion requested the counsel for the petitioner to make available latest salary slips of the petitioner who is employed as Executive Engineer in ONGC since long. Copies of these salary slips are taken on record. I have perused the statements of monthly income of the petitioner, statutory compulsory and other deductions from his salary as also other liabilities which primarily includes, maintenance of his aged widowed mother. It is, however, stated that the petitioner has two other brothers who are also earning and would therefore obviously be sharing the responsibility to maintain the mother. It is stated that the couple has no children out of the wedlock.

From the salary slips of the petitioner it can be seen that he earns sizable income every month. Of course, he has to pay substantial income tax and other deductions such as, car loan which he has taken in addition to contributing compulsory deductions towards provident fund. Despite which, he takes home a sizable salary for himself and his family. Under the circumstances, counsel for the petitioner, under the instructions of the petitioner who is present in court, agree that monthly maintenance be enhanced from Rs.10,000/- to Rs.15,000/- per month prospectively. He submitted that in lieu of residence for the wife, the petitioner is prepared to pay Rs.5,000/- by way of rent. Counsel for the wife under the instructions of his client, who is also present in court, stated that the wife will be satisfied with such increase at this stage with liberty to apply in future if the conditions undergo significant change.

With respect to the increase in the maintenance, I am of the opinion that a formal order should be passed by the learned Magistrate. For that purpose, respondent No.2 wife may apply to the learned Magistrate. The husband shall agree to such increase as stated above. The learned Magistrate shall pass order bearing in mind the above observations and agreement between the parties. Such increase in monthly maintenance from Rs.10,000/- to Rs.15,000/- will be with prospective effect and shall be payable to the wife from the date of the application. However, in addition to the above, the petitioner shall pay Rs.5,000/- towards rent in lieu of residence for the wife.

The above observations and directions shall not be treated to mean that proceedings under the Act are maintainable and the order is passed without prejudice to the contentions of both sides.

In view of the above arrangement between the parties which is formalized in this order, proceedings under the Act being Criminal Misc. Application No.474 of 2009 are quashed. Rule is made absolute to the above extent.

(Akil Kureshi, J.)

Categories: DV Judgements

HC: 125 CrPC dismissed, DV dismissed, Divorce granted: Dream come true for husband :)

Sister’s Domestic Violence petition against brother and mother rejected

IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.MC No. 3325/2010

KAVERI ….. Petitioner Through Ms. Uma, Advocate

versus

Neel Sagar & Anr. ….. Respondents CORAM:

JUSTICE SHIV NARAYAN DHINGRA

O R D E R (ORAL)

% 25.10.2010

By the present petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. the petitioner has assailed an order dated 25th May, 2010 whereby appeal filed by the petitioner against an order dated 28th August, 2009 of learned MM was dismissed.

The relevant facts show that the petitioner had filed an application under Section 23 of Protection of Women from Domestic Violence Act seeking restraint order against the respondents and seeking direction to provide her residential accommodation and to pay sum of Rs.15000/- pm as interim maintenance. The respondents in this case were mother and brothers of the petitioner. The petitioner is an employed woman, has been working with Indian Airlines in store department and living separately from her brothers and mother admittedly since 2002; although the respondents alleged that she was living separately since 1999. Both the Courts below had come to the conclusion that interim relief either of separate residence or claiming amount from brothers or mother could not be granted in her favour under the Protection of Women from Domestic Violence Act since it was not the claim of the petitioner that she was not able to maintain herself rather she had claimed she had spent Rs.1 lac in construction of first floor of the house where respondents no. 1 & 2 were residing. The Courts below came to the conclusion that petitioner being employed and living separate and being a major having her own independent source of income was not entitled to relief. The facts that the petitioner is employed and has been living separate and leading an independent life are undisputed facts. I find no ground to interfere with the orders of the Courts below in petition under Article 227 of the Constitution of India. The petition is hereby dismissed. SHIV NARAYAN DHINGRA,J

OCTOBER 25, 2010

acm

Categories: DV Judgements

HC do not invoke 482 CrPC for quashing Domestic Violence case

CR.MA/12685/2010 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 12685 of 2010

=========================================================

VASANTBHAI SHANTILAL SONI (LAVANGIYA) & 5 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MRBHUNESHCRUPERA for Applicant(s) : 1 – 6. MR MR MENGDEY, APP for Respondent(s) : 1, None for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 28/10/2010

ORAL ORDER

The petitioner opposes the proceedings under the Domestic Violence Act instituted by wife on the ground that allegations are completely false and frivolous. However, such question can be examined by learned Magistrate also if raised with respect to which I have not given any opinion.

Learned counsel for the petitioners sought permission to withdraw the petition to approach learned Magistrate.

Permission is granted. Petition is disposed of.

Direct service is permitted.

(Akil Kureshi,J.)

(raghu)

Top

Categories: DV Judgements

Patna HC: Bail granted on condition that husband will keep wife happy as per Domestic Violence Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.44295 of 2010

PUSHPLATA DEVI, w/o. Anmol Saw @ Anmol Prasad Gupta @ Karu, D/o. Jai Prakash Sah, resident of village Kaithma, P.S. Sirari, District Sheikhpura, at present resident of Chewra, P.S. Chewra, District Sheikhpura. …………… Petitioner. Versus

1. THE STATE OF BIHAR.

2. Anmol Saw @ Anmol Prasad Gupta @ Karu, S/o. Rameshwar Prasad Saw, Residence of village Kaithma, P.S. Sirari, District Sheikhpura. ………. Opp. Parties.

———–

02/ 16.12.2010 The bail was granted to O.P. No. 2 vide order

dated 14.07.2010 passed in Cr. Misc. No. 29594 of 2009 with

a condition that the petitioner shall keep his wife with due

dignity and preserving her right of residence and right of

maintenance according to the Domestic Violence Act, 2005.

Learned counsel for the petitioner submits that the

said condition has been violated by O.P. No. 2 and hence the

bail granted to him may be cancelled.

Considering the facts and circumstances of the

case, petitioner is directed to file a petition to this effect

before the court below and the court below if finds that the

conditions is violated by O.P. No. 2 then pass appropriate

order.

This application is, accordingly, disposed of.

Kundan (Gopal Prasad, J.)

HC normally dont invoke 482 CrPC to quash Domestic violence case

N THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. No.28/2011 & Crl.MAs. 121-122/2011 Decided on 07.01.2011

IN THE MATTER OF :

RAMANAND AMIT ….. Petitioner Through : Mr. Ajay Rai, Adv.

versus

RUHI RAMANAND ….. Respondent Through : Nemo.

CORAM

* HON’BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may No be allowed to see the Judgment?

2. To be referred to the Reporter or not? No

3. Whether the judgment should be No reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Article 227 of the Constitution of India read with Section 482 Cr.P.C. praying inter alia for setting aside/quashing of the order dated 5.4.2010 passed by the learned ASJ, disposing of his appeal filed under Section 29 of the Protection of Woman from Domestic Violence Act, 2005 (in short ‘the Act’), against the ex parte judgment and order dated 13.4.2009, passed by the learned Metropolitan Magistrate, Mahila Court, Delhi.

Crl.M.C. No.28/2011 Page 1 of 4

2. Under the ex parte judgment dated 13.4.2009, the Mahila Court directed the petitioner to pay to the respondent, rent for the house in which she resides, at the rate of `2,500/- from April 2008 onwards, and thereafter pay a 10% increase in each successive year, alongwith `3,000/- per month as maintenance from the date of the complaint till the complainant is legally entitled to the same. The petitioner was also directed to pay `50,000/- as lump sum compensation and `5,000/- as litigation expenses to the respondent within 3 months from the order. He was called upon to clear the arrears of maintenance within 6 months from the date of order and thereafter, make the monthly payment on or before the 10th day of every month, by way of money order or by depositing the amount in the account of the respondent.

3. While setting aside the aforesaid ex parte judgment dated 13.4.2009 and calling upon the parties to appear before the trial court, the learned ASJ directed that as interim relief, the appellant would continue to pay to the respondent, a sum of `3,000/- as maintenance and `2,500/- as rent from April 2008 onwards till the petition filed by her under Section 12 of the Act is decided on merits. It was clarified by the appellate court that the respondent would be entitled to interim maintenance from the date of the complaint itself and the petitioner would be liable to pay arrears, if any, on the final disposal of the petition under Section 12 of the Act.

4. On a pointed query raised as to whether the petitioner has complied with the interim order dated 5.4.2010, counsel for the petitioner admits that out of the amount of `1,09,500/-, admittedly due under the impugned order, he has paid only a sum of `45,142/- to the respondent. He states that in execution proceedings, attachment of certain household Crl.M.C. No.28/2011 Page 2 of 4 articles has taken place. He however is unable to explain the reason for his having approached the Court after a delay of 9 months.

5. As far as the impugned order is concerned, it is stated by the counsel for the petitioner that the respondent is not the wife of the petitioner and he was not in a relationship with her in the nature of marriage and hence, she is not entitled to invoke the Act. He further submits that the petitioner has his own family to maintain and is not in a position to comply with the impugned order, whereunder interim relief was granted in favour of the respondent.

6. In light of the fact that till date, the petitioner has not paid the entire sum due and payable as per the interim order of 5.4.2010 and he has been unable to provide a satisfactory explanation for the delay of 9 months in assailing the impugned order, it seems that the present petition has been filed more with an intention to delay the execution proceedings, rather than for appealing against the impugned order on merits. The submission of the counsel for the petitioner that the respondent is not the wife of the petitioner and that he was not in a relationship with her in the nature of marriage, is a factual averment, which can only be established before the Mahila Court. This Court cannot go into the said issue at this stage. None of the grounds taken by the petitioner are of such a nature so as to invoke the extraordinary jurisdiction of this Court as sought by the petitioner.

7. It is stated by the counsel for the petitioner that insofar as the petition filed by the respondent under Section 12 of the Act is concerned, the petitioner has filed his reply thereto and the matter is now listed before the trial court in February 2011 for completion of pleadings and for further proceedings. It is for the petitioner to make his submissions on merits, Crl.M.C. No.28/2011 Page 3 of 4 before the said Court.

8. In view of the aforesaid facts and circumstances, this Court declines to interfere with the impugned order. The petition is therefore dismissed, along with the pending applications.

HIMA KOHLI,J

JANUARY 07, 2011

sk

Crl.M.C. No.28/2011 Page 4 of 4

Categories: DV Judgements

PIL for destitute, pregnant and lactating women

January 15, 2011 1 comment

IN THE HIGH COURT OF DELHI AT NEW DELHI

#14

+ W.P.(C) 5913/2010

COURT ITS OWN MOTION ….. Petitioner Through Mr.Colin Gonsalves, Amicus Curiae with Ms.Jayshree Satpute, Adv.

Mr.Jayant Bhushan, Amicus Curiae

with Mr.Gautam Talukdar, Adv.

versus

U.O.I. ….. Respondent Through Mr.A.S. Chandhiok, ASG with

Mr.Atul Nanda, Adv. R-1

Mr.N. Waziri, Adv. for GNCTD

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE SANJIV KHANNA

ORDER

% 12.01.2011

The present public interest litigation was initiated suo motu by this Court taking into consideration a newspaper report dated 29th August, 2010 published in the Hindustan Times that a destitute woman breathed her last on a busy street after giving birth to a baby girl, namely, Karishma who had been struggling for life at a foster home, namely, Udayan. W.P.(C) 5913/2010 Page 1 of 8 The matter was dealt with to some extent on 1 st September, 2010 and how important and significant the life of a child who forms the vertebra of a spine of the nation and the role of the mother in building the nation. On 20th October, 2010, after hearing Mr. Colin Gonsalves, learned Amicus Curiae along with Ms.Jayshree Satpute, Advocate, this Court had issued the following directions: -

“(1) Government of NCT of Delhi to demarcate five secured shelter homes exclusively meant for destitute women, pregnant and lactating women so that apposite care can be taken and no destitute women would be compelled to give birth on the footpath.

(2) The availability of the facilities in such shelter homes shall be monitored by the helplines handled by professionally trained people.

(3) In the aforesaid shelter homes, food and medical facility shall be available for 24 hours as such facilities are imperative for the cases of the present nature.

(4) Despite various schemes being framed by the State Government, as the people are not aware of the same, especially due to illiteracy, there would be dissemination of information by radio as well as television in Hindi.

(5) There should be awareness camps in the areas or cluster of areas by professionally trained people every fortnight. (6) The State Government shall provide a mobile medical unit so that the people, especially who are living in slum areas can be taken to the shelter homes or to the hospital as the case may be.

W.P.(C) 5913/2010 Page 2 of 8 (7) The State Government shall make endeavour to involve the genuine NGOs so that they can also work for getting the scheme fortified as such an activity has to flow from the top to the ground reality level.”

Thereafter, when the matter was listed, Mr.Jayant Bhushan, learned senior counsel was requested to assist the court and to give certain suggestions. In pursuance of our earlier orders, a counter affidavit has been filed by the Government of NCT of Delhi. In the counter affidavit, many an assertion has been made but on a perusal of the same, it transpires that the stand and stance of the State is that there are various homes which are meant to take care of destitute and pregnant woman as well as the lactating woman. Ms.Satpute has submitted a written note of submission especially referring to the seven shelter homes which are available to the destitute, deserted women and girls who are in need of immediate protection or are in moral danger. As is evincible from the written note of submission, the learned Amicus Curiae has contacted Jivodaya Ashralayam Care and Rehabilitation Centre for destitute women, “Santidham” a home for destitute women care and rehabilitation centre for destitute women, Shri Digambar Jain Mahila Ashram, “Missionaries of Charity” Shelter for unwed mothers.

W.P.(C) 5913/2010 Page 3 of 8 On a perusal of the submissions, it is perceptible that the said rehabilitation centres for destitute women and care homes are not funded by the State Government and they have categorically stated that they do not intend to provide care and service for pregnant and lactating women in future as it is beyond their functioning capacity. It is also discernible that the Missionaries of Charity are only devoted for unwed mothers and also availed the government funds. That apart, it is evident that the shelter has capacity to service only 20 unwed pregnant women with medical, nutritional and social services. Thus, what has been stated in the counter affidavit really does not take care of the situation obtaining in the ground reality. Be it noted, in the counter affidavit there is reference to a family counselling, Unit helping victims of rape, Rape crisis cell, Mobile van helpline, Mahila Panchayat Programme, Pre-Marital Counselling Cell, Awareness campaigns, Scheme for implementing the protection of women from Domestic Violence Act, Scheme for working womens hostel, Scheme of short stay home for women in distress, children homes for the care and protection of destitute children, Mental health unit at Nirmal Chhaya Complex and Campaign to make Delhi free of violence against women and girls. Eventually, in paragraphs 9 and 10, it has been stated so W.P.(C) 5913/2010 Page 4 of 8 “9. It is also respectfully submitted that every year, there is large influx of poor migrants from neighbouring states to Delhi. These people come from the lowest strata of society. The medical facilities available in the state of origin is extremely poor and inadequate. The Delhi Government is making efforts to cater to the increasing demand of medical and rehabilitation care for this large continuously migrating population.

10. It would however be appropriate if Union Government is requested to issue suitable directive to the neighbouring states to provide adequate infrastructure facilities for destitute women, pregnant and lactating women belonging to the deprived sections of society. Further, due to limited availability of land in the national capital, it may be difficult to set up large capacity shelters exclusively for this target group in Delhi. Large tracts of land are available in neighbouring states to set up high capacity shelter homes which can take care of this target group. These centres can be run by reputed NGOs and financial assistance can be provided by the Union Government or respective State Governments.”

It does not require solomons wisdom to say that the affidavit nowhere really focuses on the problem that has crept up. Mr.Jayant Bhushan, learned senior counsel, who was requested to give certain suggestions, submitted that he has not drafted out any suggestion as nothing has been done by the Delhi Government regard being had to the directions given by this Court on earlier occasion and he will do so if something specifically is done and anything else is required to be done. W.P.(C) 5913/2010 Page 5 of 8 At this juncture, Mr.N. Waziri, learned standing counsel appearing for the Government of NCT of Delhi submitted that the homes that the learned Amicus Curiae has visited may not reflect the correct picture but, as advised at present, we are not inclined to accept the said submission of the learned standing counsel for the State.

Mr.Atul Nanda, learned standing counsel for the Union of India submitted that Joint Secretary, Ministry of Women and Child may be given the responsibility to coordinate with the State Government as well as the Municipal Corporation of Delhi to find out about the homes, which the learned Amicus Curiae has visited, whether they are really funded by the Government and what activities they are taking.

Though we are inclined to direct that the said exercise be done, yet we just cannot become the silent spectators waiting for the Government to move like a tortoise and allow the destitute pregnant women and lactating women to die on the streets of Delhi, may be after giving birth to a child or may be along with the child. Such a situation cannot be countenanced and is not possible to visualize in the backdrop of Article 21 of the Constitution of India. It is expected of the State and the persons who are in-charge of its departments to have a vision. It has been said long back that the personalities W.P.(C) 5913/2010 Page 6 of 8 who have vision can always visualize the invisibility. To elaborate: it conveys the situation which exists and are likely to eloquently get edificed, must be pursued by the persons who are in the helm of administration. In view of the aforesaid, we command the Government of NCT of Delhi to file a proper and comprehensive affidavit within a period of four weeks and pending that we direct the Government of NCT of Delhi to demarcate or hire or create at least two shelter centres meant for destitute pregnant women and lactating women so that proper care can be taken to see that no destitute woman is compelled to give birth to a child on the footpath. We are sure, no apathy shall be shown in this regard as any kind of recalcitratant, propensity or proclivity in this regard would be violative of the concept of Rule of Law.

At this juncture, we may note with profit one of the suggestions given by Mr. Jayant Bhushan. It is submitted by Mr. Bhushan, learned senior counsel that when the State takes recourse to such an action, it should be widely published so that the people who are in such a situation or the people who are aware of such a situation and can help people and also can take them to such shelter homes. We are sure, the State Government shall live upto the same and do the needful within a week including spreading of W.P.(C) 5913/2010 Page 7 of 8 awareness as stated hereinabove.

Needless to say, a shelter home should have facility for food and appropriate medical aid.

Let the matter be listed on 19th January, 2011 on which date the matter shall be adverted to whether the State Government has demarcated, hired or created the shelter homes, as directed hereinbefore. Order dasti under the signature of the Court Master. CHIEF JUSTICE

JANUARY 12, 2011 SANJIV KHANNA, J kapil

W.P.(C) 5913/2010 Page 8 of 8

Categories: DV Judgements

HC decides in favor of husband the fate of 91 crpc application

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application(C482) No. 1183 of 2010 Smt. Ruchi Grover

W/o Shri Amit Grover

D/o Shri V.P. Chhabra,

R/o19/6, Rajpur Road, Dehradun

District Dehradun

.. Petitioner

Versus

1. Amit Grover, S/o Shri G.P. Grover R/o C-784, Vikaspuri, New Delhi.

2. G.P. Grover, S/o Shri Mulak Raj R/o C-784, Vikaspuri, New Delhi

…. Respondents

Shri Pawan Mishra, Advocate, present for the petitioner. Shri S.S. Chauhan , Advocate, present for the respondents . Hon’ble Prafulla C. Pant, J.

Heard.

2. By means of this petition moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has challenged the order dated 19.11.2010, passed by Additional Sessions Judge/6th Fast Track Court, Dehradun, in criminal appeal no. 87 of 2010, whereby said court 2

has set aside the order dated 09.08.2010, passed by the trial court, and directed the petitioner to file the documents under section 91 of Cr.P.C., as prayed in application 20B, before the trial court.

3. Brief facts of the case are that, the present petitioner filed the complaint under sections 18, 19, 20, and 22 of Protection of Women From Domestic Violence Act, 2005, alleging that she has been subjected to cruelty , and the respondent (Amit Grover)has neglected her to maintain.

4. By moving application under section 20B before the trial court under section 91 of Cr.P.C., (copy of which Annex. 2 to the petition) the respondents have sought direction of the court to the complainant to file statements of her two PPF accounts (one at Delhi, and another at Dehradun), details of her balances in savings account with State Bank of India, and Centurion Bank of Punjab, and also sought to get filed details of fixed deposit receipts in the aforesaid two Banks. The accounts no. are specifically disclosed in the application.

5. Since, the petitioner has also sought direction from the Magistrate under section 20 of 3

Protection of Women from Domestic Violence Act, 2005, which relates to monitary reliefs, the direction by the appellate court vide impugned order dated 19.11.2010, cannot be said to be illegal.

6. Therefore, without expressing any opinion as to final merits of the case, the petition under section 482 of Cr.P.C., is dismissed summarily. (Prafulla C.Pant,J.)

Parul 07.12.2010

http://indiankanoon.org/doc/563028/

 

Categories: DV Judgements

Wife restrained from visiting Husbands office and from creating nuisance or writing letters to employer of husband

THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Pronounced on: 15.12.2010 + CS(OS) No.1772/2010

GAURAV GUPTA .. Plaintiff – versus -

NIDHI BANSAL AND ORS. ….. Defendants Advocates who appeared in this case:

For the Plaintiff: Ms.Geeta Luthra, Sr.Advocate with Mr.Jatin Sehgal, Advocate.

For the Defendants: Mr.Shiv Charan Garg, Advocate. CORAM:-

HON’BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may

be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported

in Digest?

V.K. JAIN, J. (ORAL)

IA 12488/2010 (O.39 R.1 & 2 CPC)

1. This is a suit for recovery of Rs.20,01,000/- towards damages and permanent injunction.

2. The plaintiff is the husband of defendant No.1, son-in-law of defendants No.2 & 4 and brother-in-law of defendant No.3. The grievance of the plaintiff is that the CS(OS)No.1772/2010 Page 1 of 9 defendants are visiting the office of Nestle India Ltd., in Gurgaon where he is working and are also writing defamatory letters against him to his employers. It is alleged in the plaint that defendant No.1 has been writing letters to the employer of the plaintiff, to wreck personal vendetta on him and to ensure that his services are terminated. It is further alleged that she is trying to malign the reputation of plaintiff by making calls and baseless allegations. It is also alleged that on 09.08.2010, defendants No.1 & 2 came to the office of the plaintiff and created a scene in the office, alleging that he had absconded and was not taking the calls of defendant No.1. Defendant No.1 is also alleged to have called up the junior of the plaintiff, Pankaj Batra and threatened him. The plaintiff claims to have received a call from HR department of its employer asking him to refrain defendant No.1 from involving the company in their private matters and from causing nuisance in the office so that the office environment is not spoiled. It is also alleged that on 10.08.2010, the plaintiff received a call from his office informing him that defendant No.1 was in his office with their daughter and was threatening to leave their daughter alone in the office. CS(OS)No.1772/2010 Page 2 of 9 She also started screaming and shouting at the reception and insisted on leaving the daughter of the parties at the reception. When the other employees tried to pacify her, she started abusing the plaintiff in the filthiest language. The plaintiff has claimed damages amounting to Rs.20,01,000/- from the defendants besides injunction restraining them from coming to his office and creating any disturbance there. He has also sought injunction restraining them from corresponding with his office.

3. The defendants have contested the suit and have taken a preliminary objection that this Court has no territorial jurisdiction to try the present suit. They have also claimed that the suit is barred by Section 41(i) of Specific Relief Act. On merits, it is alleged that the plaintiff had left defendant No.1 and their two children on the pretext of going to Pant Nagar. He did not return thereafter to the Flat in which they were residing in Dwarka. On merits, it has been denied that defendant No.1 had misbehaved in the office of the plaintiff.

4. In support of his contention that Delhi Courts have no territorial jurisdiction to try this suit, the learned counsel for the defendants has relied upon the provisions contained CS(OS)No.1772/2010 Page 3 of 9 in Section 16(d) of the Code of Civil Procedure which provides that suit for the determination of any right or interest in immovable property other than those specified in clauses (a) (b) and (c) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. I am unable to appreciate how Section 16(d) of the Code of Civil Procedure applies to the present suit. This is not a suit claiming any right, title or interest in an immovable property situated in Gurgaon. The grievance of the plaintiff is that he is working with Nestle India Ltd. and is posted in its office at Gurgaon, the defendants are creating nuisance in his office and are writing defamatory letters to his employers. This does not amount to claiming any right, title or interest in the property in which the office of Nestle India Ltd. is functioning in Gurgaon. Therefore, prima facie, Delhi Courts have jurisdiction to try the present suit.

5. Section 41(i) of the Specific Relief Act provides that an injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court. At this stage when the Court is deciding an application for grant of temporary injunction CS(OS)No.1772/2010 Page 4 of 9 during pendency of the suit, it is difficult for the Court to take a view as regards inter-se conduct of the parties to the suit. This is a matter which can be decided only after trial, since there are accusations and counter-accusations by the husband and wife against each other.

6. Admittedly, defendant No.1 has filed a petition against the petition under Domestic Violence Act. A divorce petition has also been filed by the plaintiff against defendant No.1. An FIR has also been lodged by defendant No.1 against the plaintiff. There can be no objection to any of the defendants taking recourse to legal proceedings. However, the defendants have no right to create nuisance in the office where the plaintiff is working and to defame him amongst his colleagues and superiors. A perusal of the letter dated 10.08.2010 sent by defendant No.1 to Nestle India Ltd. would show that on 10.08.2010, she along with her children had gone to the office of the plaintiff and had a talk with one Mr. Sewak there. In this letter, defendant No.1 also alleged that the entire office staff was hand-in-glove with Mr.Gaurav Gupta who had left his wife and two seven month old children on street. She also conveyed her decision to stage a peaceful march/demonstration outside the office of Nestle CS(OS)No.1772/2010 Page 5 of 9 India Ltd. at Gurgaon as well as outside its registered office at Connaught Place, New Delhi. A perusal of the letter dated 20.08.2010 written by Nestle India Ltd. to defendant No.1shows that she exhibited undesirable conduct on 10.08.2010 which disturbed the working of the office. The letter dated 07.09.2010 written by Nestle India Ltd. to the plaintiff also shows that defendant No.1 visited Nestle India Ltd. on that day and created disturbance at the reception area. It further shows that she had earlier visited the office and threatened to leave the children in the office for the plaintiff to take care of them. The plaintiff was advised by his employers to take necessary steps to ensure that his personal dispute with defendant No.1 is resolved outside the office. He was informed that it would be his responsibility to ensure that handle the matter with her, without disturbing the office working.

7. The defendants have no right to visit the office premises of Nestle India Ltd. where the plaintiff is working and disturb the peace and working environment of that office by creating scenes there and indulging in unacceptable behavior. Taking recourse to such means would not be a lawful action. The plaintiff is not the only CS(OS)No.1772/2010 Page 6 of 9 employee of Nestle India Ltd. working in that office. The defendants have no right to interrupt the functioning of the office of Nestle India Ltd. by creating nuisance there or to hold any dharna/demonstration outside the office. If she has any grievance against the plaintiff on account of his neglecting her or her children or treating her with cruelty, she can take recourse to appropriate legal proceedings against the plaintiff but, she is not entitled to enter his office and disturb the peace and tranquility of office and defame him in the eyes of his colleagues.

8. A perusal of the letter dated 16.10.2010 written by defendant No.1 to SHO Police Station, DLF City, Phase-II, Gurgaon, with copy endorsed to Nestle India Ltd. at its Gurgaon office as well as its Connaught Circus, New Delhi Office, would show that she alleged manipulation by the defendants in the attendance sheet of the Company on certain dates on which the plaintiff is alleged to be present outside Tis Hazari Court and/or at C.A.W. Cell, Maurya Enclave, Pitampura, Delhi. A perusal of the letter dated 25.10.2010 written by Nestle India Ltd. to the plaintiff also shows that a communication was sent by defendant No.1 to various authorities making allegations regarding the CS(OS)No.1772/2010 Page 7 of 9 products of the company on the basis of various statements attributable to the plaintiff. The plaintiff can have no grievance if the defendants levy allegations with respect to products of Nestle India Ltd. but if the allegations are based on the statements attributed to the plaintiff, it is quite obvious that the purpose is to create problem for the plaintiff with his employer by alleging that he despite being an employee of Nestle India Ltd. was levelling allegations against that company. The defendants have no legal right to tarnish the image of the plaintiff by making false accusation against him, particularly when those accusations have the potential of jeopardizing the employment of the plaintiff. If the defendants are not restrained from visiting the office of the plaintiff, it will not be possible to ensure that the defendants do not create nuisance there and do not disturb the functioning of the office.

9. For the reasons given in the preceding paragraphs, the defendants are restrained from visiting the office of Nestle India Ltd. at Gurgaon without prior permission of this Court and from writing any defamatory letters to Nestle India Ltd. against the plaintiff.

CS(OS)No.1772/2010 Page 8 of 9

10. The application stands disposed of. (V.K. JAIN)

JUDGE

DECEMBER 15, 2010

‘SN’

CS(OS)No.1772/2010 Page 9 of 9

Categories: DV Judgements

Lodge or hotel can qualify as temporary residence for DV Act: Delhi HC: SHIV NARAYAN DHINGRA J

December 9, 2010 1 comment

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Order: 29th November, 2010

Crl. M.C. 3700/2010 with

Crl. M.A. 17863-64/2010

% 29.11.2010 GAUTAM SAPRA … Petitioner Through: Ms. Rebecca M. John, Advocate with Mr. Vishal Gosain and Mr. S.M. Bhaskar, Advocates

Versus

STATE GOVT. OF NCT OF DELHI & ANR …Respondents Through: Mr. Sunil Sharma, Addl. PP for the State

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest? ORAL

1. This petition has been preferred assailing order dated 30th October, 2010 whereby an application of the petitioner assailing jurisdiction of the Court of MM under Protection of Women from Domestic Violence Act (‘Domestic Violence Act’ for short) was dismissed.

2. Brief facts relevant for the purpose of deciding this petition are that the respondent before the court of MM made an application under Domestic Violence Act invoking jurisdiction on the basis of her temporary residence in Delhi. She hired a room in hotel/ lodge in Pahar Ganj and filed the petition. Subsequently, she moved into a tenanted premise within Delhi. It was argued that in view of the judgment of this Court in Sarat Kumar Pandey Vs. Mamta Pandey (2010) IV AD (Cre) DHC 565, the court of MM would have no jurisdiction to entertain the application since the applicant had hired a room in the hotel only for the purpose of invoking jurisdiction of Delhi Court. The Crl. M.C. 3700 of 2010 Page 1 Of 2 petitioner was living in Gurgaon and he had already filed a petition under Hindu Marriage Act for Restitution of Conjugal Rights before a District Court at Gurgaon and therefore Gurgaon would have been the proper Court where application under Section 12 of Domestic Violence Act should have been filed.

3. The respondent in this case is a Uzbekistani citizen. The petitioner had married her after a courtship and the parties were living at Gurgaon after marriage. However, she had made allegations in her petition showing how she was compelled to leave the company of the petitioner and in laws and compelled to go back to Uzbekistan and live there with her mother. She had also given in detail, the instances of domestic violence. All these allegations have been countered by the petitioner who has his own story to tell. Nevertheless, it is to be kept in kind that applicant/respondent had no home in India. She belongs to Uzbekistan and when alleged instances of domestic violence had taken place, she left the company of the petitioner and went to live with her mother at Uzbekistan. Under these circumstances, after returning to India, she had chosen to stay in Delhi temporarily instead of staying at Gurgaon. I consider her stay in Delhi qualifies her to file an application under Section 12 of Domestic Violence Act.

4. In Sarat Kumar Pandey this court had observed that temporary residence in lodge or hotel would not give jurisdiction to Court if the person hires lodge or hotel only for the purpose of filing Domestic Violence application and has no other reason to make the place as her temporary residence. In the present case, after landing in Delhi from Uzbekistan, the applicant had no choice but to live at a lodge or hotel as she had no friend or relative in India. Thereafter, after grant of maintenance, she hired an accommodation in Delhi and made Delhi her temporary residence. Under these circumstances, I consider that Trial Court rightly dismissed the application. The petition is not maintainable and is hereby dismissed.

SHIV NARAYAN DHINGRA J.

NOVEMBER 29, 2010

acm

Crl. M.C. 3700 of 2010 Page 2 Of 2

http://indiankanoon.org/doc/93572/

Categories: DV Judgements

Challenge to Section 26 in Gujrat HC

CR.MA/10577/2009 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 10577 of 2009

=============================================

BIPIN PRATAPRAI BHATT & 4 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

============================================= Appearance :

MR ASIN PANDYA for MR KEYUR A VYAS for Applicant(s) : 1 – 5. MR UA TRIVEDI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, MRKPVADODARIA for Respondent(s) : 2, =============================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 05/05/2010

ORAL ORDER

Mr. Asin Pandya, learned advocate for the applicants proposes to challenge Section 26 of the Protection of Women from Domestic Violence Act, 2005 as ultra virus to Articles 14, 19, 20 and 21 of the Constitution of India and would like to file appropriate proceedings namely writ petition before this Court on all available, legal and permissible grounds to the applicants and seeks permission to withdraw this application at this stage.

Permission, as prayed for, is granted, so as to enable the learned advocate to take appropriate measures as per his submissions as above and it will be open for the applicants to challenge the virus of Section 26 as stated above.

This application is disposed of as withdrawn with a rider that this Court has not examined any aspect involved in this application on merits as well as on law.

[ANANT S. DAVE, J.]

//smita//

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Categories: DV Judgements