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Delhi HC:- Daughter-in- law has no right to continue to reside in the suit property or to disturb the possession of the MIL if the Property is on MIL’s Name.

September 24, 2013 1 comment

The Delhi High Court has restrained a woman, estranged from her husband, from taking possession of her mother-in-law’s house in a posh locality here.

Accepting the plea of 54-year-old widow Kavita Chaudhri, Justice Jayanth Nath passed a decree in her favour as she claimed that the house in question was gifted her by her father.

The court restrained the daughter-in-law from taking possession of the house, saying, “Defendant no 1 (daughter-in- law) has no right to continue to reside in the suit property or to disturb the possession of the plaintiff’s (Chaudhri) property in South Extension.

“There is no merit in the contentions of defendant no 1. Accordingly, a decree is passed in favour of Chaudhri and against defendant No 1, restraining the defendant No 1, her agents, representatives etc. from entering into premises D-32, South Extension Part-II, New Delhi,” the court said.

The woman had also argued before the court that her daughter-in-law started claiming right over the property due to matrimonial dispute with her son few months after their marriage in April, 2004.

The daughter-in-law had levelled various allegations against her only son and also filed a case before the high court under the Domestic Violence Act against him and family members, according to the widow’s plea.

The court rejected the daughter-in-law’s contentions and said, “I have examined the contentions of defendant no 1 regarding her alleged rights to stay in the suit property under section 2(s) and 17 of the Domestic Violence Act. In my view, the said contentions are wholly without any merits…the defendant can claim no rights in the said suit property.”

pls read the entire judgment below:-

* IN THE HIGH COURT OF DELHI AT NEW DELHI *

Reserved on: 10.09.2013
Pronounced on: 19.09.2013

+ CS(OS) 505/2010

KAVITA CHAUDHRI ….. Plaintiff
Through Mr. Ankur Mahindro and Mr.Ajay
Mohan Gulati, Advocate

versus
EVENEET SINGH AND ANR ….. Defendants

Through Ms. Shobhana Takiar and Ms.Indrani  Ghosh, Advocate for D-1.

Ms. Geeta Luthra, Senior Advocate with Mr. Angad Sandhu, Mr.Jatin Sehgal and Mr.Harish Malik
Advocates for D-2.

CORAM:
HON’BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.

1. The present Suit is filed for mandatory and permanent injunction.  The plaintiff is stated to be an aged widow of 54 years suffering from various heart ailments. She is owner of property bearing No.D-32, South Extension, Part-II, New Delhi-110049. It is stated that she is  residing in the said suit premises since her childhood. Her father  executed a Will dated 12.07.1981 through which the suit property was given to the plaintiff. This Court on 12.1.1984 granted probate of the  aforesaid Will and hence the plaintiff became exclusive owner of the suit property. It is further stated in the plaint that defendant no.2 is the only son of the plaintiff. Defendant no.2 got married to defendant no.1 on 27.4.2009. Various allegations are made against defendant no.1. It is stated that on account of differences there was constant friction between the plaintiff and defendant no.1. Plaintiff requested the defendants to move out of the house. It is stated that in January, 2010 defendants moved out of the house and started living somewhere else. But immediately thereafter defendant no.1 forcibly entered into the house and started living there. Based on these facts, a decree of mandatory injunction is sought against defendant no.1 to vacate the suit property and a decree of permanent injunction is sought against defendant no.1 or assignees etc. from entering into the suit property.

2. Defendant no.2 has filed his written statement. Defendant no.2 in his  written statement has supported the allegations of the plaintiff against  defendant no.1. He has further stated that defendant no.2 in January  2010 moved to a rented accommodation in Defence Colony and on 9.4.2010 moved to another rented accommodation C-528, Second  Floor, Defence Colony.

3. Defendant no.1 in the written statement has stated that the present suit is nothing but a cleverly designed legal proceeding to circumvent and get over the statutory rigour of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘ The Domestic Violence Act’) It is stated that the suit property is a shared household under Section 2 read with section 17 of the said Act. It is also stated that the suit is not maintainable as the plaintiff has no right, title or interest in the property in question. It is further stated that the father of the plaintiff was not the single surviving male member of the HUF. He was a member of the HUF with his wife, daughter and
defendant no.2. Based on these averments, it is stated that the present Suit is liable to be dismissed.

4. On 12.3.2013 the matter came up before this Court for framing of  issues. This Court rejected the contention of defendant no.2 that the subject property belongs to HUF. It was held that the property has been inherited by the plaintiff the mother in a Will of her father. Plaintiff was the only child of her father. It is further held that defendant no.2 cannot become a member of the HUF of his maternal
grandfather inasmuch as conception of HUF under the ancient Hindu Law is patrilineal and not matrilineal. Relevant portion of the said order is reproduced as under:-

“ 15. The question which arises is whether an issue needs to be framed on the title of the plaintiff to the property;

16. Issues are to be framed only on material propositions of law and fact which require adjudication and not on pleas though contained in the pleadings which are contrary to the settled principles of law and/or which have no legal basis to stand on. It cannot be lost sight of that framing of unnecessary issue invites unnecessary evidence and arguments and which protracts the disposal of the suits.

17. The plea of the defendant no.2 of the subject property belonging to the HUF is misconceived. The plaintiff is the mother (and not the father) of the defendant no.2. The property has been inherited by the plaintiff under a Will of her father. Though the said Will is probated (which is a judgment in rem) but even if the Will were not to be there, the defendant no.1 also in her written statement has not pleaded that the father of the plaintiff left any other child; rather the defendant no.1 admits that the plaintiff, her father and her mother were the only members of the HUF and claims that the defendant no.2 also became a member of the HUF.

18. The defendant no.2 cannot become a member of the HUF of his maternal grandfather. The concept of HUF under the ancient Hindu Law is patrilineal and not matrilineal.”
Hence, on the said date, the Court framed the issues as follows:-
“(i). Whether the defendant no.1 is entitled to reside in the subject property for the reason of being married to the son of the plaintiff and for the reason of having resided in the said property after her marriage? OPD-1
(ii). Relief.”

5. The Court further held that this issue is purely an issue of law and does not require recording of any evidence. Hence, the matter was listed for arguments on the said issue.
6. I have heard learned counsel for the parties on the said two issues.
7. Learned counsel appearing for the plaintiff has strenuously argued that in accordance with the settled legal position the daughter in-law would have no right to claim any right of residence in the suit
property which is owned by her mother in-law. It is further stated that in view of the order of this Court dated 12.3.2013 title of the plaintiff to the suit property is not in dispute. Relying on judgment of this court in the case of Shumita Didi Sandhu versus Sanjay Singh Sandhu & Ors. 174(2010) DLT 79; Sunil Madan versus Rachna Madan in Crl.M.C.3071/2008, dated 2.6.2012, and; Barun Kumar Nahar versus Parul Nahar 2013 (199) DLT 1, it is stated that the suit in question is not a shared household within the meaning of The Domestic Violence Act and accordingly defendant no.1 would have no rights under Section 17 of the said Act.
8. Reliance is also placed on various judgments passed by this Court in  the earlier proceeding. It is pointed out that defendant No.1 had also filed a suit being CS(OS)1307/2010 under Hindu Adoption and
Maintenance Act, 1956 against plaintiff and defendant no.2 seeking maintenance and right of residence in the suit premises. On 20.12.2010 this Court disposed of IA 8479/2010 in CS(OS) 1307/2010 and IA No.3577/2010 which was filed in the present suit. This Court directed that defendant no.1 would be entitled to an amount of Rs.30,000/- per month towards rent for alternate accommodation and an amount of Rs.45,000/- per month for maintenance.
9. Reliance is also placed on order dated 29.4.2011 passed by this Court in an application under Section 151 CPC where the Court held that in terms of order dated 20.12.2010 in the event alternate  accommodation is offered and is made available to defendant no.1 her right to continue in the suit premises would cease. It is further stated that the Division Bench also dismissed the appeal against the said order on 8.11.2011. An SLP was also dismissed by the Hon’ble Supreme Court on 16.12.2011. It is also pointed out that in an Execution Petition filed by the plaintiff, this Court on 25.4.2012 dismissed the objections of defendant no.1 to the said Execution Petition and issued Warrants of possession in favour of the plaintiff and against defendant no.1. Subsequently, in an Appeal filed before the Division Bench on 2.5.2012 the parties compromised the matter and defendant no.1 undertook to vacate the suit property by midnight of 15.6.2012. It is stated that pursuant to the said compromise the plaintiff has taken over possession of the suit property and to that extent nothing survives except that the defendant no. 2 be restrained from creating any nuisance and obstructing in the possession of the
plaintiff in the suit property.
10.Learned counsel for defendant No.1 has relied upon Vidyanidhi Dalmia versus Nilanjana Dalmia, 2008(102) DRJ 611 and Savita Bhanot versus Lt.Col.V.D.Bhanot, 168 (2010) DLT 68 in support of her case.
11.Learned counsel for defendant No.1 has strenuously urged that the present Suit is nothing but a conspiracy on the part of plaintiff and defendant No.2 to oust defendant No.1 from the suit property. It is submitted that the entire game plan is that once the present suit is decreed, defendant no.2 will come back into the suit property. Hence, counsel for defendant No.1 submits that this Court should not permit circumvention of the legal process in this manner. Learned counsel relies on the statement made by the plaintiff that her son is likely to come back to the suit premises after defendant no.1 is evicted and that the present suit should be dismissed being a gross abuse of the process of law. It is submitted that the suit property remains a shared household within the meaning of The Domestic Violence Act and the defendant No.1 has a right to reside in the same.

12. Learned senior counsel appearing for defendant No.2 has supported the submissions of the plaintiff and submits that the present suit is liable to be decreed.

13. In my view, keeping in mind the consent order passed by the Division Bench in EFA(OS) 15/2012 on 2.5.2012 nothing really survives as far as the defence of defendant No.1 is concerned. There are no basis or grounds for the defendant No.1 to resist a decree in the present Suit. The consent order dated 2.5.2012 in EFA(OS) 15/2012
reads as follows:-
“1. We are saved of the botheration of deciding the appeal on
merits since it has been decided between the parties as under:-
(i) The appellant shall vacate by the midnight of 15th June,
2012, by removing an A.C, T.V, double-bed, wooden
cupboard, side table and a dressing table from the room
occupied by her at the ground floor of D-32, South
Extension, Part-II, New Delhi, the property owned by her
mother-in- law.
(ii) Maintenance in sum of Rs.45,000/- per month fixed vide
order dated December 20, 2010 in CS(OS) No. 1307/2010
shall be paid by wire transfer to the account of the appellant,
as is being done, till the order dated December 20, 2010
survives.
(iii) 11 post dated cheques for the rent which appellant
would have to pay have been received by the appellant, the
last cheque is towards rent for the month of February 2013
and thereafter advance monthly cheques would be paid to the
appellant in sum of Rs.30,000/- till order dated December
20, 2010 passed in CS(OS) No.1307/2010 survives.
(iv) For the appellant for furnish the drawing-cum-dining
room at whatever tenanted premises she obtains, the
respondents shall pay Rs.50,000/- by cheque drawn in the
name of the appellant simultaneous upon the appellant
vacating as afore agreed on or before the midnight of
June 15, 2012.
(v) Impugned order shall not be executed till June 15, 2012,
and needless to state if appellant vacates the premises, the
question of the order being executed would not arise.
(vi) Appellant shall file an undertaking in the suit by means
of an affidavit agreeing to abide by the consent given that she
would vacate the subject premises on or before the midnight
of June 15, 2012.
2. The appeal stand disposed of binding the parties to the
settlement agreement and suspending the operation of the
impugned order dated April 25, 2012 till the midnight of June
15, 2012 and additionally observing that if appellant complies
with the undertaking given by her to vacate the subject
premises on or before the midnight of June 15, 2012,
the order need not be executed as nothing would remain to be
executed.
3. No order as to costs.”

14.In view of the said order, defendant No.1 was obliged to vacate the suit property by 15.6.2012. Admittedly, defendant No.1 has vacated the suit property.

15.A perusal of the consent order dated 2.5.2012 makes it quite clear that defendant No.1 had undertaken to vacate the suit property. The Court directed that the parties are bound by the settlement agreement. Any submission by defendant No.1 that she retains any right to reside in the suit property is entirely a futile argument and wholly contrary to the directions passed by this Court pursuant to the consent order dated 2.5.2012. Defendant No.1 is bound by the consent order and cannot now attempt to backtrack on the basis of pleas sought to be raised.

16.The argument of learned counsel for defendant No.1 that in view of  Section 17 read with section 2(s) of the Domestic Violence Act she continues to have a right to reside in the suit property is an argument
in futility. The same is the position regarding the contention of defendant no.1 that the present Suit is an abuse of the process of Court. The contentions of defendant no.1 are indeed surprising. The said contentions fly in the face of the consent order passed by the Division Bench on 2.5.2012. Defendant no.1 is bound by the said directions of the consent order.

17. Even otherwise, I have examined the contentions of defendant no.1 regarding her alleged rights to stay in the suit property under section 2(s) and 17 of the Domestic Violence Act. In my view the said
contentions are wholly without any merits whatsoever. A reading of Sections 2(s) and 17 of the Domestic Violence Act would show that the defendant No.1 can claim no rights in the suit property. Section2(s) and 17 of the Domestic Violence Act reads as follows:-
2(s)”shared household” means 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.”
……
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.
(2) The aggrieved person shall not be evicted or
excluded from the shared household or any part of it by
the respondent save in accordance with the procedure
established by law.”

18.The Hon’ble Supreme Court in the case of S.R.Batra and Anr. versus Taruna Batra, (2007) 3 SCC 169 while interpreting Section 17 of the Domestic Violence Act, the Court in para 29 held as follows:-
“29. As regards Section 17(1) of the Act, in our
opinion the wife is only entitled to claim a right to
residence in a shared household, and a shared
household would only mean the house belonging to or
taken on rent by the husband, or the house which
belongs to the joint family of which the husband is a
member. The property in question in the present case
neither belongs to Amit Batra nor was it taken on rent
by him nor is it a joint family property of which the
husband Amit Batra is a member. It is the exclusive
property of Appellant 2, mother of Amit Batra. Hence,
it cannot be called a “shared household.”

19.Reference may also be had to the judgment of this Court in the case of  Sunil Madan vs Rachna madan (supra). Relevant portion of para 15 of the said judgment reads as follows:-
“In the case of Ajay Kumar Jain vs. Baljit Kaur Jain, 160
(2009) DLT 401 (DB), this court observed that a wife
cannot have right to live in a particular property and the
same cannot become a clog on the property denying the
right of the husband to deal with the property when he is
willing to provide an alternative matrimonial home to her.
It was also held that she cannot insist on residing in the suit
property alone when the husband had offered a suitable
alternative arrangement for her.”

20.Reference may also be had to the judgment of this high court in the case of Barun Kumar Nahar vs. Parul Nahar (supra), where in para 29, the relevant portion reads as follows:
“With the transient course it has been observed that with
the advent of various women friendly laws, empowering
the women with equal rights as that of a man/ husband,
the remedy of women to ask for maintenance or to claim
her right in the residence in a commensurate property is
only restricted to her husband and not against her
parents in law. A woman is only entitled to claim a right
to residence in a shared household, and a shared
household would only mean the house belonging to or
taken on rent by the husband, or the house which
belongs to the joint family of which the husband is a
member. This means that she can assert her rights, if
any, only against the property of her husband and cannot
claim a right to live in the house of her husband’s
parents without their wishes and caprice. Law permits a
married woman to claim maintenance against her inlaws only in a situation covered under section 19 of The Hindu Adoption and Maintenance Act, 1956. i.e. after
the death of the husband and that too when she is unable
to maintain herself out of her own earnings etc. It would
not be abominable to say that even the parents/ parents
in law at the fag-end of their lives, deserve to live a
blissful, happy and a peaceful life, away from any
tautness or worries.
30. In the light of the aforesaid legal position the
defendant No.1, being a daughter-in-law of the plaintiff,
has no right as against the plaintiff i.e. her father-in-law,
to occupy any portion of the subject property, which is his
self-acquired property.”

21.To the same effect are judgments of this Court in the case of Sardar Malkiat Singh v. Kanwaljeet Kaur (2010) 168 DLT 521, Neetu Mittal vs Kanta Mittal 2008 (106) DRJ 6223, Raj Kumari vs Preeti Satija and Anr (2012) 193 DLT 224.

22.In Shumita Didi Sandhu versus Sanjay Singh Sandhu & Ors.(supra) the Division Bench of this Court interpreted section 17 of the Domestic Violence Act as follows:-
“40. …… Insofar as Section 17 of the said Act is concerned, a
wife would only be entitled to claim a right of residence in a
“shared household” and such a household would only mean
the house belonging to or taken on rent by the husband, or
the house which belongs to the joint family of which the
husband is a member. The property which neither belongs to
the husband nor is taken on rent by him, nor is it a joint
family property in which the husband is a member, cannot
be regarded as a “shared household”. Clearly, the property
which exclusively belongs to the father-in-law or the
mother-in-law or to them both in which the husband has no
right, title or interest, cannot be called a “shared household”.
The concept of matrimonial home, as would be applicable in
England under the Matrimonial Homes Act, 1967, has no
relevance in India.”

23.The Division Bench also held that the right of residence which a wife undoubtedly has does not mean right to reside in a particular property.It may mean a right to reside in a commensurate property but it cannot translate into a right to reside in a particular property.

24. As far as the right of the defendant No.1 to reside in a commensurate property, this Court in its interim order dated 20.12.2010 has taken care of that aspect. The Court had directed that defendant No.2 would be entitled to a sum of Rs.30,000/- per month apart from maintenance amount as rent for alternate accommodation. This order has been upheld by the Division Bench and by the Hon’ble Supreme Court. Hence, the rights of the defendant No.1 for appropriate accommodation have been duly taken care of. In view of the same, in view of the legal position she cannot claim any right to continue to reside in the suit property.

25.The reliance of learned counsel for defendant No.1 on the judgments of this Court in the cases of Vidyanidhi Dalmia v. Nilanjana Dalmia (supra) and Savita Bhanot v. Lt. Col. V.D. Bhanot (supra), is
misplaced. None of the judgments support the contention of defendant No.1 about right under the Domestic Violence Act. The case of Vidyanidhi Dalmia vs. Nilanjana Dalmia (supra) dealt with an
injunction application for stay which was declined on the ground that the injunction by a civil court would help to do an act what constitutes a marital offence under the Hindu Marriage Act. The stay would rob one spouse of the rights to move the Court under Section 9 of the Hindu Marriage Act and the Statutory remedy of restitution of conjugal rights would be extinguished. The said issue has no
application to the fact of the present case.

26.Similarly, the case of Savita Bhanot v. Lt. Col. V.D. Bhanot (supra) dealt with a case filed under the Domestic Violence Act and the Court came to the conclusion that the petition under the Domestic Violence was maintainable even if the Act of Domestic Violence have been committed prior to the coming into force of the Act. The said judgment has no application to the facts of the present case.

27.As defendant No.1 has no rights under the Domestic Violence Act, the submission of the learned counsel for the plaintiff that the suit is a gross abuse of the process of court is a submission without merit.

28.In view of the above, there is no merit in the contentions of defendant No.1. Defendant No.1 has no right to continue to reside in the suit property or to disturb the possession of the plaintiff to the said
property. Accordingly, a decree is passed in favour of plaintiff and against defendant No.1 restraining the defendant No.1, her agents, representatives etc from entering into premises D-32, South Extension Part-II, New Delhi. Plaintiff shall also be entitled to costs.

29. All pending applications also stand disposed off.

JAYANT NATH, J
SEPTEMBER 19, 2013
n

http://lobis.nic.in/dhc/JAN/judgement/21-09-2013/JAN19092013S5052010.pdf

Pune court rejects woman’s plea after husband exposes lie

August 20, 2013 6 comments

Techie said she was jobless, sought maintenance, after the trail it was proved that the Women Techie was lying and that to she lied on oath..as she filed affidavits but still Court has not initiated action of lying or giving false evidence in the COURT u/s 340 CrPC FOR COMMITTING OFFENSE OF PERJURY.

 

ARTICLE—-

A 26-year-old married woman moved the court against her businessman husband for monthly maintenance claiming she is not working. However, her husband challenged her application and provided details of her monthly salary along with other documents to prove that she is employed as a software techie.

As a result, the court of judicial magistrate (first class) SS Patil rejected her interim relief for maintenance and passed strictures against her.

Manisha Dighe married Baner-based Anuj (33) (names change to protect their identities) on June 26, 2009. However there was a drift in their relationship and in 2012 Manisha moved an application before the court seeking monthly maintenance of Rs1 lakh and temporary accommodation under relevant sections of the Protection of Women from Domestic Violence Act, 2005 against Anuj, his mother and his two sisters.

Manisha in her plaint alleged, “Anuj used to get random calls from a woman and when I asked him, he replied it was his girlfriend’s call. When I confronted him about it, he started beating me. Later he started demanding Rs3 lakh cash for purchasing a flat. Anuj’s mother and sisters poured oil on me and tried to set me on fire but I somehow managed to rescue myself.”

She added, “Anuj’s sister’s engagement broke on February 2011 for which Anuj wanted to take revenge against her fiance. He started forcing me to register a case of rape against that fiance to defame him. I left the house and I had also registered a complaint with Chatuhshrungi police station in this regard. Now I am pursuing my postgraduation and have no income. On the other hand, Anuj earns Rs5 lakh per month ”

Anuj’s lawyer Pratibha Ghorpade argued,”Manisha is falsely implicating Anuj and cooking up a story before the court. Manisha is working in a Baner-based company and to prove the case, the head of the human resources department of the Baner-based IT company must be summoned in court.”

Accordingly, an official of the HR department submitted her income tax, her salary slips which mentioned that she is earning Rs52,000 per month which includes house rent allowance, conveyances and other expenses.”

The court observed, “It appears that Manisha has not come before the court with clean hands. During the pendency of main application of Manisha, she is seeking interim relief in the nature of interim maintenance before the court. It was her duty to come before the court with clean hands but as mentioned above I have come to the conclusion that she has not come before this court with clean hands. She has completed BE and is earning handsome income and therefore temporary relief is rejected.”

 

http://www.dnaindia.com/pune/1876342/report-pune-court-rejects-woman-s-plea-after-husband-exposes-lie

Bombay HC:- Cases filed under DV Act are not Criminal cases hence it cannot be Quashed using CrPC 482.

“Merely because the jurisdiction to entertain applicationunder Section 12 of dv act  has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.”
We know that this is not a correct judgment but still it has been passed……

The Bombay HC and its Bench in rest of the State themselves have QUASHED several DV Complaint till date UNDER S. 482. Not only Mumbai but as per my database almost all QUASH of DV Complaint has been done under S. 482 itself !

2. There is no uniformity from same HC decisions on QUASH of DV Complaint so it seems.

3. Time to move to Hon’ble SC and file an SLP to set the matter on aTOMBSTONE so it seems

_____________________________________________________________________________________________

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL WRIT PETITION NO. 905 OF 2010

Mangesh Sawant .. Petitioner V/s.

Minal Vijay Bhosale & Anr. .. Respondents …..

Mr. A. M. Shete for the petitioner.

Mrs. A. A. Mane, APP for the respondents. …..

CORAM : A.S.OKA, J.

DATE : OCTOBER 5, 2011.

ORAL JUDGMENT :

Heard the learned counsel appearing for the petitioner. The petitioner is invoking Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India praying for quashing the proceedings of the application made by the first respondent under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as “the Act”).

 

2. The averments made in paragraph Nos.3 and 4 of the petition read thus:

“3. The Petitioner states that since Shri Vijay Yashwant Bhosale harassed the Respondent No.1, the Respondent No.1 invoked the provisions of the Protection of Women From Domestic Violence Act, 2 crwp905-10

2005 by filing Criminal Case No.18 of 2010 under Sections 18, 19, 20, 21 of the Protection of Women From Domestic Violence Act, 2005 in which the Respondent No.1 impleaded the present Petitioner in the capacity of friend of husband of the Respondent No.1. Hereto annexed and marked as EXHIBIT-A is the copy of the said complaint dated 12.2.2010.

4. The Petitioner states that the Learned Trial Court after verification was pleased to summoned the present Petitioner. Hereto annexed and marked EXHIBIT-B is the copy of the said summons dated 17.2.2010.

 

3. The ground (E) of paragraph No.6 of the petition indicates that process has been issued on the complaint filed by the first respondent by taking cognizance thereof. In the petition, there is no challenge to any order passed by the learned Magistrate on application under Section 12 of the said said Act.

 

4. The preamble of the Act shows that the same has been enacted to provide 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 matters connected therewith or incidental thereto.

5. The proceedings under the said Act can be initiated in accordance with Section 12(1) of the said Act. Proceedings can be initiated either by the aggrieved person or by the 3 crwp905-10

protection officer or any person on behalf of the aggrieved person. The application under Section 12(1) is required to be filed in accordance with the format prescribed by Rule 6 of the Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as “the said Rules”). Under Sub Section 4 of Section 12 of the Act, after receipt of the application, the learned Magistrate is required to fix the first date of hearing and notice is required to be issued in accordance with Section 13 of the said Act. The Act does not contemplate issue of process or summons or warrant on the application under Section 12(1) of the Act.

6. Various reliefs which can be granted under the said Act are as under :

(a) Under Section 18, protection order can be passed in favour of the aggrieved person; (b) Under Section 19, residence order can be passed in favour of the aggrieved person; (c) Section 20 provides for grant of monitory relief of maintenance, medical expenses, loss of earnings etc.;

(d) Section 21 confers power on the learned 4 crwp905-10

Magistrate to pass orders regarding custody of a child;

(e) Section 22 confers power on the learned Magistrate to pass orders regarding compensation; and

(f) Section 23 of the said Act confers power on the learned Magistrate to pass ex-parte orders granting ad-interim relief or interim relief in terms of the provisions of Section 18, 19, 20, 21 and 22 of the said Act.

 

7. There are only two penal provisions under the Act. The first one is under Section 31 which provides that for committing a breach of protection order or interim protection order, a person can be punished. The only other penal provision is Section 33. Under the said provision, the protection officer can be punished who refuses to discharge his duties as directed by the learned Magistrate by the protection order.

 

8. It will be necessary to make a reference to Section 26(1) of the aid Act. It provides that the relief provided for in Sections 18, 19, 20, 21 and 22 can be also sought by the 5 crwp905-10

aggrieved person in any legal proceedings before a Civil Court, a Family Court or a Criminal Court.

 

9. Thus, the said Act cannot be said to a penal statute. Merely because the jurisdiction to entertain application under Section 12 has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.

 

10. There is no question of the learned Magistrate taking cognizance of a complaint under Section 12 of the said Act. There is no provision for issuing a summons contemplated by Code of Criminal Procedure, 1973 on the application under Section 12. Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.

 

11. The petitioner has also invoked extra ordinary jurisdiction of this Court under Article 227 of the Constitution 6 crwp905-10

of India. The petitioner can always raise all objections to the maintainability of pending application under Section 12 at appropriate stage. No interference is called for under Article 227 of the Constitution of India.

 

12. Hence, petition is rejected by keeping all the contentions on merits open.

(A.S.OKA, J.)

Categories: PWDVA 2005 Tags:

Bombay HC: Relief under DV Act only if wife in domestic relationship & hence it has to be filed in reasonable time.

March 25, 2013 1 comment

“A wife who lived in  a  domestic  relationship earlier,  but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act. It cannot be filed after 1 year.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 160 OF 2011

Sejal Dharmesh Ved ..  Applicant

Vs.

The State of Maharashtra & Ors. ..  Respondents

Mr. Amit S. Dhutia i/b Niranjan Mundargi for the Applicant.

Mrs. A. A. Mane, APP for Respondent No.1­State.

CORAM :  MRS. ROSHAN DALVI, J.

DATE :  7th MARCH, 2013.

P.C.

1. The   applicant­wife   has   challenged   the   order   of   the   Court   of Sessions at Greater Bombay dated 27.10.2010 holding  that her  application under the Prevention of Women from Domestic Violence Act, 2005 (D.V Act) is not maintainable because she was not in any domestic relationship.

2. The   applicant   married   on   04.05.1999. She lived with her husband in the US. There are two issues from the marriage.  She returned to India on 11.02.2009.

3. She filed her application under the D.V Act on 18.01.2010.

4. The learned Judge has considered that under these circumstances, she having come to India in February, 2009 and having filed this application in January, 2010, there was no domestic relationship between the parties.  The learned  Judge   has  considered the  definition   of  domestic  relationship.    Of course, that relationship is defined to be one of which the party then lived and had earlier lived.  That would be during the subsistence of the union between them.  The application under the D. V. Act could be filed, when the marriage union subsisted.  That having came to an an end and long after the physical relationship came to be an end, she having returned to India, she cannot be taken to be living in any domestic relationship in India.

5. A wife who lived in  a  domestic  relationship earlier,  but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act.

6. A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time.  Such wife cannot be taken to be in any domestic relationship.  The order of the learned Judge is, therefore, correct.    The writ  petition is  completely  devoid  of merits  and  accordingly dismissed.

(ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/generatenew.php?path=./data/criminal/2013/&fname=APL16011070313.pdf&smflag=N

Categories: PWDVA 2005 Tags:

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

February 18, 2013 5 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.

Supreme Court: Grand Parents are entitled for Visitation Rights.

January 23, 2013 Leave a comment

Supreme Court of India

I.S.Sirohi
vs
Commr.Of Police & Ors.
on 27 August, 2008
Author: ………………..J.
Bench: Altamas Kabir, Markandey Katju

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1361 OF 2008

[Arising out of SLP(Crl.)No.5919 of 2007]

I.S.SIROHI ..Petitioner(s)

VERSUS

COMMR.OF POLICE & ORS. ..Respondent(s) ORDER

 

1. Leave granted.

2. This appeal arises out of the judgment and order dated 18th September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of 2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs. Deepti Sirohi, the respondent No.4 herein. The writ petition was disposed of by the High Court on 18/09/2007 by a non-speaking order, which reads as follows:- "In the circumstances of the case we feel that such a writ petition does not lie.

Dismissed."

2

3. Having regard to the nature of the order passed, notice was issued in the special leave petition on 12th October, 2007, and subsequently, on 7th December, 2007, after service of notice when the matter was listed, the parties were referred to mediation before the Delhi High Court Mediation Centre and the matter was directed to be listed once a report was received in respect of such mediation.

4. When the matter was listed on 25th February, 2008, it was directed to be put up for final disposal, and accordingly, the same was listed before us on 26th August, 2008. After hearing the counsel for the respective parties, we had directed the matter to appear today in Chambers, when the respondent No.4-wife was directed to produce the two children who were the subject matter of the reliefs prayed for in the writ petition. She was also directed to be personally present, and a similar direction was given with regard to the paternal grandfather.

5. Today, when the matter was taken up, we had occasion to speak to the respondent-wife, the two children, Ruchira, aged approximately 10 years, and Rajat, aged 7 years, the parents-in-law of the respondent 4-wife and their respective counsel.

6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternal 3

grand-parents as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternal grand-parents of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the father’s side of the family, as well as that of the mother, and that none of them should be denied access to the children. Accordingly, after having spoken to the children and the parties, as also their learned counsel and keeping in mind the interest of the children, we pass the following interim order:

(1)The paternal grand-parents of the children will be entitled to meet the children at the house of the respondent No.4-wife every alternate week-end, preferably on Sunday, between 9.00 A.M. and 1.00 P.M. in the presence of a member of the family of the respondent No.4-wife or a mutual friend. During such visit, the grand-parents of the children shall not be allowed to take the children out of the house of the respondent No.4-wife. However, 4

during holidays consisting of four or more consecutive holidays, the appellant before us will be at liberty to keep the children with him at least for two days during the said period. The respondent No.4- wife shall arrange to drop the children to the house of the appellant for the said purpose, and to take back the children to her custody at a day and time to be mutually fixed;

(2)Although, Dr. Niren Sirohi, the father of the children and the husband of the respondent No.4 is not a party before us, since the writ petition for a writ in the nature of habeas corpus has been filed by his father, seemingly on his behalf also, we further direct that he too will be entitled to visit the children as and when he visits India, upon prior notice to the respondent No.4-wife, who shall thereupon give proper access to him to meet the children either in her presence or in the presence of some other family member of the respondent No.4-wife or a mutual friend, at a date and time to be mutually agreed upon. In case the children agree to go out with him for an outing, he will be at liberty to take them out, but shall return them to the custody of the respondent No.4-wife by 6.00 P.M. at her residence. Dr. Niren Sirohi will under no circumstances be entitled to remove the children from the custody 5

of the respondent No.4-wife, except in the manner aforesaid, or to take them out of India without applying to this Court for such permission. Ms. Asha Nair, learned advocate appearing for the State, shall give necessary instructions in this regard to all concerned authorities and provide them with a copy of this order to ensure that the same is strictly implemented. The learned counsel appearing on behalf of Dr. Niren Sirohi in the trial court, where the proceeding under Section 498A Cr.P.C. is pending, undertakes to obtain an affidavit from Dr. Niren Sirohi to that effect and to file the same in this Court within a month from date.

(3)The visitation rights being given to the paternal grand-parents and Dr. Niren Sirohi should not in any way cause any interference with the normal school routine of the children, who are attending school in Greater Kailash-II.

7. The affidavit to be affirmed by Dr. Niren Sirohi should contain an undertaking that he will not proceed any further with the civil and criminal cases pending in the U.S.A. during the pendency of this appeal before this Court and shall not under any circumstances remove the children from India or from the custody of the respondent No.4-wife, except in the manner and to the extent indicted in this order, until further orders of this Court. Similarly, the respondent 6

No.4-wife also undertakes not to proceed with the criminal and civil proceedings filed by her, which are pending here in India.

8. We also stay the criminal proceedings which are now pending before the learned Magistrate in Patiala House, New Delhi, though we have been informed by learned counsel appearing on behalf of the respondent No.4-wife that the complaint against the paternal grand-parents has since been withdrawn. We have been further informed that the proceedings before the Magistrate has been stayed by the High Court and such stay is operative till 1st September, 2008. By virtue of this order, the stay shall continue until further orders.

9. In addition to the above, it has been mentioned by Ms. Indu Malhotra, learned senior counsel appearing for the respondent No.4-wife, that her client and Dr. Niren Sirohi jointly own a house property in Lexington, Massachussets, U.S.A., and that attempts are being made by Dr. Sirohi to sell off the same. Though, not denied, the said submission made by Ms. Malhotra has been explained by

learned counsel appearing for Dr. Sirohi indicating that since expenses for maintaining such a big house consisting of nine rooms, was costing him about 4000/- dollars a month, he was being compelled to sell the same, and under the prevalent laws in the U.S.A., he would have to keep aside 50% of the said proceeds in a separate account in the name of the respondent No.4-wife. We can 7

see no ground to prevent the sale from being proceeded with and completed since it cannot prejudice the respondent No.4-wife, who will be entitled to receive 50% of the sale proceeds as her share of the property. We, accordingly, see no reason to interfere with the sale of the property and Dr. Sirohi may proceed with such sale, if he so wishes, subject to depositing 50% of the sale proceeds in the name of the respondent No.4-wife in a separate account to her credit.

10. Let this matter be listed on 26th November, 2008, for further directions, with liberty to the parties to mention for variation of this order or for other orders, even before the said date, in the event it becomes necessary to do so. ………………..J.

(ALTAMAS KABIR)

………………..J.

(MARKANDEY KATJU)

NEW DELHI;

AUGUST 27, 2008.

 

http://www.indiankanoon.org/doc/1979218/

Delhi High Court:- DV Act is grossly misused by Women to settle the Property issue.

January 11, 2013 Leave a comment

Delhi High Court

Vijay Verma vs State Nct Of Delhi & Anr. on 13 August, 2010
Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: July 27, 2010

Date of Order: 13th August, 2010

+ Crl. M.C. No.3878/2009

13.08.2010

VIJAY VERMA ….. Petitioner Through: Mr. K.K. Manan, Mr. Tarun Goomber, Mr. Nipun Bhardwaj, Mr. Pankaj Mandiratta  and Mr. Ashish George, Advocates.

versus

STATE N.C.T. OF DELHI & ANR. ….. Respondents Through: Mr. Sunil Sharma, APP for the State.

Mr. Sunil Sethi, Mr. Sumit Sethi & Mr. B.C.

Mishra, Advocates for R-2.

JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not? Yes.

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

JUDGMENT

1. This petition has been filed under Section 482 Cr. P.C. assailing order of learned A.S.J. dated 7th September, 2009, upholding the order of learned M.M. dated 11th July, 2009.

2. Brief facts relevant for the purpose of deciding this petition are that the petitioner herein had filed an application under Section 12 of Protection of Women from Domestic Violence Act making her brother and his wife as  respondents. She sought an interim order from the Court of M.M. for immediate residence rights and police protection so that she could stay at premises No. A-181, Defence Colony, Delhi, whenever she visited India. The petitioner is a permanent resident of USA and is living in USA since year 2000. She came to India on a visit on 15th July, 2008 and alleged that when she went to her parental house on 16th July, 2008, she was not allowed to enter her parental house and hence the application.

3. Learned MM in her order observed that in this case the petition was more in a nature of claiming right in the property. The whole dispute seemed to be property dispute between the parties and there was no ground to pass an interim order of residence. The learned ASJ upheld this contention in appeal.

4. It is not disputed that father of the petitioner is not alive. Property No. A-181, Defence Colony, New Delhi, was owned by the father of the petitioner and respondent No. 2. Petitioner claimed right in the property alleging that she had a right in her father’s property whereas respondent No. 2 relied upon a Will executed by father bequeathing his rights and share in the property in favour of his grandson. The respondent also relied upon an affidavit earlier executed by the petitioner showing that she had received her share in the property. It is also not disputed that a suit for partition titled as  “Indra Warman Vs. Kishan Kumar Verma”, being CS(OS) No. 2137 of 2006, filed by the sister of petitioner was pending in the High Court wherein the petitioner was one of the defendants and the petitioner herself also filed a suit for partition in the High Court being CS(OS) No. 2028 of 2009, titled as ” Vijay Verma Vs. Kishan Kumar Verma & Ors.”

5. 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.”

6. 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 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 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 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’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and  daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.

7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse  can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.

8. I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father. The petition is hereby dismissed.

August 13, 2010

SHIV NARAYAN DHINGRA, J. acm

http://www.indiankanoon.org/doc/1513735/

Rajasthan HC- Violence committed by a person while living in the shared household can constitute domestic violence, if Separated then no DV

January 11, 2013 Leave a comment
Rajasthan High Court – Jodhpur
Nishant Hussain vs Seema Saddique & Anr on 21 September, 2012

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

 

ORDER

Nishant Hussain

vs.

Seema Saddique & anr.

S.B.Cr. Revision Petition No. 364/2012

under Section 397 read with Section 401 Cr.P.C. against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar in Criminal Appeal No. 8/2012 affirming the judgment and order dated 23.12.2011 passed by Addl. Chief Judl.

Magistrate No.4, Jodhpur Mahanagar in Cr.Misc. Czse. No. 104/2010(248/2007).

Date of Judgment: 21.09.2012

PRESENT

HON’BLE MRS. NISHA GUPTA, J.

Mr. L.D. Khatri, for the petitioner.

Mr. A.R. Nikub, Public Prosecutor for the State. Mr. Mehar M. Sadiq for the respondent no.1. BY THE COURT:

This revision petition has been preferred against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar whereby application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short “the Act of 2005″) has been allowed and the order dated 23.12.2011 passed by the court below has been affirmed.

The short facts of the case are that marriage between the parties took place on 26.12.1997. Male child has been born out of the wedlock on 15.9.1999. There are allegations of harassment to respondent no. 1 in August, 1998 and October, 2

2002. A criminal FIR for the offences under Section 498A and 406 IPC has also been lodged in January, 2004. Thereafter in 2007, the present petition has been filed and the learned trial court ordered maintenance allowance in favour of respondent and the appeal preferred against the order of the trial court has been dismissed. Hence this revision petition. The only contention of the present petitioner is that, admittedly, the respondent has left the matrimonial home in the year 2002 and the Act of 2005 came into force in October,2006. It is not in dispute that the Act of 2005 has retrospective effect, but the complaint can be filed within a period of one year from the date of incident and when the parties are not living together, there is no occasion for any incident of domestic violence and on the basis of incidents occurred before 2002, this petition is not competent. There is no evidence that the present petitioner has committed any act of domestic violence after the year 2002. A false case is set up by the non-applicant stating therein that on 4th and 5th August, 2007 when the respondent arrived at Jodhpur for the proceeding in criminal court, the incident of domestic violence has taken place but considering the totality of the circumstances, this isolated act cannot be termed under the Act of 2005 and hence the orders are perverse and abuse of process.

Further more, it has also been submitted that decree of divorce has been passed on 5th March, 2010 and no domestic 3

relationship is subsisted between the parties. The contention of respondent no.1 is that on 4th and 5th August, 2007 the act of domestic violence has been done and no maintenance allowance has been allowed to her. It is a case of economical abuse and maintenance allowance has been rightly awarded.

Heard learned counsel for the parties and perused the impugned orders.

It is not in dispute that the parties are living separately since October, 2002, hence there is no occasion for committing any domestic violence. The only incident of August, 2007 has been alleged which is apparently seems to be designed for this petition. Taken to be true that the incident of August, 2007 has occurred between the parties, still it does not constitute the act of domestic violence. The matter has been proceeded under Section 107 and 116(3) Cr.P.C.. No act of domestic violence has been alleged against the present petitioner as defined under Section 3 of the Act of 2005. The learned court below has also considered the fact that the parties are residing separately since 26.10.2002. All the allegations regarding violence which have been set up in the complaint are prior to October, 2002. It has been stated that on 4th and 5th August, 2007 the present petitioner has misbehaved with father and mother of the respondent and has threatened to take away child forcibly and again he misbehaved on 5.8.2007 and also threatened for dire consequences. But as stated earlier, this isolated incident 4

cannot be termed as act of domestic violence and reliance has been placed on Vijay Verma v. State N.C.T. of Delhi & anr. (Cr.M.Case No. 3878/2009) decided on 13.8.2010 passed by the High Court of Delhi wherein it has been specifically held that only violence committed by a person while living in the shared household can constitute domestic violence. Threatening by a person may amount to an offence under the Indian Penal Code but this cannot amount to domestic violence. Domestic violence is a violence which is committed when parties are in domestic relationship, sharing same household with an opportunity to commit violence. Here in the present case, when the parties are residing separately since 2002, there was no occasion to commit domestic violence and the petition is clearly not maintainable.

Further contention of the respondent is that this is a case of economical abuse as the maintenance allowance has not been given to the respondent. But in the petition nothing has been alleged regarding economical abuse. Only the incident which has been set up to constitute domestic violence is the incident of 4th and 5th August, 2007 which is not in the nature of the domestic violence.

The other contention of the the present petitioner is that it has been stated that harassment has been caused to the respondent in 1998 and in 2002 but the complaint could be filed within a period of one year from the date of the incident. Reliance has been placed on Inderjit Singh Grewal v. State of 5

Punjab & anr. (2012 Cr.L.R.(SC) 16). Admittedly, the petition has been filed on 29.8.2007 and the incident has taken place in 1998 and 2002, which could not be made a ground of complaint in 2007.

Further reliance has been placed on Sunil Kumar Gupta v. Shalini Gupta (II (2012) DMC 705) where the marriage has been annulled by the decree of divorce and hence it was held that the respondent cannot be equated with that of aggrieved person as provided under Section 2(a) of the Act of 2005. Here in the present case, admittedly, the original petition was filed in 2007 whereas the decree of divorce has been filed in March, 2010 and hence this law does not give any relief to the present petitioner.

The contention of the respondent is that there is no infirmity in the impugned order but looking to the facts that no allegation of domestic violence are lodged in the petition, isolated incident of August, 2007 cannot be termed as domestic violence. Explanation Ii of Section 3 of the Act of 2005 reads as under:-

“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.” This clearly suggests that for constituting domestic 6

violence, overall facts and circumstances of the case shall be taken into consideration. Here in the present case, the incident of August, 2007 cannot be termed as domestic violence as the parties were living separately since 2002. Petition for divorce was also pending between them and subsequently the divorce has been granted. Reliance has been placed on V.D. Bhanot v. Savita Bhanot (AIR 2012 SC 965) where residence order has been passed in view of the facts of the case. Further more, reliance has been placed on Gajendra Singh v. Smt. Minakshi Yadav (2022(1) Cr.L.R.(Raj.) 839) where threat to respondent and his family was continued after the year 2006 and looking to the facts, maintenance has been allowed as the wife was facing domestic violence including threat and economic abuse but here nothing has been alleged by the respondent except the incident of 2007. Reliance has also been placed on Rajesh Kurre v. Safurabai & ors. (2009 Cri.L.K.(NOC) 446(Chh.) where the requirements of Section 125, Cr.P.C. and the provisions of Section 20 of the Act of 2005 have been explained. Hence looking at the above that no case is made out by the respondent regarding act of domestic violence. The parties are residing separately since 2002 and hence the petition under Section 12 of the Act of 2005 is not maintainable in view of the facts of the case and the impugned orders of the courts below are liable to be quashed.

7

In view of above, this revision petition is allowed and the impugned orders of the courts below are hereby quashed and set aside.

( NISHA GUPTA),J.

mlt/29

 

 

http://www.indiankanoon.org/doc/173346692/

Categories: PWDVA 2005 Tags:

Delhi High Court:- DV is not maintainable once there is decree of Divorce. Also, parents of Husband cannot be made Respondents in DV if the Husband and Wife have not stayed with Parents under one roof.

January 11, 2013 Leave a comment

-There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.

-The definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household.

Delhi High Court

Nagesh Malik vs Payal Malik on 29 July, 2010

Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 6th July, 2010

Date of Order: 29th July, 2010

+ Crl. Rev. P. No. 253/2010

29.07.2010

Harbans Lal Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 252/2010

% 29.07.2010 Varun Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 338/2010

% 29.07.2010 Nagesh Malik … Petitioner Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik … Respondents Through: Mr. R.Jain, Mr. Deepak Aggarwal &

Mr. D.Jain, Advocates

JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not? Yes.

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

JUDGMENT

These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM. Nagesh Malik vs Payal Malik on 29 July, 2010

2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husbandâ..s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.

3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short - Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19,  monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-lawsâ.. house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in- laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents.. house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.

4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.

5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.

6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.

7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 4 of 16 should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.

8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.

9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.

10. Under Section 12, an „aggrieved person‟ can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition 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 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.

11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is 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;

12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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 definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.

14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad,  putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.

15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.

16. It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring Crl. Rev. P. No.252/2010, 253/2010 & 338/2010 Page 8 of 16 from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:

 Head of the family takes all decisions

 All members live under one roof

 Share the same kitchen

 Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)

 Income and expenditure in a common pool – property held together.

 A common place of worship

 All decisions are made by the male head of the family – patrilineal, patriarchal.

18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is 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- 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.

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.

23. Section 13 of CPC provides as under:

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.

25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.

26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.

27. In Y. Narasimha Rao‟s case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].

28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.

29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.

30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife.

31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.

July 29, 2010

SHIV NARAYAN DHINGRA, J. vn

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

November 3, 2012 Leave a comment

* 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), DistrictWest Delhi and order dated 16.08.2010 passed by ld. MM in
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-inlaw of the applicant respectively and respondent no. 5 is the colleague  of respondent no. 1. It is alleged in the application that petitioner had 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  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  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 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  and establishes her own household with her husband. Such son, daughter, daughter-inlaw, 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”.
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

 

http://lobis.nic.in/dhc/SKT/judgement/09-02-2012/SKT07022012CRLMM4522012.pdf

Categories: PWDVA 2005 Tags: ,
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