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Bombay HC- If there is no Domestic Violence on Woman then the children are not entitle for relief u/s. 20 of PWDVA 2005.

“the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the
expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence.  The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on   the   part   of   the   respondent.     In   the   present   case,   since   the   learned Magistrate has come to a conclusion that the domestic violence could not be proved   and   since   that   finding   of   the   learned   Magistrate   has   not   been  challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also.

 

 

 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 32 OF 2014

Koushik S/o. Anil Gharami,
Aged about 40 years,
R/o House NO.59, Shayamapalli
Khajurikala, Piplani, Bhopal­462022
Tahsil Hujur and District : Bhopal(MP)          ….  PETITIONER.

//  VERSUS //

1.  Sau. Sangeeta Koushik Gharami,

aged about 36, Occu. Service,
2. Ku. Gayatri Sangeeta Gharami,
3. Ku. Astha Sangeeta Gharami,
Age about 6 years,
Respondent No.2 and 3 being minors are
represented by their ad­litum mother the
Respondent Nos. 1 to 3 all are R/o. C/o.
Thakurdas Mahaldar, Post : Alapalli,
Tahsil : Aheri, District : Gadchiroli.
…. RESPONDENTS.
___________________________________________________________________
Mrs. Sonali Saware, Advocate with Petitioner.
Mr. C.M.Munje,Advocate with the respondent No.1.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : MAY 05, 2014.
ORAL JUDGMENT :
1. Heard.

2. ADMIT.  Heard finally by consent of the parties.

3. A short question that arises for determination in present writ petition is, as to whether the minor children of the aggrieved person are entitled for maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion that the domestic violence has not been proved.

4. Admittedly, the petitioner is husband of respondent No.1 and father of respondent Nos.2 and 3. Respondent Nos.1, 2  and 3 filed an application under Section 12 of the Domestic Violence Act, 2005 in the Court  of Judicial Magistrate First Class, Aheri.  The said application was heard on merits   and   following   points   were   framed   by   the   Magistrate   for determination:

1. Does Applicant No.1 prove that she was subjected to Domestic
Violence by Non­applicant No.1 as alleged in the application ?
2. Do the applicants are entitled for relief claimed in their claim
clause
3. What order ?
The learned Magistrate had answered point No.1 in negative and point No.2 was answered partly in affirmative.  The learned Magistrate had   come   to   a   conclusion   that   respondent   No.1   had   not   been   able   to  establish that she was  subject to domestic violence by the petitioner.   The  learned Magistrate has also come to a conclusion that respondent No.1 was not entitled for any monetary relief.  However, monetary relief was granted to respondent Nos. 2 and 3.  The final order of the learned Magistrate runs as
under :
“1. The application is partly allowed.
2. Non­Applicant   No.1   shall   pay   Rs.2000/­   per
month to Applicant No.2 and 3 each, for their
education, from the date of application.
3. Non­Applicant   No.1   shall   pay   Rs.1000/­   per
month to applicant no.2 and 3 each, for their
maintenance (monitory relief) from the date of
application.
4. parties to bear their own cost.
5. The amount received by Applicant No. 2 and 3
under interim order, Exh.No.18, be set off against
the amount as mentioned above.”

5. The petitioner had filed a criminal appeal against the said order  of the learned Magistrate. The said Criminal Appeal was also dismissed on 9th December, 2013.

6. As already stated, the question that arises, whether respondent Nos.2  and  3 could be  granted  any monetary  relief  despite  the  fact that domestic violence could not be proved by respondent No.1.  In this regard,  one will have to refer to  certain provisions of the Protection of Women from Domestic Violence Act.  ‘Aggrieved Person’ has been defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 :
“2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic violence by the respondent;”
7. Chapter IV deals with ‘Procedure for obtaining orders of reliefs’.
Section 12 lays down the procedure for presenting application before the
concerned Magistrate.  Sections 18 and 19 of the Act deal with ‘Protection
Orders’   and   ‘Residence   Orders’,   respectively.     Section   20   deals   with
‘Monetary Relief’.

8. In the present petition, this Court is concerned as to whether  any monetary relief could have been given to  respondent  Nos. 2 & 3. Section 20 of the Protection of Women from Domestic Violence Act, 2005
lays down :
“20.  Monetary   reliefs.­   (1)   While   disposing   of   an
application   under   sub­section   (1)   of   Section   12,   the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such relief
may include, but is not limited to ­
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal   of   any   property   from   the   control   of   the
aggrieved person; and
(d) the maintenance for the aggrieved person as well as
her   children,   if   any,   including   an   order   under   or   in
addition to an order of maintenance under section 125
of the Code of Criminal Procedure, 1973(2 of 1974) or
any other law for the time being in force.”

9. It is thus, clear that the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence.  The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on   the   part   of   the   respondent.     In   the   present   case,   since   the   learned Magistrate has come to a conclusion that the domestic violence could not be
proved   and   since   that   finding   of   the   learned   Magistrate   has   not   been challenged by the aggrieved person,  it follows that no relief could have been given to respondent Nos. 2 and 3 also.

10. In   my   considered   opinion,   the   learned   Magistrate   had  committed an error in granting monetary  relief to   respondent Nos. 2 and 3 despite the fact that domestic violence could not be established.  Though it is possible to say that the maintenance was permissible for respondent Nos. 2 and 3 (minor children) under Section 125 of the Code of Criminal Procedure, the monetary reliefs could not have been given to them under Section 20 of the Protection of Women from Domestic Violence Act, 2005.  The view taken by the learned Magistrate and the appellate Court, in my opinion, is not correct and hence, I pass the following order.

i. The writ petition is allowed.
ii. The order passed by learned Magistrate in Misc. Criminal Case No. 27 of 2011 on 12th March, 2013 and the order passed by the learned Sessions Judge, Gadchiroli in Criminal Appeal No. 14 of 2013 on 9th
December, 2013 are set aside.
iii. The amount of Rs.Twenty Five Thousand, deposited by the petitioner  in this Court shall  be refunded to him immediately.

The petition stands disposed of accordingly.

JUDGE
RRaut..

Categories: CrPC 125, PWDVA 2005 Tags: ,

Bombay HC- CrPC 125(3) procedure to be followed for recovery of due amount/ arrears in PWDVA 2005 instead of issuing Non Bailable order Directly.

“the   procedure   laid   down   under Section 125(3) of the Code of Criminal Procedure for getting compliance of  the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic Violence Act, 2005.   The reliefs available under Section 125(1)(a) of the Code of Criminal Procedure are analogous to the reliefs available under
Section 20 of the Protection of Women from Domestic Violence Act, 2005. “

 

 

 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.305 OF 2014.

 

Mr. Sachin s/o Suresh Bodhale,
Aged 36 years,
Occupation – Business,
R/o Plot No.2, Apana Ghar Scheme,
Visava Naka, Godoli, Satara (MH). …. PETITIONER

VERSUS

Sau. Sushma w/o Sachin Bodhale,
Aged 35 years,
Occupation – Nil,
R/o C/o Sau. Savita Sanjay Patil,
Plot No.119, Shri Mahalaxmi Apartment,
Nelco Housing Society, Subhash Nagar,
Nagpur. …. RESPONDENT
___________________________________________________________________
Shri Sudhir Moharir, Advocate for the petitioner,
Shri R.R. Vyas, Advocate for the respondent.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED   : 6th
MAY, 2014.
ORAL JUDGMENT :
1. Heard learned Counsel Shri Sudhir Moharir for the petitioner  and learned Counsel Shri R.R. Vyas for the respondent.

2. Rule.   Rule made returnable forthwith by the consent of the learned Counsel appearing for the parties.

3. The petitioner has moved this Court by invoking powers of this  Court under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure.  The petitioner is aggrieved by the order passed by   the   learned   Magistrate   in   Misc.   Criminal   Application   No.890/2012
(Sushma vs. Sachin).  The order, which is questioned before this Court, reads as under :­
“Perused the application and stay.
Heard learned Advocate for both sides.
Applicant relied on 2013 All M.R.(Cri.) 2572.   Learned
Advocate for N.A. has opposed that Magistrate has no powers.
N.A. has not paid any amount towards interim maintenance.
Learned Advocate has also confessed that N.A. has not paid any
amount towards interim maintenance order which is passed on
Exhibit 13.
Provision under Section 28(2) is very clear when N.A. has
not paid amount and not complied the order, she cannot be kept
high and dray.  Magistrate is empowered under Section 28(2) to
issue N.B.W.  Citation filed by applicant is very much applicable
in the case in hand.  Hence application is allowed.  Issue N.B.W.
against non­applicant.”

4. The petitioner is husband of the respondent.  The respondent has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned Magistrate.  An interim order has been passed granting monetary relief.  It appears that the petitioner has not   paid   the   amount   to   the   respondent   as   per   the   interim   order.     A
non­bailable warrant has been issued for non­payment of amount of interim  maintenance to the respondent by the petitioner.  It appears from the order of the learned Magistrate that the learned Magistrate was of the view that he could formulate his own procedure under Section 28(2) of the Protection of Women from Domestic Violence Act, 2005.   It appears that the Magistrate was also of the view that he can lay down his own procedure for recovery of the amount of interim maintenance.   Sub­section (2) of Section 28 of the  Protection of Women from Domestic Violence Act, 2005 reads as under :­
“28(2). Nothing in sub­section (1) shall prevent the court from   laying   down   its   own   procedure   for   disposal   of   an
application under section 12 or under sub­section (2) of section 23.
Sub­section(1) of Section 28 of the said Act reads as under :­“28(1). Save   as   otherwise   provided   in   this   Act,   all  proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974)”

5. Therefore,   it   is   abundantly   clear   that   basically   the   learned  Magistrate has to follow the procedure laid down in the Code of CriminalProcedure for recovery of maintenance either final or interim.  Sub­section (2) of Section 28 of the Protection of Women from Domestic Violence Act,  2005 can be pressed  into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic   Violence   Act,   2005.     If   the   procedure   is   available   in   Code   of  Criminal Procedure,  that is necessarily to be followed.

6. In   my   considered   opinion,   the   procedure   laid   down   under  Section 125(3) of the  Code of Criminal Procedure  for getting compliance of the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic
Violence Act, 2005.   The reliefs available under Section 125(1)(a) of the  Code of Criminal Procedure are analogous to  the reliefs available under Section 20 of the Protection of Women from Domestic Violence Act, 2005.
The procedure for getting compliance of the order passed under Section 125(1) of the Code of Criminal Procedure is available under Section 125(3) of the Code of Criminal Procedure, which runs as under :­
“125(3). If  any person so  ordered  fails without  sufficient cause to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence  such   person,   for   the   whole   or   any   part   of   each   month’s  (allowance for the maintenance or the interim  maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which  may  extend  to  one  month  or  until   payment  if  sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made
to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated   by   her,   and   may   make   an   order   under   this   Section  notwithstanding  such offer, if he is satisfied that there is just ground for so doing.”

7. The procedure for levying of fines is available under Section 421 of the Code of Criminal Procedure as under :­
“421.  Warrant for levy of fine – When an offender has been
sentenced to pay a fine, the Court passing the sentence may take
action   for   the   recovery   of   the   fine   in   either   or   both   of   the
following ways, that is to say, it may ­
(a)   issue   a   warrant   for   the   levy   of   the   amount   by
attachment and sale of any movable property belonging to the
offender;
(b)   issue   a   warrant   to   the   Collector   of   the   district,
authorising him to realise the amount as arrears of land revenue
from   the   movable   or   immovable   property,   or   both   of   the
defaulter:”

8. Thus   there   is   absolutely   clear   provision   under   the   Code   of  Criminal Procedure, which lays  down as to  how the  amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued  non­bailable warrant directly.   He should have followed  the procedure laid down in sub section (3) of Section 125 &  Section  421 of the Code of Criminal Procedure.  In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property.   The  other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter.   The Magistrate could   have   sentenced   the   petitioner   for   the   whole   or   any   part   of   each month’s   allowance   for   the   maintenance   or   the   interim   maintenance   and expenses of proceeding, as the case may be, remaining unpaid after the  execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.

9. As such the first option available to the Magistrate was to issue a   warrant   for   levying   fine.     If   whole   of   the   amount   was   recovered   by adopting   the   procedure   under   Section   421   of   the   Code   of   Criminal  Procedure, the question of putting the defaulter in prison did not arise.  In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure.  The stage of issuing warrant comes only after sentencing and not before that.

10. In view of above discussion, it is abundantly clear that the order dated 02­4 2014 passed by the learned Magistrate  in Misc. Criminal Application No.890/2012 cannot be sustained.  It needs to be quashed and is
accordingly quashed.  The respondent is at liberty to take necessary steps in accordance with law.

11. Rule is made absolute in the above terms.
JUDGE
pma

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/

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