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Strategy for fighting DV Act 2005

September 27, 2011 Leave a comment
    • The main attraction for girls is to claim the Right to Residence (RTR) from Husband/Male partner. So make sure you do not own a house or flat in your name. Even though wife/female partner can claim RTR only against Husband/Male partner but nothing stops the wife/female partner from filing a petition under DV act and come and sit inside the house.
    • Another important point is wife/female partner can claim maintenance under the DV act. This is in addition to other maintenance ordered under CrPC 125 or HMA section 24. So in case your wife is granted maintenance under CrPC 125 or HMA section 24, then your lawyer has to forcefully argue to the court that basic need of the wife is taken care by other maintenance and hence there is no need of any additional maintenance.
    • Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law.
    • Your wife/female partner can be provided with protection order from local SHO. So you should be in good relation with your local SHO else your wife/female partner can create enough trouble for you.
    • Please remember that from various judgments of the various high courts, now it is very clear that DV act is retrospective. That means even though DV act came into existence only in September 2006 but a husband/male partner can be booked for incidents which had occurred before DV act came into existence.
    • Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law.
    • Even though there is no mention of arrest in DV act but non-compliance of order by magistrate can lead to issuance of non-bailable-warrant.
    • There was a case booked in Madya-Pradesh where even though divorce was granted in 2003 but wife restored to DV act in 2007 and that subsequently lead to non-bailable-warrant.
    • The basic difference between 498a and DV act is in 498a husband is liable for punishment but wife does not get any financial relief but in DV wife/female partner gets lots of relief but there is no punishment/arrest (unless husband violate court order). Another difference is 498a can be booked against husband or his relatives but DV can be booked only against male members of a family.
    • Another point to remember is that as per supreme court judgment in batra vs batra any relief to the wife cannot be granted to wife against the property of mother-in law. So it may be wise to transfer the immovable property to mother’s name.
    • Please remember that under DV act Magistrate is having sweeping powers. So make sure not to keep much cash in the known bank accounts.
    • There is a recent Chennai high court judgment where even though the husband has transferred the property to the mothers name but high court did not like this and they passed the RTR in favor of wife. So I guess the safest way out is to sell the property and park the funds in investments which wife cannot track down.
    • We are in the process of consolidating all the useful judgment related to DV act and putting them on the website.
Categories: DV Act 2005, Strategy

HC – DV – Parents house no right for DIL

September 17, 2011 2 comments

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 05, 2008

Date of Order : September 30, 2008 CM(M) 105/2006 30.09.2008

Neetu Mittal …Petitioner

Through: Ms. Radhika Chandrasekhar, Adv. Versus

Kanta Mittal and Ors. …Respondents

Through: Ms. Nandni Sahni, Adv. for R.1 and 2 Mr. Devendra Singh, Adv. for R.3

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. The petitioner is aggrieved by an order dated 4th January, 2006 passed by the learned Additional Senior Judge allowing an appeal of the respondent against order dated 24.5.2005 of Civil Judge dismissing an application under Order 39 Rule 1 and 2 CPC. 2. The respondents had filed a suit making petitioner, their son and in-laws of the son as defendants wherein they prayed for permanent injunction. An application under Order 39 Rule 1 and 2 was made that the petitioner and other respondents be restrained from forcibly and illegally entering into their house No. B-2/23, Phase-II, Ashok Vihar and from interfering with their peaceful living. The petitioner is wife of Sh. Vikas Mittal son of respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal. 3. The learned Senior Civil Judge while allowing appeal observed that wife has a right to live in the matrimonial home after marriage but there was no specific definition of matrimonial home. However, matrimonial home was not just a building made of bricks and walls. It was a home/place comprising of sweetness of relations of family members and elders, full of blessing. In the matrimonial home, matrimonial rights and obligations are to be equally observed. Practically speaking, the residence of husband should be the home of the wife where both the spouses have equal right to reside. 4. The learned Senior Civil Jude found that in this case, the respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal (petitioner). They had separated from their son. The son had taken a flat in Rohini for his own residence and residence of his wife. The son and his wife had agreed to shift there on 10th May, 2005 under a compromise arrived at Police Station. However, the wife did not stay in the flat at Rohini. Her grievance was that flat was not habitable due to deficiency of fan, cooler, etc. Thereafter, she asserted that she had a right to live in her in-laws’ house in Ashok Vihar and she wanted to forcibly live there which compelled respondents no. 1 and 2 to file the suit. The learned Senior Civil Judge found that the respondents were aged parents. They had shown by filing medical record that they were suffering from various ailments and at this age of their life they have a right to live peacefully at their home. Since the relations of petitioner were not cordial with them, there was every likelihood of breach of peace to the detriment to their mental and physical health. Due regards have to be given to their rights. It was a admitted fact that the respondents and petitioner could not live together under one roof with peace and harmony. The common use of dining and one kitchen would create further problems and a situation may come when parties may everyday land up at Police station or in the Court, fighting on minor issues. 5. Learned Sr. Civil Judge also observed that the respondents(parents) even apprehend danger to their lives and dignity, as per the complaint made by them to the Police. Under these circumstances, the learned Senior Civil Judge allowed the application under Order 39 Rule 1 and 2 CPC and restrained the defendants (petitioner herein) from forcibly entering into their house and disturbing the peaceful possession of the respondents. 6. Counsel for the petitioner argued that the petitioner being wife of son of respondents no. 1 and 2 has a right to live in the matrimonial home and no injunction could legally have been issued by the learned Civil Judge. She referred to Protection of Women from Domestic Violence Act, 2005 and argued that the right of women to live in the shared household was to be protected by every Court and the house of in-laws was a shared household and a matrimonial home and she had a right to live there. 7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court observed as under: “16. There is no such law in India, like the British Matrimonial Homes Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. 17. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. xxxxx xxxxx xxxxx 27. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives. 28. 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 no.2, mother of Amit Batra. Hence it cannot be called a ‘shared household’.” 8. As observed by the Supreme Court, ‘Matrimonial home’ is not defined in any of the statutory provisions. However, phrase ?Matrimonial home? refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life. 9. Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis-regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes. 10. I therefore consider that the order passed by the learned Senior Civil Jude granting injunction does not suffer from any illegality and the petition is hereby dismissed.

September 30, 2008

SHIV NARAYAN DHINGRA J.

 

http://skonidala.blogspot.com/2011/05/hc-dv-parents-house-no-right-for-dil.html

Categories: DV Act 2005, Judgments Tags:

Husband lost job because of complaint,maintenance denied

September 13, 2011 Leave a comment

IN THE COURT OF MS. KIRAN GUPTA, METROPOLITAN MAGISTRATE, MAHILA COURT,CENTRAL DISTRICT, DELHI
CC no. 593/6/09
PS Patel NagarU/s 12 of D.V. Act
Harpreet Kaur …..complainant
Vs.
Sh. Dilvinder Singh Bedi …..respondent
ORDER ON INTERIM APPLICATION
Vide this order, I shall dispose off the interim application filed by the complainant u/s 23(2) of D.V. Act filed along with the petition u/s 12 of D.V. Act. Brief Facts of the petition are stated as under:
The complainant was married with the respondent on 25.01.09 according to sikh rites and ceremonies and both of them resided together as
husband and wife at matrimonial house bearing no. 2749/13, Ground
Floor,Ranjit Nagar, New Delhi which is the house where they last resided together.
It is stated that the respondent no. 1 is doing a job in Kingfisher
airlines and earning Rs. 40,000 to Rs. 50,000/- per month and has no
liability. The petitioner by way of present petition has prayed for
esidence rights in the shared household bearing no. 2749/13, Ground
floor, Ranjit Nagar, New Delhi or in the alternate accommodation or rent @ Rs. 4,000 to Rs. 5,000/- per month. She has further prayed for
maintenance @ Rs. 15,000/- per month.
Detailed reply has been filed by the respondent no. 1 to 3 wherein
the respondent has denied all the allegations as alleged in the petition and has stated that the complainant is working for the last 5 years at
the auto parts show room namely Auto Emporium, Karol Bagh and getting
salary of Rs. 20,000/- per month. It is further stated that respondent
no. 1 is not working with Kingfisher Airlines at present.
Detailed rejoinder has been filed by the complainant wherein she has
admitted that she worked in showroom as part time employee and draw
salary below Rs. 7,000/- per month. She has further stated that since
April 2010, she is regular job holder.
Complainant has denied all the allegations as alleged in the reply
and has reiterated the entire facts as stated in the petition.Heard
arguments on behalf of both the parties and perused the file.
During the arguments, it is submitted by the counsel for respondent
that the respondent no. 1 is no more working with Kingfisher Airlines as he has been forcefully made to resign by the company due to the
constant complaints made by the complainant. It is further argued that
the alleged shared house hold is in the name of mother of the respondent no. 1.in support of his arguments, counsel has placed on record the
copy of relinquishment deed and copy of e-mail in respect of job status
of the respondent no.1.
It is argued by the counsel for complainant that the complainant is
doing a part time job and is earning very less. At this stage it is
submitted that some amount may be granted to the complainant for the
alternate accommodation or she may be allowed to reside in the shared
house hold.
As per the relinquishment deed, the shared house hold is in the name
of the mother in law of the complainant, hence in view of the law laid
down in S.R. Batra Vs. Taruna Batra, the complainant has no right in the said shared house hold, accordingly her plea for right for residence in the shared house hold is dismissed. As regards the amount of
maintenance,admittedly the complainant is doing a part time job and is
earning certain amount which has not been disclosed in the petition,
hence, since the complainant is already working, no amount of
maintenance can be awarded to her. The respondent is stated to be
unemployed at present and on the other hand, the complainant is working, hence the husband cannot be forced to pay the amount for the alternate
accommodation for the complainant at this stage. The interim application is accordingly disposed off.

No maintenance in DV if maintenance already passed in Crpc 125

September 13, 2011 Leave a comment

Held:- It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person.  It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track.  If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act.

 

 

 

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve:   August 25, 2010

Date of Order: 30th August, 2010

 

+  Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010

  30.8.2010

 

Rachna Kathuria       … Petitioner

Through: Mr. P.Narula, Advocate

Versus

 

Ramesh Kathuria      … Respondent

Through: Mr. S.S.Saluja, Advocate

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. By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance.   The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996.  She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent.  In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed.  Against this petitioner preferred an appeal.  The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person.  It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track.  If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act.  The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C.    If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance.  This petition is not maintainable and is hereby dismissed.

August 30, 2010

 

   SHIV NARAYAN DHINGRA, J.

http://lobis.nic.in/dhc/SND/judgement/31-08-2010/SND30082010CRLMM1302010.pdf

Domestic Violence Act not just limited to harassed daughter-in-laws, says court

September 8, 2011 Leave a comment

NEW DELHI: The phenomenon of daughters-in-law harassing their mothers-in-law isn’t uncommon in Indian society, the Delhi high court has observed, saying the former is equally liable to be prosecuted under the Domestic Violence Act.

“A mother who is being maltreated and harassed by her son would be an ‘aggrieved person’. If the said harassment is caused through the female relative of the son, i.e. wife, she will fall within the ambit of the Act,” Justice Mukta Gupta said on Friday, adding that a mother-in-law can take recourse to the Act. HC rejected the claim of the petitioner that she can’t be booked under the DV Act by her mother-in-law.

Seeking quashing of the complaint lodged by her mother-in-law (who also invoked the DV Act against her son), the woman had argued that the DV Act was meant to extend protection against domestic violence to married women who faced ill-treatment or abuse at the hands of the husband or in-laws. She argued in this context the DV Act can’t be invoked against her as she is excluded from the same.

Justice Gupta, however, dismissed the claim for immunity. The court pointed out that the DV Act shows that “any woman who is in a domestic relationship – the said relationship being between two persons who lived at any point of time together in a shared household related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or family members living as a joint family – and alleges she has been subjected to domestic violence is entitled to relief under the Act.”

The court elaborated on the DV Act to emphasize that even those women who are sisters, widows, mothers, single women or living with the abuser are entitled to legal protection under the Act and it can’t just be limited to providing relief to harassed daughters-in-law.

Coming to HC for relief, one Kamla (name changed) had challenged her summoning by a magistrate on the complaint of her mother-in-law. She informed HC that her mother-in-law had a property dispute with her husband since 2005 and was using the DV Act as a pressure tactic to force her husband to forego his share in the property.

http://timesofindia.indiatimes.com/city/delhi/Domestic-Violence-Act-not-just-limited-to-harassed-daughter-in-laws-says-court/articleshow/9842509.cms?intenttarget=no

Categories: DV Act 2005 Tags:
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