Daily Archives: August 17, 2013

IF ND TIWARI was to take DNA test, why can’t any wife and kid take it ?? a question husbands should explore and win …

Veteran Congress leader ND Tiwari was forced to take a DNA test which proved that he had a son

IF Mr. Tiwari can be subjected to DNA test on a paternity issue, why cant wives be subjected to paternity test ??

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August 16, 2013, 10:20 am Comment

India’s Doubting Fathers and Sons Embrace DNA Paternity Tests

By ANJALI THOMAS Senior Congress leader N.D. Tiwari, wearing a white cap, with his biological son Rohit Shekhar, fourth from right, on the former's birthday.Courtesy of Rohit Shekhar and rediff.comSenior Congress leader N.D. Tiwari, wearing a white cap, with his biological son Rohit Shekhar, fourth from right, on the former’s birthday.

In 2007, a 28-year-old man was propelled from obscurity to prominence when he turned to the Delhi High Court to seek a public acknowledgement of paternity from a senior Congress Party leader, N.D. Tiwari. Rohit Shekhar, who said that he was the result of an affair between his mother and Mr. Tiwari, spent five years trying to force the politician to take a DNA test, taking his case all the way to the Supreme Court, which ruled in Mr. Shekhar’s favor last year.

The high-profile nature of the case contributed to the public’s growing awareness of the role of DNA in establishing biological ties, and these days, paternity tests are much more commonplace, with private labs offering home testing kits for 10,000 rupees ($160) or less, with no need for a judge’s permission. A person can swab the inside of a child’s mouth at home, send the samples from the adult and child back to the lab and receive the results within two weeks.

Ritu, the director of DNA Center India in Hyderabad, said her company has seen a clear increase in interest in its DNA paternity tests in recent years. “Initially, we could get around 10 calls a month, but over the last two years or so this has increased to around 40,” said the director, who goes by one name. Not every call leads to an order, she said, but “those who do avail of our services tend to opt for the ‘peace of mind’ home testing kit.”

People have a variety of reasons for ordering paternity tests, but some DNA testing centers say that many clients are doubting fathers or men who are seeking to end a marriage, and it’s this group that worries some advocates of women’s rights. Veena Gowda, a lawyer in Mumbai who has been practicing for over 15 years, contends that these men are using the tests to deprive women of their right to alimony or child support by accusing the women of adultery, which is illegal in India.

“It’s almost as if science is always twisted to suit patriarchal norms,” Ms. Gowda said. “Putting a child through paternity tests without court orders only reinforces the thought that marriage is nothing more than controlling a woman and her womb.”

In the United States, the demand for paternity tests is fueled in part by the Personal Responsibility and Work Opportunity Act of 1996, which gave child-support agencies the authority to order DNA tests without prior judicial consent. State-based child support enforcement agencies remain some of the biggest clients for DNA paternity tests. However, the technology revealed its double edge when men began using it not just to establish paternity but to distance themselves from the burden of child support once they could prove the absence of biological ties.

Indian courts have been circumspect in ordering paternity tests, especially in the death throes of a marriage. Currently, the law places less weight on DNA ties and instead establishes the marital presumption of paternity, which sees the husband as the father of any children conceived during the marriage. Children born during a legal union or within 280 days after a marriage has dissolved are considered the legitimate offspring of the husband, unless the husband can prove that he had no access to his wife during the time the child would have been conceived.

Even when DNA evidence proves a biological tie between a father and child, the courts will still continue to favor longstanding familial relationships over genetics. In the Tiwari case, for example, the DNA test showed that the Congress leader was indeed Mr. Shekhar’s biological father, but the law still considers B.P. Sharma, who was married to Mr. Shektar’s mother when Mr. Shektar was born, as the legitimate father. (Mr. Shektar’s legal battle continues as Mr. Tiwari has refused to accept the results of the DNA test and declined to participate in the court mediation process.)

Rohit Shekhar and his mother Ujjwala Sharma coming out of the Centre for DNA Fingerprinting and Diagnostics laboratory in Hyderabad, Andhra Pradesh.Courtesy of Rohit Shekhar and rediff.comRohit Shekhar and his mother Ujjwala Sharma coming out of the Centre for DNA Fingerprinting and Diagnostics laboratory in Hyderabad, Andhra Pradesh.

Women are generally entitled to spousal support after a divorce, but a paternity test that shows no biological connection to a child can be used by a man to get an exemption from paying alimony and child support. However, lawyers say that courts have on occasion ordered a nonbiological father to offer some financial support to prevent the child from living in poverty and to minimize psychological damage.

The courts have been reluctant to order paternity tests even when the petitioner is the mother. A few years ago, a woman from Orissa approached the Orissa State Women’s Commission asking that a paternity test be conducted after her estranged husband claimed he was not the father of her child. The commission granted permission, and the decision was upheld by the Orissa High Court. The husband challenged the decision in the Supreme Court, arguing that the test was an invasion of his privacy and that the divorce had not been finalized.

In 2010, the Supreme Court ruled that a paternity test to determine the identity of a child especially during matrimonial disputes should not be done in a routine manner because it infringes on the right to privacy and may have a devastating effect on the child. “Sometimes the result of such scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception,” the judges said in their ruling.

Currently, DNA home testing kits are not considered admissible in court because there is no verifiable chain of custody. A court-ordered paternity test has to be conducted in a government-certified forensic center with a chain of custody to ensure that the evidence has not been tampered with.

Private labs do offer more expensive DNA tests that follow a documented chain of custody, which can be presented as evidence in court. Ms. Gouda, who has challenged the legality of such tests in court cases, finds them unethical.

“The authority is with the courts to determine whether a paternity test should be ordered. The principal of the law is to protect the child,” she said.

Women’s rights activists are concerned that as cohabitation without marriage and divorce become more common as Indian society changes, the demand for paternity testing will rise, which they say would ultimately harm the children involved if the courts indiscriminately order DNA tests.

Kanti Sathe, who has been practicing family law in Mumbai for 25 years, predicted that this decade will see more people seeking paternity tests. She said she doesn’t oppose paternity testing in all cases – in fact, such tests could help a child with unmarried parents receive financial support from the father. “Children are entitled to financial support and inheritance from their biological father. What we can count on, and what is always required is judicial discretion.

“What’s being played out in courts is the conflict between encroaching on an individual’s right to privacy and the rights of a child,” said Ms. Sathe.

She recalled one of her recent cases, in which the couple was seeking a divorce, and the husband, unwilling to pay child support, claimed that he was not the father of their child. The matter was resolved outside the courtwhen he backtracked from taking a paternity test. “He accepted that the child was his, and a settlement was reached. Imagine the damage it would have inflicted on the child if our courts insisted on paternity tests for every case,” said Ms. Sathe.

DNA home tests also come with legal pitfalls for the labs themselves. Ravi Kiran Reddy, director of DNA Labs India in Hyderabad, is being sued by the wife of a client who had recently approached the lab for a home paternity test. The test found that there was a 99.9 percent chance that the client was not the father of the child, as he was led to believe. However, the mother is now challenging the result in court and blaming the biotechnology company for tarnishing her reputation, said Mr. Reddy.

“It’s not worth the trouble, really,” he said. “The DNA sequencing machines we use cost crores [tens of millions] of rupees, and genetically testing for parenthood does not even cover the cost of running the laboratory or maintaining the equipment.” The bulk of the forensic center’s work comes from clients asking for their DNA to be sequenced for health reasons and those who need to establish familial ties either for immigration or for an infant born via a gestational surrogate.

This is the sort of legal complication that will occur repeatedly if men are allowed to use these tests to accuse their wives of infidelity, women’s rights advocates say.

“If home testing kits were legally admissible, every person would be under the scanner, every woman be suspect of cheating, and every child’s paternity questioned,” said Ms. Sathe.

Anjali Thomas is a recent graduate of the Columbia University Graduate School of Journalism. Ms. Thomas has worked with the Times of India and Daily News and Analysis in Mumbai.

http://india.blogs.nytimes.com/2013/08/16/indias-doubting-fathers-and-sons-embrace-dna-paternity-tests/

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divorce set aside as HC suspects husband & his co worker!! wife NOT ready to live with husband & his mum-cancer patient. wife claims husb has illicit love for co workr / prjct manager !

divorce set aside as HC suspects husband & his co worker!! wife NOT ready to live with husband & his mum-cancer patient. wife claims husb has illicit love for co workr / prjct manager ! At the HC ablaa naari who has filed many complaints on husband says she is willing to live with hubby !! finally HC suspects that hubby has illicit love affair !! Hubby earning 70000 p.m. many years ago scr3w3d with his divorce being set aside !!

Learning
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* FEMALE office colleague was known to hubby before marriage
* hubby returned home late
* that FEMALE office colleague divorced HER husband !!
* that FEMALE office colleague attends our hero’s sister’s marriage !!
* Gaya case !!

* the honourable court says and we quote "……It is not possible for us to accept the submission of the learned counsel for the respondent that looking to the nature of his duties, he was required to come late at night. Even if that be so, it is always expected from the husband at least to inform the wife on telephone that she may not wait for him for long and he may come late at night or he may not come at all….."

* sad…pathetic situation of matrimony in India !!

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.120 OF 2009
with
CIVIL APPLICATION NO. 174 OF 2009
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Mrs. Deeplakshmi Sachin Zingade ) Age 31 years, occ. Temporary service, residing at ) C/o. Pawaskar Faizal Hasan ) Flat No. D-3/3, Ganga Heights, Pingle Wasti, ) Mundhwa Road, Pune-411 036 )..Appellant
versus
Sachin Rameshrao Zingade, ) Age 33 years, Occ. Service, residing at Flat No. 301-A ) Ganga Garden, Pingale Wasti, Mundhwa Road, ) Pune-411 036 )..Respondent Mr. Uday P. Warunjikar for the appellant.
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Mr. A.B. Avhad for the respondent.
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CORAM: P.B. MAJMUDAR & R.V. MORE, JJ.
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Judgment reserved on : 10 September, 2009
Judgment pronounced on: 24 September,2009
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JUDGMENT: (Per P.B. Majmudar, J.)
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1. Admit. With the consent of the learned counsel appearing for the parties, appeal is taken up for hearing forthwith. Learned counsel for the respondent waives service.

2. This appeal is directed against the judgment and order passed by the learned Judge of the Family Court at Pune dated 29th May, 2009 in Petition No. A-230/2008 by which the learned Judge allowed the petition filed by the respondent and marriage between the petitioner and the respondent therein is dissolved by decree of divorce under Section 13 of the Hindu Marriage Act (hereinafter "the Act"). It is the aforesaid decree of the trial Court which is impugned at the instance of the appellant, original respondent to the said petition.

3. The respondent herein instituted the said petition under Section 13 (1) (ia) of the Act. It is the case of the respondent before the Family Court that the marriage between him and the present appellant was solemnised on 17th February, 2002 at Udgir, District Latur according to Hindi Vedic Rites. After the marriage, the appellant lived and cohabited with the respondent and there is one daughter out of the said wedlock namely Samiksha born on 8th October, 2003. It is the case of the present respondent that the parents of the appellant wanted ghar jamai and insisted that the respondent herein should shift to Latur and live with her parents to which the respondent did not agree. Thereafter, the parents of the appellant shifted to Pune and insisted that the respondent should shift to another house so that the parents of the appellant can live with them. It is also the case of the respondent that the appellant was having grievance about keeping the parents of the respondent with them. According to him, his mother is a cancer patient and his father is suffering from hypertension and heart ailments and, therefore, he cannot leave them. It is also the case of the respondent that the appellant would pick up quarrels everyday and she did not cook food for them and had levelled allegations against father of the respondent. The appellant also made allegations against the respondent that he is having affairs with a female colleague which led to frequent quarrels between them. She threatened even to file false complaint against him and his parents. The appellant also refused to cook the food and she was exhibiting her unhappiness at the time when the sisters of the respondent used to visit their house. It is also the case of the respondent that the appellant did not like any of the friends of the respondent or colleagues of the respondent who visit the house. It is also his case that in October, 2007, the parents of the appellant shifted to Pune temporarily. Mother of the appellant came to live in their house. She occupied the bedroom of the respondent and he was forced to sleep in the living room. It is also his case that on 3rd November, 2007, appellant filed a false case under the Domestic Violence Act and the appellant succeeded in making respondent to take another flat for her to live separately since 10th December, 2007. It is also the case of the respondent that the appellant is serving as a Lecturer in Women’s Engineering College at Pune and earning Rs. 20,000/- per month. On these and such other grounds, the petition for divorce was filed by the present respondent before the Family Court.

4. The aforesaid petition was opposed by the present appellant, who was respondent in the sad petition and a reply was filed by her at Exh. 15. It is the case of the appellant herein before the Family Court that she is cultured, educated and homely woman and that her brother is an Electronic Engineer who is able to take care of her parents. She denied the fact that she was having any desire that the respondent should be a Ghar Jamai and that she is always interested in the joint family and she never even insisted that the respondent should live separately from the parents. It is her case that she has always performed her duties as a wife and daughter-in-law and she is prepared to perform the same in future. It is her case that she was always treated as an outsider by the parents of the respondent. She used to cook food for the family and used to do the household work. In spite of the same, she was blamed by her in-laws. It is her case that she had taken part in making various preparations at the time of the marriage of respondent’s sisters and she also took care of their deliveries. It is her case that she worked for two years after the marriage and at that time she used to hand over the entire salary to the respondent. It is her case that the respondent was having affairs with one Shaila Omprakash Lashkari. The said Shaila is working with the respondent and she is living alone being a divorcee. After the divorce of the said Shaila from her husband, the behaviour of the respondent towards the appellant was changed. He would return home late and some time would not return for the entire night. He would bring Shaila at the matrimonial home and they were sharing the food with each other in the same plate. The respondent was neglecting the appellant and he would go for outing with the said Shaila, leaving the appellant and the daughter alone. It is her case that on 14th October, 2007, the parents of the respondent tried to strangulate her. The daughter after seeing this became speechless for few days. In view of the said incident, the appellant filed a complaint under the Domestic Violence Act and prayed for a separate accommodation. It is also the case of the appellant that the respondent thereafter was coming and meeting the appellant and the daughter and used to stay overnight and in fact they had physical relations also. It is her specific case that it is only because of Shaila that the respondent wants to destroy the family. It is her specific case that she is interested in continuing the marital relations and co-habit with the respondent. On the aforesaid grounds, it is prayed that the petition is required to be dismissed.

5. The learned trial Judge framed various issues and after considering the evidence on record came to the conclusion that the respondent has proved that the appellant has treated him with cruelty. The learned trial Judge accordingly granted decree of divorce. The aforesaid order is impugned at the instance of the appellant-wife in this appeal.

6. Mr. Warunjikar, learned counsel appearing for the appellant, submitted that the learned Judge has completely misread the evidence in coming to the conclusion that the respondent was subjected to cruelty at the hands of the appellant. It is submitted that from the evidence on record it can never be said that the appellant had committed any act of cruelty. On the contrary, the appellant tolerated even the relationship of the respondent with a girl viz. Shaila and even today she is willing to go with the respondent and she is ready to tolerate even the relationship of respondent with the said lady in order to maintain marital relationship as also future of the minor daughter. The learned counsel for the appellant has submitted that from the evidence on record, it is established that the respondent was having intimacy with the said lady and that was the main cause for disputes between the appellant and the respondent. If the appellant was required to file a complaint under the Domestic Violence Act, filing of such complaint in a given case itself cannot be said to be an act of cruelty, unless it is ultimately found that the said complaint is false and bogus, which is not the case herein. Learned counsel further submitted that the said lady Shaila had divorced her husband and thereafter the respondent started behaving badly with the present appellant and was humiliating her in the presence of the said Shaila. It is submitted that if at all there is an act of cruelty, it was on the part of the respondent and not on the part of the appellant. No wife would tolerate any relationship of husband with any other lady in her presence. It is submitted by Mr. Warunjikar that the respondent used to take food in one plate together with the said Shaila. The respondent used to come very late at night and some time he would not come at night. It is submitted that from the evidence it is established that the respondent and the said lady Shaila were chatting on internet regularly and they used to go in the hotel together, leaving the appellant and the daughter alone in their house. It is submitted that the case filed under the Domestic Violence Act is still pending. In that view of the matter, it cannot be said that the appellant has filed any false case and the learned Judge of the Family Court has gravely erred in relying upon the pendency of the said case. It is submitted by Mr. Warunjikar that if filing of such case itself is treated as cruelty, no wife can ever file any case. It is submitted that since out of anger, her in-laws tried to strangulate her that she was forced to file the aforesaid complaint. It is submitted that thereafter even though she is residing in the separate house provided to her, the respondent used to visit her house regularly and they were having physical relationship as well. Mr. Warunjikar submitted that today also appellant is willing to go and reside with the respondent.

7. Learned counsel for the respondent submitted that the Family Court has rightly appreciated the evidence on record and has rightly passed the decree for dissolution of the marriage. The learned counsel further submitted that in view of the nature of the work, the respondent often required to come after mid- night. That is not enough for the appellant to make any grievance in this behalf. It is submitted that false allegations were made against the respondent under the Domestic Violence Act. It is submitted that she used to have quarrel with his parents regularly and she made false allegation about strangulation attributed to his parents. It is submitted by the learned counsel for the respondent that the appellant is not willing to stay with his parents. It is further submitted that so far as girl Shaila is concerned, she is a family friend and, therefore, simply because she is coming regularly at the matrimonial house where the appellant and the respondent are staying with the parents of the respondent, it cannot be presumed that the respondent was having any relationship with the said lady. Learned counsel submitted that simply because the said lady is working along with the respondent, it cannot be presumed that the respondent is having any type of relationship with the said lady.

8. During the pendency of this appeal, an attempt was made for settlement and the appellant and the respondent both had agreed to go together to Pune where both of them are residing. However, learned counsel appearing for the appellant submitted that though both of them travelled together in the train, at Pune Station the respondent refused to take the appellant at his house. The learned counsel for the respondent has also not disputed this fact. The matter, therefore, could not be settled and,therefore, now the Court is required to consider as to whether from the evidence on record, the act of cruelty can be said to have been established.

9. We have also gone through the oral and documentary evidence on record submitted by the learned counsel for the parties, heard the rival contentions of the parties and have gone through the impugned judgment and order of the learned trial Judge.

10. Examination-in-chief of the respondent in the form of affidavit was tendered at Exh. 22. He has reiterated the averments made in the application. In his affidavit he has stated that since one year the appellant has refused to have any physical relations with him and that whenever any of the friends or colleagues of the respondent visit the house, the appellant was insulting them and used to say that the appellant is having worthless friends. She used to enquire from his friends as to whether the respondent is having any women employees in his Company and she used to check up from the office of the respondent as to whether he was in office or had gone out with some woman. She used to enquire as to whether the respondent was regularly coming for work and was having any affair with other woman. In his affidavit he has averred the same thing which he has stated in his petition.

11. The respondent was cross-examined by the present appellant. In para 25 of his cross-examination he has admitted the fact that Shaila is his colleague working with him and she is working as a Associate Project Manager along with him. In his cross-examination he has stated that at present she is a divorcee. However, he has denied the suggestion that in the presence of the present appellant, he has taken Shaila very close to him. He denied the suggestion that she visited the house for about 100 times. He admitted the fact that he had told the appellant that she is his friend. He, however, denied the suggestion that he had brushed his fingers in her hair in the presence of the present appellant. In para 27 of his cross-examination he has admitted the fact that at the time of marriage he was working with Versaware Technology, Koregaon Park, Pune. He left the said Company in October, 2003. Shaila was also working with him in Versaware Technology and she changed her job and thereafter the respondent also changed his job. He has also stated in his cross-examination that her two sisters married after his marriage and Shaila also attended the said marriage. He has admitted the fact in para 26 of his cross-examination that the child was born about one and half years after the marriage and during the initial period of pregnancy the appellant was working. The respondent has also admitted the fact that he had been to U.S.A. in the year 2005. One Gouri Joshi was his boss at that time. He denied the suggestion that the appellant has never telephoned to the said Gouri Joshi and the said Gouri Joshi also stated that Shaila was not with him in U.S.A. He has denied the suggestion that as he wanted to marry Shaila that he is taking divorce from the appellant. In his evidence he has stated that he is getting Rs. 70,000/- as his salary.

12. The appellant also filed her affidavit in lieu of examination-in-chief at Exh. 31 wherein an averment has been made in connection with the relationship of respondent with Shaila. She has also narrated about the ill- treatment meted out to her by her in-laws. In the cross-examination she has admitted the fact that she has filed a complaint under the Domestic Violence Act before the Cantonment Court, Pune. She has admitted the fact about the alleged relationship of respondent with the said Shaila. She has admitted the fact in her cross-examination that she had not withdrawn the complaint filed under the provisions of the Domestic Violence Act before the Cantonment Court, Pune, and the same is still pending. She has stated that they were living in a joint family consisting of parents and sisters of the respondent and that she loves and respects her in-laws and sister-in-law. A question being put to her in the cross- examination as to whether it is possible for her to renew her relationship with the parents of the respondent. She, however, gave answer that she is not willing to live an animal life.

13. From the evidence on record it is clearly established that the respondent was having relationship with one Shaila prior to the marriage. The said Shaila thereafter married but gave divorce to her husband within short period of her marriage. It is the specific case of the appellant that the relationship between the appellant and the respondent started worsening after the divorce of the said lady Shaila. It is required to be noted that initially for some time the appellant and respondent were going on well and in fact a girl child was born out of the said wedlock after one and half years. The relationship strained after the said Shaila obtained divorce from her husband. It is as such not disputed by the respondent that he used to come late practically at mid night. A housewife would normally expect her husband to be at home within reasonable time at night. In fact, in a given case, such type of conduct on the part of the respondent itself amounts to cruelty to the wife. In our view, if the husband regularly comes late at night after midnight any wife can have reasonable apprehension about the character of her husband. It is not possible for us to accept the submission of the learned counsel for the respondent that looking to the nature of his duties, he was required to come late at night. Even if that be so, it is always expected from the husband at least to inform the wife on telephone that she may not wait for him for long and he may come late at night or he may not come at all. The appellant herein after delivering the child did not receive proper attention from the in-laws which can easily be presumed from the circumstances of the case. At one point of time, learned counsel for the appellant tried to suggest that because a girl child was born that the attitude of her in- laws was changed. However, on this aspect, it is not possible for us to say anything as there is no satisfactory evidence on record produced by the appellant in this behalf. As per the evidence, after the divorce of Shaila with her husband, that the respondent started behaving in a different manner towards the appellant. The fact that the appellant was required to wait upto midnight for arrival of her husband at home without any information can be an act of cruelty on the part of the husband to the wife. In the facts and circumstances of the case, if the appellant was making an enquiry about the whereabouts of her husband and when she is having reasonable apprehension that he is in the company of somebody else, there is nothing wrong on the part of the wife to make enquiries from the colleagues of her husband. There is no reason for the wife to make false allegations as it is not in dispute that the respondent was having friendship with the said lady Shaila. It is the case of the appellant that even in her presence, the respondent and said Shaila used to take snacks from one plate and naturally the appellant felt humiliated as no lady would tolerate presence of other lady taking liberty with the husband in her presence. It is nothing but a humiliation to the appellant wife. It is true that the respondent can have a lady friend. He has stated in his evidence that she was his friend but to bring the lady at the matrimonial home and behave in a particular manner in the presence of his wife, in our view, cannot be a justifiable act on the part of the husband. It is not the law that even if the wife makes any legitimate grievance or complaint or even or pick up quarrel on a justifiable ground, then also it amounts to cruelty to the other side. Either husband or the wife are entitled to point out their legitimate grievance before each other and even if there is some exchange of words, it cannot be treated as an act of cruelty. In the instance case, from the facts and circumstances and evidence on record, we are of the view that the appellant was justified in making necessary enquiries about her husband as he was not often coming home upto mid night from the office.

14. In her affidavit of evidence, the appellant has stated that she tried to cooperate with the family members and in fact she had taken great interest at the time of marriage of her sister-in-laws. In her affidavit of evidence, she has stated as under in paras 2 to 4.

"2. I have complied with responsibilities of a wife and a daughter-in-law very good on shifting with in-laws and am ready in future also. I have respected the in-laws properly and have treated them as parents. But the in-laws never treated me properly as Laxmi for house, but has treated me as a third person. In-laws have always treated me worstly. I have complied with all house responsibilities properly. I was looking after all family members with cooking and cleaning, w.c., bath room. I was serving all their favourite dishes, since i like cooking. And I was providing morning breakfast, tiffin for applicant. Also 2 sisters of applicant married after marriage of applicant, when I have looked after them properly during marriage and visit for delivery.

3. I was working for about 2 years after marriage. But I have never ignored my duty during working also. I was leaving to work on cooking for all family members and looking after other business, so that my mother-in-law should not require to do same works. But the in-laws were blaming me, when I was looking after all business. Also I was allowed to work on condition to handover all salary to in-laws. I was handing over my monthly salary to in-laws. So the applicant did not require to spend for his parents.

4. Applicant has a girl friend Shaila Omprakash Lashkari prior to the said marriage. Said lady is working with applicant in his office and residing alone. Applicant had told me after marriage that said lady is his good friend and actually she wanted to marry her, but it could not succeed due to some reason. Said Shaila Omprakash Lashkari married to Amit Choudhary after about 2 years after marriage of applicant and myself. But then I learnt from applicant about Shaila Lashkari divorced in about a year only. But the behaviour of applicant changed on divorce of said Shaila Lashkari. Applicant was returning home late or severely he was returning home next day directly without returning home the whole night. Also he was bringing home Shaila Lashkari, eating in a dish with her, moving hands from her hairs, talking to her with ignoring me and then was moving to drop her at home in the late night, etc. Also applicant was talking for hours over internet chating or mobile with Shaila Lashkari. Also applicant was taking Shaila Lashkari for tour or in hotel with keeping me and our daughter in home severally. I requested the applicant severally not to contact the said lady and he is required to look after his daughter now and tried to tell to look for daughter future but the applicant was beating me on threatening on my talking about said lady. But I was and is thinking today not to spoil life due to the said third lady and it should not affect adversely n the daughter life, hence I acted nothing legally."

15. Nothing substantial has been brought out from the cross-examination regarding the above evidence. Considering the said aspect, the allegation of the wife about relations of the respondent-husband with the said lady Shaila, itself can be treated as an act of cruelty on his part.

16. So far as filing of the case under the Domestic Violence Act is concerned, the learned Counsel for the appellant submitted that because of the ill-treatment and acts of incidents out of anger at the hands of in-laws, she was subjected to strangulation which forced her to file the complaint. Except this solitary criminal complaint, she has not filed any other complaint. It is required to be noted that the said case is still pending. The competent court has not found that it is a false complaint. In our view, filing of the complaint itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint. The said complaint has not yet been decided and is still pending. When the said case is pending before the competent court, the learned trial Judge should not have given so much weightage about the factum of filing of such complaint and trying to find out as to whether the allegations in the said complaint are correct or not. If ultimately the said complaint is dismissed, naturally one can presume that the wife is guilty of filing false cases and making reckless allegations against the husband. When the Act permits the wife to approach the Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case a lady can file any complaint, if the filing of complaint is to be treated as an act of cruelty. Simply because the wife in her cross-examination admitted that she did not want to live an animal life and that she is not interested in marital life, one cannot jump to a conclusion that the wife is at wrong. A wife is also entitled to have her own freedom after marriage. In the instant case, even during the time of pregnancy, she was serving and was required to do household work after coming from the office. It is the case of the appellant that she was never treated as a family member of the respondent or her in-laws. The allegation regarding strangulation made by the appellant against the father-in-law is the subject matter of case under the Domestic Violence Act. The learned trial Judge, in our view, has gravely erred in coming to the conclusion that since there is no police complaint filed by her or medical report regarding strangulation and that being a serious allegation, the genuineness of the said case cannot be believed. Whether the allegation is false or not is a matter of investigation before other competent court. In our view, the learned trial Judge has erred in holding that if the appellant was subjected to inhuman treatment being an educated lady she would file police complaint and would go for medical examination for herself.

17. Regarding allegation about illicit relationship of the respondent with Shaila, the learned trial Court has observed in paras 44 and 45 thus: "44. Respondent has in her cross examination has reconfirmed that in her complaint under Domestic Violence Act she has alleged that petitioner has illicit relations with Shaila Lashkari. She has alleged against the character of petitioner. Petitioner has beaten her, mentally and physically harassed her. She admits that she has alleged serious allegations against the character of Shaila Lashkari in relation to the petitioner. Besides her bare words, she has no other evidence to show the alleged relationship between petitioner and Shaila. She has deposed that she has seen with her own eyes. Respondent has further deposed in the cross examination that the flat consisted of 2 bedroom, hall, kitchen. Total there were 7 members residing in the flat.

45. Considering these facts on record, admittedly, petitioner has not examined any witnesses but on the other hand there is a positive assertive allegation of the respondent that petitioner has illicit relations with Shaila Lashkare hence, in all probabilities, she would be on suspicion trying to make enquiries about the petitioner from his friends and colleagues. She would hence be calling his office to find out if the petitioner is moving around with Shaila Lashkare. Admittedly, Shaila is an old good friend of the petitioner. She has been visiting the house, attending the marriage of the sisters of the petitioner in the year 2004. Respondent is aware of it. She was married and has also been divorced. It is the case of the respondent that after the divorce of Shaila, there was a change in the behaviour of petitioner. The allegations made by her about eating in one plate, petitioner brushing his fingers in her hand, go for outings and restaurants are after the divorce of Shaila or even before is not been mentioned by the respondent. Secondly, if Shaila is in the house, then there are the parents of the petitioner also in the house, could it be said that he in there presence was behaving as alleged. It is not the case of the respondent that the parents of the petitioner have supported and encouraged the petitioner to have illicit relations with Shaila Lashkare. Respondent has not supported her vague and general contentions with any corroborative evidence. Respondent either out of suspicion or out of jealousy appears to have alleged such baseless and reckless allegations."

18. In our view, when it is not in dispute that the respondent used to come late at night, that in her presence the respondent and the said Shaila used to share food from the same plate and when the respondent himself admitted the fact that the said Shaila is his friend and on the basis of said circumstances if the appellant has doubted the relationship, it cannot be said that such doubt was without any basis. It is too much, in our view, to hold that out of jealousy perhaps such reckless allegations have been made. In such type of matters, there may not be any independent witnesses present but the appellant can be said to be the best witness because the wife is required to spend more time and is required to know details of the husband more minutely than anyone else in the family. The learned trial Judge has also found on appreciation of evidence that the allegation of the respondent that the parents wanted a ghar jamai is false. The learned trial Judge also found that lodging a complaint with Stree Adhar Kendra by the appellant does not mean that the respondent and his family members are defamed. The learned Judge also held that a woman look for various sources or women organisations to seek support and resolve their disputes. The learned trial judge in our view has erred in going in detail about the complaint filed under the Domestic Violence Act for coming to the conclusion that there is a contradiction in the allegations of the appellant in her complaint under the Act and her admission in the cross-examination. In para 58 of the order, the learned trial Judge found that there are allegations and counter allegations but the submission of the advocate for the respondent is corroborated by the allegations made by the appellant in her complaint under the Domestic Violence Act.

19. It is required to be noted that in spite of the aforesaid fact the appellant, in order to save her matrimonial home as well as for the benefit of their daughter has submitted that she is willing to go and reside with the husband and she is even ready to tolerate his relationship with other lady. It may not amount to an act of cruelty which can be attributed to the wife. In a given case, if the circumstances so warrant, wife may have some suspicion about the act and behaviour of her husband. In a given case, if the wife is having some suspicion, that itself may not amount to an act of cruelty as the act of cruelty depends upon the facts and circumstances of each and every case. In a given case if ill-treatment is meted out by in-laws and when the law has provided remedy, there is nothing wrong if a complaint to that effect is filed even against in-laws. That ground itself should not be taken as the basis for dissolving the marriage. As argued by the learned counsel for both sides, the basic dispute was in connection with the respondent’s so-called relationship with Shaila but, as discussed earlier, from the facts of the case it is established that the respondent was having said lady as girl friend prior to marriage. According to the appellant in her presence she was subjected to humiliation. It cannot be said that her suspicion or doubt was without any basis worth the name and that only by way of jealousy that she was making such allegation. After marriage, no wife may tolerate the company of other lady friend in her husband’s life and wife may have reservation about such friendship after the marriage. Normally, a husband and wife after the marriage is required to see that the peace at the matrimonial house prevails and one should try to remove the grievance of other side and if one is required to sacrifice something, in order to bring peace in the matrimonial home one should act accordingly. After the birth of a child, it is the bounden duty of the husband and wife to see that even if at the cost of some inconvenience they should try to adjust with the nature of each other and even try to surrender to the wishes of either side. Then only the matrimonial house can run smoothly with some jerks here or there.

20. From the evidence on record, we are of the opinion that this is not a fit case in which the marriage between the appellant and the respondent is required to be dissolved by passing a decree for divorce on the ground of alleged cruelty attributed to the appellant by the respondent. The order of the learned trial Judge is therefore required to be quashed and set aside and accordingly the same is set aside and the petition filed by the respondent before the Family Court stands dismissed.

21. The appeal is accordingly allowed with no order as to costs.

22. In view of the above order, no orders are required to be passed in the Civil Application. The same is accordingly disposed of.

P. B. MAJMUDAR, J.

R.V. MORE, J.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC / MUMBAI HC WEB SITE
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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

DV + residence order granted and affirmed EVEN if husband ONLY inherited house. Mother & nominee selling house NOT valid / NOT accepted by HC !! house was in dad’s name & Husband’s Father died intestate!! :-( .

DV + residence order granted and affirmed EVEN if husband ONLY inherited house. Mother & nominee selling house NOT valid / NOT accepted by HC !! house was in dad’s name & Husband’s Father died intestate!! 😦 . Husband files divorce petition, Full package of 498a, 34 IPC, + DV etc filed by ablaa Naari wife … Residence order AFFIRMED by honourable HC . Husband also asked to pay rs 25000 costs to wife

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Notes
******************
* Full package of 498a, 34 IPC, + DV etc filed by ablaa Naari wife "….. The continuous acrimony between them resulted in matrimonial discord, leading to divorce petition by the husband on the ground of mental cruelty being Petition No.A-113/2007 and criminal complaint under Sections 498-A, 306 read with Section 34 of the Indian Penal Code by the respondent-wife against the petitioner-husband……."
* husband tries saying house is in the name of mother…"……opposed by the petitioner-husband, on the various grounds, contending that the subject flat is in the name of his mother…."….also "…Respondent comes from a rich family and that she is not in need of residential accommodation….."
* wife shows society regn in the name of husband’s dad and dad had died intestate (without will)
* so husband automatically gets a share
* Lower court grants residence order in favour of wife
* husband and co go on appeal
* appeal rejected by HC.
HC says wife can get resid order and does NOT accept the sale by husband’s mother "…..15. The contention of the petitioner that, the subject-flat was owned by his mother, as such, the petitioner had no right, title or interest in the subject-flat and that the it has already been sold by his mother under a sale deed, dated 2.1.2008 executed, in favour of Mr Abdur Rashid Abdul Hakim, cannot be accepted for the reasons stated hereinafter…..!
* however As far as I can see , lower court has NOT granted her injunctions or has NOT stopped others in family from entering their own house !! (what a pathetic state) …."….and in turn rejected prayer of respondent-wife to prevent the petitioner’s mother and sister from entering ….."

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 5730 OF 2008.
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Rajkumar Rampal Pandey Aged
about 30 years, Occu Service,
R/o Room No. 6/231,
Maharashtra Housing Board,
Chunnabhatti, Mumbai-22. .. Petitioner.

Vs.

Sarita Rajkumar Pandey Aged
about 26 years, Occ.
Housewife, R/o A/11, Tulsi
Baug Bldg. Chandavarkar
Cross Road No.1 Borivli
(West), Mumbai 400 92. .. Respondent.
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Mr S. B. Shetye, Advocate for the Petitioner.
Mr A. A. Walwaikar, Advocate for the Respondent.
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
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CORAM: V. C. DAGA, J.
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DATED: 26. 08. 2008.

JUDGMENT:

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1. Rule, returnable forthwith. Heard finally by consent of parties. Perused the petition.

2. This petition, filed by petitioner-husband under Article 227 of the Constitution of India, is directed against the order dated 29.7.2008 passed below Exh. 10 in Petition No. A-113 of 2007 by the Principal Judge of the Family Court, Bandra, Mumbai whereby the petitioner, his mother, sister, other relatives, servants and agents are restrained from obstructing the respondent-wife to reside in a shared household.

FACTUAL MATRIX:
******************************************
3. The petitioner and respondent got married on 18.5.2001. The Petitioner is working as marketing executive. Sometime in the month of February, 2004, the respondent-wife joined the Petitioner and started residing with him in the shared household. The continuous acrimony between them resulted in matrimonial discord, leading to divorce petition by the husband on the ground of mental cruelty being Petition No.A-113/2007 and criminal complaint under Sections 498-A, 306 read with Section 34 of the Indian Penal Code by the respondent-wife against the petitioner-husband.

4. The respondent-wife moved an application before the Family Court, Bandra under Section 26 of the Protection of Women from Domestic Violence Act, 2005 ("the Domestic Violence Act" for short) to seek declaration that she has a right to reside in the shared house i.e. residential flat No.A- 102, "Om Adarsh Co-op. Housing Society Ltd. Deonar," Gowandi (hereinafter called the "subject-flat") and decree of permanent injunction restraining respondent-husband, his mother and relatives from evicting, dispossessing and/or excluding the respondent-wife from the subject flat is said to be a shared household.

5. The aforesaid application was opposed by the petitioner-husband, on the various grounds, contending that the subject flat is in the name of his mother. The another flat situate at "Parnakuti, Chunna Bhatti" is in the name of his grandfather, occupied by his aunt and other relatives. In short, he denied his interest in the subject-flat. He has also challenged the maintainability of the subject application and prayed for rejection thereof.

6. The Family Court, after hearing both parties, was pleased to partly allowed the application with the result the petitioner-husband and all relatives were permanently restrained from committing any act of domestic violence and in turn rejected prayer of respondent-wife to prevent the petitioner’s mother and sister from entering in the shared household.

7. Being aggrieved by the aforesaid order,to the extent it is adverse to the petitioner, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India as stated hereinabove.

RIVAL CONTENTIONS:-
******************************************
8. The learned counsel appearing for the Petitioner urged that the application under Section 26 of the Domestic Violence Act was not maintainable and that the subject-flat cannot be termed as the shared household. He submits that the petitioner’s father was an employee of the Bombay Municipal Corporation as a primary teacher. He formed one Co-operative Housing Society under the provisions of the Maharashtra Co-operative Societies Act, 1960 ("the M.C.S.Act" for short). The Bombay Municipal Corporation was pleased to allot one plot of land to the said Society. The members of the said Society constructed tenements on the said plot of land. The petitioner’s father was one of the members allotted with one such tenement referred herein as subject flat. He expired on 27.5.2001. After his demise, the subject flat was transferred in the name of his widow i.e. the petitioner’s mother being a nominee. He further submits that the subject-flat stands in the name of the petitioner’s mother as such subject flat cannot be said to be the shared household. He further submits that his mother is not a party to the proceeding in the Family Court. As such, the impugned order could not have been passed affecting her interest, that too, behind her back. He further submits that the Respondent comes from a rich family and that she is not in need of residential accommodation. He further went on to submit that the subject-flat has, now, been sold by his mother vide sale deed dated 2.1.2008 to one Mr Abdur Rashid Abdul Hakim. As such, no injunction in respect of the subject-flat styling it as the "shared household" could have been granted. The petitioner has also filed an affidavit of his mother wherein she is claiming to be the owner of the subject flat and states on oath that she has transferred, assigned and relinquished all rights, title and/or interest in respect of the subject-flat in favour of the purchaser and that she is not in possession thereof.

9. The petition is strongly opposed by the learned counsel for the respondent-wife and supported the impugned order on facts and law both.

STATUTORY PROVISIONS:
******************************************
10. Before embarking upon the rival submissions it is necessary to note that the Domestic Violence Act was enacted on 13th September, 2005 to provide more effective protection of the rights of women, guaranteed under the Constitution, who are victims of violence within the family and to deal with the matters connected therewith or incidental thereto. The purpose of the Act is to provide remedy in the civil law for protection of women from being victimised by domestic violence and to prevent the occurrence of domestic violence to the society.

11. With the aforesaid aim and objects of the Domestic Violence Act, now, let me turn to the provisions of the Act relevant for the decision of this petition.

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

SECTION : 19. Residence orders.
******************************************
(1)While disposing of an application under subsection (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a) ..

(b) ..

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

26. Relief in other suits and legal proceedings:-
******************************************
"(1) Any relief available under sections 18, 19, 20,21, and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in subsection (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."

12. Reading of the aforesaid provisions would go to show that Section 26 provides that any relief available under Sections 18, 19, 20, 21 and 22 can also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent; whether such proceeding was initiated before or after the commencement of this Act.

13. It is, therefore, clear that a relief available under Section 19 of the Domestic Violence Act can also be claimed under Section 26 of the Act. Section 19 (1) (c) provides that a court can restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. Section 19 (1) (a) provides that the order restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household, can be granted.

CONSIDERATION:
******************************************
14. Having heard both parties and having examined the statutory relevant provisions, it is not possible to accept the contention of the petitioner that the application under Section 26 moved by the respondent-wife, was not maintainable.

15. The contention of the petitioner that, the subject-flat was owned by his mother, as such, the petitioner had no right, title or interest in the subject-flat and that the it has already been sold by his mother under a sale deed, dated 2.1.2008 executed, in favour of Mr Abdur Rashid Abdul Hakim, cannot be accepted for the reasons stated hereinafter.

16. The learned counsel appearing for the Petitioner was fair enough to produce the photo copy of the sale deed dated 2.1.2008 executed by the mother of the Petitioner for the perusal of the Court. The said sale deed is not a registered document. It is scribed on the stamp paper of Rs.100/-. It is insufficiently stamped. It refers to a payment of consideration by cheque dated 1.2.2008. However, there is no material on record to show encashment of the said cheque. Insufficiently stamped and unregistered sketchy sale deed, without relevant recitals, leads me to draw an inference that the said deed is a bogus document of sale brought into existence just to defeat the right of the present respondent-wife and to get over the impugned order passed by the Family Court. The alleged sale deed did not extinguish the right, title and interest of the vendor in the subject flat. Title did not pass over to the alleged purchaser. The alleged sale deed is inadmissible in evidence. The purported sale deed dated 2.1.2008 does not create any right, much less right, title or interest in favour of Mr Abdur Rashid Abdul Hakim. As stated herein, the title still vests with the original owner.

17. Now, let me examine the question: whether the petitioner husband has any interest in the subject flat so as to bring it well within the sweep of a shared household?

18. The learned counsel for the petitioner has produced the share certificate issued by the Co-operative Housing Society in whose building subject flat is located. The share certificate is in the name of Rampal Rajaram Pandey i.e. father of the petitioner (since deceased). With the death of Rampal Pandey the said flat stood inherited by the Petitioner and his mother with other legal heirs, if any. The nominee does not become owner of the property. Nominee holds property for the benefit of the heirs. The petitioner’s son is one of the legal heirs having interest in the subject-flat by virtue of inheritance. He is not a party to the alleged transaction of sale. Consequently, it has to be treated that he still has a interest in the subject-flat. The subject-flat, thus, can be treated as the shared household, wherein admittedly, the respondent-wife lived in a domestic relationship with the petitioner.

19. At this stage, it is relevant to mention that during the course of hearing a misleading, rather false, statement was made stating that the share certificate issued by the Society was in the name of the mother of the petitioner. The statement was found, factually, incorrect. It is, thus, clear that every attempt was made by the petitioner to defeat the legitimate right of the respondent-wife.

20. Having said so, having examined the well reasoned impugned order, the Family Court has rightly held that it had jurisdiction to entertain the application and that the respondent-wife has made out a prima facie case for grant of order in her favour. That is how, the impugned order was passed by the Family Court impugned in this petition.

21. The learned counsel for the petitioner placed heavy reliance on the judgment of the Apex Court in the case of S. R. Batra and Anr v. Taruna Batra (Smt) (2007) 2 Supreme Court Cases (Cri) 56. 56 In thE said judgment the shared household was neither belonging to husband – Amit Batra nor it was taken on rent by him. It was not a joint family property of which husband Amit Batra was a member. It was in the exclusive possession of Appellant No.2, mother of Amit Batra, hence, it was held that such an accommodation or house cannot be called as a shared household. So far as the case in hand is concerned, the petitioner-husband has undivided interest in the house after death of his father. His father died intestate. Consequently, the flat was inherited by the petitioner-husband along with other heirs. The alleged transaction of transfer is nothing but a bogus transfer brought about to defeat the claim of the respondent-wife.

22. In the above view of the matter, the petition is liable to be dismissed. In view of the false and misleading statement made by the petitioner coupled with the act of preparing a bogus document to defeat the claim of the respondent mere dismissal of the petition will not serve the ends of justice. The petition is, thus, dismissed.

Rule stands discharged with costs quantified in the sum of Rs. 25,000/- to be paid by the petitioner to the respondent-wife within four weeks from today.

Order accordingly.

(V. C. DAGA, J.)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Which orders appealable & which aren’t under DV Act. Case where wife stops paying her loan portion & files DV on hubby !!

Which orders appealable & which aren’t under DV Act. Case where wife stops paying her loan portion & files DV on hubby !!

Notes

****************
* husband and wife borrow to buy a house#
* wife just stops paying and coolly files DV case on husband
* lower court provides protection order to wife
* husband starts asking 2…why protection order ?/..", "… I never stopped her from entering the house …" !!!, "…all that happened was that she was NOT PAYING HER PORTION OF THE INSTALLMENT !! …"
* quoting from the order we see "…the said flat is purchased in the joint name of the petitioner and the 2nd respondent, the loan taken by them for acquiring the said flat was being repaid only by the petitioner and there is no contribution forthcoming from the 2nd respondent for repayment of the loan. Without prejudice to his rights and contentions, he submitted that if the 2nd respondent gives consent for selling the said flat, another accommodation can be made available elsewhere to the 2nd respondent……"
* somehow the bench and bar DO NOT seem to be worried about this issue
* they go about discussing what is appelable and what is NOT appealable !!
* in summary the honourable court orders as follows
"………….(i) An appeal will lie under section 29 of the said Act against the final order passed by the learned Magistrate under sub-section 1 of section 12 of the said Act; (ii) Under sub-section 2 of section 23 of the said Act, the learned Magistrate is empowered to grant an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act. The power under sub-section 1 is of granting interim relief in terms of sections 18 to 22 of the said Act. Before granting an interim relief under sub-section 1, an opportunity of being heard is required to be granted to the respondent. (iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief. (iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties…….."

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2218 OF 2007
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Mr.Abhijit Bhikaseth Auti .. Petitioner
Vs.
State of Maharashtra & Anr. .. Respondents
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Mr.U.P.Warunjikar with Mr.Nites V. Bhutekar for the petitioner.
Mr.D.P.Adsule, A.P.P for the State.
Mr. S.S.Kulkarni with Mr.Sachin P. Chavan for the respondent No.2.
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CORAM : ABHAY S.OKA, J.
DATE : 16th September 2008.
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ORAL JUDGMENT:

The submissions of the learned counsel appearing for the parties were heard on the last date. Following questions arise for consideration in this petition: (i) Whether an order passed on an application made under section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the said Act") is appelable under section 29 of the said Act?

(ii) Whether an appeal will lie under section 29 of the said Act against every order passed by the learned Magistrate in proceedings initiated on the basis of an application made under section 12 of the said Act?

(iii) What is the scope of an appeal under section 29 of the said Act?

Apart from aforesaid questions, there are factual questions arising in this petition.

2. The 2nd respondent is the wife of the petitioner. The marriage between the petitioner and the 2nd respondent was solemnised on 22nd April 2004. According to the case made out by the 2nd respondent, after marriage, she stayed alongwith the petitioner in Flat No.B-10, Rambaug Colony, Kothrud, Pune. As the 2nd respondent found it inconvenient to attend to her duty by residing at the said premises, a flat being Flat No.B-13, Yashganga Residency, near Trimurti Hospital, Dhayari Phata, Pune was jointly acquired by the petitioner and the 2nd respondent. It is this flat which is the subject matter of dispute in this petition which is hereinafter referred to as "the said flat". It appears that there was a matrimonial dispute between the petitioner and 2nd respondent. The 2nd respondent filed an application under section 12 of the said Act before the learned Judicial Magistrate First Class, Court No.4, Pune seeking protection order under section 18 of the said Act. The prayer in the said application is that the petitioner should be prohibited from committing any act of domestic violence and also from causing any kind of alienation of the said flat and from causing any disposition of the said flat or any encumbrance thereto and from preventing the 2nd respondent from having access to and fro to the said flat and enjoying the said flat as a residence. A prayer was also made for restraining the petitioner from preventing the enjoyment of the 2nd respondent of the said flat as a shared household. A relief was also sought under section 19 of the said Act.

3. An application was made by the 2nd respondent in the main application under section 12 of the said Act praying for grant of interim relief in respect of said flat. The said application was opposed by the petitioner by filing a reply. The petitioner filed a combined reply to the main application as well as to the application for interim relief. The said application was partly allowed by the learned Magistrate by order dated 01st March 2007. The prayer made for interim relief as regards residential accommodation was rejected and a limited relief was granted preventing the petitioner from alienating the stridhan in his possession. The 2nd respondent preferred an appeal under section 29 of the said Act. By impugned judgment and order dated 15th October 2007, the appeal was partly allowed by the Sessions Court. The relevant part of the operative order read thus:

"[3] The appellant/original applicant- Smt. Nisha Abhijit Auti is entitled to reside in Flat No.B-3, Yashganga Residency, Near Trimurti hospital, Dhayari Phata, Pune, during the pendency of the criminal proceeding.

[4] The respondent No.1/opponent-husband is restrained from dispossessing or disturbing the possession of the appellant/applicant-wife from the share household i.e- the said flat, during the pendency of the main proceeding.

[5] The respondent No.1/opponent-husband is further restrained from creating any encumbrances or third party interest in the said flat during the pendency of the main proceeding.

[6] The officer in charge of the nearest police station within the jurisdiction of which the said flat lies is directed to give protection and assistance to the applicant-wife while implementing this order."

4. The learned counsel appearing for the petitioner has taken me through applications filed by the 2nd respondent and the orders passed by the learned Magistrate as well as by the Sessions Court. He pointed out that in the reply filed by the petitioner there was a categorical assertion that the petitioner never denied the residential accommodation of the said flat to the 2nd respondent and therefore there was no occasion to grant any interim relief in respect of said flat. The learned counsel for the petitioner pointed out that though the said flat is purchased in the joint name of the petitioner and the 2nd respondent, the loan taken by them for acquiring the said flat was being repaid only by the petitioner and there is no contribution forthcoming from the 2nd respondent for repayment of the loan. Without prejudice to his rights and contentions, he submitted that if the 2nd respondent gives consent for selling the said flat, another accommodation can be made available elsewhere to the 2nd respondent.

5. He submitted that no appeal will lie under section 29 of the said Act against an interlocutory order and hence the appeal preferred by the 2nd respondent was not maintainable. He has placed reliance on several decisions of this Court and Apex Court in support of his submissions. His submission was that only against a final order passed by the learned Magistrate on application under section 12 of the said Act, an appeal will lie under section 29 and the order dated 01st March 2007 passed by the learned Magistrate being purely an interlocutory in nature, the appeal itself was not maintainable. In any event, he submitted that there was no occasion to grant interim relief in respect of the said flat and no case was made out for granting any interim protection.

6. The learned counsel appearing for the 2nd respondent submitted that under section 29 of the said Act, an appeal was maintainable against every order passed under the provisions of the said Act. He submitted that an appeal will lie even against an interim order passed under section 23 of the said Act. He submitted that interim order passed under section 23 cannot be treated as purely an interlocutory order and infact such orders are orders of moment affecting the rights of the parties. He submitted that the decisions relied upon by the counsel for petitioner and especially the decision of the Division Bench of this Court under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will have no application as the scheme of the said Act is totally different. He pointed out the objects and reasons of the said Act. He invited my attention to the scheme of the entire Act and submitted that no interference was called for. He also stated that the order impugned has been already acted upon.

7. I have carefully considered the submissions. The object of the said Act is to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

8. Section 3 of the said Act defines domestic violence. The definition of domestic violence is very wide and apart from other aspects it encompasses within itself physical abuse, verbal abuse, sexual abuse, emotional abuse and economic abuse. Section 12 forming part of Chapter IV of the said Act provides for an application being made by an aggrieved person or a protection officer or any other person on behalf of aggrieved person. The application is maintainable before a Judicial Magistrate First Class or a Metropolitan Magistrate as the case may be. Aggrieved person as defined by clause (a) of section 2 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. Sub-section 3 of section 12 provides that every application under sub- section 1 shall be in such form and contain such particulars as may be prescribed. The Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as the said Rules) have been framed under the said Act. Rule 6 and 7 are the relevant rules which lay down the procedure.

The said rule 6 and rule 7 are as under:

"6.

6. Application to the Magistrate:-

(1) Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III.

(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).

7. Affidavit for obtaining ex-parte orders of Magistrate:- Every affidavit for obtaining ex-parte order under sub-section (2) of section 23 shall be filed in Form III."

9. Form II of the said Rules incorporates a format of the application under sub section 1 of section 12. The format requires that the nature of reliefs sought shall be incorporated in the application. Sub rule 5 of rule 6 provides that an application under section 12 shall be dealt with and the orders passed thereon shall be enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The procedure which governs an application under section 125 of the said Code will apply to the proceedings of an application under section 12 of the said Act. The procedure contemplated by Chapter IX of the said Code which deals with applications under section 125 is a summary procedure as indicated by sub-section 2 of section 126 of the said Code. Section 128 provides for enforcement of the order of maintenance. Thus, the orders passed by the learned Magistrate under the said Act are enforceable in the same manner as provided under section 128 of the said Code.

10. While dealing with the procedure, it will be necessary to refer to section 28 of the said Act which reads thus:

"28.

28. Procedure:- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22, and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23 (2 of 1974)."

11. The reliefs which can be granted on an application under section 12 the said Act can be broadly classified as under:

(i) protection orders under section 18 which are for preventing the respondent from committing an Act of Domestic Violence;

(ii) residence orders under section 19;

(iii) Monetary relief under section 20 which includes maintenance, loss of earnings, medical expenses and loss caused due to destruction, damage or removal of any property from the control of the aggrieved person;

(iv) custody orders under section 21 dealing with temporary custody of any child or children to the aggrieved person or visitation rights to aggrieved person under section 21; and

(v) compensation orders under section 22.

12. Section 17 reads thus:

" 17. Right to reside in a shared household:

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(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."

13. Sub section (1) of section 17 starts with a non-obstante clause which has over-riding effect over other statues. The sub-section provides that every women in a domestic relationship shall have right to reside in a shared household whether or not she has any right, title or beneficial interest in the same. This is indeed a provision which enlarges the scope of the concept of matrimonial home under the existing laws dealing with matrimonial relationship. This is in the context of the definition of domestic relationship under clause (f) of section 2 which means 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 a marriage. The definition of shared household under section 2(s) of the said Act is very wide. It even includes a household which may belong to the joint family of which the respondent is a member. Section 19 which gives power to the Magistrate to pass residence orders providing for grant of various orders in relation to a shared household for protecting the rights of the aggrieved person to occupy a shared household. The learned Magistrate in a given case can even direct the respondent to remove himself from a shared household.

14. Section 23 of the said Act reads thus:

"23.

23. Power to grant interim and ex parte orders:- (1) In any proceedings before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

15. There was some debate before this Court as regards the spheres in which sub section 1 and sub section 2 of section 23 operate.

A contention was sought to be raised by the learned counsel appearing for the 2nd respondent that power under sub section 2 is confined to granting interim reliefs under sections 18 to 22 of the said Act and the power under sub-section 1 is a larger power which extends to grant of any interim order as the learned Magistrate deems it just and proper which may not be covered even by any of the sections 18 to 22. On plain reading of section 23, the legal position appears to be different.

This Court has already held that when an aggrieved person desires to claim any interim relief under section 23 of the said Act, it is not necessary for the aggrieved person to take out a separate application for interim relief and the only requirement of law is that an affidavit in prescribed Form III of the said rules has to be filed by the aggrieved person. Sub– section 2 provides that when such an affidavit is filed in the prescribed form by the aggrieved person and if the application under section 12(1) of the said Act prima facie discloses that the respondent thereto is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, the learned Magistrate may grant exparte order under sections 18, 19, 20, 21 or as the case may be under section 22 against the respondent. Thus, sub-section 2 of section 23 confers a power on the Magistrate to grant an exparte ad-interim relief. The said exparte ad-interim relief can be granted in terms of reliefs under section 18 to section 22 of the said Act. Sub-section 1 deals with grant of an interim relief or interim order. Thus, the scheme of the section 23 appears to be that under sub-section 2 on the basis of an affidavit, an exparte ad-interim order without prior notice to the respondent can be passed by the learned Magistrate in terms of sections 18, 19, 20, 21 or 22 of the said Act against the respondent. Sub section 1 provides for passing an interim order which is to operate till the final disposal of the main application under sub section 1 of section 12 or till the same is modified earlier. Though a separate application is not necessary to be made for grant of interim relief, principles of natural justice require that before granting interim relief in terms of sub section 1 of section 23, the respondent in the main application will have to be heard. Therefore, before granting interim relief under sub section 1 of section 23, a notice will have to be served to the respondent. It is well settled position of law that an interim relief can be granted only in the aid of final relief which can be granted in the main proceedings. In the case of proceedings under sub section 1 of section 12 of the said Act, the learned Magistrate can pass final orders covered by sections 18, 19, 20, 21 or 22 of the said Act and therefore it is obvious that interim order which can be granted under sub section 1 of section 23 can be only in terms of reliefs provided for in sections 18 to 22 of the said Act. Under sub section 1 of section 23 a relief which is not covered by any of the sections 18 to 22 of the said Act cannot be granted. Thus in short, the power under sub-section 2 of section 23 is of grant of an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act and the power under sub-section (1) is of grant of interim relief pending final disposal of the main application under section 12(1) of the said Act.

16. It will be necessary to refer to section 29 of the said Act which reads thus:

"29.

29. Appeal:- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

17. On plain reading of the section 29 which provides for an appeal to the Court of Sessions against an order made by the Magistrate which is served on the aggrieved person or the respondent as the case may be. The orders contemplated under the said Act can be broadly divided into three categories. The first category is of the final order passed on application under sub section 1 of section 12. The second category is of the ex-parte ad-interim orders under sub-section 2 of section 23 of the said Act and the third category will be of the interim orders under sub section 1 of section 23 of the said Act.

18. Certain submissions were made on the basis of a decision of Division Bench of this Court in the case of Central Bank of India Vs. Kurian Babu (2004 (4) Maharashtra Law Journal 1006). In the said decision, the Division Bench of this Court has dealt with provision of appeals under section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the said Act of 1993). After considering the decision of the Apex Court in the case of Central Bank of India Vs. Gokal Chand (AIR 1967 SC 799) as well as in the case of Shankarlal Aggarwal Vs. Shankarlal Poddar (AIR 1965 SC 507), the Division Bench held that though section 20 of the said Act provides for an appeal against every order made by the tribunal constituted under the said Act of 1993, the orders which are purely procedural which do not affect the substantive rights of the parties are not appelable under section 20(1) of the said Act of 1993.

19. It will be necessary to consider the decision of the Apex Court in the case of Shankarlal Aggarwal (supra). The Apex Court was dealing with a provision relating to an appeal under section 202 of the Companies Act, 1913 which provided for an appeal from any order or decision given in the matter of winding up of the company by the Court. The Apex Court held that by virtue of section 202 of the said Act of 1913, an appeal will not lie against purely procedural orders which do not affect the rights or liabilities of the parties. In the case of Central Bank of India (supra), the Apex Court was dealing with section 38 of the Delhi Rent Control Act, 1958 which provided for an appeal against every order passed by the Controller. The Apex Court relied upon the decision in the case of Shankarlal Aggarwala (supra) and held that though the phraseology used in the section 38 was very wide, the said section excludes merely procedural orders or orders which do not affect the rights or liabilities of the parties.

20. Now turning to section 29 of the said Act, it is true that an appeal will lie against every final order passed by a learned Magistrate. The question which arises is whether an appeal will lie against an ex-parte ad-interim order passed under sub-section 2 and against an interim order under sub section 2 of section 23. The learned counsel appearing for the 2nd respondent relied upon the decision of the Apex Court in the case of Amarnath and others Vs. State of Haryana and others (AIR 1977 Supreme Court 2185). He submitted that every interim order cannot be treated as an interlocutory order. He submitted that as observed by the Apex Court there are orders which are matters of moment and which affect or adjudicate the rights of the parties or a particular aspect of the trial. He pointed out that the Apex Court has held that such orders cannot be interlocutory orders. On plain reading of section 29 of the said Act, the orders which are made under sub- section 1 and sub section 2 of section 23 will have to be held to be an orders made by Magistrate under the provisions of the said Act. The power under section 23 is of grant of ex-parte ad-interim and interim relief in terms of sections 18 to 22 of the said Act. Therefore, the orders passed both under sub section 1 and sub section 2 will be appelable. However, the scope of interference in appeal against such ad-interim or interim orders will be naturally limited. The orders contemplated by section 23 are discretionary orders. The Apex Court had an occasion to deal with the power of the Appellate Court and scope of appeals against interim orders which are discretionary in nature. In the case of Ramdev Food Products Pvt Ltd Vs. Arvindbhai Rambhai Patel & others [(2006) 8 Supreme Court Cases 726] the Apex Court dealt with an appeal provided under rule 1(r) of Order XLIII of the Code of Civil Procedure, 1908 against an interim order of injunction. Paragraph Nos.125 and 126 of the said judgment read thus:

"125. We are not oblivious that normally the appellate Court would be slow to interfere with the discretionary jurisdiction of the trial Court.

126. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again." (Emphasis added)

21. In view of what is held by the Apex Court, while the Court of Sessions deals with an appeal from an order made under section 23, the Court of Sessions will be governed by the aforesaid constraints. Thus, the scope of appeal against an order under section 23 will be limited. While dealing with an appeal against an ex-parte ad-interim order, the Sessions Court will be very slow in interfering with such orders unless the orders are perverse or patently illegal. However, the scope of an appeal against a final order on application under section 12(1) of the said Act will not be governed by the aforesaid constraints.

22. As held by the Apex Court in the case of Central Bank of India (supra) and Shankarlal Aggarwal (supra), an appeal under section 29 will not be maintainable against the purely procedural orders such as orders on application for amendment of pleadings, orders refusing or granting adjournments, order issuing witness summons or orders passed for executing the orders passed under the said Act etc.

23. My attention was also invited to section 26 of the said Act. If relief under the provision of sections 18 to 22 of the said Act is granted by a Civil Court or Family Court, an appeal will not lie under section 29 in as much as an appeal under section 29 will lie only against an order of the learned Magistrate.

24. Now turning to the facts of the case in hand, it must be stated that it is an admitted position that the said flat has been acquired in the joint names of the petitioner and the 2nd respondent. It is true that in the reply filed by the petitioner he has stated that he has never denied residential accommodation of the said flat to the 2nd respondent. However, while considering the prayer under section 23 of the said Act, the learned Magistrate is required to consider the averments made in the main application under sub section 1 of section 12. The learned Additional Sessions Judge has adverted to the averments made by the 2nd respondent and has passed a discretionary order granting protection to the 2nd respondent in respect of said flat which prima facie appears to be a shared accommodation within the meaning of section 17 of the said Act. In so far as suggestion given by the counsel appearing for the petitioner is concerned, the parties cannot be compelled to accept the said suggestion. The order passed by the learned Additional Sessions Judge is an interim order which will remain in force till final disposal of application under sub section (1) of section 12 of the said Act. In view of the admitted position that the flat is acquired in the Joint names of the petitioner and 2nd respondent, no case for interference is made out.

25. Thus, the conclusions which can be summarised are as under:

(i) An appeal will lie under section 29 of the said Act against the final order passed by the learned Magistrate under sub-section 1 of section 12 of the said Act;

(ii) Under sub-section 2 of section 23 of the said Act, the learned Magistrate is empowered to grant an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act. The power under sub-section 1 is of granting interim relief in terms of sections 18 to 22 of the said Act. Before granting an interim relief under sub-section 1, an opportunity of being heard is required to be granted to the respondent.

(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.

(iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties.

26. Before parting with this judgment, appreciation has to be recorded about the able assistance given by the learned counsel appearing for the petitioner and 2nd respondent.

27. Hence, I pass the following order:

(i) The petition is rejected with no orders as to costs.

(ii) The learned Magistrate will finally decide the application under sub section 1 of section 12 of the said Act within a period of three months from the date of production of authenticated copy of operative part of this order.

(A.S. Oka, J)

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

after 15yrs separation wife files DV! magistrate grants maintenance, money for residence etc !!, Harassed Husband runs to HC; thankfully HC quashes the whole tamasha !!

after 15yrs separation wife files DV! magistrate grants maintenance, residence !!, husband runs to HC, HC quashes the whole tamasha !!

Notes
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* married on 8.5.1990 at Amravati
* out of wedlock son was born on 24.2.1991.
* wife and son allegedly treated with cruelty for demand of dowry by hubby and relatives.
* Husband allegedly deserted both wife and kid in the year 1992 and since then respondent they are living separately with wife’s father at his village
* divorce case between couple dismissed by lower courts
* appeal on divorce case (dismissal) pending / stayed by higher courts
* wife files DV somewhere in year 2007 !!
* magistrate provides maintenance, money in lieu of residence etc etc by order dated 31.10.2007
* husband runs to HC
* HC thankfully quashes the case !!!
* the HC does NOT say that acts PRIOR to DV act are NOT maintainable under the DV case !! , it just goes on to say that this is an undeserving case !!
* "….Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation – II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, …."
….and the explanation is "….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."…..

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Bombay High Court
In The High Court Of Judicature At … vs Age About 50 Years, R/O Chimote on 30 March, 2010
Bench: A. B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.37/2008
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PETITIONER:-
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Kishor s/o Shrirampant Kale, age about 50 years, r/o Chimote
Layout, Dastur Nagar, Amravati.

VERSUS…

RESPONDENTS:-
***************************
1. Sou. Shalini w/o Kishor Kale, age about 42 years.
2. Master Shantnu s/o Kishor Kale, age about 15 years, (Minor – through guardian, Respondent No.1).
Both resident of c/o Sahebrao Gadhawe
Kolha – Kakda, Tq. Achalpur, Dist. Amravati.

3. State of Maharashtra,
Through P.S.O.
Rajapeth Police Station,
Amravati, District Amravati.
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[Shri P.P. Mahalle, Adv. for petitioner]
[Ms T.H. Udeshi, Adv. for respdt. Nos.1 & 2]
[A.P.P. for respdt. No.3]

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CORAM:- A.B. CHAUDHARI, J.
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Date of reserving the judgment :- 17.02.2010
Date of pronouncing the judgment :- 30.03.2010

JUDGMENT

1. In the present writ petition, the petitioner – husband has put to challenge the proceedings in Misc. Criminal Complaint Case wp37.08.odt 2/22 No.314/2007, filed by respondent Nos.1 and 2 in the Court of Chief Judicial Magistrate, Amravati under Section 12 r/w Section 19 an 20 of the Protection of Women from Domestic Violence Act, 2005 as not maintainable and also the orders dated 31.10.2007 and 11.12.2007, made by the Courts below in the said proceedings.

FACTS
**************************
2. Respondent No.1 is the wife of petitioner and respondent No.2 is the son of the petitioner. They filed complaint under Section 12 r/w 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (For short, hereinafter referred to as ‘the Act of 2005’) in the Court of Chief Judicial Magistrate, Amravati. In their complaint they stated that respondent No.1 was married to the petitioner on 8.5.1990 at Amravati and out of their wedlock respondent No.2 was born on 24.2.1991. Respondent No.1 was treated with cruelty for demand of dowry by the petitioner and his relatives. Finally, the petitioner deserted both the respondent Nos.1 and 2 in the year 1992 and since then respondent Nos.1 and2 are living separately with her father at his village and thereafter at Amravati. She filed proceedings for grant of maintenance which were decided on 30.11.1996 and both respondents were awarded maintenance amount by the Court and presently the maintenance i.e. awarded to them in the proceedings under Section 125 of the Code of Criminal Procedure is Rs.1800/- per month for both. The petitioner had initiated divorce proceedings and were dismissed and now appeal is said to be pending. The petitioner and his mother have sold ancestral house that was located at Kishor Nagar, Amravati with an oblique motive to keep the applicants away from its enjoyment and benefits. The petitioner is a lecturer in Junior College and earning salary of Rs.25,000/- per month. Respondent No.2 is taking education in 12th standard and now he needs separate accommodation for his studies, which is not available at the house of her brother. Her brother has now been asking respondent Nos.1 and 2 to make their own arrangement for residence and therefore they require sum of Rs.7,000/- per month to each of them, which the petitioner can easily pay. The petitioner must provide accommodation to both the respondents as he is under legal obligation to do so. The cause of action for filing the complaint arose initially in the year 1992. The respondent Nos.1 and 2 were deserted and neglected and it continued.

3. Based on these facts, reliefs were claimed or directions to the petitioner to pay Rs.7,000/- per month to each for maintenance from the date of application and to allow the respondents to reside in the house of the petitioner or to pay rent for other accommodation. The petitioner appeared before the trial Court and filed application for dismissal of the complaint and also raised objection about maintainability of the complaint. Judicial Magistrate First Class, Court No.5, Amravati rejected the application (Exh.12) for dismissal of complaint by his order dated 31.10.2007 and by order dated 31.12.2007 allowed application (Exh.5) in the complaint by directing the petitioner to pay maintenance @ Rs.2,000/- per month to respondent No.1 and Rs.1,000/- per month to respondent No.2 by way of interim maintenance and Rs.1200/- per month by way of rent of house. Appeal that was filed by the petitioner was dismissed by the appellate Court by order dated 11.12.2007. Hence, this petition under Article 227 of the Constitution of India.
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SUBMISSIONS :
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4. Learned Counsel for the petitioner in support of the writ petition vehemently argued that the complaint that was filed under the Act of 2005 was itself not maintainable and the trial Court ought to have allowed application (Eh.12) for dismissal of complaint. The complaint was not filed in Format-II and Sections 5 and 7 of the Act of 2005 provide for mandatory forms.

5. Learned Counsel for the petitioner invited my attention to Format-II under Rule 6 (1) of the Protection of Women From Domestic Violence Rules, 2006 and the various items mentioned in the said format, which provide for giving information as mentioned therein and according to him, in this case there is failure on the part of the respondents in giving the material details, required as per the said format with a view to suppress the material facts. Learned Counsel repeatedly argued that the details required by the said format were not furnished by the respondents in order that the facts if brought before the Court as per the said information required would have entailed dismissal of the complaint itself. According to him, it is for this reason this format – II will have to be held to be mandatory requirement and upon failure thereof the consequence ought to be the dismissal of such application for non-compliance of mandatory provisions of law. Learned Counsel then argued that it is an admitted fact that since 7.11.1992 i.e. almost 15 years before filing of this complaint, the respondents have been living separate from the petitioner and it is not even the case of respondent Nos.1 and 2 that during this period of 15 years the respondents had seen each other even eye to eye much less had any contact of any nature whatsoever. Learned Counsel then argued inviting my attention to Section 3 of the Act of 2005, which defines domestic violence and the complaint filed by the respondents does not at all disclose any domestic violence within the meaning of said Section 3 of the Act of 2005. The domestic violence according to him has to be shown to have occurred in the near or recent past and since in the instant case from 1992 onwards admittedly there had been no contact, communication or relationship whatsoever the existence of domestic violence cannot be presumed even on the contents or averments in the complaint taken to be true at their face value.

6. Inviting my attention to paragraph regarding cause of action, learned Counsel for the petitioner argued that it is the case of the respondents that cause of action is of the year 1992 and therefore various prayers made in the complaint on the basis of the averments in the complaint were untenable. According to learned Counsel for the petitioner, unless it is shown that there has been domestic violence in the recent past before filing the complaint, the Court cannot entertain the complaint in respect of the cause of action, which according to the respondents arose firstly in the year 1992. According to learned Counsel for the petitioner the complaint nowhere shows single allegation about any restriction or prohibition or the deprivation of any act on his part at a particular time or date or period reasonably recent in point of time before filing of the complaint and therefore, no wp37.08.odt 7/22 domestic violence can be said to have been constituted and consequently the complaint could not have been entertained and was liable to be dismissed by the trial Court. According to him, it is not the case of the respondents that after 1992, respondents had any access to facilities or accommodation etc. or that there was any deprivation thereof by the petitioner. Since the averments in the complaint do not disclose any cause of action and since according to learned Counsel for the petitioner filing of the complaint clearly amounts to abuse of process of the Court, this Court acting in its supervisory jurisdiction may dismiss the complaint as not maintainable as the trial Court did not have jurisdiction to entertain the complaint itself under the Act of 2005. No act of violence was at all alleged against the petitioner in the complaint right after 1992. Respondent No.2 cannot become aggrieved person, he being a minor child on the date of application and thus his complaint was also not maintainable.
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7. Per contra, learned Counsel for respondent Nos.1 and 2 vehemently opposed the petition and argued that both the respondents became aggrieved persons in the light of definition under Section 2(a) and 2(b) of the Act of 2005. According to her, there is no dispute that the legal status of marriage between the petitioner and respondent No.1 and paternity of respondent No.2 is also not in dispute and consequently respondent No.1 is the legally married wife and respondent No.2 is the child born out of the wedlock between petitioner and respondent No.1 and therefore as per Section 2 (f) of the Act of 2005 there is domestic relationship by marriage. According to her, domestic violence as defined in Section 3 of the Act of 2005 is not to be understood with the literal meaning of the word violence as sought to be canvassed by learned Counsel for the petitioner and in terms of Section 3 of the Act of 2005 amplitude thereof is very wide and the Act of 2005 being beneficial piece of legislation settled interpretation in relation thereto will have to be applied while interpreting the provisions of Act of 2005. It is not necessary for constituting the domestic violence the party should come in contact or physical contact as is clear from the explanation (iii) of verbal and emotional abuse and explanation (iv) economic abuse. She further submitted that economic abuse, refusal to provide maintenance, house accommodation or financial resources or such other facilities as the respondents are entitled to from the petitioner/husband without there being any actual violence amounts to domestic violence since the said definition of domestic violence under Section (3) of the Act of 2005 is inclusive in nature. These are ultimately the matters which are required to be decided on evidence and the question can be raised by the petitioner in the trial Court where the trial is on. The extraordinary jurisdiction under Article 227 of the Constitution of India cannot be exercised in the present matter and it is for the trial Court to determine upon recording evidence etc. answers to the questions raised in the present writ petition. The son of the petitioner and respondent No.1 i.e. respondent No.2 has grown up and is taking education in engineering and both the respondents who are living together want to live in Amravati for his education and consequently they require more amount towards maintenance and they also require accommodation at Amravati, which the petitioner is obliged to provide and that is why grant of house rent allowance @ 1200/- per month has been made by the Courts below. There is averment in the complaint about disposal of the ancestral house property of the petitioner and his mother and the said act on their part would fall within the meaning of economic abuse. It is not necessary that there would be no domestic violence as defined under the Act merely because of the separation from the year 1992. Learned Counsel for respondents, therefore, prayed for dismissal of writ petition.

CONSIDERATION :
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8. I have heard learned Counsel for the rival parties at length on some dates. I have gone through the copy of the complaint under wp37.08.odt 10/22 Section 12 r/w Sections 19 and 20 of the Act of 2005 carefully. Following facts are not in dispute.

The petitioner and respondent No.1 were married on 8.5.1990 and respondent No.2 was born on 24.2.1991. Thereafter on 7.11.1992 respondent No.1 went to her father with her son at his village and started living with her father and thereafter brother since the year 1992. Litigation between the parties thus started after 1992 and award of maintenance to both respondent Nos.1 and 2 was made by the Court and the amount of monthly maintenance is being paid to respondent Nos.1 and 2 in those proceedings under Section 125 of the Code of Criminal Procedure. A decree of divorce was passed on 2.10.2008 and in the appeal the said order has been stayed, in the result the legal status of respondent No.1 as a married wife of petitioner continues. On the date of filing of the application, respondent No.2 – son was admittedly minor but immediately after few months of the filing thereof he became major i.e above 18 years. Respondent No.2 is taking education and as per submission made by respondent No.1 he is now taking education in Amravati in some engineering college. There is further no dispute that after a departure of respondent No.1 from the house of petitioner on 7.11.1992 there had been neither any conduct nor communication or relationship of wp37.08.odt 11/22 whatsoever nature except for the relationship as understood in law. In other words, practically speaking, there had been no communication or relationship between them for all these number of years till the date of filing of complaint in question and admittedly after period of 15 years respondent No.1 filed the complaint in question alleging domestic violence under the Act of 2005 on the ground that the petitioner had given false information to his authority, showing respondent No.1 as dead and thus removing her name as his nominee and that the petitioner and his mother disposed of ancestral house at Kishor Nagar, Amravati with a view to keep the respondents away from its enjoyment and benefits ; and respondent No.2 wants to pursue his studies and does not have independent accommodation for studies at the house of her brother and that wife of her brother wants her to make her own separate arrangement of residence and that they need Rs.7,000/- per month each towards maintenance and respondent No.2 being grown up, needs company of his father, who is under legal obligation to maintain both the respondents. In paragraph No.7, regarding cause of action, it is stated that cause of action arose in the year 1992 when they were deserted and it is continued one since the wife of her brother had asked her to make her own arrangement of accommodation. It is on the basis of these averments in the complaint reliefs are claimed for grant of maintenance @ Rs.7,000/- per month and for residence at Amravati where petitioner is living or to pay rent in lieu thereof.
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9. Reading of the entire complaint to my mind it would be pertinent to note that the complaint does not contain a single averment that before filing the complaint, the petitioner had committed any act of omission or commission or shown any such conduct by which he wanted to deprive any of the respondents from enjoyment of shared household and maintenance or the petitioner had at any point of time prohibited or restrained or restricted any alleged continued access to the resources or facilities which the respondents could be said to have been entitled to use or enjoy by virtue of their domestic relationship. To put it in other words, there is no assertion anywhere in the complaint that the respondents had made any such demand for accommodation for any reason whatsoever with the petitioner and the petitioner had denied to provide the same or had omitted to do so even by conduct of any nature whatsoever. It is in the light of these averments in the complaint the fate of the present matter will have to be decided. The law is well settled that the averments in the complaint even if taken to be true at their face value if no offence is made out ; and in the instant case offence of domestic violence, the complaint is liable to be thrown out as the Court does not get jurisdiction to entertain the same in the absence of any such offence having been made out. It is with this legal position the present case will have to be carefully examined in the light of the various provisions of the Act of 2005.

10. In the instant case, peculiar facts are that admittedly the petitioner and respondents have not been in contact with each other physically or otherwise for the last 15 years before filing of the complaint against him. In other words, suddenly after a big gap of 15 years the Act of 2005 having been brought into force, respondent Nos.1 and 2 approached the Court with the grievance that they want higher amount of maintenance and rental in lieu of accommodation as there is domestic violence on the part of the petitioner, which constitutes economic abuse and since the economic abuse is included in the domestic violence under Section 3 of the Act of 2005, offence of domestic violence is made out. The moot question, therefore, in the light of these admitted facts is whether the complaint could be said to be maintainable. In so far as the averments regarding showing name of respondent No.1 as nominee in the service book or she being shown as dead are vague. In so far as averments regarding disposal of ancestral house at Kishor Nagar by petitioner and his mother are as vague as could be and it is not possible to hold that on such vague averments the complaint should be entertained on the ground that the averments could be proved in the evidence. That is not enough.

The Act of 2005 opens with the preamble as under : "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto."

11. Following definitions of the Act of 2005 are relevant.

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

(b) "child" means any person below the age of eighteen years and includes any adopted, step or foster child.

(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.

(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 where 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."

12. Definition of ‘domestic violence’ is to be found in Section 3 of the Act of 2005, which reads thus.

"Section 3 (a) harms or injuries or endangers the health, safety, life limp or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) ………………….

(c) ………………….

(d) …………………

Explanation I – For the purposes of this section, – (i) ………………

(ii) ……………….

(iii) ………………

(a) ………………

(b) …………….

(iv) "economic abuse" includes –

(a) deprivation of all or any economic or financial resources to which the aggrieved person in entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared wp37.08.odt 17/22 household.

Explanation II – For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration."

13. Perusal of the definition of ‘aggrieved person’ shows that respondent No.1 being married wife of petitioner, respondent No.2 being son of petitioner and minor till he attains majority would be aggrieved persons. Therefore, reading definition of ‘aggrieved person’ with the definition of ‘domestic relationship’ there is no manner of doubt that the application at the instance of respondent No.1 as a wife and at the instance of respondent No.2 till he attains the age of majority, is maintainable. The Court is, however, entitled to decipher the period of minority and majority of respondent No.2. The expression ‘has been’ and harms, injures or endangers’ occurring in the definition of aggrieved person and elsewhere will have to be interpreted keeping in mind the opinion expressed by the Apex Court in the case of The Secretary, Regional Transport Authority, Bangalore and another…Versus…D.P Sharma and another, reported in 1989 Supreme Court 509, in particular paragraph No.15, which reads thus.

"15. ……..In our opinion, whether the expression ‘has been’ occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute."

Now Explanation – II clearly provides that ‘overall facts and circumstances of the case shall be taken into consideration’. In the case at hand, the respondents have abruptly after a long gap of 15 years alleged domestic violence against the petitioner. There is no proximity shown anywhere nearer to the date of filing the complaint or any deprivation, prohibition or restriction upon demand being made before filing the complaint.

14. Looking to the definition of ‘shared household’ it can be seen that the words used are ‘at any stage has lived in a domestic relationship or has right in such household’. Definition of ‘domestic violence’ in Explanation – I (iv) to Section 3 shows that economic abuse has been by inclusion defined as ‘domestic violence’. Explanation – I (iv) ‘economic abuse’ has further been elaborated.

Following are the dictionary meanings :

Deprivation – denial of something considered essential.

Prohibition – action to prevent.

Restriction – put a limit on.

Perusal thereof particularly in clause (a) and (c) show that aggrieved person has to be deprived of the economic or financial resources or maintenance by the petitioner or the aggrieved person requires out of necessity for herself and children including payment of rental related to accommodation and maintenance. Now in the instant case, it is not in dispute that both respondents are getting maintenance as per the orders of the Court passed in various proceedings way back in the year 1996 and therefore, to say that the petitioner has committed domestic violence by not paying any maintenance would be incorrect. What the respondents want is the higher amount of maintenance due to the higher cost of living but then there is nothing on record to show in the complaint that any such higher amount of maintenance for any good reasons was demanded by them from the petitioner and he refused or omitted to accede to such demand. Similar is the case of the rental. Since it is an admitted fact that complaint does not show single averment to the effect that accommodation in the house of the petitioner was demanded by both of them or the petitioner was doing any such acts resulting into deprivation of the accommodation and/or entitled to consequent payment of rental thereof in lieu of accommodation due to failure to provide one.

Looking to Explanation – I (iv) sub clause (c) to Section 3 of the Act of 2005 the same shows that there has to be prohibition or restriction to continued access to resources which the aggrieved person is entitled to use and enjoy. There is neither any prohibition averred in the complaint anywhere by the petitioner thereof nor any averment that he had put any restriction or full or part use thereof or that there was use made by the respondents just before filing of the complaint or recent past before the complaint and that the continuity thereof was broken by the petitioner. On the contrary, it is an admitted position that for the last 15 years there has been no contact or relationship between them.

14. Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation – II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, which will be filed under the provisions of the Act of 2005. In the instant case the various factual aspects which I have noted above and in particular regarding the total eclipse for the period of 15 long years and in the absence of any complaint regarding domestic violence at any point of time before filing of the complaint in the recent past wp37.08.odt 21/22 thereof or within reasonable period this Court is of the opinion that overall facts and circumstances of this case clearly show that even if the averments in the complaint are taken to be true at their face value, no case of domestic violence can even be inferred by the Court. The respondents could have adopted their remedy available under the other Laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly in the light of the above discussion the respondents were not entitled to take recourse to the Act of 2005. Consequently, the Court did not get jurisdiction under Section 27 of the Act of 2005 to entertain the complaint which was not maintainable for the above reasons. Both respondents, however, were entitled to take recourse to remedies under other Laws.
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15. It is true as argued by learned Counsel for the respondents that the Act of 2005 is beneficial piece of legislation, but then the provisions of the Act of 2005 and in particular Explanation – II thereof clearly show that domestic violence cannot readily be inferred but will have to be found out on the facts and circumstances of each case. In the instant case according to me domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefits thereof wp37.08.odt 22/22 and in the instant case, I have found that the respondents are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other Law.

16. In the result, writ petition must succeed. Hence, I make the following order.

ORDER
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(i) Rule is, therefore, made absolute and it is held that Misc. Criminal Complaint Case No.314/2007 before the Judicial Magistrate First Class, Court No.5, Amravati under Section 12 r/w Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 is not maintainable and is thus quashed and consequently, all the orders passed in the said complaint by the Courts below are quashed.

No order as to costs.

JUDGE

SSW

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