Daily Archives: August 22, 2013

Under DV Act, Parties to be provided copies EVEN WITHOUT application ; Magistrate’s responsibility !! Kerala HC

Under DV Act, Parties to be provided copies EVEN WITHOUT application ; Magistrate’s responsibility !! Kerala HC

Notes
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* It is the right of parties to get copies of orders passed under DV act
* Sec 24 provides that right
* This is different from most other acts, where the party has to apply to get a copy

*****************************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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo .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 INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 9018 of 2007(W)
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1. K.E.JOSE, AGED 53 YEARS, **. Petitioner
2. THYRESSYAMMA JOSE, AGED 62 YEARS,
Vs
1. STATE OF KERALA, REP. BY **. Respondent
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For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent : No Appearance
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The Hon’ble MR. Justice R.BASANT
Dated :27/03/2007
O R D E R : R.BASANT, J.

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W.P.C.No.9018 of 2007

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Dated this the 27th day of March 2007

JUDGMENT

The petitioner is the respondent in an application filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Domestic Violence Act). The second respondent herein, admittedly the wife of the petitioner, had filed the said application before the learned Magistrate. A copy of the said application is produced as Ext.P1. An interim order was prayed for under Section 23 of the Domestic Violence Act. The petitioner entered appearance and resisted the claim. He filed Ext.P2 counter statement. The learned Magistrate proceeded to pass an interim order under Section 23 of the Act.

2. The petitioner came rushing to this court on 15/03/2007 after the said order was passed on 14/3/2007 complaining that copy of the order has not been furnished to him by the learned Magistrate as mandated under Section 24 of the Domestic Violence Act.

3. Section 24 of the Domestic Violence Act reads as follows: "Court to give copies of order free of cost.- The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer-in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider."

4. The report of the learned Magistrate was called for. The learned Magistrate reports that there was delay in furnishing the copy of the order in view of administrative bottlenecks in the office of the learned Magistrate. He reports that the copy has been furnished and the same has been received by the Advocate for the petitioner on 17/03/2007.

5. The grievance of the petitioner is now redressed to the extent that he has got the copy of the order and has filed an appeal under Section 29 of the Domestic Violence Act. He has got an interim order of stay also. The learned counsel for the petitioner submits that in the light of the mandate under Section 24 of the Domestic Violence Act , there should not have been such delay in the furnishing of copies.

6. I do find merit in the contention of the learned counsel for the petitioner. Section 24 of the Domestic Violence Act evidently intends to usher in a new and different procedure and culture of furnishing copies of the orders passed by the court. In the light of Section 24 of the Domestic Violence Act which is already extracted above, the burden is certainly on the learned Magistrate to ensure that the copy is furnished to the parties as well as others specified in Section 24. The learned Magistrate must certainly ensure that the copies are also prepared and are ready to be furnished to the persons concerned including the adversary in the litigation before the order is pronounced. That would be the only manner in which the mandate of Section 24 can be complied with in letter and spirit. If the mandate that the judgment of conviction and sentence must be furnished to the accused can be complied by courts scrupulously, I can find no administrative bottleneck or difficulty which can stand in the way of the courts furnishing copies of orders passed under the Domestic Violence Act as stipulated under Section 24. For the proper administration of justice, the day cannot be too far when all courts shall furnish copies of the orders in all proceedings at the time of pronouncement of the orders itself to all the parties concerned free of cost. It appears to me to be odd that the parties ordinarily must await and apply for copies of all orders when it is too well known (or can be assumed) that all parties in the proceedings would certainly be interested in obtaining copies of the order. The relic of the past and the unnecessary procedural tangles do even now compell the courts to wait for application for copies after the order is passed. I cannot imagine a situation where a party would not want or need a copy of the order. Therefore it must be the endeavour of law undoubtedly to insist that the copies of all orders are furnished free of cost atlest to the parties to the litigation as soon as (I mean simultaneously with) the order is passed. A user friendly system cannot relegate the party to make a subsequent application for copy, wait for the court to call for stamp papers, produce the stamp papers and wait uncertainly and indefinitely for the copies to be made ready and issued. The earlier we give up the anachronistic and archaic procedure and ensure that the copy is furnished to all contestants free of cost and simultaneously on pronouncement of the order, the better for the system. No further payments or procedures can or need be insisted by any system which is reasonable and humane. The development in technology must make it easily possible in the near future, if not now, for any court to hand over copies simultaneously to the litigants when the court signs the original order.
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7. Be that as it may, it is only an ideal. But in the light of Section 24 , there can be no doubt on the obligation of the learned Magistrate to furnish copies to the parties concerned when the orders are passed. The learned Magistrates must ensure that such copies are furnished.

8. In as much as the petitioner has already received the copies though after a short delay, I am satisfied that no further directions need be issued in this writ petition.

9. This writ petition is accordingly dismissed with the above observations.

(R.BASANT, JUDGE)

R.BASANT, J

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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

USE this to set aside DV orders!! Before passing DV order magistrate to consider domestic incident report ! The procedure MM can adopt us Section 28(2), cannot be violative of the Act itself or violative of principles of natural justice.

USE this to set aside DV orders!! Before passing DV order magistrate to consider domestic incident report ! The procedure MM can adopt us Section 28(2), cannot be violative of the Act itself or violative of principles of natural justice.

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Notes

After blogging this case, I was alerted to another division bench judgment that overrules this judgement. The same can be found here https://app.box.com/s/zs2fnk597xos1fd32zto

so please tread with caution while using this judgement 

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Delhi High Court
Bhupender Singh Mehra vs State Nct Of Delhi & Anr. on 8 October, 2010
Author: Shiv Narayan Dhingra
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 24, 2010
Date of Order: 8th October, 2010
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+ Crl.M.C.No. 1766/2010
Bhupender Singh Mehra … Petitioner Through: Mr. Brajesh Kumar, Advocate
Versus
State NCT of Delhi & Anr. … Respondent Through: Mr. Anurag, Advocate for R-2
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+ Crl.M.C.No. 1773/2010
Diwan Singh Mehra … Petitioner Through: Mr. Brajesh Kumar, Advocate
Versus
State NCT of Delhi & Anr. … Respondent Through: Mr. Anurag, Advocate for R-2
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JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest? JUDGMENT

By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions.

2. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

3. Section 12 of the Domestic Violence Act reads as under:

12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act.

Section 2(q) reads as under: 2(q) “respondent” means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

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

5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.

September , 2010 SHIV NARAYAN DHINGRA, J. vn

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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

daughter falsely accuses dad of rape; Dad imprisoned 16 years; dad NOT released EVEN after daughter accepts false case !!

"…After refusing a plea deal, Daryl Kelly (the father) was sentenced to 20 to 40 years in prison. Six months after the conviction, Chaneya admitted to her grandmother that her father’s conviction was based on a lie. Her mother also signed an affidavit stating that she had threatened to beat Chaneya unless she told cops her father raped her……"

"….Over the past 16 years, Daryl (the father) has studied law while in prison and filed several appeals, but they have all been denied….."

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Daughter Says She Falsely Accused Her Father of Rape

Chaneya Kelly’s father, Daryl, was sentenced to 20 to 40 years in prison in 1997.

By LaToya Bowlah

Posted: 08/20/2013 12:40 PM EDT

082013-national-daughter-falsley-accused-father-rape-Chaneya-Kelly.jpg

Chaneya Kelly’s testimony in 1997 put her father Daryl in prison for rape. But now, at age 24, Chaneya said that her claims were false.

Chaneya was 9 years old when she said that her mother, Charade Kelly, at the time addicted to drugs and alcohol, had pressured her to make the claim. Chaneya allegedly lied to avoid being beaten by Charade.

“I’m 24 years old, and I made this mistake when I was 9 years old,” Chaneya told NBC News, “but it’s never too late to try and right your wrong.”

Chaneya’s mother has said she is now drug-free and confirms her daughter’s story.

While living with her parents in Newburgh, N.Y., Charade allegedly always asked Chaneya if her father was touching her. When Chaneya would answer no, Charade would threaten to beat her until Chaneya falsely answered yes.

Charade then called the police and had Chaneya repeat the lie. Although there was no physical proof the girl had been raped, NBC reported that the similarities between the mother’s story and Chaneya’s was enough to convict Daryl.

After refusing a plea deal, Daryl Kelly was sentenced to 20 to 40 years in prison. Six months after the conviction, Chaneya admitted to her grandmother that her father’s conviction was based on a lie. Her mother also signed an affidavit stating that she had threatened to beat Chaneya unless she told cops her father raped her.

However, the judge believed the statements to be "coerced" and Daryl’s conviction was not overturned.

Over the past 16 years, Daryl has studied law while in prison and filed several appeals, but they have all been denied.

BET National News – Keep up to date with breaking news stories from around the nation, including headlines from the hip hop and entertainment world.

http://www.bet.com/news/national/2013/08/20/daughter-says-she-falsely-accused-her-father-of-rape.html

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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

the higher you are, the easier it is for women to spit at you – Asaram case probed by Police Commissioner : Gehlot

Asaram case being probed by Jodhpur Police Commissioner: Gehlot

Last Updated: Thursday, August 22, 2013, 15:13

Jaipur: Rajasthan Chief Minister Ashok Gehlot on Thursday said rape charge against controversial guru Asaram Bapu was being investigated by Jodhpur Police Commissioner and action would be taken on the basis of "truth and facts".

"I have spoken to Jodhpur Police Commissioner last night and told him to investigate the case at every level, and ensure action based on truth and facts," Gehlot told reporters after a Solar workshop here.

The Delhi police filed a case against Asaram Bapu on the complaint of a 16-year-old girl that he had sexually assaulted her in a Jodhpur ashram recently.

"Jodhpur police has already inspected the place of alleged crime," Gehlot said, adding that "levelling allegations against someone is one matter…I think guilty should get punishment."

"...Until the investigation in the case is over, I will not comment on it. Jodhpur Police Commissioner and Superintendent of Police are tackling the case…Let the process of probe be completed," he said.

"Sadhu-sants preaching religion or spirituality should maintain their best character and work in their limit as any bad message would hurt and shock the society. People in society pay their regards to these sadhus and sants, such cases are not a good sign," he said.

Asaram Bapu was booked by Delhi Police for allegedly raping a minor girl at his Jodhpur Ashram on August 15.

A case was registered against Asaram under Sections 376, 342, 509 of IPC, 354 of the IPC, Juvenile Justice Act and Protection of Children from Sexual Offences Act.

The case was referred to Police Commissioner at Jodhpur where an FIR was lodged yesterday, and Assistant Police Commissioner (west) Chanchal Mishra was handed over the case for investigation.

PTI

http://zeenews.india.com/news/rajasthan/asaram-case-being-probed-by-jodhpur-police-commissioner-gehlot_870875.html

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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

“the image of smiling man who masturbated at me on a bus”: I had frozen in time. I’d fallen. I’d shattered : More proof from a ORIGINAL WHITE LADY ON INDIAN MEN BEHAVE !!!!

30282210151332602535466131574430-2570418_896_ghst.jpgIndia: the Story You Never Wanted to Hear

India: the Story You Never Wanted to Hear

By RoseChasm | Posted August 18, 2013 | Chicago

When people ask me about my experience studying abroad in India, I always face the same dilemma. How does one convey the contradiction that over the past few months has torn my life apart, and convey it in a single succinct sentence?

“India was wonderful," I go with, "but extremely dangerous for women.” Part of me dreads the follow-up questions, and part of me hopes for more. I’m torn between believing in the efficacy of truth, and being wary of how much truth people want.

Because, how do I describe my three months in the University of Chicago Indian civilizations program when it was half dream, half nightmare? Which half do I give

Do I tell them about our first night in the city of Pune, when we danced in the Ganesha festival, and leave it at that? Or do I go on and tell them how the festival actually stopped when the American women started dancing, so that we looked around to see a circle of men filming our every move?

Do I tell them about bargaining at the bazaar for beautiful saris costing a few dollars a piece, and not mention the men who stood watching us, who would push by us, clawing at our breasts and groins?

When people compliment me on my Indian sandals, do I talk about the man who stalked me for forty-five minutes after I purchased them, until I yelled in his face in a busy crowd?

Do I describe the lovely hotel in Goa when my strongest memory of it was lying hunched in a fetal position, holding a pair of scissors with the door bolted shut, while the staff member of the hotel who had tried to rape my roommate called me over and over, and breathing into the phone?

How, I ask, was I supposed to tell these stories at a Christmas party? But how could I talk about anything else when the image of the smiling man who masturbated at me on a bus was more real to me than my friends, my family, or our Christmas tree? All those nice people were asking the questions that demanded answers for which they just weren’t prepared.

When I went to India, nearly a year ago, I thought I was prepared. I had been to India before; I was a South Asian Studies major; I spoke some Hindi. I knew that as a white woman I would be seen as a promiscuous being and a sexual prize. I was prepared to follow the University of Chicago’s advice to women, to dress conservatively, to not smile in the streets. And I was prepared for the curiosity my red hair, fair skin and blue eyes would arouse.

But I wasn’t prepared.

There was no way to prepare for the eyes, the eyes that every day stared with such entitlement at my body, with no change of expression whether I met their gaze or not. Walking to the fruit seller’s or the tailer’s I got stares so sharp that they sliced away bits of me piece by piece. I was prepared for my actions to be taken as sex signals; I was not prepared to understand that there were no sex signals, only women’s bodies to be taken, or hidden away.

I covered up, but I did not hide. And so I was taken, by eye after eye, picture after picture. Who knows how many photos there are of me in India, or on the internet: photos of me walking, cursing, flipping people off. Who knows how many strangers have used my image as pornography, and those of my friends. I deleted my fair share, but it was a drop in the ocean– I had no chance of taking back everything they took

For three months I lived this way, in a traveler’s heaven and a woman’s hell. I was stalked, groped, masturbated at; and yet I had adventures beyond my imagination. I hoped that my nightmare would end at the tarmac, but that was just the beginning. Back home Christmas red seemed faded after vermillion, and food tasted spiceless and bland. Friends, and family, and classes, and therapy, and everything at all was so much less real than the pain, the rage that was coursing through my blood, screaming so loud it deafened me to all other sounds. And after months of elation at living in freedom, months of running from the memories breathing down my neck, I woke up on April Fool’s Day and found I wanted to be dead.

The student counselors diagnosed me with a personality disorder and prescribed me pills I wouldn’t take. After a public breakdown I ended up in a psych ward for two days held against my will, and was released on the condition that I took a "mental leave of absence" from school and went to live with my mother. I thought I had lost my mind; I didn’t connect any of it to India– I had moved on. But then a therapist diagnosed me with PTSD and I realized I hadn’t moved a single inch. I had frozen in time. And I’d fallen. And I’d shattered.

But I wasn’t the only one, the only woman from my trip to be diagnosed with PTSD, to be forced into a psych ward, to wake up wanting to be dead. And I am not the only woman who is on a mental leave of absence from the University of Chicago for reasons of sexual assault and is unable to take classes.

Understanding my pain has helped me own it, if not relieve it. PTSD strikes me as a euphemism, because a syndrome implies a cure. What, may I ask, is the cure for seeing reality, of feeling for three months what its like for one’s humanity to be taken away? But I thank God for my experiences in India, and for my disillusionment. Truth is a gift, a burden, and a responsibility. And I mean to share it.

This is the story you don’t want to hear when you ask me about India. But this is the story you need.

Editor’s Note: You can read more about this story on CNN.com.

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regards

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