Monthly Archives: September 2015

Sister married 40yrs ago comes back 2 file DV on brothers for property !! MP HC decrees NO DV case made

A Sister married 40yrs ago, happily living with her hubby returns to parental home 40 years later, AFTER the death of her dad, and claims share of property. When the brothers show her the father’s will wherein she does NOT have a share, she claims that she was abused by her own brothers and files a DV case !! Lower court admits the DV case, so the brothers run to HC for quash !!

The court analyses other landmark cases and notes that (a) The woman is NOT in domestic relation with her brothers as she is NOT living in the same household since the last 40 years and (b) A woman who has left a household cannot come back after a lengthy stretch and once again claim DV. The Hon court affirmatively quotes another judgement where it is help “…However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father- in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. ….”

The court also goes on to say “… this court is of the considered opinion that in the present case, sister is seeking a share in the property which has been left behind by her father and the complaint has been filed with a specific prayer for grant of share in her father’s property. She is not residing with her brothers and she was earlier also not residing with her brothers. She is happily married for the last 40 years. She is having children and one fine morning i.e., on 02/10/2011, after visiting her brother’s house, she has filed this present complaint as they have expressed their inability to give share to their sister as there is already a will in existence.

In the considered opinion of this court, the entire complaint is misconceived complaint and the proceedings filed in the complaint initiated in the matter pending before the Magistrate, Class-I deserves to be quashed and are hereby quashed preferred under Section 482 stands allowed, however a liberty is granted to the sole respondent to take recourse to the other remedies that is filing a civil suit for claiming a share if any in the property…”

*****************************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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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 / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Madhya Pradesh High Court

Rajkishore Shukla vs Asha Shukla

22 September, 2015

M.Cr.C.No.9246/2014

Parties through their counsel.

The petitioners before this court have filed this present petition under Section 482 of Code of Criminal Procedure 1973 for quashment of complaint preferred under the Protection of Women from Domestic Violence Act 2005.

The facts of the case reveal that the present petitioners and respondent are real brothers and sister. The sole respondent got married about 40 years back. She was residing with her husband namely Rajendra Shukla as well as along with her children. The complaint was preferred by her on 02/10/2011 when she visited the house of her brothers. She was abused and she was told that she will not get any share in the property of their father. The respondent alleging violence by taking shelter by the provisions of the Act 2005 has preferred a complaint under Section 12 of the Act 2005 and the learned Magistrate has taken cognizance of the same.

Learned counsel appearing for the petitioners have vehemently argued before this court that in the present case, their sister only with a view to obtain a share in the property of their father has filed a complaint under Section 12 of the Act of 2005 and at no point of time they have misbehaved with their sister. Attention was drawn towards paragraph 9 of the complaint which is on record and the contention of the learned counsel is that the aforesaid paragraph reflects that their sister wants property and money from them.

It has been argued before this court that demand of share by her sister and denial of the same by brother is not covered within the meaning of Domestic Violence as defined under Section 3 of the Act of 2005.

On the other hand, learned counsel appearing for the sole respondent has vehemently argued before this court that the brothers have misbehaved with the sister, they are not giving any share in the property and therefore, the act of the brothers certainly covered within the meaning of Domestic Violence as defined under Section 3 of the Act of 2005. He has placed reliance upon a judgment delivered in the case of Hirdashay vs. Nutan Bai reported in 2003 (2) M.P.L.J (84).

This court has carefully gone through the aforesaid judgment and in the aforesaid judgment it was a dispute between husband and wife and there was a statement made against the husband alleging commission of offence under Sections 494 & 498A of the Indian Penal Code and in those circumstances, learned Single Judge has held that evidence adduced on behalf of complainant has to be accepted as it is pace value and it should not be examined at the stage of taking cognizance of the offence.

He has also placed reliance upon a judgment delivered by the Supreme Court in the case of Rumi Dhar vs. State of West Bengal and he has also placed heavy reliance upon paragraph 11 of the aforesaid judgment. The same reads as under:-

|   11. The jurisdiction of the Court under Article 142 of the
|   Constitution of India is not in dispute. Exercise of such power
|   would, however, depend on the facts and circumstance of each case.
|   The High Court, in exercise of its jurisdiction under Section 482 of
|   the Code of Criminal Procedure, and this court, in terms of Article
|   142 of the Constitution of India, would not direct quashing of a case
|   involving crime against the society particularly when both the
|   learned Special Judge as also the High Court have found that a prima
|   facie case has been made out against the appellant herein for framing
|   charge. For the reasons aforementioned, there is no merit in the
|   appeal. It is dismissed accordingly.

This court has carefully gone through the aforesaid judgment.

It is not a dispute between husband and wife. It is the case where allegation has been made against two real brothers by sister who is demanding share in the property of her father. While the matter is being argued and the document brought before this court which is a will executed by the father. The document, Will which is on record reflects that father has not given any share to the daughter and the contention of the learned counsel for the petitioners is that father has not willed any property to daughter, she can not claim suit property, therefore she has taken recourse of all previous claims by invoking statutory provisions of Law as contained under Section 12 of the Act of 2005. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Learned counsel for the petitioners have also placed reliance upon a judgment delivered in the case of Vijay Verma vs. State of N.C.T. Of Delhi & Another reported in 2010(118)DRJ 520. Paragraph 5,6&7 of the aforesaid judgment reads as under:-

|   5. Filing of a petition under Protection of Women from Domestic
|   Violence Act by the petitioner taking shelter of domestic
|   relationship and domestic violence needs to be considered so that
|   this Act is not misused to settle property disputes. Domestic
|   relationship is defined under the Act in Section 2(f) as under:
|   
|   “(f) ‘domestic relationship’ means a relationship between two
|   persons who live or have, at any point of time, lived together in a
|   shared household, when they are related by consanguinity, marriage,
|   or through a relationship in the nature of marriage, adoption or are
|   family members living together as a joint family.”
|   
|   6. A perusal of this provision makes it clear that domestic
|   relationship arises in respect of an aggrieved person if the
|   aggrieved person had lived together with the respondent in a shared
|   household. This living together can be either soon before filing of
|   petition or ‘at any point of time’. The problem arises with the
|   meaning of phrase “at any point of time”. Does that mean that living
|   together at any stage in the past would give right to a person to
|   become aggrieved person to claim domestic relationship? I consider
|   that “at any point of time” under the Act only means where an
|   aggrieved person has been continuously living in the shared household
|   as a matter of right but for some reason the aggrieved person has to
|   leave the house temporarily and when she returns, she is not allowed
|   to enjoy her right to live in the property. However, “at any point of
|   time” cannot be defined as “at any point of time in the past” whether
|   the right to live survives or not. For example if there is a joint
|   family where father has several sons with daughters-in-law living in
|   a house and ultimately sons, one by one or together, decide that they
|   should live separate with their own families and they establish
|   separate household and start living with their respective families
|   separately at different places; can it be said that wife of each of
|   the sons can claim a right to live in the house of father- in-law
|   because at one point of time she along with her husband had lived in
|   the shared household. If this meaning is given to the shared
|   household then the whole purpose of Domestic Violence Act shall stand
|   defeated. Where a family member leaves the shared household to
|   establish his own household, and actually establishes his own
|   household, he cannot claim to have a right to move an application
|   under Section 12 of Protection of Women from Domestic Violence Act on
|   the basis of domestic relationship. Domestic relationship comes to an
|   end once the son along with his family moved out of the joint family
|   and established his own household or when a daughter gets married and
|   establishes her own household with her husband. Such son, daughter,
|   daughter-in-law, son-in-law, if they have any right in the property
|   say because of coparcenary or because of inheritance, such right can
|   be claimed by an independent civil suit and an application under
|   Protection of Women from Domestic Violence Act cannot be filed by a
|   person who has established his separate household and ceased to have
|   a domestic relationship. Domestic relationship continues so long as
|   the parties live under the same roof and enjoy living together in a
|   shared household. Only a compelled or temporarily going out by
|   aggrieved person shall fall in phrase ‘at any point of time’, say,
|   wife has gone to her parents house or to a relative or some other
|   female member has gone to live with her some relative, and, all her
|   articles and belongings remain within the same household and she has
|   not left the household permanently, the domestic relationship
|   continues. However, where the living together has been given up and a
|   separate household is established and belongings are removed,
|   domestic relationship comes to an end and a relationship of being
|   relatives of each other survives. This is very normal in families
|   that a person whether, a male or a female attains self sufficiency
|   after education or otherwise and takes a job lives in some other city
|   or country, enjoys life there, settles home there. He cannot be said
|   to have domestic relationship with the persons whom he left behind.
|   His relationship that of a brother and sister, father and son, father
|   and daughter, father and daughter-in-law etc survives but the
|   domestic relationship of living in a joint household would not
|   survive & comes to an end.
|   
|   7. This meaning of domestic relationship has sense when we come to
|   definition of domestic violence and the purpose of the Act. The
|   purpose of the Act is to give remedy to the aggrieved persons against
|   domestic violence. The domestic violence can take place only when one
|   is living in shared household with the respondents. The acts of
|   abuses, emotional or economic, physical or sexual, verbal or
|   nonverbal if committed when one is living in the same shared
|   household constitute domestic violence. However, such acts of
|   violence can be committed even otherwise also when one is living
|   separate. When such acts of violence take place when one is living
|   separate, these may be punishable under different provisions of IPC
|   or other penal laws, but, they cannot be covered under Domestic
|   Violence Act. One has to make distinction between violence committed
|   on a person living separate in a separate household and the violence
|   committed on a person living in the shared household. Only violence
|   committed by a person while living in the shared household can
|   constitute domestic violence. A person may be threatening another
|   person 100 miles away on telephone or by messages etc. This may
|   amount to an offence under IPC, but, this cannot amount to domestic
|   violence. Similarly, emotional blackmail, economic abuse and physical
|   abuse can take place even when persons are living miles away. Such
|   abuses are not covered under Domestic Violence Act but they are
|   liable to be punished under Penal laws. Domestic Violence is a
|   violence which is committed when parties are in domestic
|   relationship, sharing same household and sharing all the household
|   goods with an opportunity to commit violence. This court keeping in
|   view the aforesaid judgment is of the considered opinion that the
|   present case is a case in which this court is of the considered
|   opinion that the conduct of the petitioners in not giving the share
|   to the sister, keeping in view of the totality of the circumstances
|   of the case is not covered within the meaning of the term ‘Domestic
|   Violence’ as defined under Section 3 of the Act 2005.

Learned counsel has also placed reliance upon a judgment delivered in the case of Adil & Ors. vs. State & Another reported in 2010(119) DRJ 297 . Paragraph 10 & 11 reads of the aforesaid judgment reads as under:-

|   10. It is apparent from the perusal of the order of Trial Court and
|   Appellate Court that both, the Trial Court and the Appellate Court
|   mis-directed themselves and did not consider the relevant provision
|   of the Domestic Violence Act. Under Domestic Violence Act, the first
|   pre-condition is that the applicant must be an aggrieved person.
|   Aggrieved person is a person defined in Section 2 (a) of the Act. The
|   domestic relationship must be there between the aggrieved person and
|   respondent to invoke Domestic Violence Act. This Court had clarified
|   the legal position in respect of domestic relationship in Vijay Verma
|   Vs. State NCT of Delhi & Anr., Criminal Misc. No. 3878 of 2009 and
|   observed as under:
|
    |   “5. Filing of a petition under Protection of Women from Domestic
    |   Violence Act by the petitioner taking shelter of domestic
    |   relationship and domestic violence needs to be considered so that
    |   this Act is not misused to settle property disputes. Domestic
    |   relationship is defined under the Act in Section 2(f) as under:
    |   
    |   “(f) „domestic relationship? means a relationship between two
    |   persons who live or have, at any point of time, lived together in a
    |   shared household, when they are related by consanguinity, marriage,
    |   or through a relationship in the nature of marriage, adoption or are
    |   family members living together as a joint family.”
    |   
    |   6. A perusal of this provision makes it clear that domestic
    |   relationship arises in respect of an aggrieved person if the
    |   aggrieved person had lived together with the respondent in a shared
    |   household. This living together can be either soon before filing of
    |   petition or „at any point of time?. The problem arises with the
    |   meaning of phrase “at any point of time”. Does that mean that living
    |   together at any stage in the past would give right to a person to
    |   become aggrieved person to claim domestic relationship? I consider
    |   that “at any point of time” under the Act only means where an
    |   aggrieved person has been continuously living in the shared household
    |   as a matter of right but for some reason the aggrieved person has to
    |   leave the house temporarily and when she returns, she is not allowed
    |   to enjoy her right to live in the property. However, “at any point of
    |   time” cannot be defined as “at any point of time in the past” whether
    |   the right to live survives or not. For example if there is a joint
    |   family where father has several sons with daughters-in-law living in
    |   a house and ultimately sons, one by one or together, decide that they
    |   should live separate with their own families and they establish
    |   separate household and start living with their respective families
    |   separately at different places; can it be said that wife of each of
    |   the sons can claim a right to live in the house of father-in-law
    |   because at one point of time she along with her husband had lived in
    |   the shared household. If this meaning is given to the shared
    |   household then the whole purpose of Domestic Violence Act shall stand
    |   defeated. Where a family member leaves the shared household to
    |   establish his own household, and actually establishes his own
    |   household, he cannot claim to have a right to move an application
    |   under Section 12 of Protection of Women from Domestic Violence Act on
    |   the basis of domestic relationship. Domestic relationship comes to an
    |   end once the son along with his family moved out of the joint family
    |   and established his own household or when a daughter gets married and
    |   establishes her own household with her husband. Such son, daughter,
    |   daughter-in-law, son-in-law, if they have any right in the property
    |   say because of coparcenary or because of inheritance, such right can
    |   be claimed by an independent civil suit and an application under
    |   Protection of Women from Domestic Violence Act cannot be filed by a
    |   person who has established his separate household and ceased to have
    |   a domestic relationship. Domestic relationship continues so long as
    |   the parties live under the same roof and enjoy living together in a
    |   shared household. Only a compelled or temporarily going out by
    |   aggrieved person shall fall in phrase „at any point of time?, say,
    |   wife has gone to her parents house or to a relative or some other
    |   female member has gone to live with her some relative, and, all her
    |   articles and belongings remain within the same household and she has
    |   not left the household permanently, the domestic relationship
    |   continues. However, where the living together has been given up and a
    |   separate household is established and belongings are removed,
    |   domestic relationship comes to an end and a relationship of being
    |   relatives of each other survives. This is very normal in families
    |   that a person whether, a male or a female attains self sufficiency
    |   after education or otherwise and takes a job lives in some other city
    |   or country, enjoys life there, settles home there. He cannot be said
    |   to have domestic relationship with the persons whom he left behind.
    |   His relationship that of a brother and sister, father and son, father
    |   and daughter, father and daughter-in-law etc survives but the
    |   domestic relationship of living in a joint household would not
    |   survive & comes to an end.”
    |   
    |   (emphasis added)
|
|   11. In this case it could not have been decided by the Court of MM
|   without recording evidence as to whether any domestic relationship
|   existed between the parties on the date of filing application or soon
|   before that in accordance with law laid down by this Court. It must
|   be kept in mind that resort of Domestic Violence Act cannot be done
|   to enforce property rights. For enforcement of property rights, the
|   parties are supposed to approach civil court. Resort to Domestic
|   Violence Act can be done only where there is urgent requirement of
|   wife to be maintained and provided residence when because of domestic
|   violence, she had been rendered homeless and she had lost source of
|   maintenance. Domestic Violence Act is not meant to enforce the legal
|   rights of property, neither an interim order can be passed without
|   first prima facie coming to conclusion that a domestic relationship
|   existed between the parties and the applicant was an aggrieved person
|   within the meaning of Section 2(a) of the Domestic Violence Act. In
|   the present case, the order of learned MM and learned ASJ is
|   absolutely silent as to how respondent was an aggrieved person and
|   how a domestic relationship existed between her and petitioners.

Keeping in view the aforesaid judgment as an attempt is being made to enforce the property rights, this court is of the considered opinion that the respondents should have take recourse to the other legal remedies that is filing a civil suit etc., inspite of complaint under Section 12 of the Act 2005. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Learned counsel for the respondent has argued before this court that the petitioners are having remedy of appeal / revision, therefore, the present revision be dismissed.

This court has carefully gone through the complaint preferred under Section 12 of the Act 2005 and in the considered opinion of this court after going through the entire complaint and the subjected document annexed alongwith complaint, this court is of the considered opinion that in the present case, sister is seeking a share in the property which has been left behind by her father and the complaint has been filed with a specific prayer for grant of share in her father’s property. She is not residing with her brothers and she was earlier also not residing with her brothers. She is happily married for the last 40 years. She is having children and one fine morning i.e., on 02/10/2011, after visiting her brother’s house, she has filed this present complaint as they have expressed their inability to give share to their sister as there is already a will in existence.

In the considered opinion of this court, the entire complaint is misconceived complaint and the proceedings filed in the complaint initiated in the matter pending before the Magistrate, Class-I deserves to be quashed and are hereby quashed preferred under Section 482 stands allowed, however a liberty is granted to the sole respondent to take recourse to the other remedies that is filing a civil suit for claiming a share if any in the property.

It is made clear that any observation made by this court in the present petition which has been preferred under Section 482 will not come in way of the parties in respect of any litigation.

The observations are confined only to the extent to the present complaint preferred under Section 12 of the Act 2005 is concerned.

(S.C. Sharma) Judge Karuna

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Goondas, criminals, law violators cannot get avatar of advocate & take shelter : Madras HC

"….When such is the glory of the legal profession elements like Goondas, criminals, law violators cannot get an avatar of advocate and take shelter under the name of Advocate and try to shield their illegal/unlawful acts by entering into the profession and polluting the same which will be against the public interest…."

*****************

An advocate Petitions the Hon Madras HC seeking an order of Ad-Interim Injunction restraining the Bar Council of Tamilnadu and Pondicherry not to enroll any applicant without making proper enquiry regarding the Criminal antecedents. This advocate goes on to list many other’s name, especially those with criminal cases against them, enrolling as advocates.

The Hon HC discusses the matter and says (inter alia)

"….The details given in above is only a tip of ice berg. It is very shocking to note that the persons who were detained under Goondas Act, the Tamil Nadu Act 14 of 1982, and history sheeters also got enrolled as Advocates. That apart it is reported in the newspapers that an alleged Advocate is involved in a robbery of a jewellery in Madurai. Similarly, it is being alleged by the petitioner that many criminal offences are committed in the name of Advocates. It is said that making use of the name “Advocate” they are indulging in these kinds of criminal activities and due to that, the noble profession’s image is damaged. Since shield of advocate is being used, police is also not taking proper action. If the criminals and history sheeters are allowed to enrol and practise as lawyers before the courts of law, it is the end of the rule of law. The justice delivery system has to function based on the valuable assistance given by the Advocates who are officers of the court. They owe duty not only to the clients but also to the court as well as to the society. Such a noble profession is sought to be high-jacked by the criminal elements, it is contended. If what the petitioner contends is true, it will definitely jeopardise very justice delivery systems and the court functioning will also be irreversibly affected…."

"…8. Even if a person wants to enter into police force as a Constable, he should not have any criminal case against him. Such a rule was also upheld by a Full Bench of this Court in Manikandan Vs. Chairman, Tamilnadu Uniformed Services Recruitment Board reported in 2008(2)CTC 97 and approved by Five Judges Bench of this Court in J.Alex Ponselvan Vs. Director General of Police, Tamilnadu reported in 2014(2) CTC 337 and also in a case in Commissioner of Police vs. Meharsingh reported in (2013)7 SCC 685 by the Honourable Apex Court.

9. When such is the position, in case of police constable post, the persons who enter into the profession should only be good persons with integrity, honesty and rectitude, straight forward people alone should enter into this profession and not bad elements. There is every possibility of an Advocate to become a Judge one day. …."


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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction )
Friday, the First day of August Two Thousand Fourteen
PRESENT The Hon`ble Mr.Justice N.KIRUBAKARAN

MP(MD)No.1 of 2014 in CRL OP(MD) No.14573 of 2014

S.M.ANANTHA MURUGAN, ADVOCATE,
S/O.S.MARIYAPPAN,
4/730, KURICHI STREET,
TAHSILDAR NAGAR, MADURAI-20…. PETITIONER/PETITIONER

Vs

1 THE CHAIRMAN,
BAR COUNCIL OF INDIA, NEW DELHI.

2 THE CHAIRMAN AND SECRETARY,
BAR COUNCIL OF TAMILNADU AND PONDICHERRY,
HIGH COURT BUILDING, CHENNAI-104.

3 THE DIRECTOR GENERAL OF POLICE,
O/O. DIRECTOR GENERAL OF POLICE,
KAMARAJAR SALAI, CHENNAI-4.

4 THE INSPECTOR GENERAL OF POLICE,
SOUTH ZONE, MADURAI.

5 THE INSPECTOR GENERAL OF POLICE,
NORTH ZONE, CHENNAI.

6 THE INSPECTOR GENERAL OF POLICE,
WEST ZONE, COIMBATORE,

7 THE INSPECTOR GENERAL OF POLICE,
CENTRAL ZONE, TRICHY… RESPONDENTS/RESPONDENTS

Petition praying that in the circumstances stated therein and in the petition filed therewith the High Court will be pleased to grant an order of Ad-Interim Injunction restraining the Bar Council of Tamilnadu and Pondicherry not to enroll any applicant on 02/08/2014 without making proper enquiry regarding the Criminal antecedents, pending disposal of the above Crl.O.P(MD) No.14573 of 2014

ORDER :

This petition coming on for orders upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.W.PETER RAMESH KUMAR, Advocate for the petitioner and of M/S.P.KANDASAMY, Government Advocate (Criminal Side) for the Respondents 3 to 7, the Court made the following order:-

It is not a rosy picture, which the petitioner paints about the candidates, who are trying to sneak into legal profession by getting enrolled as Advocates. The petitioner who is a practising Advocate, has knocked the doors of this Court stating that those with criminal background with heinous crimes, purchased Law degrees from neighbouring States, like, Andhra and Karnataka without even attending classes and basic qualifications and are making attempt to enroll themselves before the Bar Council of Tamil Nadu in the enrolment to be held tomorrow ie., 02.08.2014.

2. The petitioner has stated in paragraph 3 to 5 as follows:

| "3. It is submitted that the persons who cannot get admission in
| the law College in Tamil Nadu Government, they are getting
| admissions and buying LLB degrees in the Private college in
| Karnataka, Andhra, Chhattisgarth, Jharkhand and other northern
| States. At the time of enrolment, the applicant shall produce no
| objection certificate received from the police department that
| no criminal case is pending against him as on date. On receiving
| such application the Bar Council of Tamil Nadu and Pondicherry
| shall make cross verification regarding the genuine of
| certificates produced for getting enrolment.
|
| 4. It is submitted that while making such verification the
| police department shall verify that whether any criminal case is
| pending against him in any police station within Tamil Nadu. The
| applicant who involved in heinous offence shall not be permitted
| to enroll as Advocate in the Bar Council of Tamil Nadu and
| Pondicherry.
|
| 5. It is submitted that on 02.08.2014 the Bar Council of Tamil
| Nadu and Pondicherry proposed to enroll 900 members as Advocate.
| Further, 40% out of 900 persons are having criminal backgrounds
| and involved in heinous offences. The Bar Council of Tamil Nadu
| is proposed to enroll the persons who are involved in murder
| case, theft case and rape cases as advocates. Further so many
| persons purchased LLB degree in Karnataka, Andhra and other
| states for going to enroll in the Bar Council with criminal
| backgrounds."

3. A perusal of the aforesaid paragraphs would shock everybody. It is alleged that out of 900 members, who are to be enrolled, about 40% of the persons are having criminal backgrounds involved in heinous offences and they managed to obtain police verification certificate suppressing their criminal backgrounds. The two persons, namely, Elango, from Ramnad District, who is said to be having 14 criminal pending cases and one Mr.Ali Siddick from Madurai is said to have 7 criminal cases to his credit are to be enrolled.

4. Mr.Peter Ramesh Kumar, learned counsel for the petitioner would contend that already the profession has become the place for criminal elements, who got into the profession purchasing degree from LLBs and if the proposed enrolment is to be held, it would still more make it worse. Therefore, he seeks an order not to conduct the enrolment to be held on 02.08.2014.

5. Mr.P. Kandasamy, learned Government Advocate (crl.side) would submit that the petitioner has given a complaint with the higher police authorities and it would be looked into after due verification and appropriate steps would be taken, after due verification.

6. The nobility of the legal profession has been expressed in many judgments of the Honourable Supreme Court. The importance of the legal profession, high standards to be maintained and ethics to be followed by the Advocates are given in detail in various judgments, which are as follows:

(i) In O.P. Sharma v. High Court of Punjab & Haryana, (2011) 6 SCC 86. Paragraph 17 of the Judgement reads as follows:-

| “17. The role and status of lawyers at the beginning of
| sovereign and democratic India is accounted as extremely vital
| in deciding that the nation’s administration was to be governed
| by the rule of law. They were considered intellectuals amongst
| the elites of the country and social activists amongst the
| downtrodden. These include the names of a galaxy of lawyers like
| Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai
| Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R.
| Ambedkar, to name a few. The role of lawyers in the framing of
| the Constitution needs no special mention. In a profession with
| such a vivid history it is regretful, to say the least, to
| witness instances of the nature of the present kind. Lawyers are
| the officers of the court in the administration of justice.”

(ii) In R.D.Saxona Vs. Balram Prasad Sharma reported (2000)7 SCC 264 held that a social duty is cast upon the legal profession to show the people a beacon light by their conduct and actions. The poor, uneducated and the exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession.

(iii) In Sudha v. President, Advocates Association, Chennai and others reported (2010) 14 SCC 114 in paragraph 40 reads as follows :

| “ 40. The legal profession is a solemn and serious occupation.
| It is a noble calling and all those who belong to it are its
| honourable members. Although the entry to the profession can be
| had by acquiring merely the qualification prescribed by
| different universities, the honour as a professional has to be
| maintained by its members by their exemplary conduct both in and
| outside the court.
The legal profession is different from other
| professions in that what the lawyers do, affects not only an
| individual but the administration of justice which is the
| foundation of the civilised society. Both as a leading member of
| the intelligentsia of the society and as an intelligent citizen,
| the lawyer has to conduct himself as a model for others both in
| his professional and in his private and public life. The
| different Associations of the members of the Bar are being
| formed to show the strength of lawyers in case of necessity. The
| lawyer while exercising vote in an election of office-bearers of
| the Association must conduct himself in an exemplary manner.
| Those who are concerned about the high standard of the
| profession are supposed to take appropriate action to see that
| the election takes place peacefully and in an organised manner.”

(iv) In the matter V.C. Rangadurai v. D. Gopalan, reported in (1979) 1 SCC 308 out line the importance of Advocate that nothing should be done by any member of the legal fadality and which might done to lesson in any degree the confidency of the public fedality, honesty and integrity of the profession. The relevant paragraphs 4 and 5, which reads as follows in

| “ 4. Law is a noble profession, true; but it is also an elitist
| profession. Its ethics, in practice, (not in theory, though)
| leave much to be desired, if viewed as a profession for the
| people. When the Constitution under Article 19 enables
| professional expertise to enjoy a privilege and the Advocates
| Act confers a monopoly, the goal is not assured income but
| commitment to the people
— the common people whose hunger,
| privation and hamstrung human rights need the advocacy of the
| profession to change the existing order into a Human Tomorrow.
| This desideratum gives the clue to the direction of the penance
| of a deviant geared to correction. Serve the people free and
| expiate your sin, is the hint.
|
| 5. Law’s nobility as a profession lasts only so long as the
| members maintain their commitment to integrity and service to
| the community.
Indeed, the monopoly conferred on the legal
| profession by Parliament is coupled with a responsibility — a
| responsibility towards the people, especially the poor. Viewed
| from this angle, every delinquent who deceives his common client
| deserves to be frowned upon. This approach makes it a reproach
| to reduce
|
| the punishment, as pleaded by learned counsel for the
| appellant.” (v) Importantly, Mr.Justice V.R.Krishna Iyer in
| matter of Bar Council of Maharashtra v. M.V. Dabholkar reported
| in (1975) 2 SCC 702 in paragraph 52, which reads as follows: “

52. The Bar is not a private guild, like that of “barbers, butchers and candlestick-makers” but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice ( ‘The Practice of Law is a Public Utility’ — ‘The Lawyer, The Public and Professional Responsibility’ by F. Raymond Marks et al — Chicago American Bar Foundation, 1972, p. 288-89). A glance at the functions of the Bar Council, and it will be apparent that a rainbow of public utility duties, including legal aid to the poor, is cast on these bodies in the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honourable order. If pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem and who, but the Bar Council, is more concerned with and sensitive to this potential disrepute the few black sheep bring about? The official heads of the Bar i.e. the Attorney-General and the Advocates-General too are distressed if a lawyer “stoops to conquer” by resort to soliciting, touting and other corrupt practices.”

When such is the glory of the legal profession elements like Goondas, criminals, law violators cannot get an avatar of advocate and take shelter under the name of Advocate and try to shield their illegal/unlawful acts by entering into the profession and polluting the same which will be against the public interest.

7. When Law is a service oriented profession, very harsh, shameful allegations are made against some of the persons who seek to become Advocates. As per the allegation made in the petition that a number of candidates approached the Bar council of Tamil Nadu with antecedent certificates and they seek to enrol tomorrow. Even in the earlier occasion, it was brought to the notice of this Court that persons with criminal backgrounds got enrolled suppressing the criminal cases which is as follows:

“(1) Karmegam, whose enrolment No. is 1319/2013 against whom a criminal has been pending in F.I.R.No.78 of 2010, Central Crime Branch, Madurai and

(2) Joseph Arul Jayaseelan’s enrolment No. is 1305/2013 was detained under GOONDAS Act and he is a history sheeter also.”

The details given in above is only a tip of ice berg. It is very shocking to note that the persons who were detained under Goondas Act, the Tamil Nadu Act 14 of 1982, and history sheeters also got enrolled as Advocates. That apart it is reported in the newspapers that an alleged Advocate is involved in a robbery of a jewellery in Madurai. Similarly, it is being alleged by the petitioner that many criminal offences are committed in the name of Advocates. It is said that making use of the name “Advocate” they are indulging in these kinds of criminal activities and due to that, the noble profession’s image is damaged. Since shield of advocate is being used, police is also not taking proper action. If the criminals and history sheeters are allowed to enrol and practise as lawyers before the courts of law, it is the end of the rule of law. The justice delivery system has to function based on the valuable assistance given by the Advocates who are officers of the court. They owe duty not only to the clients but also to the court as well as to the society. Such a noble profession is sought to be high-jacked by the criminal elements, it is contended. If what the petitioner contends is true, it will definitely jeopardise very justice delivery systems and the court functioning will also be irreversibly affected.

8. Even if a person wants to enter into police force as a Constable, he should not have any criminal case against him. Such a rule was also upheld by a Full Bench of this Court in Manikandan Vs. Chairman, Tamilnadu Uniformed Services Recruitment Board reported in 2008(2)CTC 97 and approved by Five Judges Bench of this Court in J.Alex Ponselvan Vs. Director General of Police, Tamilnadu reported in 2014(2) CTC 337 and also in a case in Commissioner of Police vs. Meharsingh reported in (2013)7 SCC 685 by the Honourable Apex Court.

9. When such is the position, in case of police constable post, the persons who enter into the profession should only be good persons with integrity, honesty and rectitude, straight forward people alone should enter into this profession and not bad elements. There is every possibility of an Advocate to become a Judge one day. When such an onerous responsibility is to be shouldered by those candidates in future, the role of Bar council is important to verify the background of the candidates thoroughly. If the criminal elements are allowed to enter, the justice delivery system will be hijacked.

10. Since two solid cases, namely, Elango and Ali Siddick, against whom many cases are stated to be pending, have been quoted by the petitioner, this Court cannot ignore the said serious allegations. Moreover, it is stated that the antecedent verification certificates were given without proper verification. Quoting names, the veracity of the verification certificates is questioned, it has to be viewed very seriously, as public interest is involved. After re-verification, the enrolment can be allowed to be conducted later. The criminal background of the candidates is required to be done. Taking such process to filter those criminal elements and preventing them from entering into profession is the interest of the society and the judiciary which is one of the pillars of the State. Hence, the enrolment is required to be postponed only for verification of the certificates of the candidates. Even, one drop of poison would spoil the whole pot of milk.

11. This Court is making these prima facie observations based on the statements made in the petition only against those criminal elements and not against the regular candidates, who underwent the studies regularly and obtained degrees.

12. Prevention is better that cure. Though many of regular candidates would be affected by the order of this Court, this Court has to see the larger interest of the society. Public interest would prevail over private interest. After verification, they can be enrolled. Hence, interest of justice requires a direction to the first and second respondent to postpone the enrolment to be held on tomorrow. Accordingly, the first and second respondents are directed to postpone the enrolment to be held on tomorrow I.e. on 02.08.2014 pending O.P.

13. Mr.P.Kandasamy, learned Govt. Advocate takes notice for respondents 3 to 7.

14. Notice to the respondents 1 and 2 returnable by 11.08.2014.

Private notice is also permitted.

sd/-

01/08/2014

/ TRUE COPY /

Sub-Assistant Registrar (C.S.)

Madurai Bench of Madras High Court,

Madurai – 625 023.

TO

1 THE CHAIRMAN, BAR COUNCIL OF INDIA, NEW DELHI.

2 THE CHAIRMAN AND SECRETARY, BAR COUNCIL OF TAMILNADU AND PONDICHERRY, HIGH COURT BUILDING, CHENNAI-104.

3 THE DIRECTOR GENERAL OF POLICE, O/O. DIRECTOR GENERAL OF POLICE, KAMARAJAR SALAI, CHENNAI-4.

4 THE INSPECTOR GENERAL OF POLICE,
SOUTH ZONE, MADURAI.

5 THE INSPECTOR GENERAL OF POLICE,
NORTH ZONE, CHENNAI.

6 THE INSPECTOR GENERAL OF POLICE,
WEST ZONE, COIMBATORE,

7 THE INSPECTOR GENERAL OF POLICE,
CENTRAL ZONE, TRICHY

8 THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

+5. CCS to M/S.W.PETER RAMESH KUMAR Advocate SR.No.42861.

ORDER IN MP(MD)No.1 of 2014 IN CRL OP(MD) No.14573 of 2014

Date :01/08/2014

msm 01.08.2014 p8/14c

source
http://www.barcounciloftamilnadupuducherry.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

Woman earning equal 2 hubby does NOT get anything under DV. Neither maint nor residence !! Delhi Sessns court

Woman earning equal 2 hubby does NOT get anything under DV. Neither maint nor residence !! DV does not create addl rights, just fast tracks case !

Wife and husband are earning almost similar amount. Ablaa wife approaches court training to get into father in law’s house / property claiming she was harassed for Dowry and a Honda car !! The MM court refuses to grant maintenance or residence to the wife (as the flat is in FIL’s name).

The Honourable sessions court held :
* “…Both the parties are drawing almost equal salary, which is more than Rs. 1 lac and therefore both the parties are in a position to maintain themselves independently…”
* “…Ld. trial Court has also observed that in view of case titled as Mangat Mal (dead) vs. Punni Devi (dead) & Ors 1995 (6) SCC 88, right of maintenance also includes the right to residence. If aggrieved person is not entitled to claim maintenance for herself, she is not entitled to claim separate right of residence….”
* “….It is observed by ld. trial Court that the Hon’ble High Court has already fixed the maintenance of Rs. 10,000/­ for the minor daughter, which is being paid by R­1. In view of case titled as Adil & Ors vs. State (supra) decided by Hon’ble High Court, ld. M.M observed that there is no urgency that the aggrieved is not been able to maintain herself or is without any roof and the provision of PWDV Act can be used only for the urgent requirement of the wife to be maintained and to provide residence. In the opinion of ld. trial Court, aggrieved person is maintaining a decent life style and is earning equal to her husband i.e. R­1, therefore, no ground is made out to provide any residence maintenance to the aggrieved….”

* “….The object and reason of Domestic Violence Act is to provide a fast track remedy to the women, victim of domestic violence in urgent situation. The reliefs under Domestic Violence Act are not in addition to other similar reliefs available to the parties like U/S 125 Cr.P.C or other provisions of maintenance….”
* “….At the stage of interim maintenance, Court is required to consider the relevant factors like background of parties, their life style, their earnings, their assets and liabilities etc. The assessment of interim maintenance is based on a prima facie view of the respective contentions of the parties and material on record……”
* “…As per settled law, aggrieved person cannot claim right to residence in the property exclusively owned by her father in law, in which her husband has no share…”
* “…Even in the case of Vimalben Ajitbhai Patel’s case (supra), it is not held that the aggrieved person can claim a separate right of residence or “maintenance for residence” in addition to maintenance granted by the Court. In my view, the observations of Hon’ble Supreme Court in para no. 27 of the said judgment cannot be interpreted to give a meaning that aggrieved person is entitled for additional maintenance of residential accommodation under the provisions of DV Act, despite the fact that she has almost equal earning of her husband….” !!

*****************************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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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 / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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IN THE COURT OF SH. SANJEEV JAIN:ADDL. SESSIONS JUDGE /SPECIAL JUDGE: CBI­03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:NEW DELHI

Criminal Appeal no. 06/15

UID No. 02406R0101692015

Mrs. Ruchi Ahuja
D/o Sh. D.K. Ahuja
R/o M­66B, Malviya Nagar,
New Delhi 110 017  ……….Appellant

Vs.

1. Sh. Dinesh Kumar
S/o Sh. Prem Prakash

2. Sh. Prem Prakash
S/o late Sh. Jaswant Rai

3. Smt. Kaushalya Devi
W/o Sh. Prem Prakash

All R/o 86­D, Pocket 4, Mayur Vihar,
Phase­I, New Delhi. ….. Respondents

Date of filing of appeal : 26.03.2015
Date of allocation : 27.03.2015
Date of arguments : 11.09.2015
Date of order : 26.09.2015

Appeal U/S 29 of The Protection of Women From Domestic Violence Act, 2005 (in short “DV Act”) against the impugned order dated 31.01.2015 passed by the Court of Ms. Niti Phutela, Ld. Metropolitan Magistrate­02 (in short “MM”), Mahila Court, South, Saket Courts, New Delhi.

Appearance:     Appellant in person.
Sh. Girish Kohli, advocate for appellant.
Sh. Anand Maheshwari, advocate for all the respondents.
R­1 and R­2 in person.

Cases referred by ld. counsel for appellant:

1. Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and Ors decided by Hon’ble Supreme Court of India on 14.03.2008 in Appeal (Civil) No. 2003 of 2008.

Cases referred by ld. counsel for respondents:

1. Smt. Ranjna Gupta vs. Rajnesh Gupta & Ors decided by Hon’ble High Court on 11.02.2014 in Crl.Revp 637/2013;
2. Smt. Rachna Kathuria vs. Ramesh Kathuria decided by Hon’ble High Court on 30.08.2010 in Crl. M.C. No. 130/2010 & Crl. M.A no. 504/2010;
3. Adil & Ors vs. State & Anr decided by Hon’ble High Court of Delhi on 20.09.2010 in Crl.M.C 4159/2009, Crl.M.A No. 14141/2009.
4. Vijay Verma vs. State NCT of Delhi & Anr decided by Hon’ble High Court of Delhi on 13.08.2010 in Cr.L.M.C No. 3878/2009.
5. Sejal Dharmesh Ved vs. State of Maharashtra & Anr decided by Hon’ble High Court of Judicature at Bombay in Criminal application no. 160/2011.

JUDGMENT

Brief Facts:

1. Mrs. Ruchi Ahuja (hereinafter at some places referred as “aggrieved”) was married to Sh. Dinesh Kumar, respondent no. 1 (hereinafter referred as “R­1”) on 14.10.2007 at New Delhi. Respondent no. 2 Prem Parkash and respondent no. 3 Smt. Kaushalya Devi are father in law and mother in law of the aggrieved (hereinafter at some places referred as “R­2 and R­3” respectively). As per the case of aggrieved, the respondents harassed her for dowry demands like demand of Honda City Car etc. On 15.09.2008 aggrieved and R­1 were blessed with a daughter. After the birth of daughter, aggrieved was not taken back to her matrimonial home from hospital and forced to live with her parents. The aggrieved lodged a complaint with CAW Cell, Nanakpura, Delhi, which resulted in registration of FIR No. 40/2010 dated 23.03.2010.

Aggrieved filed an application U/S 12 and 13 of DV Act for seeking interim relief of Residence Order and did not press for any other relief under the said Act for herself. Vide order dated 05.04.2014, ld. trial Court dismissed the application of aggrieved U/S 23 of DV Act for the interim relief of the Residence Order on the short ground that aggrieved was earning sufficiently and therefore she can arrange an alternative accommodation for herself. Order dated 05.04.2014 was challenged in appeal before the Court of ld. District & Sessions Judge, South. Ld. District & Sessions Judge, South remanded the matter to ld. trial Court for fresh consideration and adjudication on the question of right of residence. Ld. trial Court accordingly heard the matter and by impugned order dated 31.01.2015 dismissed the application of the aggrieved for interim relief of Residence Order on the ground of sufficient earnings of aggrieved. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Grounds/arguments of aggrieved:

2. Ld. counsel for appellant/aggrieved challenged the impugned order dated 31.01.2015 on the basis of following grounds/arguments:

(a) That in the case of Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and Ors dated 14.03.2008, the Hon’ble Apex Court ruled in para no. 27 that “The Domestic Violence Act provides for a higher right in favour of wife. She not only acquires right to be maintained but also there under acquires a right of residence. The right of residence is a higher right.” Therefore, ld. M.M committed an error in holding that right to maintenance is inclusive of right of residence;

(b) That ld. trial Court has virtually made the petition of the aggrieved as infructous. The impugned order has virtually excluded all working women from the beneficial ambit of the DV Act without considering that the aggrieved and R­1 have to share all the financial burdens of the marriage and parenthood equally;

(c) That ld. trial Court was not correct in relying upon the law laid down by Hon’ble Apex Court in the case of Mangat Mal (Dead) vs. Punni Devi (Dead) & ors 1995(6) SCC 88. Ld. trial Court failed to distinguish the right of maintenance and residence order provided under the DV Act.

(d) That ld. Trial Court did not consider that in respect of flat situated in Ghaziabad, UP, as per admitted case, R­1 has also paid the installments and there was no document on record to show that R­2 was the exclusive original allottee of flat bearing no. 905, Tower II, Mahagun Mosaic of Dabur Chowk, Vaishali, Ghaziabad;

(e) That ld. trial Court failed to appreciate that R­1 was the initial allottee of the said flat and it was transferred to R­2 to deprive the appellant from her right of residence;

(f) That ld. trial Court failed to consider the huge difference in the House Rent Allowance (HRA) being received by the aggrieved and R­1 and brushed aside the contention of aggrieved without any reason;

(g) That ld. M.M failed to consider that aggrieved is residing with her parents with her minor daughter and bearing all expenditure and by implication, impugned order, put a disproportionate burden on the aggrieved to maintain her daughter and herself;

(h) That as per the law laid down in the case Neeta Rakesh Jain vs. Rakesh Jeetmal Jain (2010) 12 SCC 242, at the time of maintenance though the court is not expected to go into the detailed and elaborate exercise, but at the same time, Court has to take all relevant factors into account like social status, background of the parties, economic dependence of the aggrieved and assets and liabilities of the parties to arrive at a proper amount of maintenance;

(i) That ld. trial Court failed to appreciate that none other than the aggrieved person and her daughter are dependent on R­1, being his wife and only child. Under settled principles of law, Hindu male is under moral and legal obligation to provide maintenance for his children and wife. Ld. trial Court put a disproportionate burden upon aggrieved person to bear all expenses of education, health, transportation and maintenance of the daughter, without considering the relevant facts.

3. Grounds/arguments of the respondents:

i. As per admitted position, R­1 and aggrieved person are gainfully employed and are drawing almost similar amount of gross salary which is more than Rs. 1 lac each. Because the aggrieved person has sufficient source of income, therefore, she cannot claim either the maintenance or the provision/rent for residential accommodation from R­1;

ii. That flat in question at Ghaziabad is not in the name of husband i.e R­1 but it is in the name of father in law i.e. R­2 and therefore, appellant/aggrieved person cannot claim any right to residence in the said flat under the provisions of DV Act;

iii. That vide order dated 17.11.2014, the Hon’ble High Court has already passed an order for a sum of Rs. 10,000/­ PM towards maintenance of minor daughter, which is being paid by respondent no. 1. Therefore, the aggrieved person cannot alleged any disproportionate financial burden upon her;

iv. That in case of Smt. Ranjana Gupta’s case (supra), it was held by the Hon’ble High Court that “Respondent is residing in the house of his parents and has no separate accommodation. Similarly the complainant is residing with her parents and is financially independent. Admittedly salary of complainant is approximately Rs. 40,000/­ PM. Similarly respondent is earning a salary of approximately Rs. 39­40 thousands per month. I feel that financially both the parties are equally placed therefore, I am not inclined to pass any maintenance order. Residence order is also declined for the reason that complainant being a government servant is also entitled to HRA which shall be equal to HRA earned by the respondent therefore the said relief is also declined”;

v. That in case of Smt. Rachna Kathuria’s case (supra), it was held by Hon’ble High Court that “It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent Court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C, she does not have a right to claim additional maintenance under the Act. The Court of M.M under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. She does not have a right to claim additional maintenance under the Act“.

4. I have heard ld. counsels for the parties, carefully gone through the trial Court record and considered the written submissions filed by the parties as well as the arguments advanced at Bar.

5. The only material question for determination in this appeal is, whether appellant/aggrieved person is entitled to claim right to residence or alternative residential accommodation or rent in lieu of the residence from respondent?

6. Perusal of impugned order dated 31.01.2015 passed by ld. trial Court reflect that in detailed order, ld. trial Court has considered all the necessary facts, contentions and the cases referred by the parties. In the opinion of ld. trial Court, without going into the alleged difference in house rent allowance drawn by aggrieved person and R­1, both the parties are drawing almost equal salary, which is more than Rs. 1 lac and therefore both the parties are in a position to maintain themselves independently. Ld. trial Court has also observed that in view of case titled as Mangat Mal (dead) vs. Punni Devi (dead) & Ors 1995 (6) SCC 88, right of maintenance also includes the right to residence. If aggrieved person is not entitled to claim maintenance for herself, she is not entitled to claim separate right of residence. It is observed by ld. trial Court that the Hon’ble High Court has already fixed the maintenance of Rs. 10,000/­ for the minor daughter, which is being paid by R­1. In view of case titled as Adil & Ors vs. State (supra) decided by Hon’ble High Court, ld. M.M observed that there is no urgency that the aggrieved is not been able to maintain herself or is without any roof and the provision of PWDV Act can be used only for the urgent requirement of the wife to be maintained and to provide residence. In the opinion of ld. trial Court, aggrieved person is maintaining a decent life style and is earning equal to her husband i.e. R­1, therefore, no ground is made out to provide any residence maintenance to the aggrieved. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The provision of Domestic Violence Act are in addition to the other remedies available to a wife or children. The object and reason of Domestic Violence Act is to provide a fast track remedy to the women, victim of domestic violence in urgent situation. The reliefs under Domestic Violence Act are not in addition to other similar reliefs available to the parties like U/S 125 Cr.P.C or other provisions of maintenance. At the stage of interim maintenance, Court is required to consider the relevant factors like background of parties, their life style, their earnings, their assets and liabilities etc. The assessment of interim maintenance is based on a prima facie view of the respective contentions of the parties and material on record.

8. There is no dispute that aggrieved person and her husband­ R1 are decently employed and getting the salary of more than Rs. 1 lac each, which is almost equal to each other. There is no dispute that aggrieved person did not claim any maintenance for herself and Hon’ble High Court has already granted maintenance of Rs. 10,000/­ PM for the minor daughter, which is liable to be paid by R­1. In this factual position, in my opinion,. ld. trial Court has reasonably exercised its power under the provisions of DV Act to hold that aggrieved person is not entitled to claim separate right for residence. In my opinion, there is no reasonable ground to interfere in the findings of ld. trial Court. It is also admitted position that flat in Vaishali is not in the name of R­1 but it is in the name of father in law. Merely because R­1 has paid some installments of flat, it cannot be said that he has acquired the ownership rights of the flat at Ghaziabad. As per settled law, aggrieved person cannot claim right to residence in the property exclusively owned by her father in law, in which her husband has no share. Therefore, I do not find any ground to interfere in the findings of ld. trial Court in this regard. As far as the case law cited by the parties is concerned, each case has been decided in particular facts and circumstances. Even in the case of Vimalben Ajitbhai Patel’s case (supra), it is not held that the aggrieved person can claim a separate right of residence or “maintenance for residence” in addition to maintenance granted by the Court. In my view, the observations of Hon’ble Supreme Court in para no. 27 of the said judgment cannot be interpreted to give a meaning that aggrieved person is entitled for additional maintenance of residential accommodation under the provisions of DV Act, despite the fact that she has almost equal earning of her husband.

9. In view of above observations, in my opinion, there is no infirmity or illegality in the findings of ld. trial Court in the impugned order dated 31.01.2015. Therefore, there is no ground for interference by this Court. In my view, appeal is devoid of any merits. Therefore, the appeal is dismissed.

10. Copy of order be sent to the Court of ld. Trial Court alongwith trial Court record for information and record.

11. Parties/Ld. Counsels for parties to appear before ld. Trial Court on the date already fixed by ld. trial Court.

12. File be consigned to record room after due compliance.

Announced in the open court on 26.09.2015

(Sanjeev Jain) ASJ/Special Judge (PC Act)

(CBI­3), South, Saket Court New Delhi

The gamble called Indian marriage !! What our elders did not anticipate !!

* some small % of the population is addicted to gambling

* 99.xy % is NOT

* this is for the 99.xy %

* elders told us ( you and me )!that horse racing is bad. They told us it is sin .

* they told us gambling is bad karma

* they told us that you have to work for your bread

* alas !!! they did not know that in this century marriage will be a GREAT Indian gamble

* if you are NOT addicted to gambling, do not marry in india

* Never marry unless U are broke and jobless and there is NITHING left to gamble

* Never marry If U care about your mother and sister being in jail.

* never marry because he said or she said or they laughed. they won’t join u in jail they won’t come to your company when company fires u due to false DV dowry case. You have to save your ass.

* do yoga, do meditation, buy sex dolls or enjoy paid sex as is legal in your geography and morally ok for you.

* Most Indians never had sex before marriage. Most men do Not Get sex 20 years after marriage. So if u live to be eighty, you have NO SEX for 60 years and sex for 20 that too limited sex after 2 children, so put things in perspective, it’s very little sex overall and very big gamble.

* live without this marriage or living-in with a woman. This is 2015. If and when they change laws we can re write this code.m in 20… 30 .. 40 years

* in a legal situation or in a DV case, where you are against a young woman, all other men, mediators, the law, the layers, the police, the courts and all will side with the young woman – that’s how the system is wired, that’s how male DNA is , thats how Society is, that’s why you have one sided laws and law enforcement. This is the hard plain biology and psychology. Will take decades to change.

* don’t worry about society. Don’t worry about NOT having children or North Korea taking over !!!

* Do u really want your son to get into this shit ?? Tell me honestly

* yes false rape may hit you , thunder may strike , gummint bus may run over you …. But you aren’t reading my FB timeline because a coconut fell on ur head !!!!