Daily Archives: December 11, 2015

London wife files DV on Indian sis in law & looses completely !!

People who never had a shared household with the wife cannot be dragged into a DV / matrimonial case just for being relatives ! Delhi HC, Dec’15

Sister in law (husband’s sister) and her husband who live in India are dragged into a DV case by the wife who lived with her NRI hubby @ London !! She claims that they called over phone and intervened in her life !!

The court appreciates the facts and notices that “….Admittedly, prior to petitioner’s marriage with Dr.Anurag Gupta, they were living separate at their matrimonial home in Kolkota. After the marriage, the petitioner along with her husband lived in U.K…. …On perusal of the petition, it reveals that the respondents never lived with the petitioner in U.K. or at Patna and never had ‘shared household’ to constitute domestic relationship. “

Noticing that there is NO basis for charging the relatives, the Hon HC clearly orders “….The petitioner has alleged in the complaint that the respondents used to remain in touch on telephone with her and intervene in the family matters while she was in U.K. Simply, because the respondents are related to the petitioner’s husband, they cannot be dragged into matrimonial dispute between them in DV Act. The Trial Court order is based upon fair appraisal of the legal aspects …..”

Names of sister in law and her husband, already dropped by the Honourable MM court remain so !!

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IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON : DECEMBER 03, 2015

CRL.REV.P. 553/2015

SWATI MISHRA ….. Petitioner
Through : Mr.Pradeep Kumar Mathur, Advocate.

versus

LEENA GUPTA & ANR ….. Respondents
Through : None.

CORAM:

HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

(1) The instant revision petition has been preferred by the petitioner to challenge the legality and correctness of an order dated 01.07.2015 of learned Metropolitan Magistrate, (Mahila Court) whereby names of respondents were ordered to be deleted from the array of parties.

(2) I have heard the learned counsel for the petitioner and have examined the Trial Court record. Admittedly, the petitioner was married to Dr.Anurag Gupta. She has filed petition under Section 12 of DV Act against him and her father-in-law (Sita Ram Prasad Gupta). Respondent No.1 is her elder sister-in-law and was married to respondent No.2. Admittedly, prior to petitioner’s marriage with Dr.Anurag Gupta, they were living separate at their matrimonial home in Kolkota. After the marriage, the petitioner along with her husband lived in U.K. It is stated that there is ancestral house of her husband at Patna and the respondents did not allow her to enter the ancestral house. On perusal of the petition, it reveals that the respondents never lived with the petitioner in U.K. or at Patna and never had ‘shared household’ to constitute domestic relationship. The petitioner has alleged in the complaint that the respondents used to remain in touch on telephone with her and intervene in the family matters while she was in U.K. Simply, because the respondents are related to the petitioner’s husband, they cannot be dragged into matrimonial dispute between them in DV Act. The Trial Court order is based upon fair appraisal of the legal aspects and needs no intervention. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(3) The revision petition lacks merits and is dismissed in limini. Trial Court record be sent back forthwith along with the copy of the order.

(S.P.GARG) JUDGE

DECEMBER 03, 2015

sa

*****************************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.
**********************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
**********************************************************************

 

no DV cases on relatives (say in laws) who are NOT in domestic relationship ! Andhra HC

In this case a wife after loosing her false 498a case (quashed by the court) files DV case on husband and his relatives. Relatives NOT living under the same roof seek a quash of the DV case stating that they are living separately and NOT in domestic relationship with this woman

The Honourable court accepts their contention and quashes the case

The court holds that “……5. (g) Therefore, in the well-considered view of this Court, for a person to be made a respondent in a DV case filed by an aggrieved woman, such respondent, must have a domestic relationship with the aggrieved person and must have been living or must have lived together in a shared household along with the aggrieved person 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. Therefore, when any person who is so related who has been not living or had not lived together at any point of time with the aggrieved person in a shared household and who has/had no domestic relationship cannot be made a respondent to a case filed by the woman under the provisions of the Act.….”

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Andhra High Court

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

Criminal Petition No.8112 of 2012

19-01-2015

Smt. P.Sugunamma and others ……Petitioners

State of A.P., rep. by Public Prosecutor …. Respondents

Counsel for the petitioners: Sri K.Srinivas
Counsel for Respondent No. 1: Public Prosecutor
Counsel for Respondent No.2: Sri G.Venkateswara Rao

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI

Criminal Petition No.8112 of 2012

ORDER:

This is a Criminal Petition under Section 482 of the Code of Criminal Procedure (the CrPC, for brevity) by the petitioners, who are the respondents 2 to 6 in D.V.C.No.18 of 2012 on the file of the learned VI Metropolitan Magistrate, Medchal, Ranga Reddy District, requesting to quash the proceedings against them in the said DV Case.

2. I have heard the submissions of the learned counsel for the petitioners, the learned counsel for the 2nd respondent/applicant in the DV Case and the learned Public Prosecutor representing the 1st respondent-State. I have perused the material record. The parties hereinafter shall be referred to as the petitioners and the 2nd respondent as arrayed in this criminal petition.

3. The introductory facts, in brief, are as follows: The 2nd respondent herein, by name, P. Anantha Lakshmi is the wife of P.Giri Babu, the 1st respondent in the DV Case. The present petitioners are the brothers-in-law, co-sister and sister-in-law of the 2nd respondent herein. The 2nd respondent herein had filed a case under the provisions of the Protection of Women from Domestic Violence Act, 2005 (the Act, for brevity) seeking orders for protection under Section 18, Residence Order under Section 19, monetary relief under Section 20, custody order under Section 21 and compensation order under Section 22 of the Act. In fact, in the DV case, she had also sought prohibition of alienation of assets besides Rs.35,000/- towards monthly maintenance and a compensation of Rs.50,00,000/-. The total amount claimed by her is Rs.50,00,000/-. She had also earlier filed a case against her husband for the offence punishable under Section 498-A of the IPC and the said case is stated to be pending in the Court at Medchal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. Now, the points for determination are:

1. Whether the petitioners had made out valid and sufficient grounds for quashing the proceedings against them in DVC 18 of 2012?

2. Whether the uncontroverted allegations made in the complaint of the 2nd respondent do not disclose even a prima facie case against the petitioners?

3. Whether the application of the 2nd respondent should not have been entertained by the learned Magistrate against the petitioners without discussing the domestic and legal relationship of the petitioners with the 2nd respondent?

5. POINTS:

5. (a) The case pleaded by the petitioners in support of the request for quashing the proceedings against them in the DV case, is as under: According to the case of the 2nd respondent, while she was studying B.Com 2nd year, she fell in love with the 1st respondent in the DV case. After her marriage with the 1st respondent in the DV case, they had lived together for some time. Under the lawful wedlock, she gave birth to a girl child. According to the 2nd respondent, she was subjected to harassment by her husband and that her husband made demands for additional dowry. Her husband had threatened her that he would marry a second time if she failed to bring the dowry amount. On account of the harassment, she went away to her parents house at Hyderabad. Thus, the 2nd respondent had not made a single allegation against the present petitioners. They are living separately. However, a DV case is filed by the 2nd respondent against her husband and also the present petitioners. The learned Magistrate has taken the case on file. The marriage between the 2nd respondent and her husband is a love marriage and after their marriage in the year 2004, they both had lived separately. Except the blood relation, there is no other business or joint family relationship between the 2nd respondent on one hand and the petitioners herein on the other. All the petitioners are residents of Bheemarajuvari Street, Ongole of Prakasam District. At no point of time, the 2nd respondent and her husband on one hand and the petitioners on the other lived under one roof. There is no domestic relationship between the 2nd respondent and her husband on one hand and the petitioners on the other. At no point of time, the petitioners and the 2nd respondent had lived together in a shared household. The petitioners are facing much trouble in traveling from Ongole to Medchal, which is at a distance of more than 240 KMs. They are not involved in any offences. The continuation of DV case against them is an abuse of process of Court and law. Hence, the present petition is filed for quashing the proceedings against them.

5. (b) At the time of hearing, the learned counsel for the petitioners had reiterated the case pleaded in the petition. Along with the petition, the copy of the household card of the 5th petitioner and his wife, who is the 2nd petitioner, is filed showing that they are residents of Bheemarajuvari Street, Ongole of Prakasam District. Similarly, the household card of the 4th petitioner and his wife Ramanamma, i.e., the 3rd petitioner is filed showing that they are also residents of Ongole of Prakasam District. Similarly, the copy of the household card of the 1st petitioners husband P.Rama Rao is filed showing that she is a resident of Vijayawada of Krishna District.

5. (c) The learned counsel for the 2nd respondent had forcefully contended that the petitioners herein, who are the respondents 2 to 6 in the DV case are admittedly relatives of the husband of the 2nd respondent herein and that they are related by blood or consanguinity and marriage and that in the DV case it is specifically averred that the husband of the 2nd respondent had harassed the 2nd respondent by making demands for additional dowry and that he used to abuse her in filthy language and torture her, both mentally and physically and that he had taken away forcefully her pusthela thadu and had abused the 2nd respondent a number of times for not getting additional dowry and that the mediations held by the elders did not yield any results and that the husband of the 2nd respondent did not even provide food to her and used to confine her to the house by locking her in the house and that on account of the ill treatment meted out to the 2nd respondent by her husband, her health was spoiled and therefore, she was constrained to file the DV case. Thus, he has reiterated the contents in the DV case while admitting that the 5 year old daughter is with the husband of the 2nd respondent.

5. (d) I have bestowed my attention to the facts and the submissions of the learned counsel for both the sides. Earlier, on the complaint of the 2nd respondent herein, a case in Crime No.204 of 2010 was registered by the Station House Officer, I Town Police Station, Ongole for the offences punishable under Sections 363, 365, 384, 420, 464, 465 and 498-A of the IPC against the husband of the 2nd respondent, the petitioners herein and two others, namely, the husband of the 1st petitioner-P.Sugunamma herein and one Sai Bhargav, who is the Son of the 4th petitioner herein. All the petitioners in the said crime had filed Criminal Petition No.9382 of 2010. This Court, by a common order dated 04.10.2012 made in Crl.P.Nos.9382 and 9492 of 2010 quashed the proceedings in the aforementioned crime 204 of 2010 of I Town Police Station, Ongole. It is undisputed that the 2nd respondent had much earlier gave a report to the Station House Officer, Jeedimetla on 05.08.2010 to the effect that she was subjected to harassment by all the accused and that on 25.06.2010, A1 had approached her and forcefully obtained her signature on divorce and other papers. This Court, in the said order observed that the allegations made in the subsequent report are all false and therefore, quashed the proceedings in the aforementioned crime. Therefore, as rightly contended, the present D V case is a fresh case after the proceedings against the petitioners herein and others in the earlier crime registered for the alleged offences punishable under the provisions of the IPC were quashed as per the orders of this Court. In the DV case allegations were made only against the husband who was arraigned as the 1st respondent in that case but no allegations much less specific allegations attributing any acts or omissions constituting domestic violence are made against the present petitioners.

5. (e) Coming next to the contention that the learned Magistrate ought not to have taken the case on file against the present petitioners for the reason that they have no domestic relationship and that they have never shared the household or lived together in a shared household with the 2nd respondent and her husband, it is necessary to refer to the relevant provisions. Under Section 12 of the Act, an aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act.

Section 2 (a) defines aggrieved person; and, it reads as follows:

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

The above definition makes a reference to domestic relationship between the aggrieved woman and the respondent in the DV case. The definition also makes a reference to domestic violence.

Domestic relationship which is defined in Section 2(f) reads as under:

2 (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 Thus, Section 2 (f) of the Act dealing with domestic relationship refers to shared household; and, shared household as defined in Section 2(s) reads as follows:

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

Section 2 (q) defines respondent as follows:

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 Domestic violence which is defined in Section 2(g) reads as under:

2 (g) domestic violence has the same meaning as assigned to it in Section 3.

Section 3 of the Act defines domestic violence. The said provision reads as follows:

3. Definition of domestic violence:- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it

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

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Thus, Section 3 of the Act also in the introductory part makes a reference to the word respondent.

5. (f) A plain and analytical reading and a harmonious consideration of all the provisions of the Act, particularly, the above definitions brings to the fore the following aspects:

A person can be arraigned as a respondent in a DV case provided he is or has been in a domestic relationship with the aggrieved person. The proviso to Section 2(q) says that an aggrieved wife may also file a complaint against the relation of a husband. A plain reading of the said definition would make it manifest that any person who can be arraigned as a respondent must be a person who is or has been in domestic relationship with the aggrieved person and must have subjected the aggrieved person to any act of domestic violence. Unless the said requirements are fulfilled a person cannot be arraigned as a respondent in a DV Case. Coming to the aspect of domestic relationship, the domestic relationship means a relationship between two persons who either are living together or had 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. The definition of shared household is already extracted supra.

5. (g) Therefore, in the well-considered view of this Court, for a person to be made a respondent in a DV case filed by an aggrieved woman, such respondent, must have a domestic relationship with the aggrieved person and must have been living or must have lived together in a shared household along with the aggrieved person 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. Therefore, when any person who is so related who has been not living or had not lived together at any point of time with the aggrieved person in a shared household and who has/had no domestic relationship cannot be made a respondent to a case filed by the woman under the provisions of the Act.

5. (h) To put it in other words, in order to arraign a person as a respondent in a DV case filed under section 12 of the Act, there must be a domestic relationship either in present or in the past between the aggrieved person and the respondent. In any case, the domestic relationship must be in existence at the relevant time when aggrieved person has been subjected to any act of domestic violence by the respondent. It is noticeable from the provisions that a domestic relationship arises between the aggrieved person and another, in case when either they are living together or have at any point of time lived together in a shared house hold and 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. The aggrieved person and the respondent need not be living together in a shared household at the time of the filing of the case/petition and it would be sufficient if they had lived together at any point of time in the past, when the alleged acts/omissions/conduct complained of had taken place.

5. (i) Coming back to the facts of the case, all the petitioners are residents of Prakasam District whereas the respondent is a resident of Hyderabad. There is nothing on record to show that the present petitioners had any domestic relationship and lived together with the 2nd respondent in a shared household at any point of time. Further after the proceedings in Crime No.204 of 2010 were quashed by this Court, by orders dated 04.10.2012, the present DV case is filed by the 2nd respondent.

6. Viewed thus, this Court finds that the petitioners have made out valid and sufficient grounds to quash the proceedings against them in D.V.C.No.18 of 2012 on the file of VI Metropolitan Magistrate, Medchal, Ranga Reddy District.

7. Accordingly, the Criminal Petition is allowed. Consequently, the proceedings against the petitioners herein in D.V.C.No.18 of 2012 on the file of VI Metropolitan Magistrate, Medchal, Ranga Reddy District are hereby quashed.

Miscellaneous petitions, if any, pending in this criminal petition shall stand closed.

M. SEETHARAMA MURTI, J

19th January 2015

*****************************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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Husband NOT payng maintnce. Wife runs around 1 year trying japti arrest etc. Nothing happnes! Guj HC

Here is a smart husband who is NOT paying maintenance almost 1 year after the maintenance order in a DV case. Wife runs around 1 year trying japti arrest etc. Nothing happens! She runs to Guj HC who grants more time !!

* looks like there is an order for payment of maintenance
* looks like the husband has NOT paid the maintenance
* So Wife tries Japti, etc but nothing happens for one full year !!
* Wife wants respondents 2 and 3 (probably parents) to produce the husband ! meaning smart husband is NOT even appearing and NOT traceable as well !!
* Wife runs to HC who gets a customary and long reply with all excuses about this lawyer appearing and that one NOT appearing !!
* finally HC gives SOME MORE TIME !!
* and matter back to square 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 6344 of 2015

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INDUBEN HARISHBHAI CHANDEL & 1….Applicant(s)
Versus
STATE OF GUJARAT & 4….Respondent(s)
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Appearance:
MR SAMIR AFZAL KHAN, ADVOCATE for the Applicant(s) No. 1 – 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 08/12/2015

ORAL ORDER

1 By this writ application under Article 226 of the Constitution of India, the applicants have prayed for the following reliefs:

“6 (A) Be pleased to hold the opponent No:3 & 4 have flouted and not complied with the judgment and order passed by this Hon’ble Court dtd.15/11/2014 in Special Criminal Application No.744 of 2014 and therefore be pleased to direct Res No: 3 viz. Ld. Metropolitan Magistrate’s Court, Court No: 20, Ahmedabad to take stringent actions and thereby passed effective orders either to recover amount from Res No:2 (husband) or else to proceed u/s 31 of Protection of Women From Domestic Violence Act pursuance to recovery applications pending before him in the interest of justice.

(B) Be pleased to direct res nos.:4 & 5 to immediately produce Res No:2 (husband) either before this Hon’ble Court or before the Ld. Metropolitan Magistrate’s Court, Court No.20, Ahmedabad immediately in the interest of justice.

(C) Be pleased to direct the opponent no:2 to deposit the amount of maintenance immediately as the same has been deliberately avoided by the Res No:2 and disobeying judgments and orders of all the courts and thereby be pleased to issue detention order in case of failure of maintenance as provided u/s 31 of PWDV Act;

(D) Be pleased to grant any other and further relief as may be deemed fit in the facts and circumstances of the case;”

2 An explanation was called for from the learned Metropolitan Magistrate, Court No.20, Ahmedabad as to why the order passed by this Court dated 15th September 2014 in the Special Criminal Application No.744 of 2014 had not been complied with. The Additional Chief Metropolitan Magistrate, Court No.20, Ahmedabad has offered its explanation as under:

“With reference in the subject noted above, I have the honour to
submit that:

The present applicant has filed Three applications for recovery of
Maintenance Amount being Crl. Misc. Appl. Nos. 207/10, 208/11,
178/12. These all the three Criminal Misc. Applications are Private
Recovery matter.

1. On 15/12/2014, the learned advocate for the applicant has
submitted an application for Japti warrant and the said warrant was
issued and the matter was adjourned on 30/12/14 for service of
warrant.

2. On 30/12/2014, as I was on leave the matter was adjourned to
05/01/15.

3. On 05/01/15, learned advocate for the applicant remained present,
but as the Japti warrant was not returned served or un­ served the
matter was adjourned to 07/01/15, for service of warrant.

4. On 07/01/15, as the applicant or his advocate did not appeared
before the court, the court has waited for them to appear till 05/40
P.M. and lastly, the matter was adjourned for service for warrant on
09/01/15.

5. On 09/01/15, as the applicant or his advocate did not appeared
before the court, the court has waited for them to appear till 06/00
P.M. and lastly the matter was adjourned for service of Japti warrant
on 17/01/15.

6. On 17/01/15, as the applicant or his advocate did not appeared
before the court, nor produced any report, the court has waited for
them to appear till 05/40 P.M. and lastly the matter was adjourned
for service of Japti warrant on 21/01/15.

7. On 21/01/15, as the applicant or his advocate did not appeared
before the court, the court has waited for them to appear till court
hours, and lastly the matter was adjourned for service of Japti
warrant on 28/01/15.

8. On 28/01/15, applicant did not remained present before the court,
but his advocate appeared before the court. Advocate for the opponent
appeared before the court and filed Vakalatnama and submitted and
application of exemption. On the exemption application of the learned
advocate for the opponent, the learned advocate for applicant has
made an endorsement as “No Objection” and after hearing both the
parties and with the consent of both the advocates the matter was
adjourned on 16/03/15. http://evinayak.tumblr.com/ ;
https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. On 16/03/15, as none of the parties were present in the court and
due to reference of Bar Association the matter was adjourned on
26/03/15.

10. On 26/03/15, applicant and his advocates appeared before the
court, and opponent advocate also remained present in the court, and
with both parties consent the matter was adjourned on 27/03/15.

11. On 27/03/15, applicant remained present before the court, but
the advocates for the parties appeared the court at 5/45 P.M. and on
their oral request the matter was adjourned on 08/04/15.

12. On 08/04/15, the applicant did not remain present before the
court, advocates for both the parties are present before the court
and on oral request the matter was adjourned on 16/04/15.

13. On 16/04/15, as I was on leave, the matter was adjourned on
20/04/15.

14. On 20/04/15, either of the parties did not appeared before the
court nor their advocates remained present before the court, as a
result of which the matter was adjourned on 21/04/15.

15. On 21/04/15, either of the parties did not appeared before the
court nor their advocates remained present before the court, as a
result of which the matter was adjourned on 23/04/15.

16. On 23/04/15, either of the parties did not appeared before the
court nor their advocates remained present before the court, as a
result of which the matter was adjourned on 27/04/15.

17. On 27/04/15, applicant and his advocates appeared before the
court, learned advocate for the opponent also remained present before
the court. The learned advocate for the applicant has submitted an
application for warrant of arrest, heard both the parties advocate on
the said application and as the learned advocates for the parties has
orally submitted that compromise talk is being going on between the
parties. So, the matter was adjourned for hearing with his request on
05/05/15.

18. On 05/05/15, either of the parties did not appeared before the
court nor their advocates remained present before the court, as a
result of which the matter was adjourned on 06/05/15 for hearing of
application vide Exh.9.

19. On 06/05/15, applicant and his advocate are present, but the
opponent or his advocate is not present. As per my above order for
issue of warrant, the order of re issue of warrant was passed and the
matter was adjourned on 16/05/15, for service of Japti warrant.

20. On 16/05/15, as I was on leave the matter was adjourned on
22/06/15.

21. On 22/06/15, as I was on leave the matter was adjourned on
29/06/15.

22. On 29/06/15, learned advocate for the applicant appeared before
the court, and heard him regarding the pending application vide
Exh­9, and pass the order of Japti warrant with explanation and with
the consent of the advocate for the applicant the matter was
adjourned on 27/07/15, for service of Japti warrant.

23. On 27/07/15, none of the parties or their advocates are present
nor produced any report the matter is adjourned on 22/08/15 for
service of Japti warrant.

24. On 22/08/15, none of the parties or their advocates are present
nor produced any report the matter is adjourned on 03/10/15 for
service of Japti warrant.

25. On 03/10/15, as I was on leave the matter was adjourned on
17/10/15 for service of Japti warrant.

26. On 17/10/15, as I was on leave the matter was adjourned on
07/12/15 for service of Japti warrant.

27. On 07/12/15, none of the parties or their advocates remain
present before the court and the matter was adjourned on 10/12/15 for
service of Japti warrant.

Thus, the above matters are pending for the reasons mentioned above.”

3 As usual, a stereotype explanation has been offered by the Presiding Officer. One last opportunity is given to the Court concerned to dispose of the Recovery Applications in accordance with law within a period of one month from the date of the receipt of the writ of this order, failing which, this Court may consider taking appropriate action in the matter. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4 With the above, this petition is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.)

chandresh

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

 

Wife can’t file DV on in laws after living with them ONLY a few days. Delhi Sessions court

A wife files DV soon after her return from USA. She ropes in all the in laws with whom she has stayed only a few days… This is a very useful case for NRIs suffering the same fate !!

GIST : After marriage parties visit the husband’s ancestral house for a few days and stay at a hotel at Thirupathi for a few days. Otherwise they live in USA. On return from USA, Wife files DV cases on mother in law and sister in law alleging that they were treating her cruelly even during those short stays (at hotel or for few days at husband’s parental home), she was administered pills that lead to her miscarriage etc.

The magistrate court refuses to summon the mother and sister in law. summons are served ONLY on the husband !

Wife goes on appeal. The appellate (sessions) court dismisses the case against the mother in law and sisters in law stating that such short stays cannot be considered as “domestic relationships” and there is NO DV case in the absence of a domestic relationship !!

The Honourable court states

“….From the pleading it is also apparent that respondent no.1 was even prior to his marriage residing in U.S. and soon after the marriage the aggrieved also went alongwith on 12.12.2009 which shows that actually the matrimonial home/shared household between the parties was the house at U.S which they intended to share the same for matrimonial purpose and not the house at Kanpur. Therefore, there was no domestic relationship between aggrieved and respondent no.2 to 4 as per the provisions of Section 2 (f) of DV Act 2004. ….”

“….12 In the present matter, it may be mentioned that respondent no2, namely, Manju Trivedi, is mother in law of the appellant Ruby Shukla and respondent no.3 and 4, namely, Geetika Trivedi and Monika Trivedi, respectively, are sisters in law of the appellant. There is nothing on record file to show that the appellant ever intended to share the domestic relationship either with the respondent no.2 Manju Trivedi or respondent no.3 Geetika Trivedi and respondent no 4 Monika Trivedi, since, the husband was settled in USA and the appellant was aware that she also had to stay at USA after marriage. It cannot be said that appellant intended to settle with husband, namely Sonil Trivedi, at Kanpur. So far as the stay at Kanpur is concerned, it is clear from the record file that it was for a very limited period and from the said stay it cannot be inferred that appellant had shared domestic relationship with respondent no.2, namely , Manju Trivedi. Similarly, her stay with respondent no.3 and 4 in Delhi cannot be said to be sufficient enough to come to the conclusion that she intended to share the domestic relationship with respondent no.3 and 4 at Delhi.…”

and also affirmatively quotes the MM court verdict explaining how mere violence without a domestic relationship will NOT attract the provisions of DV act. In such a case, parties have to seek other remedies “….However, this Court is of the view that as already mentioned above that there was no sharing of domestic relationship between the parties, therefore, the question of compensation would not arise because for invoking provisions of the Protection of Women from Domestic Violence Act 2005 first the domestic relationship and shared household is to be proved and then it is to be shown that there was domestic violence inflicted upon the aggrieved. But, if domestic relationship is not shown to have been existing then even infliction of violence would have no consequence to invoke the provisions under the aforesaid act and for the same separate remedies are available with the aggrieved. Moreover, during the period aggrieved resided at the quarters of respondent no.3 and 4 which was also a temporary stay on her part therefore there was no shared household at that time also. Hence, summoning against respondent no.2 to 4 is declined. Issue notice to the respondent no.1 filing of PF/RC, speed post and approved courier for 19.11.2014.”……”

 

PS : yes this is a session’s court order and so would have limited force…however the rationale is sound and can be tried again !!

 

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IN THE COURT OF SHRI RAMESH KUMAR ASJ/SPECIAL JUDGE
(PC ACT) (CBI)SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI

Criminal Appeal Number : 15/14
Unique ID No. 02406R0250412014

Ruby Shukla
W/o Sonil Trivedi
D/o Dr. P. Shukla
JE-18, 4th Floor, Gupta Colony
Khirki Extension, Malviya Nagar
New Delhi ……………………Appellant

versus

1. Sonil Trivedi (Husband)
S/o Dr. O.N. Trivedi
R/o 6 Swam CT, Jersey City
New Jersey, USA

Also at:
128/2/127, Yashoda Nagar,
Kanpur-208011

2) Mrs Manju Trivedi (mother in law)
W/o Dr O.N. Trivedi 128/2/127,
Yashoda Nagar, Kanpur-208011

3) Geetika Trivedi (sister in law)
Specialist Obs. And Gynaecology
Deptt. Of Obs and Gynae
Kusturba Gandhi Hospital,
Near Jama Masjid, Daryaganj, Delhi

4) Monika Trivedi (sister in law)
D/o Dr. O.N. Trivedi 128/2/127,
Yashoda Nagar, Kanpur-208011 ……………………..Respondents

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Date of institution of Appeal : 27/09/2014
Date of Allocation : 29/09/2014
Date of conclusion of arguments : 27/11/2015
Date of Judgment : 10/12/2015.

Particulars related to impugned order
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CC No. : 273/2/2014
PS : Malviya Nagar
Under Section : 12 of Domestic Violence Act 2005
Date of impugned order : 25/07/2014
Name of learned Trial Court : Ms Niti Phutela, Ld MM, South District, New Delhi

Memo of Appearance
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Sh Anurag Modi, Ld Counsel for Appellant.
Sh M.M. Tripathi , Ld Counsel for respondents.

JUDGMENT

1. The present is a judicial verdict on an appeal filed by the appellant, Ruby Shukla, against the order, dated 25/07/2014, passed by the Ld Trial Court.

2 Present appeal has been filed by the appellant, namely, Ruby Shukla u/s 29 of Domestic Violence Act, 2005, challenging the order, dated 25/07/2014, passed by Ld Trial Court, vide which Ld Trial Court had declined the summoning of respondent no. 2 and 4.

3. The impugned order is dated 25/07/2014 and appeal has been filed on 27/09/2014. Appellant has also filed an application for condonation of delay under section 5 of Limitation Act. It is stated by the counsel for appellant that appellant is an aspirant of Civil Services and her examination for M.P. Civil Services was fixed for 27/07/2014 at Jabalpur, Madhya Pradesh and her UPSC examination was fixed for 24/08/2014 due to which the appellant was not able to contact with her counsel. It has further been argued that matter was also referred to Mediation Cell in CAW Nanakpura u/s 406/498A of IPC. It has further been argued that delay was neither willful nor intentional. There is a delay of about one month and few days in filing the appeal. Considering the contentions of Ld counsel for appellant and in interest of justice, application for condonation of delay is allowed and delay is condoned.

4 Brief facts of the case are that complainant, Ruby Shukla filed a complaint u/s 12 of the Protection of Women from Domestic Violence Act, 2005 to the effect that she got married to respondent no.1, namely, Sonil Trivedi, on 01/12/2009 at Kanpur and all the functions were held at Kanpur, as per the wishes of in-laws of appellant. It has been alleged, in the complaint, that the marriage was done with great pomp and show and lots of articles were given in the marriage to the matrimonial family of the appellant. It has further been alleged by the complainant, that after marriage, she was humiliated and insulted by her in laws on the pretext of bringing less dowry and that she was beaten by the respondent no.1 on many occasions. It has further been alleged that her family members were also got humiliated by the respondent no.1 and his family for giving less dowry in marriage. It has further been alleged in the complaint that appellant went to USA along with her husband on 12.12.2009 and joined her office from 14.12.2009 and there respondent no.1 made her to share all the household and other related expenses equally. It has been further alleged that complainant came back to India in April 2011 and that her pregnancy was aborted by her in laws and further that was treated badly at her in laws house, during her stay over there.

5 On receiving the complaint, Ld Trial Court, after hearing the arguments, passed the impugned order, dated 25/07/2014, and declined the summoning against respondents no.2 to 4 and only respondent no.1 was ordered to be summoned.

6. Aggrieved from the said order appellant, Ruby Shukla, has preferred this appeal. It is contended by Ld counsel for appellant that the impugned order has been passed in a mechanical manner without applying mind and Ld Trial Court has erred in concluding that appellant only stayed for a brief period with the respondents no. 2 to 4 and hence there was no domestic relationship between the parties. It has further been contended that Ld Trial Court failed to realize that the appellant was subjected to cruelty and violence by all the respondents since the date of her marriage and that the specific instances of cruelty and domestic violence committed by all the respondents were not taken into account while passing the impugned order. It has further been argued that bare perusal of the definition as provided under section 2 (f) of the PWDV Act makes it clear that the said definition does not prescribe any time frame or time limit or period for which parties need to live together in a shared household for the said relationship to constitute as a ‘domestic relationship’ under the PWDV Act. It has further been contended that Ld Trial Court has acted in an arbitrary, biased and prejudicial manner without looking into content of complaint. Ld Trial Court erred in comparing stay of appellant at her matrimonial house at Kanpur as temporary stay as her stay at hotel and impugned order had been based merely on surmises and conjectures, which is against the facts of the case and contrary to judicial record and hence not sustainable in the eyes of law. It has further been argued that Ld Trial Court had not taken into account the fact that the personal belonging/articles and Istridhan belonging to the Complainant/appellant is still lying at the shared household/matrimonial home of the complainant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7 Respondents have filed the reply of the appeal, wherein they have denied the allegations levelled against them and had contended that no violence was committed on the appellant by respondent or his family member rather the appellant is victimizing the respondent and his family by misusing the provisions of law. Ld Counsel for respondent had relied upon S.P. Chengalvaray Naidu Vs Jagannath, reported as 1994 AIR (SC) 853, wherein it has been held by Hon’ble Supreme Court that “We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. And also on merit as well as on the ground of the limitation.”

8 I have heard arguments on behalf of Ld Counsel for the appellant, Ld counsel for the respondents and have carefully gone through the Trial Court record.

9 Ld Trial Court had observed in its order dated 25/07/2014 that “It is apparent that there are specific allegations against respondent no.1. However, from the petition itself it is apparent that the marriage between aggrieved and respondent no.1 on 01/12/2009 and she left along with him to U.S. on 12/12/2009. During this interregnum period of 10 days she resided approximately only for 7 days at Kanpur i.e at the house of respondent no.2 in company with respondent no.3 and 4. During the said period of stay there are allegations of violence inflicted upon her by all the respondents. It is also alleged that she also visited Tirpuati Temple and went for Pagphere Rasam at her parental house. For the same she resided in a hotel and at her parental house respectively. This shows that her stay at her in laws’ house was equivalently temporary as her stay at the hotel for visiting the Tirupati Temple and her stay at her parental house because the said stays were not with the purpose to live there on permanent basis in domestic relationship in shared household. From the pleading it is also apparent that respondent no.1 was even prior to his marriage residing in U.S. and soon after the marriage the aggrieved also went alongwith on 12.12.2009 which shows that actually the matrimonial home/shared household between the parties was the house at U.S which they intended to share the same for matrimonial purpose and not the house at Kanpur. Therefore, there was no domestic relationship between aggrieved and respondent no.2 to 4 as per the provisions of Section 2 (f) of DV Act 2004. This Court is not oblivious of the fact that even temporary relationship is to be considered for invoking the provisions of the above said Act but this Court is of the view that temporary relationship cannot be construed in such broad terms and the additional factor of shared household should be there which in the case in hand was the house at U.S as discussed above.

10 It is argued by Ld Cl for aggrieved that after returning from U.S on 20.04.2011, the aggrieved alongwith respondent no.1 resided at the quarters of respondent no.3 and 4 at Delhi where she was administered pills which caused her abortion and, therefore, the aggrieved is entitled for compensation from respondent no.3 and 4 in this respect. However, this Court is of the view that as already mentioned above that there was no sharing of domestic relationship between the parties, therefore, the question of compensation would not arise because for invoking provisions of the Protection of Women from Domestic Violence Act 2005 first the domestic relationship and shared household is to be proved and then it is to be shown that there was domestic violence inflicted upon the aggrieved. But, if domestic relationship is not shown to have been existing then even infliction of violence would have no consequence to invoke the provisions under the aforesaid act and for the same separate remedies are available with the aggrieved. Moreover, during the period aggrieved resided at the quarters of respondent no.3 and 4 which was also a temporary stay on her part therefore there was no shared household at that time also. Hence, summoning against respondent no.2 to 4 is declined. Issue notice to the respondent no.1 filing of PF/RC, speed post and approved courier for 19.11.2014.”

11 Section 2(f) of The Protection of Women from Domestic Violence Act, 2005 is reproduced herein below for ready reference:-

2. Definitions.- In this Act, unless the context otherwise requires,-

(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;

12 In the present matter, it may be mentioned that respondent no2, namely, Manju Trivedi, is mother in law of the appellant Ruby Shukla and respondent no.3 and 4, namely, Geetika Trivedi and Monika Trivedi, respectively, are sisters in law of the appellant. There is nothing on record file to show that the appellant ever intended to share the domestic relationship either with the respondent no.2 Manju Trivedi or respondent no.3 Geetika Trivedi and respondent no 4 Monika Trivedi, since, the husband was settled in USA and the appellant was aware that she also had to stay at USA after marriage. It cannot be said that appellant intended to settle with husband, namely Sonil Trivedi, at Kanpur. So far as the stay at Kanpur is concerned, it is clear from the record file that it was for a very limited period and from the said stay it cannot be inferred that appellant had shared domestic relationship with respondent no.2, namely , Manju Trivedi. Similarly, her stay with respondent no.3 and 4 in Delhi cannot be said to be sufficient enough to come to the conclusion that she intended to share the domestic relationship with respondent no.3 and 4 at Delhi.

13 In view of the above discussions, I do not find any illegality, irregularity or infirmity in the order of Ld Trial Court passed on 25/07/2014 , and there is no ground to set aside the same.

14 Appeal, is accordingly, dismissed as not maintainable.

15 Nothing stated herein shall tantamount to have an expression of opinion on the merits of the case.

16 A copy of this judgment be sent to Ld. Trial Court along with the trial court record.

17 File related to appeal be consigned to the Record Room.

Announced in the open court
On this 10th of December, 2015

(Ramesh Kumar)
ASJ/Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi

*****************************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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498a, 15yrs after separation & 11 yrs divorce notice barred by LIMITATION !! Delhi HC

498A 406 approx 15yrs after separation & 11yrs after divorce petition barred by limitation : Delhi HC

She seems to have done this after her appeal against husbands divorce decree is dismissed by the high court Hon Justice Shiv Narain DHINGRA ji appreciated the wife’s tactics and quashes the case as it is barred by limitation

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Delhi High Court

Sudhir Kapur & Ors. vs State & Anr. on 10 August, 2010

Author: Shiv Narayan Dhingra

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 02, 2010

Date of Order: 10th August, 2010

+ Crl. M.C. No. 799/2009

10.08.2010

SUDHIR KAPUR & ORS. ….. Petitioner

Through: Mr.Sanjeev K. Grover, Advocate

versus

STATE & ANR. ….. Respondent

Through: Mr. O.P. Saxena, APP

Mr. Pawan Narang & Mr. Puskal Advs. for R-2

JUSTICE SHIV NARAYAN DHINGRA

JUDGMENT

1. Present petition has been filed for quashing of FIR No. 540/07, registered against the petitioner at P.S. Defence Colony, under Section 498- A/406/34 IPC

2. The marriage between the petitioner and the respondent had taken place on 4th March, 1984. The parties started living separate from each other in 1992. The petitioner filed a divorce petition against the respondent in 1996. The present FIR was lodged against the petitioner by wife under Section 498A/406 IPC after about 15 years of living separate from her husband and after about 11 years of filing the divorce petition.

3. It is argued by counsel for the respondent/wife that offence under Section 406 IPC was also involved and the dowry articles etc. of the wife were not given back. This averment has no substance. The wife had all opportunities right from 1992 onwards to demand back her articles, if any, lying with the husband. The very fact that wife did not demand any article from the husband after 1992 till lodging of FIR shows that there was no entrustment of property by wife to the husband or to his relatives. After husband had filed divorce petition, she had again opportunity to make an application before the concerned court under Hindu Marriage Act for the return of dowry articles, Istridhan, if any, under section 27 of the Act. Had there been any article lying with the husband, she would have moved the application. She did not initiate any such move, nor did she serve any notice on her husband or in laws for return of any of her articles lying with them. It is only when her appeal against the decree of divorce was dismissed by the High Court, and she preferred an SLP, she thought of lodging of an FIR also.

4. Under Section 468 of Cr. P.C., the cognizance of an offence where the maximum sentence of imprisonment is up to 3 years, can be taken within 3 years. Under Section 498A/406 IPC maximum sentence is up to three years imprisonment. Thus the cognizance of the offences against petitioner cannot be taken by the Court. The FIR lodged against the husband in respect of offences committed under Section 498A/406 IPC in 1992 or prior to that, is barred by limitation. I, therefore, allow the present petition and hereby quash FIR No. 540/2007, P.S. Defence Colony, New Delhi, registered under Sections 498A/406/34IPC. The petition stands allowed.

AUGUST 10, 2010

SHIV NARAYAN DHINGRA, J.

acm

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