Category Archives: DV

No maintenance under DV act if DV is NOT proven!! Husband has also won divorce on grounds of cruelty. Himachal HC

The High Court of Himachal Pradesh, in Anil Kumar vs Shashi Bala, has held that if there is no evidence with regard to maltreatment or violence, no order of maintenance can be granted invoking the provisions of the Domestic Violence Act.

In this case, though the appellate court found that no evidence has been brought on record to demonstrate violence, partly allowed the appeal, and held that since complainant has to live and maintain herself and she has no independent source of income, she is entitled to monetary relief under Section 20 of the Act.

On appeal, the high court observed that the complaint nowhere suggests that maltreatment and violence as defined under the Act was ever meted to the complainant.

The court also observed that overwhelming evidence is available on record suggestive of the fact that the complainant herself had left the house.

Observing that the appellate court ‘got swayed by emotions’, the bench presided by Justice Sandeep Sharma said: “Since there was no evidence with regard to maltreatment or violence, learned appellate Court below ought to not have granted any amount on account of maintenance.”

**

 

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CrMMO No. 30 of 2011

Decided on: May 2, 2017

 

Anil Kumar ………Petitioner
Versus
Shashi Bala and others …Respondents

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

For the petitioner: Mr. Ajay Sharma, Advocate.
For the respondents: Mr. Adarsh K. Vashishta, Advocate, for respondent No.1
Mr. Parveen Chandel, Advocate, for respondents No.2 and 3.

 

Sandeep Sharma, J. (Oral)

Delinked from FAO(HMA) No. 205 of 2011.

(2). Instant petition filed under Section 482 CrPC is directed against judgment dated 4.12.2010 passed by Additional Sessions Judge, Fast Track Court, Hamirpur in Criminal Appeal No. 30 of 2009, reversing judgment dated 24.3.2009 passed by Judicial Magistrate 1st Class, Court No. III, Hamirpur in Domestic Violence Complaint No. 2-1 of 2009, whereby application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, ‘Act’), having been filed by respondent No.1-complainant (‘complainant’, hereafter), came to be dismissed.

(3). Briefly stated the facts as emerge from the record are that the complainant preferred an application under Section 12 of the Act alleging therein that she was married to appellant-Anil Kumar as per Hindu rites and customary ceremonies on 17.6.2003 and two children were born out of said wedlock. Complainant further averred that she was turned out by her in-laws. Complainant further claimed that after being ousted from the house, she remained in her parents’ house for eight months and came back on 22.11.2008, when her father-in-law did not allow her to enter the house. After two days, she went back to her parents’ house. On 14.12.2008, when she again came back, she was taken out of the room and was not allowed to meet her children. Complainant further alleged that false allegations have been leveled against her. She further complained that on 23.12.2008, all of her family members had left the house by locking it and since then she had been residing in her courtyard and bathroom respectively. Her husband had also gone away with other family members. In the aforesaid background, Complainant prayed for providing protection under Sections 18, 19, 20 and 21 of the Act.

(4). Petitioner alongwith proforma respondents No.2 and 3, by way of reply, refuted the aforesaid claim of the complainant and stated that false and frivolous application has been moved by the complainant to put undue pressure as well as to cause harassment to them. However, petitioner admitted the complainant to be his legally wedded wife but specifically stated that she developed illicit relations, as a result of which, divorce petition has been filed. As per petitioner, despite repeated requests, complainant failed to mend her ways and, on 23.6.2008, was caught red-handed. Petitioner specifically denied allegations of maltreatment and claimed that all the basic necessities of life were provided to the complainant when she remained with him. With the aforesaid submissions, petitioner claimed that the complainant is not entitled to the reliefs as claimed in the application.

(5). Complainant, by way of rejoinder, reasserted her claim as put forth in the complaint and specifically denied the allegations as contained in the reply having been filed by the respondents.

(6). Learned trial Court, on the basis of pleadings adduced on record by the respective parties, framed following questions, for determination:

“1. Whether the applicant is entitled for protection and relief as claimed in the application? If so, to what extent?

2. Final Order.”

(7). However, the fact remains that learned trial Court, on the basis of evidence adduced on record by the respective parties, came to the conclusion that there is no merit in the application having been filed by the complainant and accordingly, rejected the same.

(8). Being aggrieved by and dissatisfied with the rejection of aforesaid application, complainant preferred an appeal under Section 29 of the Act before Additional Sessions Judge, Fast Track Court, Hamirpur, which came to be registered as Criminal Appeal No. 30 of 2009. Learned appellate court below, while partly accepting the appeal filed by the complainant, quashed and set aside order dated 24.3.2009 and held complainant entitled to maintenance allowance of Rs.1,000/- per month, from the date of order. At this stage, it may be noticed that while passing aforesaid judgment, learned appellate court specifically concluded that no evidence has been led on record by the complainant to prove serious allegations as leveled against the respondents in the complainant. The court below further concluded that no evidence has been brought on record to demonstrate violence, if any, by the respondents and accordingly, held her not entitled to protection, residence and custody order in her favour. Learned appellate court below, while partly allowing appeal, held that since complainant has to live and maintain herself and she has no independent source of income, she is entitled to monetary relief under Section 20 of the Act.

(9). Mr. Ajay Sharma, learned counsel representing the petitioner, while referring to the impugned judgment passed by court below, vehemently argued that same is not sustainable in the eyes of law, as such, same deserves to be quashed and set aside. While inviting attention of this Court to impugned order passed by court below, Mr. Sharma, strenuously argued that once learned Court below had come to the conclusion that no evidence worth the name has been led on record by the complainant, to prove violence, if any, against her by the petitioner and his family members, there was no occasion, whatsoever, to provide maintenance of Rs.1,000/- per month. Mr. Sharma, also invited attention of this Court to the evidence led on record by the complainant in support of her complaint filed before learned trial Court, to demonstrate that there is no illegality or infirmity in the order of learned trial Court, whereby it has rightly come to the conclusion that complainant has not been able to prove contents of application, so as to make herself entitled to reliefs under. Sections 18, 19, 20 and 21 of the Act. Mr. Sharma, further contended that earlier, complainant had filed divorce petition against petitioner leveling serious allegations of sexual harassment against his father but same was later on withdrawn. Mr. Sharma also invited attention of this Court to the decree of dissolution of marriage passed by matrimonial court in the petition having been filed by the petitioner, wherein allegations with regard to illicit relations of complainant with one Jeet Ram, stood duly proved. In the aforesaid background, Mr. Sharma, prayed that impugned order passed by learned appellate Court below may be set aside and that of learned trial Court be restored.

(10). Mr. Adarsh K. Vashishta, learned counsel representing the complainant, supported the impugned judgment passed by learned appellate Court below. Mr. Vashishta while refuting aforesaid contentions having been made by the learned counsel representing the petitioner, stated that there is no illegality or infirmity in the judgment passed by learned Court below, wherein he has specifically come to the conclusion that since complainant has to live and maintain herself, and she is having no independent source of income, she is entitled for monetary relief under Section 20 of the Act.

(11). He also contended that a very meager sum of Rs.1,000/- per month has been awarded by the learned Court below as such, there is no scope of interference, specifically in view of the fact that it stands duly proved on record that respondent-complainant is legally wedded wife of petitioner and it is/was his bounden duty to maintain her during subsistence of their marriage. Mr. Vashishta also made this Court to travel through evidence led on record by the complainant before learned trial Court, to suggest that learned trial Court miserably failed to appreciate evidence in its right perspective, as a result of which, erroneous findings have come on record, which were later on rectified in accordance with law, by the learned appellate Court below, in the appeal having been filed by the complainant. In the aforesaid background, Mr. Vashishta, prayed for dismissal of petition.

(12). I have heard the learned counsel representing the parties and also gone through the record very carefully.

(13). Before adverting to the genuineness and correctness of the impugned order passed by appellate court below as well as submissions of learned counsel representing the parties, it may be noticed that marriage of petitioner with complainant stands dissolved on the ground of cruelty, as is evident from decree passed by learned District Judge in HMA No. 18 of 2008, on 3.3.2011, whereby matrimonial court, while accepting petition filed by the petitioner has dissolved marriage on the ground of cruelty. It may also be stated at this stage that aforesaid judgment having been passed by matrimonial court was laid challenge before this Court by way of FAO No. 205 of 2011, which came to be decided by this Court on 2.5.2017. This Court, vide aforesaid judgment, while dismissing appeal having been preferred by the complainant, has upheld the decree of dissolution of marriage passed by matrimonial court.

(14). This Court, solely with a view to ascertain the perversity, if any, in the impugned judgment passed by appellate court, carefully perused pleadings as well as evidence adduced on record by the respective parties, perusal whereof certainly compels this Court to agree with the contentions raised by learned counsel representing petitioner that learned appellate Court below has failed to appreciate evidence adduced on record by respective parties in its right perspective, as a result of which, erroneous findings have come on record. Bare perusal of impugned judgment passed by learned appellate Court below itself suggests that even appellate court was not convinced of evidence led on record, which could make complainant entitled for protection as claimed by way of application under Section 12 of the Act. Learned appellate Court below, in para 16 of the impugned judgment has categorically stated that from the record, it appears that serious allegations had been leveled against complainant and no evidence had been brought for providing maintenance and as such she was not held entitled to protection, residence and custody order in her favour. It has also come in the judgment passed by learned Court below that no violence, if any, on the part of petitioner was proved. While granting compensation of Rs.1,000/- per month, in favour of the complainant, learned appellate Court below took into consideration status of complainant, who admittedly had to live and maintain herself and she had no independent source of income. But, if evidence led on record by the complainant before learned trial Court, to prove contents of her application under Section 12 of the Act, is seen and perused carefully, it nowhere suggests that maltreatment and violence as defined under the Act was ever meted to the complainant. There is no specific allegation, if any, of beatings given by husband or family members, rather there is bald statement of complainant (AW-1) that she was maltreated but no specific instance as such has been reported with regard to violence, if any, done on her by the respondents. Father of the complainant (AW-3) namely Bihari Lal has also not stated anywhere anything specific with regard to violence, if any, committed by petitioner or his family members. Apart from above, no independent witness, if any, from locality was associated to prove allegations of maltreatment and violence in terms of provisions contained in the Act. As far as allegations with regard to throwing complainant from the house are concerned, there is evidence led on record by the petitioner, that complainant left the house at her own, after being caught red handed with one Jeet Ram, with whom, she had illicit relations (as stood proved in the divorce petition). All the witnesses of the respondent have stated that complainant left the house to answer call of nature and never turned up thereafter.

(15). This Court, after having bestowed its thoughtful consideration to the pleadings available on record, has no hesitation to conclude that appellate court below, while granting maintenance of Rs.1,000/- to the complainant got swayed by emotions and completely ignored overwhelming evidence available on record suggestive of the fact that complainant herself had left the house. Since there was no evidence with regard to maltreatment or violence, learned appellate Court below ought not have granted any amount on account of maintenance. Moreover, as has been noticed above, marriage between the parties has been dissolved vide judgment dated 3.3.2011, which has been further upheld by his Court and as such, this Court sees no force, much less substantial, in the complaint of the complainant, which was rightly rejected by the learned trial Court.

(16). Consequently, in view of above, judgment dated 4.12.2010 passed by Additional Sessions Judge, Fast Track Court, Hamirpur in Criminal Appeal No. 30 of 2009 is set aside and judgment dated 24.3.2009 passed by Judicial Magistrate 1st Class, Court No. III, Hamirpur in Domestic Violence Complaint No. 2-1 of 2009 is upheld.

However, keeping in view the fact that instant petition under Section 12 of the Act remained pending adjudication till passing of decree of dissolution of marriage i.e. wherein allegations with regard to illicit relationship of complainant stood proved, this court deems it fit to grant/award of Rs.10,000/- to the complainant, to be paid by the petitioner, within a period of eight weeks from today, as maintenance under Section 12 of the Act.

(17). The petition stands disposed of accordingly. Pending applications, if any are also disposed of. Interim directions, if any, are also vacated.

 

(Sandeep Sharma)
Judge

 

 

May 2, 2017
(Vikrant)

 

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if your wife looses her “residence rights” under DV case, she can be VACATED from your / your parent’s house !! Kerala HC !!

DV Act- An Order Vacating Ex-parte Residence Order Can Be Enforced Against ‘Aggrieved Person’: Kerala HC

From Live Law website !!

By: Ashok Kini

The magistrate passing the ex parte residence orders under section 19 of the Domestic Violence Act is equally competent under section 23 (1) of the Act to enforce its order vacating the ex parte order and necessary directions can be issued to the jurisdictional SHO to enforce its order.

The Kerala High Court, in Ansari v Shiji, has held that when ex parte residence order is vacated, the Magistrate shall invariably direct the ‘aggrieved person’ to vacate the disputed house within a specified time to be fixed by the Magistrate and in case of failure to comply with that direction, the Magistrate can pass such orders under Section 23 (1) of the Protection of Women from Domestic Violence Act to implement it.

Factual Matrix

A ‘wife’ obtains ex parte residence order against her husband and in-laws. The wife and her parents, on the strength of the order, occupy the house and the in-laws are forced to leave the house. The in-laws appear before the court and manage to convince the court that the house in question is not a shared household and it belongs to them exclusively.  Though the court vacates the residence order, it says it cannot enforce the order vacating the ex parte residence order, purportedly in the absence of any specific enabling provision. That means, the court says it cannot force the wife, who on the strength of its ex parte residence order, occupied the house to vacate it.

The Curious Question

This curious question of law reaches the high court as the in-laws assail the order of Magistrate before it. The question is: Whether an order vacating ex parte residence order granted in favour of the aggrieved person, can also be enforced against the aggrieved person?

No one can take advantage of a vacated ex parte order

Justice Sunil Thomas observed that it is incongruous and contrary to every legal principle to hold that the statute authorizes for enforcement of orders in favour of one party and not orders passed against that party.

“It also does not stand to reason to hold that the court is empowered only to implement its ex parte order, but is powerless to restore the parties to their original position, when that ex parte order is vacated, modified or set aside. Evidently, no party to the proceeding can continue to take advantage of an ex parte order which was later vacated on merits. That will be against the very basis of the Rule of Law,” the court said.

It was further observed: “Generally, a statute cannot be expected to protect a person who gets the benefit of an order and continue to protect, even after the order is reversed or modified, on a premise that law does not provide for restitution of parties. Such an interpretation will only make the entire legal system mockery. Evidently, when a person takes the benefit of an order passed by a competent court, which is later held to be not sustainable on merits, it cannot be held that law is powerless to restore the person against whom that ex parte order was enforced, to the position status quo ante. Definitely, if the court is authorised to enforce an ex parte order, it must be deemed to have all such implied powers, even in the absence of a specific statutory provision, to enforce its own order vacating the order. The court cannot be held to be helpless in such a situation, otherwise, that may be a lop sided imparting of justice.”

Section 23(1) is the Key

Carefully examining the provisions of the Domestic Violence Act to see whether there is any provision to implement an order against the aggrieved person, the court pinpoints to Section 23(1). “Section 23 (1) does not make any distinction between the aggrieved person or the respondent in the proceeding. It empowers the Magistrate to “pass any interim order as he deems just and proper”. This confers wide powers on the Magistrate to pass any order, if the situation so demands, and if it is “just and proper”, in favour of any party, irrespective of whether it is sought by the aggrieved person or the respondent, This seems to be the only provision in the statute which does not prescribe the party in whose favour or against whom, the relief is to be granted. On the other hand, section 23 (2) specifically provides that ex parte orders therein are to be granted against the respondent therein and hence necessarily in favour of the aggrieved person. The significance of section 23(1) is so clear from the statute. Though all the other provisions provided in the statute, except section 23(1) are specifically made applicable to the aggrieved person and against the respondent, section 23 (1) does not make any distinction between the aggrieved person or the respondent in the DV Act proceedings,” the court said.

The court also observed that the Magistrate is competent to invoke Section 23(1) and to direct the aggrieved person to vacate the premises and in case of breach, to direct the SHO to implement its order invoking Section 23 (1) and Section 28, to ensure that the parties are restored to the position which they held prior to the granting of the ex parte order.

Read the Order Here

https://drive.google.com/file/d/1VR4i32JoP90RyVkNA1coIcvCPgXJX90B/view

 

How a #husband hit with 200,000 #per #month #maintenance with #NO #DV proven gets partial #relief from #BombayHC

Interim maintenance and maintenance under DV act, under Sec 125 CRPC, Under sec 24 HMA etc etc are monsters ready to eat any married man fighting matrimonial cases

Here is a classic case where a hapless husband, estranged from wife, still maintaining the son, daughter, paying for children schooling, and even daughter’s education in USA etc etc., is hit with two hundred thousands per month maintenance, even though NOT a iota of DV is proven !!

The family court orders 200,000 per month (yes TWO HUNDRED THOUSANDS PER MONTH) from 2013 till date meaning the arrears itself will run into crores !!

The woman files for execution and wishes to get the fella arrested and thrown in jail (yes ARREST the same father who is paying for the daughter’s education in USA !!)

Finally matter goes to HC where the HC notices that NOT AN IOTA of DV is proven and the family court has NOT considered subsequent events (changes to husband’s earning, company liquidation etc) before granting maintenance

Still HC says pay 25% of arrears from date of order (year 2017) and Rs 25000 per month to the wife for her maintenance and sends matter back to Family court for further adjudication

Case law below

 

 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3553 OF 2018

Mr.Prakash Kumar Singhee …Petitioner
Versus
Ms.Amrapali Singhee …Respondent

 

WITH CONTEMPT PETITION NO.459 OF 2017

 

Ms.Amrapali Singhee …Petitioner
Versus
Mr.Prakash Kumar Singhee …Respondent

 

Mrs.Seema Sarnaik for the Petitioner in WP No.3553 of 2018 and for the Respondent in CP No.459 of 2017.

Mr.Abhijit Sarwate for the Respondent in WP No.3553 of 2018 and for the Petitioner in CP No.459 of 2017.

CORAM : SMT.BHARATI H. DANGRE, J.

RESERVED ON : 23rd MARCH 2018

PRONOUNCED ON : 4th MAY 2018

JUDGMENT :-

  1. 1. The present Writ Petition is filed by the petitioner- husband, challenging order passed by the Family Court, Pune below Exh.20 in Petition B. No.2/2013, thereby directing the petitioner to pay maintenance of Rs.2 lakhs to the wife under Section 20 of the Protection of Women from Domestic Violence Act, 2005 from the date of application till the decision of the petition.
  2. 2. Contempt Petition No.459 of 2017 is taken out by the wife alleging non-compliance of the said order passed by the Family Court and praying for appropriate directions to the husband to comply with the said order. https://bit.ly/2I7a9tP
  3. 3. The brief chronology of the facts leading to the filing of present petitions is culled out below. The petitioner and respondent were married on 11.07.1997 as per Hindu rites and Customs. At the relevant time the petitioner was living in Houston, Texas, USA and the parties resided there till 2004. Out of the said wedlock, two children were born on 15.11.1998 and 20.01.2004. At present the daughter is studying in USA and the son is staying with the wife. The case of the petitioner-husband is that the respondent-wife lost interest in married life and she took away the children from their joint custody. The respondent-wife instituted the Petition B No.2/2013 invoking Section 34, 37(2), 38 and 39 of the Specific Relief Act before the Family Court, Pune. In the said proceedings, the respondent-wife https://bit.ly/2I7a9tP prayed for a restrain order against the husband removing son Aryaman from the custody of the petitioner-husband and also from meeting his son Aryaman out of Pune. Exh.5 came to be filed in the said Court praying for temporary injunction and the Family Court-I, Pune on 24.01.2013 issued temporary injunction against husband directing not to remove child from the custody of the wife until further orders.
  4. 4. The respondent-wife preferred an application Exh-20 in the said petition under Section 20 of the Protection of Domestic Violence Act praying for monetary relief of Rs.5 lakhs per month and for reimbursement of school fees of son Aryaman to the tune of Rs.50,000/-. In the said application preferred under Section 20 of the Domestic Violence Act, the wife alleged that she is entitled for maintenance of Rs.5 lakhs per month by taking into consideration the life style to which she is accustomed to and in the backdrop of the earning capacity of the husband. The said application came to be opposed by the petitioner by https://bit.ly/2I7a9tP filing a reply wherein it was contended that the proceedings under the Domestic Violence Act cannot be extended to a woman who earns tax free dividend of Rs.4 lakhs per annum and who has investment in her bank to fetch her interest of around 70 thousand per annum. In the said reply the petitioner-husband categorically stated that he was catering to the needs of the wife and children and always arranging for their lodging and boarding and all other miscellaneous expenses.
  5. 5. On consideration of the said application, the impugned order came to be passed by the Family Court. The Judge Family Court dealt with the objection that the application under Section 20 of the Domestic Violence Act cannot be instituted in the proceedings filed under the Specific Relief Act and the Court also recorded the submission of the petitioner that the preliminary requirement of Domestic Violence has not been proved and in such circumstances such an application cannot be entertained.
  6. 6. The impugned order proceeds on a footing that the petitioner is a President of “Shiv Vani Oil and Gas Exploration Services Limited” and draws a salary of Rs.15 lakhs per month with perks worth Rs. 5 lakh. The Court observe that the husband is in charge of the said company but he has failed to produce any documents reflecting his income, but the wife had produced on record copy of her bank statement. The Family Court would take note of the bank statement as well as Income Tax returns of the wife for the year 2013-2014, 2014-2015, 2015-2016 and 2016-2017. The Court considered the income shown as against these years and recorded a finding that the income of the wife for the year 2015- 2016 is Rs.17,46,878/- whereas for the year 2016-2017 it is reflected as zero. The Court did not find favour with the explanation tendered by the wife that her mother is joint holder of the account where huge amount has been credited and that she deals in stock broking and therefore the entries are reflected in her https://bit.ly/2I7a9tP account. The Court recorded, a finding that the said explanation is not acceptable at all. However, taking into consideration the fact that it is responsibility of the husband to maintain his wife and children, the Court awarded maintenance to the tune of Rs.2 lakhs per month, in the backdrop of the earning capacity of the husband as per the contention of the wife.
  7. 7. In support of the petitioner learned counsel Mrs.Seema Sarnaik would submit that the Family Court has failed to take into consideration the relevant aspects of the matter and that the order passed by the Trial Court is prima facie erroneous. She would submit that by virtue of Section 20 of the Domestic Violence Act, while disposing of an application Sub-Section-1 of Section-12 the Magistrate may direct payment of monetary relief to meet the expenses incurred and loss suffered by the “aggrieved person” as a result of Domestic Violence. Advocate Mrs.Sarnaik would submit that the prereqsite of the grant of such a relief is an application preferred under Section-12 of the said Act by the “aggrieved person”. She would invite https://bit.ly/2I7a9tP attention of the Court to the definite meaning assigned to the term “aggrieved person” under Section- 2(a) of the Act to mean a 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. She would also submit that the domestic violence has a specific meaning assigned to in Section-3 of the Act and would include any Act, omission or commission or conduct of the respondent as specified in Clause (a) to (d) of Section-3. She would submit that the application is devoid of such pleadings attributing domestic violence and thus in absence of domestic violence being attributed and demonstrated, an application under Section-12 cannot be entertained and no relief can be granted under Section-20 of the said Act in the nature of the monetary relief. She would also submit that the proceedings were filed by the wife under the provisions of the Specific Relief Act seeking a restrain order and in that proceedings the application Exh.-20 came to be filed which is not maintainable. She would also assail the order impugned on the ground that the Family Court has not taken into consideration the earnings of the husband. The petitioner has tendered an affidavit before this Court on 19th March 2018, bringing on record certain documents which include an order passed by the High Court of Delhi on 28th in a Company Petition by which the Company of the petitioner is placed under the control of the Official Liquidator in the form of provisional liquidator and direction is issued to the company and its directors from alienating, encumbering and parting with the possession of the assets of the company without the leave of the Court. According to Mrs.Sarnaik the company “Shiv Vani Oil and Gas Exploration Services Limited” is thus under liquidation and in these circumstances it is difficult for the petitioner to pay the amount of maintenance as ordered by this Court. The affidavit further proceeds to state that the petitioner is catering to the Educational expenses of the daughter who is studying in USA by obtain a loan and he is also bearing the educational expenses of his son who is studying in standard VIII.
  8. 8. Per contra learned counsel Advocate Shri.Sarwate appearing for respondent-wife would invite attention of this Hon’ble Court to the application filed by his client under order 21 Rule 41 of the Civil Procedure Code praying for disclosure of the details of the assets of the judgment debtor in light of the order passed by the Family Court. He would submit that on 30.01.2018 the Family Court has passed the following order on Exh.5. “Perused application. No say filed by J.D. Perused authority relied by D.H.D.H. Wants to JD should disclose his assets which are required for the execution of decree as DH is not aware of his assets J.D. Did not file Say. As per O.21, R.41 of the CPC, JD can be directed to disclose his assets. It is necessary to execute the decree. Hence, JD is directed to give details of assets as mentioned in para (4)(a) to (z) of the application on the next date.”
  9. 9. He would further invite attention of this Court to subsequent order passed by 07.03.2018 by the Family Court, Pune to the following effect :- “Perused application. Heard Ld. Advocate for DH. Today JD is present before the court but he did not comply the order of the court below Exh.5. So also JD did not deposit any decretal amount in court. There is no stay to the proceedings. DH pressed for sending the JD to jail. However, in my opinion last opportunity is to be given to the JD. Hence JD is directed to deposit 25% of decretal amount in court on or before 20.03.2018 and if he fails, he will be sent to jail. JD to note and strictly comply the order.
  10. 10. Learned counsel Shri.Sarwate would submit that the impugned order passed by the Family Court needs to be upheld since it is based on the earning capacity of the husband and since the wife is entitled to maintain same standard of living as the husband, and no fault can be found with the impugned order. He would submit that the wife is not having any source of livelihood and as such the award of maintenance of Rs.2 lakhs is just and proper to meet the requirements of the wife. Advocate Mr.Sarwate would also submit that he is constrained to file Contempt Petition No.459 of 2017 since the husband has failed to act in terms of the impugned order, thereby driving the wife to a stage of destitution.
  11. 11. With the assistance of the learned counsel for the parties I have perused the material placed on record and also perused the impugned order. The impugned order is passed on an application filed by the wife invoking Section-20 of the Domestic Violence in Petition No.B-2/2013 filed by the wife seeking a relief under the provisions of the Specific Relief Act. Though Mrs.Sarnaik had vehemently argued on the maintainability of the said application, on perusal of the provisions of The Protection of Women from Domestic Violence Act, 2005, https://bit.ly/2I7a9tP it is apparent that the Act has been enacted to provide more effective protection of rights of women guaranteed under the Constitution of India, being victims of violence of any kind occurring in the family and the provisions therein would have to be construed in the backdrop of the object with which the statute is enacted. Section-26 of the said Act provides for relief in other suits and legal proceedings. The said section contemplates that any relief available under Section 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before the Civil Court, Family Court and a Criminal Court affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this Act. Sub-section-2 of Section-26 further provides that any such relief may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before a Civil or Criminal Court. Thus, by virtue of the Section-26, any relief available under the Domestic Violence Act can also be sought in any legal proceedings before any Civil Court, Family Court or Criminal Court. The wife had instituted proceedings under the Specific Relief Act before the Family Court, Pune and the said proceedings are pending. She filed application Exh.20 in that petition namely petition B-2/2013 and sought to relief of grant of maintenance or the monetary relief contemplated under Section-20 of the said Act. In light of Section-26 of the Domestic Violence Act, 2005, the objection raised by Mrs.Sarnaik cannot be entertained. However, at the same time it is to be noted that the reliefs mentioned under Section 12 are available to “Aggrieved person” and the reliefs which may be availed by invoking Section 17, 18, 19, 20, 21 and 22 are dependent on one important aspect namely the said relief is available to an “aggrieved person” who alleges to have been subjected to any act of domestic violence by the respondent. The object of D.V. Act 2005, being to protect the rights of women who are offended by the act of domestic violence committed by the respondent which may include any adult male person or with whom the aggrieved person is in domestic relationship. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act, omission and commission or conduct of the respondent shall constitute domestic violence in case it :– (a) harms or injuries or endangers the health, safety, life, limp or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or https://bit.ly/2I7a9tP (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 lawful demand for any 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 injuries or causes harm, whether physical or mental, to the aggrieved person.
  12. 12. Thus, in order to claim relief under Section-12 of the Act which permits an “aggrieved person” to present an application to the magistrate seeking one or more reliefs under the Act, levelling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the respondent. Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the https://bit.ly/2I7a9tP powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.
  13. 13. Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of “aggrieved person” who would have been entitled for the benefits flowing under Section-12 including to the benefits under Section-20 of the D.V. Act 2005. The applicant in the application preferred on 16 th February 2013 do not give a single instance of domestic violence and the application has been simply preferred under the caption as an application under Section-20 of the D.V. Act 2005 praying for following reliefs. “(a) The maintenance or the monetary reliefs provided U/sec.20 of the Domestic Violence Act be granted. (b) Monetary relief of Rs.5 lac per month be granted from the date of this Application. (c) Reimbursement of School Fee for son Aryamaan be granted to the Petitioner to the tune of Rs.50,000/- incurred as on today. (d) The Respondent be called upon to produce his bank statements from all the banks for the last 3 years more specially from Jan 1, 2010.” (e) Any other just and equitable order may kindly be passed.”
  14. 14. Learned counsel Mrs.Sarnaik is perfectly justified in submitting that the provisions under the said enactment cannot be invoked unless the party alleges an act of domestic violence and approach the Court in the capacity as an “aggrieved person”. https://bit.ly/2I7a9tP Though the application filed by the applicant can be entertained in the pending proceedings under the Specific Relief Act, while entertaining an application which is filed Sub-section-1 of Section- 12, it is imperative that the person approaching the Court is an “aggrieved person”. Though the Family Court in the impugned order has noted the submissions advanced on behalf of the petitioner-husband that the preliminary requirement of the domestic violence has not been proved by the petitioner and therefore application is not maintainable, the Family Court did not pay any heed to the said submission and rather proceeded to decide the matter on its own merits. The Court has merely noted that as per provision of Section-20 of the D.V. Act aggrieved by had claimed monetary relief for herself and her children however, a whether the applicant is an “aggrieved person” has not at all been considered by the Family Court. Though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an “aggrieved person”. It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.
  15. 15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wife’s earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per year 2016-2017 her income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.
  16. 16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption https://bit.ly/2I7a9tP and surmises. Learned Counsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the “Shiv Vani Oil and Gas Exploration Services Limited” of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013. The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking eduction in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to the petitioner-wife without even bothering to take into consideration whether the wife is an “aggrieved person”. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. https://bit.ly/2I7a9tP The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance. However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order. Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife under Section-20 of the D.V.Act, the petitioner-husband is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017 https://bit.ly/2I7a9tP . The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by the petitioner-husband and would also consider the application preferred by the wife for withdrawal of such amount.
  17. 17. The Family Court is directed to reconsider the application for maintenance within a period of three months from the date of the deposit of the amount by the petitioner-husband in the Family Court. The said amount would be then adjusted towards the quantum of maintenance which the family Court would award on its reconsideration. During the pendency of the proceedings before the Family Court on its remand, the petitioner-husband would pay an amount of Rs.25,000/- per month to the wife towards her maintenance, till the Family Court decides the mater. The petitioner is also directed to bear the educational expenses of the son and would commit no default in payment of his school fees.

Writ Petition is partly allowed. Impugned order dated 23.01.2017 passed by Family Court, Pune is quashed and set aside. Matter is remanded to Family Court, Pune for reconsideration and the same is directed to be decided in three months.

(SMT.BHARATI H. DANGRE, J.)

 

DV on Husband & 7 relatives! HC sends case back 2 magistrate. Seeks DV report.

HC clarifies that a reading of the complaint shows that there are NO specific averments against relatives and so the magistrate to seek dom. violence report from social service officer, consider the facts and ONLY if there is a prima facie case against accude, the magistrate can proceed against other accused !!

#BackToMagistrate #SeekDVreport #DV_on_7Relatives #HusbandPLUSseven !!

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 27 TH DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL REVISION PETITION No. 2184/2012

C/w.

CRIMINAL REVISION PETITION No. 2185/2012

BETWEEN:

  1. K. SHIVAKUMAR S/O K. RAJA RAO AGE: 35 YEARS, R/O. RAYADURAGA, DIST: ANANTAPUR
  2. C. RAJARAO S/O. K. NAGOJI RAO AGE: 70 YEARS, OCC: ADVOCATE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR

  3. SMT.C. NAGO BAI W/O. C. RAJA RAO AGE: 60 YEARS, R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR

  4. SMT.SURYAKALA W/O. K. RAJASHEKAR AGE: 25 YEARS, R/O. BASATHALLI VILLAGE, DODDA BALLAPURA TALUKA, KARNATAKA STATE

  5. SMT.CHANDRAKALA W/O GOPIKRISHNA M. AGE: 28 YEARS, R/O. D.NO. 16/4-519 NETAJI ROAD, RAYADURGA, DIST: ANANTHAPUR

  6. K. PRAVEEN S/O. C. RAJA RAO AGE: 23 YEARS, SENICURE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHPUR

  7. KRISHNAKUMAR K. S/O. C. RAJA RAO AGE: 30 YEARS, R/O. TORANAGALLU, JINDAL TOWN SHIP, DIST: BELLARY

  8. YOGENDRA KUMAR K. S/O. C. RAJA RAO AGE: 29 YEARS, APSRTC CONDUCTOR, R/O. RAYADURGA, ANANTHAPUR  ……. PETITIONERS

(COMMON)

(BY SRI. B CHIDANANDA, ADV. )

AND:

K. PARVATHI D/O LATE HULUGOJI RAO AGE: 30 YEARS, R/O. C/O. NARASAMMA AGADI MAREPPA COMPOUND, PLOT NO. 8, NEAR RAGAVENDRA TALKIES, BELLARY… RESPONDENT

(COMMON)

(BY SRI. V M SHEELVANT, ADV.)


CRIMINAL REVISION PETITION NO.2184/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 01.06.2012, IN CRL.A.NO.37/2012 PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELLARY, AND TO SET ASIDE THE ORDER DATED 12.03.2012, MADE ON I.A.NO.01 IN CRL.MISC.NO.94/2011, PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, BELLARY, IN THE ENDS OF JUSTICE AND ALLOW THE I.A.NO.1 BY HOLDING THAT, THE CRL.MISC. PETITION NO.94/2011, PENDING ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC COURT, BELLARY, FILED BY THE RESPONDENT HEREIN IS NOT MAINTAINABLE AGAINST THE PETITIONERS 2 TO 8 HEREIN, IN THE ENDS OF JUSTICE.

CRIMINAL REVISION PETITION NO.2185/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO 1) SET ASIDE THE JUDGEMENT/ORDER DATED 01.06.2012, MADE IN CRL.A.NO.36/2012, PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELLARY, AND THERE BY DIRECTING THE FIRST PETITIONER TO PAY MONTHLY INTERIM MAINTENANCE OF RS.3000/- P.M. IN ADDITION TO RS.1500/- P.M. FIXED IN CRL.M.C.NO.191/2010 AND AFFIRMING THE PROTECTION ORDER AND SHARED HOUSE IN FAVOUR OF THE RESPONDENT AS PER SECTION 23(2) R/W 18, 19 & 20 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, IN THE ENDS OF JUSTICE.

THESE REVISION PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

  1. These two petitions are filed respectively challeng ing the order of the learned Magistrate i.e., Principal Civil Judge and JMFC, Bellary in Criminal Case No.94/2011 in rej ecting the application filed by the respondents 2 to 8 the rein, under Sections 118 and 482 of the Cr.P.C. seeking their d ischarge from the said proceedings and the said orders being affirmed by the II Addl. Dist. and Sessions Judge at Bellary in Criminal Appeal No.37/2012 dated 1/06/2012; and als o challenging the entire order passed by the learned Magistrate in the same proceedings, wherein a sum of Rs.7,000/was awarded as interim maintenance in favour of the res pondent – wife in the said petition, which was reduced by t he II Addl. Dist and Sessions Judge, Bellary in Criminal Appeal No.36/2012 to the extent of Rs.4,500/- per month ti ll the disposal of the main petition pending before the JM FC, Bellary.
  • I have carefully perused both the orders.

  • In the first order by the learned Magistrate on the application filed under Sections 118 and 482 of the Cr.P.C, the provisions of law invoked by the petitioners are not proper because neither Section 118 of the Cr.P.C nor Section 482 of the Cr.P.C empowers the Magistrate in any manner to discharge the petitioners from the array of the parties in the said proceedings. However, though the provision of law mentioned in the said petition is wrong, the substance of the application has to be looked into by the Court and if the Court is satisfied with regard to the grounds urged before it, it can pass appropriate orders in accordance with law. Even otherwise, Section 25(2) of Domestic Violence Act, 2005 (hereinafter referred to as the ‘DV Act’, for short ) empowers the Magistrate that; “on receipt of an application from the aggrieved person or the respondent, if the Magistrate is satisfied that there is a change in the circumstanc es requiring alteration, modification or revocation of any order made under this Act, he may, for the reasons to be recorded in writing pass such order, as he may deem fit appropriately.” Therefore, if at all the petitioners are aggrieved by issuance of any notice or summons/ any order passed against the parties and by virtue of the summons they have appeared before the Court, if they make out a ground before the same Court by means of changed circumstances or showing to the Court that they are not at all liable to be prosecuted in the said proceedings, the Court may take into consideration all the materials placed before the Court by both the parties and can pass appropriate orders in that regard. In this background, let me see what order the trial Court has passed.

  • The tone and tenor of the orders passed by the tria l Court discloses that, the application has been considered by the trial Court mainly concentrating on the provisions mentioned in the applications. Further added to that, on relying upon several rulings, the Court has come to the conclusion that the petition cannot be dismissed merely because along with the husband, other members of the family were also arrayed as parties to the proceedi ngs. The Magistrate has assigned the reason at paragraph 13 of the orders passed by him on the application filed under Sections 118 and 482 of the Cr.P.C which reads as follows: “ With due respect to their Lordship, I have gone through the above rulings. The ratio laid down in the above rulings are applicable to the present set of facts to come to the conclusion that the petition filed by the petitioner against the respondents No.1 to 8 are well maintainable under this provision. So, in view of the rulings relied by the petitioner in this case, the petition filed for seeking monetary reliefs from the respondents under this Act is maintainable.” Except this observation, nothing is mentioned in th e order about what are the grounds urged by the petit ioners in their application.

  • On careful perusal of the application filed by the petitioners 2 to 8 before the trial Court, it discloses that they have challenged the proceedings on the ground that by virtue of the relationship with the respondent No.2 in the said case, they were made as parties to the proceedings and no proceedings shall be continued against the relative s of the husband of the respondent therein without specific allegations against them. Apart from this ground, they have also taken up the contention that they never lived with the 1 st petitioner therein. They have also claimed that t he relief claimed against the 1st petitioner is exclusively against husband and he alone is liable to discharge the sai d relief. The contents of the petition also does not disclose any specific overt acts of the petitioners 2 to 8 in or der to draw them to the Court.

  • Therefore, it goes without saying that except one point, the trial Court has not considered the other grounds urged in the application. The trial Court ought to have considered the other grounds urged in the applicati on. If the Court is satisfied that a prima facie case is made out against the petitioners, then only it can proceed against t hem.

  • It is worth to note here the decision of the Hon’bl e Apex Court reported in 1992 Supp (1) SCC 335 in the case of State of Haryana and Others Vs. Bhajan Lal and Others, wherein the Apex Court has held that; “considering the allegations made in the First Information Report or the complaint, even if they a re taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; Secondly, where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; and And lastly, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. “

  • Even on analysis of the entire averments made in the petition, it does not attract any of the provis ions under the DV Act and the factual aspects contained in the petition are also not sufficient to draw inference that any provisions under the DV Act can be invoked. On over all analysis of the materials on record, if the applicants are able to satisfy that the petition was filed only with a mala fide intention to wreck vengeance against them, then the Court has to consi der all the grounds urged on the basis of the materials on record in view of the above said observations of the Apex Court and then has to pass appropriate orders on the applicat ion.

  • With these observations, I am of the opinion that the matter deserves to be remitted back.

  • At this stage, the learned Counsel for the respondent submitted that, when the Domestic Officer (CDPO) had been to the house of the petitioners the y have not cooperated in order to submit proper report to the Court. Per contra, the learned Counsel for the petitioners submit that they had no knowledge at all about the said of ficer having come to the place of the petitioners that th e Officer has not given any prior intimation or notice to the petitioners, otherwise they would have cooperated with him and they are the last persons to disobey the orders of the Court.

  • In view of the above said submissions, it is just and necessary for the trial Court to direct the concerned CDPO to once again visit the place of the petitioners with prior intimation to them in order to collect the domestic violence information and submit the Domestic Incide nt Report to the Court as early as possible. For that reason also, the matter requires to be remitted to the trial Court. In another petition, the challenge is regarding the interim maintenance awarded. The interim maintenan ce of Rs.7,000/- pm awarded by the trial Court is reduced to Rs.4,500/- pm by the appellate Court. The learned Counsel for the petitioners strenuously contends, no enquir y has been done by the learned Magistrate before ordering an amount of Rs.7,000/- pm. Only considering the mate rials on record and hearing the parties, the said award has been passed. The appellate Court having noticed that in Cr.Misc.No.191/2010 filed under Section 125 of the Cr.P.C, the wife was ordered with an amount of Rs.1,500/- p er month as maintenance and taking into consideration the submission made on behalf of the husband that the w ife has suppressed the said material aspect of getting Rs.1,500/- in the 125 proceedings, reduced the award of maintenan ce to the extent of Rs.4,500/- per month including the aw ard passed in 125 proceedings. Both the Courts have an alysed the factual matrix of the case to come to the conclusion that the petitioner is entitled for interim maintenance during the pendency of the proceedings. But as the wife has s uppressed material aspects before the Court by not bringing t o the notice of the Court the award passed in her favour in 125 proceedings, I am of the opinion, if an amount of i nterim maintenance is reduced to Rs.4,000/- per month in t otal, it would meet the ends of justice because of the simpl e reason that, wife has to live in the society by having a s eparate house, grocery, clothes, medical expenses etc. The refore, considering the growing rates of groceries and othe r day to day expenses, I am of the opinion, an amount of Rs. 4,000/-is bare minimum to be awarded in favour of the peti tioner as interim maintenance, pending disposal of the petiti on. However, the interim maintenance ordered by this Co urt is subject to any modification by the trial Court at t he time of final order to be passed in the case, based on prev ailing facts and circumstances of the case.

  • In view of the above said factual aspects, I am of the opinion, the matter is to be remitted to the tr ial Court with a direction to reconsider the application file d under Sections 118 and 482 of the Cr.P.C. The said provi sion of law should be read as if filed under Section 25(2) of the DV Act. With these observations, I pass the following order:

  • ORDER

    Both the petitions are allowed.

    The order passed by the learned Magistrate on I.A.1/2014 in Crl.Misc.No.94/2011 dated 12.03.2012 and confirmed by the appellate Court in Crl.A.No.37/201 2 is hereby set aside. The application filed by the app licants under Sections 118 read with Section 482 of the Cr. P.C, which should be read as if filed under Section 25(2 ) of the DV Act is restored to the file of the Magistrate to b e considered afresh in view of the observations made in the body of this order.

    The order passed by the learned II Addl. District J udge in Cri.A.No.36/2012 dated 01.06.2012 is modified an d the amount of interim maintenance is reduced from Rs.4, 500/-to Rs.4,000/- per month pending disposal of the mai n petition. The amount deposited before this Court is ordered to be transmitted to the trial Court and the trial Court shall release the said amount in favour of the respondent -wife.

    Sd/-

    JUDGE

    Nonpayment DV maintenance NOT violation of Sec 31 protection order, so NO cognizance. Karnataka HC

    The short point that arises for consideration by this court is as under:“Whether penal provision found in Section 31 of Protection ofvWomen from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”

    The Hon court concludes as follows “….

    • 17. Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.
    • 18. After going through the records and the decision rendered by the High Court of Rajasthan in the case of SMT.KANCHAN .v. VIKRAMJEET SETIYA (2013 CrL.L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon’ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sections 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the Act ia a glaring legal error and hence the same will have to be set aside.

     

    and “….Consequently the petitioner stands discharged for offence punishable under section 31 of P.W.D.V Act 2005.…”

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 18TH DAY OF DECEMBER 2015

    BEFORE
    THE HON’BLE MR.JUSTICE A.V.CHANDRASHEKARA

    CRIMINAL REVISION PETITION NO.758 OF 2015

    BETWEEN:

    MR. FRANCIS CYRIL C CUNHA
    AGED ABOUT 52 YEARS
    S/O SYLVESTER D/CUNHA
    RESIDING AT DEEPTHI COTTAGE
    KALLABETTU POST, GANTALKATTE
    MOODBIDRI, MANGALORE TALUK – 515 006 … PETITIONER
    (BY SRI.THARANATH POOJARY.I., ADV.)

    AND:

    SMT, LYDIA JANE D’CUNHA
    AGED ABOUT 42 YEARS
    W/O FRANCES CYRIL D’CUNHA
    RESIDING AT URPALPADE HOUSE
    KALLABETTU POST, MANGALORE TALUK 575 006 … RESPONDENT
    (BY SRI. G.BALAKRSIHNA SHASTRI )

    THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.02.2014 PASSED BY THE PRINCIPAL S.J., D.K., MANGALORE IN CRL.A.NO.211/2013 UPHOLDING ORDER DATED 28.02.2013 PASSED BY THE C.J. AND J.M.F.C., MOODBIDRI, D.K., IN C.C.NO.327/2012 DISMISSING THE DISCHARGE APPLICATION FILED BY THE PETITIOENR FOR THE OFFENCE P/U/S 31 OF THE PROTECTION OF WOMEN AGAINST THE DOMESTIC VIOLENCE ACT AND DISCHARGE THE PETITIOERN OF THE SAID OFFENCE. THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:

    ORDER

     

    1. Present petition is filed under Section 397 of Cr.P.C. challenging the order of the learned Civil Judge, Moodbidri passed on 28.02.2013 in C.C. No.327/2012 and the confirmation of the same by the learned Sessions Judge, Mangaluru in Crl.A.No.211/2013. Petitioner is the accused in C.C.No.327/2012 and the Trial Court has issued process against the accused for offences punishable under Section 31 of Protection of Women from Domestic Violence Act, 2005 (For short “˜Act” herein afterwards). An application was filed under Section 239 of Cr.P.C. seeking discharge. The said application came to be dismissed after contest as against which an appeal was filed in terms of section 29 of the said Act before the Sessions Court at Mangaluru. The appeal is dismissed and thereby the order of the Trial court is confirmed.
    2. 2. The facts leading to the present revision petition are as follows: Petitioner is the legally wedded husband of the respondent. Respondent has chosen to file a case in Crl.Misc.No.115/2009 under section 12 of the Act seeing various releifs against this petitioner before the Court of JMFC Moodbidri, Mangalore Taluk. By virtue of the order dated 01.03.2010, the learned JMFC chose to award maintenance @ Rs.4,000/- per month to the respondent and her daughter. 01.03.2010 has become final.
    3. 3. An application was filed to recover the arrears of maintenance pursuant to the order dated 01.03.2010 passed in Crl.Misc.No.115/2009 in MC No.256/2012. In accordance with the order dated 01.03.2010 passed in Crl.Misc. No.115/2009, recovery of the entire arrears of maintenance was sought but the executing court, applying the provisions of Section 125(3) of Cr.P.C. allowed to recover a sum of Rs.32,000/- only being the arrears for one year prior to the filing of the application for recovery and that order is not challenged in any manner.
    4. 4. A private complaint was filed by the respondent in PCR No.96/2012 before the JMFC Court on 22.09.2012 requesting the court to take cognizance under Section 31 of the Act to issue summons for not paying the entire arrears of maintenance. Cognizance was taken and summons were issued. After appearing before the court an application was filed in terms of Section 239 of Cr.P.C. to discharge him and said application came to be dismissed. Dismissal of the said application is confirmed by the Sessions Court. Hence the present revision petition is filed under section 397 of Cr. PC.
    5. 5. The short point that arises for consideration by this court is as under:“Whether penal provision found in Section 31 of Protection ofvWomen from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”
    6. 6. While disposing of Crl.Misc. No. 115/2009 on 01.03.2010, the learned judge has passed the following order:”
      The petition filed by the petitioners no.1 and 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
      The respondent is hereby restrained from entering the school/college or any other places where the petitioner no.2 is studying.
      The respondent is hereby directed to stay away from the dependants, relatives or any other persons from the petitioner No.1 and 2 from committing violence against them.
      The respondent is hereby restrained from attempting to contact the petitioner no.2 either at the school or any other place.
      The respondent is hereby restrained from alienating, disposing, encumbering the shared household which is described in the petition schedule.
      The respondent is hereby directed to pay the maintenance of Rs.4,000-00 to the petitioner no.1 and 2 per month from the date of the petition.”
    7. 7. It is true that all orders other than the one relating to maintenance are perfect protection orders within the purview of Section 18 of the Act. Section 18 is reproduced below: “Section 18 ““ Protection Orders”
      The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from ”
      (a) committing any act of domestic violence;
      (b) aiding or abetting in the commission of acts of domestic violence;
      (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
      (d) attempting to communicate in any form, whatsoever, aggrieved personal, with person, oral or the including written or electronic or telephonic contact;
      (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
      (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
      (g) committing any other act specified in the protection order.” as
    8. 8. The words “Protection Orders” are defined in Section 2(o) of the above Act and the same is extracted below: 2(o) -“Protection Order” means an order made in terms of Section 18.”
    9. 9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
    10. 10. Section 31 of the above Act is reproduced below in its entity:
      “Section 31. Penalty for breach of protection order by respondent.
      (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
      (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.
      (3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”
    11. 11. Section 28 of the above Act deals about the applicability of certain provisions of Cr.P.C. to the provision of this Act. Except as provided in this case, all proceedings under Sections 12, 15,18, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Cr.P.C.
    12. 12. Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
    13. 13. Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals about the breach of protection order. It is extracted below:
      “Breach of Protection Orders.
      (1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.
      (2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.
      (3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the Magistrate for appropriate orders. concerned
      (4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the police, if she so chooses.
      (5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.
      (6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973 (2 of 1974).
      (7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.
      (8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.
      (9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include ““
      (a) an order restraining the accused from threatening committing violence; an to act commit of or domestic
      (b) an order preventing the accused from harassing, making any telephoning contact with or the aggrieved person;
      (c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
      (d) an order prohibiting the possession or use of firearm or any other dangerous weapon;
      (e) an order prohibiting the consumption of alcohol or other drugs;
      (f) any other order required for protection, safety and adequate relief to the aggrieved person.”
    14. 14. Hon” ble High Court of Rajasthan had an opportunity to discuss the applicability of the provisions of Section 31 of the above Act in regard to the noncompliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon”ble High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31of the Act does not include monetary relief.
    15. 15. In the present case, the provisions of Section 31 of the Act was pressed into service before the trial court essentially on the ground that arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the Act. The learned judge of the trial court has construed that even the nonpayment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.
    16. 16. What is argued by Sri. G. Balakrishna Shastri, learned counsel representing the respondent is that the non-payment of the arrears of maintenance amounts to domestic violence and therefore Section 31 is applicable.
    17. 17. Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.
    18. 18. After going through the records and the decision rendered by the High Court of Rajasthan in the case of SMT.KANCHAN .v. VIKRAMJEET SETIYA (2013 CrL.L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon’ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sections 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the Act ia a glaring legal error and hence the same will have to be set aside. Consequently the revision petition will have to be allowed and the order of the JMFC passed on 28.2.2013 and affirmed in Crl.A.211/13 will have to be set aside.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
    19. 19. In the result, the following order is passed:

    ORDER

    The revision petition is allowed. The order dated 28.2.2013 passed in C.C.327/12 and affirmed in Crl.A.211/13 are set aside. Consequently the petitioner stands discharged for offence punishable under section 31 of P.W.D.V Act 2005.

    Send a copy of this order to the Trial Court.

    Sd/JUDGE

    BSV/vgh*


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