Category Archives: No additional maintenance by filing DV

Wife earning equal to husband denied maintenance in DV. Sessions & Delhi HC ALSO deny maintenance !

In this case a woman earning approximately 40,000 p.m. tries to get more money from her husband. courts reject maintenance and also residence order. It is also found that the complainant / wife is a government servant Government servant is also entitled to HRA which should be equivalent to HRA earned by the respondent (husband) and therefore the said relief is also declined. The Hon Del HC also denies maintenance. The HC goes further to call the appeal an abuse of the process of law


Delhi High Court

Smt Ranjana Gupta vs Rajnesh Gupta & Ors on 11 February, 2014

Author: Indermeet Kaur

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Judgment:11.02.2014.

CRL.REV.P. 637/2013

SMT RANJANA GUPTA ….. Petitioner
Through Mr.Kuldeep Kumar, Adv.

versus

RAJNESH GUPTA & ORS ….. Respondents
Through Ms.Fizani Hussain, APP.

CORAM: HON’BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.(Oral)

1 The petitioner is aggrieved by the impugned order dated 29.07.2013 endorsing the finding of the learned MM dated 28.03.2012 vide which the order passed on the complaint case (CC No.174/2003) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘PWDVA’) had been disposed of without granting any relief to the petitioner. Relevant would it be to extract that part of the order passed by the learned MM. It reads as under:-

“9. Relief.

As far as relief is concerned, complainant has sought firstly
protection order u/s 18 PW DV Act. Complainant has been residing
separately since 05.10.2004. There are no complaints in the
intervening period or even prior to that for commission of acts of
domestic violence by the respondent. Accordingly, no relief u/s 18 PW
DV Act is made out.

Secondly complainant has prayed for relief u/s 19 & 20 PW DV Act.
Admittedly, respondent is residing in the house of his parents and
has no separate accommodation. Similarly, the complainant is residing
with her parents and is financially independent. Admittedly salary of
complainant is approximately Rs. 40,000/- per month. Similarly
respondent is earning a salary of approximately Rs. 39-40 thousand
per month. I feel that financially both the parties are equally
placed. Therefore, I am not inclined to pass any maintenance order.
Residence order is also declined for the reason that complainant
being a Government servant is also entitled to HRA which should be
equivalent to HRA earned by the respondent and therefore the said
relief is also declined.

Now coming to Section 22 PW DV Act. Complainant has not placed on
record any proof that she has suffered any injury due to harassment
caused by the respondent, therefore, I am not inclined to pass any
compensation order and the same is declined.

Petition is accordingly disposed off.”

2 This order was assailed before the Sessions Judge. The Sessions Judge as noted supra has endorsed this finding passed by the trial Court.

3 Learned counsel for the petitioner is aggrieved by this fact finding. His submission is that the order has been passed by both the two courts below cursorily on surmises and conjectures without applying the settled legal proposition; submission being that the mother- in-law of the petitioner namely Urmil Gupta had been deleted from the complaint case on an application filed by her without any formal order; this was on the pretext that a female does not qualify as a respondent under the ‘PWDVA’; submission being that this was based on a wrong proposition of law as the Hon’ble Apex Court in 2011 (2) SCALE 94 Sou Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Ors. had in this context noted that the Legislature did not intend to exclude a female relative of the husband or male partner from the ambit of a complaint that can be made under the provisions of ‘PWDVA’. Submission being that in this case the allegations of the petitioner were specific that the mother-in-law of the petitioner namely Urmil Gupta had kept her jewellery articles and the same had not been returned. Attention has been drawn to internal page 4 of the order of the learned MM; submission being that a specific allegation had been made by the petitioner that her entire jewellery articles were with her mother-in-law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4 The Court had further noted that the test of cross-examination has been passed by the petitioner; it thus stood proved that the jewellery articles were with the mother-in-law but the same had not been returned and the two courts below not directing the mother-in-law to return the jewellery articles of the petitioner to her in terms of Section 19 (8) of the ‘PWDVA’ has committed an illegality.

5 The trial Court record had been requisitioned. The same has been perused. Before adverting to these arguments propounded by the learned counsel for the petitioner, it would be relevant to state that this Court is sitting in revisional jurisdiction and unless and until, there is patent illegality or perversity pointed out that this Court can interfere in the fact finding; the scope of interference in revisional jurisdiction is limited as the fact finding returned by the two competent courts cannot be easily interfered with.

6 Learned MM in para 8 had framed an issued which reads as under:- “Whether prima facie case of domestic violence is made out?”

7 The evidence led by the complainant and the respondent has been discussed. It had noted that there was an allegation made by the complainant that her jewellery is with the mother-in-law although the mother-in-law is not a party to the present complaint. The Court had thereafter gone on to hold that the complainant has been able to prove the allegations of cruelty and harassment meted out by the respondent to the complainant and has proved the same; it has noted that she had resided in the house for about 8-9 months and thereafter she was living separately. It had also noted that separate proceedings under Section 498-A and 406 of the IPC are pending against the respondent and his family members. The fact findings returned by the learned MM nowhere recorded a positive fact that the complainant had been able to prove that her jewellery articles were lying with the mother-in-law. The Sessions Judge noted these facts in the correct perspective and held that the petitioner had taken a vacillating stand as far as her jewellery is concerned and although in her complaint, she had stated that she had handed over her gold jewellery on advice of her husband to him but in her cross-examination she denied that the gold jewellery articles were being retained by the respondent. The respondent in his evidence had categorically stated that the gold articles had been taken back by the complainant when she had left her matrimonial home.

8 The findings returned by the Sessions Judge read here as under:-

“7. List of respondents was not filed along with application under
Section 12 of PWDV Act. It is only in Domestic Investigation Report
(DIR) filed by the Protection Officer, names of four respondents i.e.
Rajnesh Gupta/husband (R-1), Satish Chand Gupta/father-in-law (R-2),
Urmil Gupta/mother-in-law(R-3) and Anju Gupta/sister-in-law (R-4)
were mentioned. An application on behalf of respondents to drop the
proceedings against respondent no. 2 to respondent no. 5 was filed.
Learned Counsel for appellant submits that names of Smt. Urmil
Gupta/mother-in- law (R-3) and Smt. Anju Gupta/sister-in-law (R-4)
had been deleted from the arrays of the parties, although both of
them had filed reply before the Trial Court. He submits that Learned
Trial Court has not given any reasons in the impugned order as to how
Urmil Gupta (R-3) and Anju Gupta (R-4) were dropped and no order was
passed by Learned Trial Court on the application filed on behalf of
respondent no. 2 to respondent no. 5 for dropping the proceedings
against them.

8. It is submitted that in her affidavit in evidence dated
30.11.2010, appellant/complainant has stated that she was tortured
and manhandled by her husband/R-1, his parents, sister in law and
brother in law, right from the day one of her marriage. She deposed
that on 16.01.2004, her husband had advised her to hand over her gold
ornaments which were received from her parents side and from her in-
law side and the said ornaments are still in possession of her mother-
in-law. It is stated that she was mentally tortured at all the
regular intervals. On 17.01.2004, her husband, her parents and sister-
in-law abused her for not bringing car and AC. It is stated that in
March 2004, her husband and mother-in-law abused appellant and told
her to leave her job. In September 2004, her husband and in-laws
started increasing pressure on her to leave her matrimonial home and
to bring AC, car and Rs. 5,00,000/- . She was threatened that if
their demands were not fulfilled, her husband and parents-in-law
would kill her by burning while preparing food. It is stated that
respondents with common intention used to threaten her to kill and
assault. Appellant/complainant further stated that she handed over
gold jewellery on the advise of her husband (R-1). In cross
examination, appellant/complainant denied that no gold or dowry
articles were retained by respondents or that she had taken back all
her gold and many costly articles at the time of leaving of her
matrimonial home. She denied the suggestion that remaining dowry
articles were returned after registration of a case under Section 498-
A/406/34 IPC. On the other hand, in his affidavit husband/R-1 deposed
that appellant/complainant had deserted her matrimonial home without
any reason on 5.10.2004. She left her matrimonial home in a pre-
planned manner and she had taken away all her gold and silver
jewellery. In cross examination, he reiterated that gold articles
mentioned in the list, were taken back by appellant/complainant when
she left her matrimonial home.

9. On perusal of evidence adduced by the parties, Learned Trial Court
found that complainant was a victim of domestic violence and a prima-
facie case of domestic violence was made out against husband/R-1. It
was found that there were no specific allegations against father-in-
law/R-2 and no case of domestic violence was made out against Ajay
Gupta/R-5 (nandoi). Similarly no case is made out against Smt. Urmil
Gupta (R-3) and Smt.Anju Gupta (R-4). Learned trial Court further
noted that appellant/complainant was residing separately since
05.10.2004 and there were no complaints during the intervening period
or even prior to that for commission of domestic violence by the
respondents. It was found that husband/R-1 was residing in the house
of his parents and had no separate accommodation. Similarly,
appellant/complainant was residing with her parents and was
financially independent. Trial Court found that both the parties were
financially equally placed, therefore, no maintenance order was
passed. Residence order was also declined for the reason that
appellant/complainant was a Government servant, who was also entitled
to House Rent Allowance (HRA). Learned Trial Court found that
appellant/complainant had not placed on record any proof that she
suffered injury due to alleged harassment caused by the respondents.
In view of the aforesaid reasons, no relief was granted to
appellant/complainant.” https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9 These fact findings in no manner call for any interference. The scope of misuse of proposition of law as noted in the judgment of Sou Sandhya Manoj Wankhade (supra) would not arise as there was no fact finding that the jewellary articles/istridhan were lying with the mother- in-law. Moreover, on a specific query put to the learned counsel for the petitioner about the proceedings under Sections 498-A/406 of the IPC, there has been no denial. It is but obvious that these sections would also encompass the same relief.

10 This petition is an abuse of the process of the Court. Dismissed with costs of Rs.5,000/-.

INDERMEET KAUR, J

FEBRUARY 11, 2014

A

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon 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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Wife can’t claim both u/s125CrPC & S20 DV for SAME DV event. Fresh DV need 4 fresh claim. Madras HC

A wife claims and obtains maintenance under sec 125 CrPc for herself and her daughter. She also gets an enhancement from the sessions court. Not contended with that she moves a DV petition and gets more money awarded at lower court . Husband moves HC in appeal

HC appreciates the facts and denies her double relief for the same set of of DV incidents, i.e. wife cannot claim maintenance both under Sec 125 CrPC and also under DV for the same incidents. Also enhancement of a Sec 125 maintenance can only be under Sec 127 CrPc and not under Sec 20 DV act

The Hon HC orders “…If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act…..” and the HC adds “…. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife…”


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:   28.07.2015

CORAM   :  THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.453 of 2014
and
M.P.No.1 of 2014

B.Prakash                                       : Petitioner

Vs.

1.Deepa

2.Minor Harini                                  : Respondents

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal
Procedure, to call for the records in Crl.A.No.17 of 2012, dated 31.01.2014,
on the file of the Second Additional District and Sessions Judge, Trichy,
modifying the order passed in M.C.No.158 of 2009, on the file of the learned
Judicial Magistrate No.II, Trichy and revise the same.

[Date of reserving the Judgment  –  01.07.2015]

[Date of pronouncing the Judgment –   ….]

For Petitioner            : Mr.N.Mohideen Basha

For Respondents        : Mr.M.Karunanithi
Mr.T.Lajapathi Roy, Amicus Curiae

ORDER

  1. The petitioner is the husband of the first respondent and the father of the second respondent. The respondent filed M.C.No.107 of 2008, before the learned Chief Judicial Magistrate, Thiruchirappalli, claiming maintenance under Section 125 of the Code of Criminal Procedure, [hereinafter referred to as “the Act”]. The learned Chief Judicial Magistrate, by order dated 19.06.2009, passed an order, directing the petitioner to pay a sum of Rs.500/- per month to each respondent herein towards their maintenance. As against the same, the respondents filed Crl.Rc.No.88 of 2009. By order dated 23.05.2011, the learned Additional District and Sessions Judge, Tiruchirappalli, modified the order of the learned Chief Judicial Magistrate and directed the petitioner to pay a sum of Rs.2,500/- per month to each respondent herein towards their maintenance. The petitioner claims that he has been paying the said amount without any default. While so, the respondent filed M.C.No.158 of 2009, on 20.01.2009, under Section 20 r/w Section 12 of the Protection of Women from Domestic Violence Act, 2005, [hereinafter referred to as ?the Act?], claiming various reliefs under the said Act, including monetary relief towards their maintenance. The learned Judicial Magistrate, by order dated 31.01.2012, directed the petitioner to pay a sum of Rs.2,000/- per month to the first respondent and a sum of Rs.1,500/- to the second respondent towards their maintenance. Challenging the said order, the petitioner filed Crl.A.No.17 of 2012. The learned Second Additional District and Sessions Judge, by order dated 31.01.2014, confirmed the order of the learned Judicial Magistrate, directing the payment of maintenance. The said order is under challenge in this Criminal Revision Case.
  2. I have heard Mr.N.Mohideen Basha, the learned counsel appearing for the petitioner, Mr.T.Lajapathi Roy, the learned Amicus Curiae, appointed by this Court to argue the case on behalf of the respondents and perused the records carefully.
  3. The foremost contention of the learned counsel for the petitioner is that a Magistrate, acting under Section 20 of the Act, has got power to grant maintenance under Section 125 of the Code.  According to him, Section 125 of the Code and Section 20 of the Act serve two different purposes and orders could be passed under these provisions on two different considerations. These two provisions, according to the learned counsel, are mutually exclusive.
  4. But, Mr.T.Lajapathi Roy, the learned Amicus Curiae appointed by this Court, would submit that under Section 20(1)(d) of the Act, a Judicial Magistrate is fully empowered to pass an order for maintenance also. The learned counsel would further submit that Section 20 of the Act and Section 125 of the Code are not mutually exclusive and they are complementary to each other. He would further submit that an aggrieved party has got option either to go before the Magistrate under Section 125 of the Code or under Section 20 of the Act, claiming maintenance.
  5. Before entering into any further discussion, let us have a quick look into the relevant provisions.
  6. Section 125 of the Code is reads as follows:-
    • 125. Order for maintenance of wives, children and parents.
    • (1) If any person leaving sufficient means neglects or refuses to maintain-(a) His wife, unable to maintain herself, or (b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) His father or mother, unable to maintain himself or herself, A Magistrate of? the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
      • Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of? sufficient means.
      • Explanation. For the purposes of this Chapter.
      • (a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;
      • (b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
    • (2) Such allowance shall be payable front the date of the order, or, if so ordered, from the due of the application for maintenance.
    • (3) Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for whole, or any part of each month?s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;
      • Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
      • Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
      • Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife?s refusal to live with him.
    • (4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.
    • (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order”.
  7. Section 20 of the Act reads as follows:-
    • “20. Monetary reliefs.-
    • (1) While disposing of an application under sub section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
    • (a) the loss of earnings;
    • (b) the medical expenses;
    • (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
    • (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973, (2 of 1974) or any other law for the time being in force.
    • (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
    • (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
    • (4). The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within local limits of whose jurisdiction the respondent resides.
    • (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
    • 6. Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent”.
  8. A cursory reading of Section 125 of the Code would go to show that a wife is entitled for maintenance upon proof that the husband has neglected or refused to maintain her and further that she is unable to maintain herself. If these three facts are proved, then, she is entitled for an order for maintenance against her husband.
  9. If we look into Section 20 of the Act, sub-section (1) states that an aggrieved is entitled for monetary relief. The said monetary relief could be ordered to meet the expenses incurred by the loss suffered by the aggrieved person. The term “monetary relief” has been defined in Section 2(k) of the Act, which reads as follows:- “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence.”
  10. The term “aggrieved” is defined in Section 2(a) of the Act, which reads as follows:- “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.”
  11. In order to get an order for monetary relief, under Section 20 of the Act, first of all, the claimant should be an aggrieved person as a result of the domestic violence. The term “domestic violence” is defined in Section 2(g) of the Act, which states that the domestic violence has the same meaning as assigned to it in Section 3 of the Act.
  12. Section 3 of the Act 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, limp or well-being whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual, verbal and emotional abuse and economic abuse; or
    • (b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful 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”.
  13. Now, the question is as to whether the wife, who has been neglected by her husband or refused to be maintained, is aggrieved person, as defined in Section 2(a) of the Act. In other words, whether such neglect or refusal by the husband would amount to domestic violence as defined in Section 3 of the Act.
  14. As per the definition of the term “domestic violence”, economic abuse shall also constitute the domestic violence. The term “economic abuse” has been defined by way of Explanation (1)(iv) of Section 3 of the Act, which reads as follows:-
    • “(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited, to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.
    • (b).disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
    • (c)prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.”
  15. For the wife, maintenance paid by way of maintenance amount payable by the husband is a financial resource for her. Similarly, the denial of household necessities of the wife is also an economic abuse. The husband is bound to maintain the wife. If he neglects or fails to maintain, the wife is deprivation of her financial resources to maintain herself and to meet her household necessities. Denial of either of these two would amount to economic abuse. Such economic abuse will amount to domestic violence. The wife, who is the victim of such domestic violence, is, therefore, entitled for monetary relief under Section 20 of the Act.
  16. The monetary relief to be ordered under Section 20 of the Act, should be to meet the expenses incurred and the loss suffered by the aggrieved as a result of the domestic violence. The loss suffered is nothing but the loss of financial resources to be paid by the husband towards her maintenance. Thus, if the husband neglects the wife or refuses to maintain her, the said act of the husband surely amounts to domestic violence and therefore, the aggrieved wife is entitled for monetary relief and such monetary relief may include, but not limited to the maintenance for the wife as well as to her children. The monetary relief paid by way of maintenance can be an order under Section 125 of the Code, which is evident from a plain reading of Section 20(1)(d) of the Act. Thus, it is crystal clear that a wife, who has suffered domestic violence by the act of the husband in neglecting or refusing to maintain her is entitled to approach the Judicial Magistrate seeking an order under under Section 125 of the Code, which itself is a monetary relief under Section 20 of the Act. Any such maintenance order made under Section 20 of the Act is appealable to the Court of Sessions under Section 29 of the Act.
  17. The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.
  18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance under Section 20 of the Act may be not in modification of the previous order for maintenance passed under Section 125 of the Code, but it may be in addition to the said order for maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.
  19. In this regard, we may also take note of Section 36 of the Act, which states that the provisions of this Act shall be in addition to and in derogation of the provisions of any other law, for the time being in force, which means Section 20 of the Act is not in derogation of Section 125 of the Code. It also needs to be clarified that as and when there is neglect or refusal on the part of the husband to maintain the wife, she has got option either to seek remedy under Section 125 of the Code or under Section 20 of the Act. If she elects to make a claim under Section 125 of the Code, on the same cause of action, she cannot, simultaneously, make a claim under Section 20 of the Act and vice versa. On the said cause of action, if the Magistrate dismisses the claim made by the petitioner under Section 125 of the Code, then, on the same set of allegation and cause of action, the wife cannot change her course and make a claim under Section 20 of the Act. Similarly, having elected to approach the Court under Section 20 of the Act, after having failed in her attempt to get maintenance, on the same set of allegations and cause of action, she cannot make a fresh allegation under Section 125 of the Code for maintenance. Having chosen one forum, if the aggrieved wants to approach the other forum, such approach could be made only on fresh grounds, which occurred subsequent to the order passed by the other forum.
  20. In the case on hand, the respondents filed M.C.No.101 of 2008, on the file of the learned Chief Judicial Magistrate, Trichirappalli, on 19.06.2009. The revision filed by the petitioner for enhancement of the maintenance amount was disposed of by the learned Second Additional District and Sessions Judge, Trichirappalli, on 23.05.2011. Thus, the said proceedings, under Section 125 of the Code, was under contest from the year 2008 till 23.05.2011. When the same was so pending, the petitioner, simultaneously, filed M.C.No.158 of 2009, before the learned Judicial Magistrate, No.II, Trichirappalli, under Section 20 of the Act, on 20.01.2009, i.e., even before the order of the learned Chief Judicial Magistrate in M.C.No.101 of 2008. Thus, the respondents had approached two different forums, viz., the learned Chief Judicial Magistrate, Trichirappalli, as well as the learned Judicial Magistrate, No.II, Trichirappalli, under Section 125 of the Code as well as under Section 20 of the Act, on the same set of allegations and cause of action. This, in my considered view, is not legally permissible and the same would amount to clear abuse of process of Court. The order under challenge was not made on any fresh grounds constituting the domestic violence, which occurred subsequent to M.C.No.101 of 2008.
  21. In such view of the matter, the impugned order is liable to be set aside. If the respondents have got reasons to seek modification of the earlier order made under Section 125 of the Code, it is always open for them to approach the very same Magistrate under Section 127 of the Code for such modification so as to have the maintenance amount enhanced or if the respondents have got any fresh grounds, constituting the domestic violence, which happened subsequent to the passing of the order under Section 125 of the Code, they are at liberty to approach the Magistrate under Section 20 of the Act to get an order for maintenance in addition to an order of maintenance already passed under Section 125 of the Code.
  22. In view of the above, this Criminal Revision Case is allowed and the order of the learned Judicial Magistrate No.II, Thiruchirappalli, made in M.C.No.158 of 2009, dated 31.01.2012, is set aside, however, with liberty, as indicated above. Consequently, connected Miscellaneous Petition is closed.

28.07.2015

Index           :Yes/No

Internet        :Yes/No

NB

S.NAGAMUTHU, J.

NB

To

1.The Second Additional District and Sessions Judge, Trichy.

2.The Judicial Magistrate No.II, Trichy.

3.The Chief Judicial Magistrate, Trichy.

PRE-DELIVERY ORDER MADE IN CRL.RC.(MD)No.453 of 2014 DATED ?28.07.2015 .

43 DV cases for this season ! 43 cases where husband and in laws won and / or maintenance was denied to wife !!

I have been posting 100s of Judgments / orders on 498a, DV, Sec 125 CrPC and many related areas (please see this blog and you will see most of these). Recently I have started categorizing them for easy reference and benefit of readers. Some ago I had posted a summary of bail orders and yet another on 498a cases quashed by courts.

Here is an attempt to collate DV cases, where the husbands / in laws won.

Since money is the main target of most fake matrimonial litigation, DV along with Sec 24, 25 HMA and similar sections of SMA etc are now becoming the chosen tools for women to extract max moolah. Husbands and families need to watch out and protect themselves
I hope this compendium helps
Cases are listed with a # against each just for a count in this blog. these were also shared on other social media. This # series does not have any specific order . I’m only hoping I’ll have a chance to add more victories to these

May I request readers to liberally share these and add fresh cases as comments 

 

DV Series # 43 : DV 15yrs aftr separation!! MM grants maint etc. Husband runs 2 HC; HC quashes whole tamasha ! married on 8.5.1990 ; son born on 24.2.1991 ; separate since 1992;  divorce case between couple dismissed by lower courts; wife files DV in 2007 !!;  magistrate provides maintenance, money in lieu of residence etc etc ; husband runs to HC;  HC thankfully quashes the case !!! http://wp.me/p7s7-1hm

DV Series#42 : NO MAINTENANCE to wife under Domestic Violence Act as she has sufficient income and concealed it !! Practicing Gynecologist stops declaring full income on income tax returns; harasses ex hubby in various courts / cases ; demands monthly maintenance even though she earns more than ex-husband !! Completely denined maintenance http://wp.me/p7s7-u0

DV Series#41 : Wife earning equal to husband denied maintenance in DV. Sessions & Delhi HC ALSO deny maintenance! Residence also denied as wife getting HRA from employment! http://wp.me/p7s7-2dO

 

DVSeries#40: Poor Taxi Driver’s wife tries to get his mother’s house using DV ! Looses case on appeal. Wife is ordered to live with driver in an alternate acco. Without going there she tries other stunts and looses again !! https://t.co/7sPcN3008x

 

DvSeries#39 : DV just 2 harass husband + inlaws & waste time of court. Wife never came to court !! DV dismissed. JM Chandigarh https://t.co/CD6H8E2ZCd

 

DVSeries#38: Initial Proceedings in DV act are CIVIL in nature. Magistrate not issue summons u/s 61 Cr.P.C. treating respondents as accused ! Magistrate to tread carefully http://wp.me/p7s7-1dM

 

DVSeries#37: DV cases can be quashed u/s 482 CrPC. Gujarat HC division bench judgement – Nov 2015 http://wp.me/p7s7-1T6

 

DVSeries#36: Well educated employed wife resigning on own NOT entitled 2 maintenance! Only Kid gets maintenancec. Delhi HC http://wp.me/p7s7-1Bv

 

DVSeries#35: Visiting in laws 5days is NOT dom relation so NO DV ! Only violence by person living n shared household is DV! Delhi Sessions court discharges all in laws http://wp.me/p7s7-21n

 

DVSeries#34: Wife files DV on 6 inlaws 9 yrs AFTER husband’s death! DV, Cruelty NOT proven, Looses case ! Delhi MM court http://wp.me/p7s7-20C

 

DVSeries#33:LOVE match 2 court! DV b4 marriage! 498a 307 323 AFTR marage. Sis in law runs 4 quash http://wp.me/p7s7-1PW

 

DvSeries#32: No maintenance to erring women ! DV case won by husband on strong arguments & facts. http://wp.me/p7s7-1MF

 

DVSeries#31: Beaten &evicted elderly M in law WINS DV. Sessions orders lower court 2 grant relief http://wp.me/p7s7-1PS

 

DVSeries#30: India becoming land of fake DV? Madras HC dismisses fake DV 2 settle property dispute http://wp.me/p7s7-1OV

 

DVSeries#29: Your Honour I doNOT know her, she’s NOT my wife How could I beat her or my brother mollest? what DV http://wp.me/p7s7-1Pl

 

DVSeries#28: NON disclosure of pre cognizance DV NOT dis entitle you from GOVT JOB ! Delhi HC http://wp.me/p7s7-1OL

 

DVSeries#27: Sister married 40yrs ago files DV on brothers 4 property !! MP HC decrees NO DV http://wp.me/p7s7-1Mt

 

DVSeries#26: Wife earning equal 2 hubby NOT get maint NOR residence under DV! Delhi Sessions Court http://wp.me/p7s7-1Mq

 

DVSeries#25: WIFE already making moolah in sec 125 CrPC cannot make MORE moolah using DV !! Del HC http://wp.me/p7s7-1p0

 

DVSeries#24: DV Act does not create any additional right to claim maintenance !! Del HC http://wp.me/p7s7-1q6

 

DVSeries#23: Raj HC : Wife who leaves 3yr old kid & goes away, files 498a DV Looses kid’s custody! http://wp.me/p7s7-1CG

 

DVSeries#22: IF paying maint in DV seek reducn of S 125 maintenance! MP HC http://wp.me/p7s7-1F9

 

DVSeries#21: Rare order (not the norm!) : NO arrest for NON payment of DV maintenance. Kerala HC http://wp.me/p7s7-1Fm

 

DVSeries#20: No DV cases on relatives (say inlaws) who are NOT in domestic relationship! Andhra HC http://wp.me/p7s7-1Ww

 

DVSeries#19: DV case on elders, relatives etc quashed. Only husband to fight ! Madras HC http://wp.me/p7s7-1IF

 

DvSeries#18: Max 1 month arrst 4 maint arrears. No DV maint enhance by session court. Karnat HC http://wp.me/p7s7-1Fn

 

DVSeries#17: Gulf based NRI earng 65K pm 2 pay ONLY 6K to wife: Kerala DV case with LOW LOW maint http://wp.me/p7s7-1Fj

 

DVSeries#16: Husband can sell his house when he wants!! DV can’t stop that. Kerala HC http://wp.me/p7s7-1Fl

 

DVSeries#15:IF Wife can’t prove DV, children ALSO NOT entitled maintenance under DV. Bombay HC http://wp.me/p7s7-1wz

 

DVSeries#14:Need Cent Govt permission 2 investigate offence outside India Good case 4 DV, Dowry NRI http://wp.me/p7s7-1zE

 

DVSeries#13: 24 HMA Intr. maint reduced bcaz wife already getting DV maintenance !! MP, HC http://wp.me/p7s7-1Bh

 

DVSeries#12: BOM HC : NO DV if couple not living 2gther not sharing h hold! NO DV 5yrs aftr dvorce! http://wp.me/p7s7-1yS

 

DVSeries#11:Wife Can’t return frm abroad &file DV 1yr aftr sepraton! Not in domst rel.ship: Bom HC http://wp.me/p7s7-1yG

 

DVSeries#10: Personal appearance NOT essential in DV case : Kerala HC : appear thru counsel http://wp.me/p7s7-1wI

 

DVSeries#09: Wife tries DV aftr mutual dvorc &delay! LOOSES @SC. SC supports 1yr timelimit for DV http://wp.me/p7s7-1×8

 

DVSeries#08: DV on inlaws 5yrs aftr huby death! Wife wants piece of house Dhingra ji send her back! http://wp.me/p7s7-1xu

 

DVSeries#07:SuprmCourt: If DV filed, police 2 make enqury frm family, neighbours,freinds, b4 case! http://wp.me/p7s7-1wJ

 

DVSeries#06: Wife’s 172 days delay in filing revision for DV case NOT accepted by Madras HC http://wp.me/p7s7-1×7

 

DVSeries#05: Womn caught lying in cross exam about DV & dowry looses case gets NO Money! Delhi MM http://wp.me/p7s7-1MV

 

DVSeries#04: Dghtr in law forcefully enter FIL’s house & tries DV residnce. Looses completely. http://wp.me/p7s7-1Nq

 

DVSeries#03: Live-in woman claims rape, DV, cheating, bigamy etc 9yrs later! P&H HC throws her out http://wp.me/p7s7-1Nt

 

DVSeries#02: Every failed marriage NOT DV! Fake DV case after 498a quashed by Del HC. http://wp.me/p7s7-1NG

 

DVSeries#01: Serial case filing wife’s DV quashed by Karnatk HC “nothing but abuse of process of Court” http://wp.me/p7s7-1Qj

 

DV wife gets just 4000 litigation exp & NOTHING ELSE from hubby allegedly earning 1 lakh p.m. !! 

* wife files DV against six of husband’s family with a standard list of accusations
* claims she was beaten, claims she was staved, claims she was forced into miscarriage, claims dowry demand etc etc
* as usual the husband is supposedly earning 1 lakhs per month and wife wants the moon
* inter alia, wife seeks
* medical expenses Rs 10000/-pm,
* maintenance of day to day needs @ Rs 30000/-pm for herself & child
* Compensation of Rs 50000/- on account of mental injury & also prayed for litigation expenses.
* last but not the least she wants compensation u/s 22 DV Act i.e Rs 15 lakh for mental torture, distress etc. !!!

* But finally the honourable court grants her ONLY Rs 4000 as ONE time litigation expenses !! and nothing more
* The Hon court says, family court has already granted Rs. 3000 as maintenance and so matter cannot be re agitated !!

Yes the wife can appeal such cases, but my guess is that it will take AGES before she sees any money out of this case !!

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

IN THE COURT OF MS. RICHA GUSAIN SOLANKI
METROPOLITAN MAGISTRATE (SOUTH WEST)-01,
MAHILA COURT, DWARKA, NEW DELHI

CC No. 955/1/14
PS BHD Nagar
ID no. 02405R0237722014

Smt. Preeti
W/o Sh. Bijender
D/o Sh Dhanpat Singh
R/o Village Dhingpura,
PO Dichaon Kalan,
New Delhi -110043 …..Applicant

Versus

1. Bijender
2. Mahinder
3. Murti
4. Smt. Bala
5. Smt Dinesh
6. Smt Rajni …..Respondents

( All R/o H. No 470, Kakrola Housing Complex, Kakrola, New Delhi )

Date of Institution : 16.10.2014
Date of Order : 24.11.2015
Date of Order : 30.11.2015.

EX PARTE JUDGMENT

1. Vide this order, I shall decide application u/s 12 DV Act filed by complainant Smt. Preeti against her husband Sh Bijender / respondent no 1 , Sh Mahinder (FIL) / respondent no 2, Murti (MIL)/ respondent no 3, Smt Bala (SIL)/ respondent no 4, Dinesh(BIL)/ respondent no 5, Rajni (SIL)/ respondent no 7. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

2. The complainant states that she got married to respondent no 1 on 28.11.2008 the couple was blessed with a baby girl Anshika on 27.11.2010. Complainant states that soon after the marriage respondents started harassing her and pressurizing her for bringing more dowry from her parents. They also threatened to throw her out of the matrimonial house. Complainant alleges that on the very next day of marriage respondent no 1,2,3 ,4 and 7 called her in a room and reprimanded her that they were defamed in the society by her father by giving less dowry. They also stated that they had expected atleast a Santro car and a cash of Rs 4-5 lakhs. Thereafter, complainant came to her parental house and when she returned back to the matrimonial house she was beaten up by the respondents who pressurized her to bring more dowry. She alleges that she was not given proper food and treated like a slave. She further alleges that when she conceived, respondents gave her something that terminated the pregnancy. Complainant called parents who took her to Nangloi for treatment. However, fearing that the truth will be revealed, respondent no. 4,7 along with other sisters in law forcibly took her to Mahindru Hospital. Next day they took her back to the matrimonial house. Thereafter, complainant again conceived but in the similar manner respondents terminated her pregnancy.

On 16.04.2010 all the respondent gave merciless beatings to the complainant due to which she had to be taken to a hospital and her MLC was also prepared. Thereafter, complainant was thrown out of the matrimonial house without any belongings. At that time complainant was on the family way. Finally on 27.11.2010 complainant was blessed with the child. Thereafter, respondent no 1 filed a false and fabricated case for restitution of conjugal rights. Upon intervention of family and friends, the matter was compromised on 19.11.2011 and complainant was taken back to the matrimonial house along with the child. Complainant alleges that the ill treatment continued even thereafter. She alleges that she was beaten by respondent no 2 for a demand of Rs 5 lakh. It is further alleged that on 05.05.2012 respondents beat the complainant and the minor child due to which they both became unconscious . Respondent took them to Kalawati Hospital and ran away. Complainant called her parents and on 10.05.2012 the child was discharged. Thereafter, complainant made several request to respondent no 1 to take them back but he refused and demanded that the dowry demand be first satisfied. Since then complainant is living with her parents.

She alleges that she has no source of income while respondent no 1 has a transport business in Delhi and Haryana and earning more than Rs 1 lakh p.m. She alleges that she has filed a complaint with PS BHD Nagar but to no avail. She further states that respondent no 1 is not paying anything either for her or for the child.

Complainant has prayed for protection order u/s 18 DV Act i.e. prohibiting respondents from committing any act of domestic violence against the complainant. Further, she has prayed that respondents be restrained from alienating any assets held by respondent no.1. She has further stated that respondent be restrained from causing violence through her relatives.

Complainant has prayed for residence orders U/s 19 DV Act I.e directing the respondents to allow the complainant and the minor child to reside in the shared household/ matrimonial house and restraining them from disturbing the peaceful residence of the complainant and the child therein . She has also prayed that respondent no 1 be restrained from renouncing his assets/ estate/ share by way of inheritance.

Complainant has also prayed for monetary relief u/s 20 DV Act i.e medical expenses of Rs 10000/-pm, maintenance of day to day needs @ Rs 30000/-pm for herself and for the child. She has further prayed for compensation of Rs 50000/- on account of mental injury . She has also prayed for litigation expenses.

Complainant has also prayed for compensation u/s 22 DV Act i.e Rs 15 lakh for mental torture, distress etc.

3. The respondents were duly served and they entered appearance, however, they did not file reply despite repeated opportunities and accordingly they were all proceeded ex parte on 26.10.2015.

Evidence In her support complainant examined herself as CW1 and tendered her affidavit in evidence as Ex.CW1/A. She relied on copy of her election identity card and copy of adhar card as EX CW1/1 and EX CW1/2. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Brief Reasons for Decision and Decision :

Complainant has deposed that she was physically and verbally abused by respondents. She has further alleged that she has not been allowed to enter the shared household at H. No. 470, Kakrola Housing Complex, Kakrola, New Delhi. Respondent has not filed his reply to dispute either the factum of marriage, the birth of child Anshika or that the property at H. No. 470, Kakrola Housing Complex, Kakrola, New Delhi is a shared household of the complainant. Since the respondent is ex parte, all the averments of complainant remained unrebutted. Accordingly, following orders are passed :

Protection Order :
Complainant has prayed for protection order u/s 18 DV Act i.e. prohibiting respondents from committing any act of domestic violence against the complainant. She has further stated that respondent be restrained from causing violence through her relatives. It has already been observed that complainant has proved that she was subjected to abuse since she has not been cross examined by the respondents. Further she has been thrown out of the shared household which is her matrimonial house, and this itself amounts to abuse of the complainant. As such complainant is entitled to protection order. Respondents are restrained from committing any act of domestic violence themselves or through their relatives against the complainant.

Further, she has prayed that respondents be restrained from alienating any assets held by respondent no.1. However, complainant has not mentioned what such assets are. As such this portion of the prayer is declined.

Monetary Relief :
Complainant has also prayed for monetary relief u/s 20 DV Act i.e medical expenses of Rs 10000/-pm, but complainant has failed to disclose where she is incurring such expenses. Complainant has not mentioned even once if she or the child are suffering from any health condition as would require a monthly expenditure of Rs 10000/-. This relief is accordingly denied.

Complainant has prayed for maintenance of day to day needs @ Rs 30000/-pm for herself and for the child. However, the question of maintenance has already been decided by LD family court and complainant has been granted maintenance of Rs 3000/- per month. The issue cannot be re-agitated and therefore, no maintenance is being granted in this case.

She has further prayed for compensation of Rs 50000/- on account of mental injury . However, complainant has not explained how she has arrived at this amount. Therefore, this relief is denied.

Complainant has also prayed for litigation expenses. She is entitled to litigation expenses of Rs 4000/-.

Residence Order :
Complainant has prayed for residence orders U/s 19 DV Act i.e directing the respondents to allow the complainant and the minor child to reside in the shared household/ matrimonial house at H. No. 470, Kakrola Housing Complex, Kakrola, New Delhi. She has alleged that she and her daughter were beaten up by the respondent who had the child admitted to a hospital and fled away. She alleges that thereafter she has been requesting the respondent to take them back but he has refused and she is compelled to live in her parental home with the child. Respondent has not disputed that the property at H. No. 470, Kakrola Housing Complex, Kakrola, New Delhi is a shared household of the complainant. Regardless of the ownership of the shared household, the complainant, being the wife of respondent no.1 and the daughter in law of the house of other respondents has the legal right to live in the shared household. Respondents are under the obligation to allow her and the child Anshika to live in the shared household, as long as the matrimonial relationship between her and respondents no.1 subsists. Reliance is placed on judgment in the case of Smt. Preeti Satija vs Smt. Raj Kumari And Anr. decided by Hon’ble Delhi High Court on 15 January, 2014 Therefore it is directed that the respondents shall allow the entry of complainant and the minor child Anshika to reside in the shared household/ matrimonial house at H. No. 470, Kakrola Housing Complex, Kakrola, New Delhi and shall not disturb the peaceful residence of the complainant and the child therein till the marriage between the complainant and respondent no.1 subsists.

Complainant has also prayed that respondent no 1 be restrained from renouncing his assets/ estate/ share by way of inheritance. However in the absence of any details of such property/assets, I do not deem it fit to pass any blanket order. This relief is accordingly denied.

Compensation Complainant has also prayed for compensation u/s 22 DV Act i.e Rs 15 lakh for mental torture, distress etc. However, complainant has not explained how she has arrived at this amount. Therefore, this relief is denied.

Application U/s 12 PW DV Act is disposed off accordingly. File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ( RICHA GUSAIN SOLANKI )

TODAY ON 30th November, 2015 MM-01(SW), Mahila Court Dwarka/Delhi

CC No 955/1/14

PS BHD Nagar

*****************************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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Delhi HC saves NRI hubby falsely accused in DV 498a cocktail !!!

The FALSE DV industry and how it’s breaking Indian marriages. Delhi HC saves NRI husband


Woman files 498a cocktail on NRI husband whose passport is seized and he looses job. All this after a three week old marriage !! Still ablaa files DV against husband and lower courts grant ablaa monthly maintenance !!! Husband has no income due to passport seizure !!

Hon justice Shiv Narayan DHINGRA ji saves the day and restores justice

The Hon DHINGRA ji concludes “… It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts….”


IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 9th August, 2010

Date of Order: 27th August, 2010

+Crl.M.C.No. 491/2009
%
27.08.2010

Sanjay Bhardwaj & Ors. … Petitioner
Through: Dr. Naipal Singh, Advocate

Versus

The State & Anr. … Respondents
Through: Mr. O.P.Saxena, APP for the State
With Mr. Gajraj Singh, SI
Mr. K.C.Jain, Adv. for the Complainant/Wife

JUSTICE SHIV NARAYAN DHINGRA

  1. Whether reporters of local papers may be allowed to see the judgment? Yes.
  2. To be referred to the reporter or not? Yes.

  3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

 

  1. The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) passed by the learned MM on 16th January, 2008 and confirmed by the learned Additional Sessions Judge in appeal by order dated 29th February, 2008.
  2. 2. The petitioner was a Non-Resident Indian, working in Luanda, Angola in Africa as a Manager. He came to India taking leave from his job for marriage. Marriage between the petitioner and respondent no.2/wife was settled through matrimonial advertisement. The respondent wife was MA (English) and MBA. As per her bio-data sent before marriage, she was doing job with a Multinational Company. The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007. The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th June, 2007. While the allegations of husband are that marriage failed within 3 weeks since the wife was suffering from a chronic disease about which no information was given to him before marriage and a fraud was played. The allegations made by wife were as usual of dowry demand and harassment. Since the marriage did not succeed, the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage as null and void and the wife first filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.
  3. It is not relevant for the purpose of this petition to go into the details of allegations and counter allegations made by each other. Suffice it to say that the learned MM passed an order dated 16th January, 2008 directing husband to pay an interim maintenance of ` 5000/- pm to the wife. He fixed this maintenance without considering the contentions raised by the husband (as is stated in the order) that the husband lost his job in Angola (Africa) where he was working before marriage because his passport was seized by police and he could not join his duties back. After marriage he remained in India, he was not employed. In the appeal, learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and he had no source of income, he was not even able to maintain himself and had incurred loan, but observed that since the petitioner had earlier worked abroad as Sales Manager and in view of the provisions of Domestic Violence Act, he had the responsibility to maintain the wife and monetary relief was necessarily to be provided to the aggrieved person i.e. wife. He observed that the wife was not able to maintain herself therefore husband, who earned handsomely in past while working abroad, was liable to pay ` 5000/- pm to the wife as fixed by the learned MM.
  4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C – a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.
  5. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.
  6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.
  7. I therefore find that the order dated 16th January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge fixing maintenance without there being any prima facie proof of the husband being employed are not tenable under Domestic Violence Act. The petition is allowed. The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.

 

August 27, 2010

SHIV NARAYAN DHINGRA, J.

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