Tag Archives: DV act misused !!

Wife tries 2 get retrospective rent under DV though she lived @ UK during that time! Guj HC disallows!

Women are smart, ingenious and meticulous. Except that some times, yes “some” times great judges like the Honorable PARDIWALA J see thru their plans.

In this case a wife seeks retrospective rent even though that was NOT ordered by the Hon Magistrate. Only the appellate court orders rent approx 19 months later. She happily claims arrears and matter reaches Gujarat HC, where Honorable PARDIWALA J see thru this and disallows the woman’s fake claim

“….It is only in appeal that the Sessions Court fixed the amount of Rs. 6,000/- to be paid by the husband towards rent of the premises and that is how the liability in that regard was fixed from 30th October, 2009. Besides this, I am told that during the interregnum period i.e. almost for a period of 19 months, the wife was in U.K. Therefore, there was no question of bearing the burden of paying rent of the premises……”


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2715 of 2015

MUKHTARAHEMAD MOHAMMAD HUSSAIN CHUNAWALA….Applicant(s)
Versus
NAIMABANU EX-WIFE OF MUKHTARAHEMAD MOHAMMAD HUSSAIN CHUNAWALA & 1….Respondent(s)

Appearance:
MR NV GANDHI, ADVOCATE for the Applicant(s) No. 1
MR KHALID G SHAIKH, ADVOCATE for the Respondent(s) No. 1
MR. J.K. SHAH, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 03/02/2016

ORAL ORDER

  1. By this application under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order passed by the 5th Adhoc Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Criminal Appeal No. 54 of 2014, filed by the respondent No.1 herein, by which the learned Additional Sessions Judge quashed the order passed by the 6th Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad dated 8.8.2014, on an application filed by the respondent No.1 under Section 125(3) of the Criminal Procedure Code.
  2. The facts of this case may be summarised as under:-
    • 2.1 The respondent No.1 is the divorced wife of the petitioner. The marriage of the petitioner with the respondent No.1 was solemnized on 8.1.1970. It is very unfortunate that at the age of 80, both the husband and wife are fighting against each other.
    • 2.2    To put it briefly, the respondent-wife preferred an application, being Criminal Misc. Application No. 554/12, under Section 125(3) of the Cr. P.C with respect to recovery of the maintenance amount. While issuing notice, the following order was passed by the Additional Civil Judge, Ahmedabad (Rural) at Mirzapur:- “Notice of this application to be served on opponent by protection official under Rule 10(e) of the Protection of Women from Domestic Violence Rules, 2006. Protection Officer should recover the amount as per this application and pay to applicant and thereafter inform this Court. Protection Officer is at liberty to take help of concerned Police Station.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. The issue before me is with regard to the payment of the arrears towards the amount of rent to be paid by the husband to his divorced wife. The main issue is the date from which the arrears towards the amount of rent is to be calculated. The Additional Senior Civil Judge took the view that the amount of rent of Rs. 6,000/- was due and payable from 30th October, 2009 and not 17th March, 2008, as asserted by the wife.
  4. The wife being dissatisfied with the order passed by the Court below, preferred an appeal before the Sessions Court. The appellate Court quashed the order passed by the Additional Civil Judge, holding that the amount was due and payable from 1.3.2008.
  5. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the appellate Court committed any error in passing the impugned order. The learned Additional Senior Civil Judge while taking the view that the amount towards rent was due and payable from 30th October, 2009, and not from 17.3.2008, observed as under:-
    • “But if the case put forward by the opponent is looked into it, firstly it has been categorically stated in the order for payment of the maintenance amount that the amount of Rs.5,000=00 per month is to be paid regularly from 17/3/08. No order has been passed to pay the amount towards the rent in this order. Thereafter, an appeal was preferred, wherein the Sessions Court, vide order dated 30/10/09, has ordered to pay the amount of Rs.6,000=00 towards the rent in addition to the amount of maintenance. In the said order, in addition to staying the order on condition of depositing the total amount of the maintenance, it was ordered to pay, beginning from today upto one month, a sum of Rs.11,000=00. Thereafter, after taking the evidence, this Court has ordered to pay the due amount of maintenance as well as the amount of rent every month regularly. Thus, it is believed by this Court that as per the said order, the applicant is entitled to get from the opponent an amount towards the maintenance from 17/3/08 till today and an amount towards the rent from 30/10/09 till today. Further, an appeal is pending in the High Court against the said order and the applicant will be entitled to receive the said amount as per the said order after the disposal of the said appeal. In such circumstances, at present, the applicant, upon producing before this Court the computation of the amount of maintenance and the amount of rent which she is entitled to, would be entitled to receive the due amount from the opponent. It is ordered that the opponent should immediately pay the due amount to the applicant, no sooner the applicant produces the calculation as per the assessment.”
  6. On the other hand, the appellate Court while quashing the order referred to above in appeal, observed as under:-
    • “As discussed above, the trial Court has passed a common order below Exh.12 and Exh.24, wherein it has been ordered that the opponent has to make arrangement for the residence of the applicant. Being dissatisfied, the opponent filed a Criminal Appeal No.23/08 in the Sessions Court. As per the provisions of Section 19 of the Domestic Violence Act, the defendant has to make arrangement for the residential accommodation, and if he is unable to do so, then an order can be passed for reimbursement towards the rent. For the present case, the defendant has not made arrangement towards the residential accommodation and, therefore, the order to make payment of Rs.6,000=00 towards the rent, which has been ordered in pursuance to the main matter, in my view, can be counted from the date of the institution of the main application. Therefore, the order which has been passed below Exh.1 in Criminal Misc. Application No.554/12 by the trial Court dated 8/8/14 is not tenable in law and, therefore, by interfering into it, I intend to reject the said order as per the prayer of the applicant and agree to grant relief as per the prayer of the applicant.”
  7. In my view, the Appellate Court committed an error in upsetting the order passed by the learned Additional Senior Civil Judge. The view taken by the Additional Senior Civil Judge appears to be correct. It appears that the order was very clear that the amount of Rs. 5,000/- towards the maintenance be paid from 17.3.2008, whereas so far as the amount of rent of the premises in which the wife was residing, no particular date was fixed. It is only in appeal that the Sessions Court fixed the amount of Rs. 6,000/- to be paid by the husband towards rent of the premises and that is how the liability in that regard was fixed from 30th October, 2009. Besides this, I am told that during the interregnum period i.e. almost for a period of 19 months, the wife was in U.K. Therefore, there was no question of bearing the burden of paying rent of the premises. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  8. In my view, the Appellate Court should not have disturbed the order. In the result, this application is allowed. The impugned order passed by the Appellate Court is hereby quashed and that of the 6th Additional Senior Civil Judge, Ahmedabad (Rural) is confirmed. The liability of the husband to pay the arrears towards the amount of rent of the premises shall be calculated from 30th October, 2009 and not from 17.3.2008. Rule is made absolute.

(J.B.PARDIWALA, J.)

Mohandas

 

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42yr old wife files DV on 52yr husbnd 8yrs later! Huge maint.& residnce sought ! Kar HC DV quash

A 42 year old wife files DV on a 52 year old husband approx 8 years after separtion. Pertinent to note that she ALREADY has won a maintenance of Rs 1000, p.m. which she wishes to enhance to Rs. 10,000 p.m. !! now. She also wants residence rights in his OWN house etc etc !! Hon KARNATAKA HC quashes the case quoting Sec 468 CrPC

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 8 TH DAY OF JANUARY, 2014

BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION NO.11476/2013

BETWEEN:

1. GURUDEV S/O. HANAMANT GURAV
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. MALALI VILLAGE, TQ:MUDHOL
DIST: BAGALKOT

2. BASAPPA S/O. HANAMAPPA GURAV
AGE: 54 YEARS, OCC: AGRICULTURE
R/O. MALALI VILLAGE,
TQ: MUDHOL, DIST: BAGALKOT … PETITIONERS

(BY SRI PAVAN B DODDATTI, ADV.)

AND

JAYASHREE W/O. GURUDEV GURAV
AGE: 42 YEARS, OCC: AGRICULTURE
R/O.MALALI VILLAGE,
TQ:MUDHOL, DIST: BAGALKOT … RESPONDENT

(BY SRI S C HIREMATH, ADV.)

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN CRL.MISC.NO.110/2013 PENDING ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC COURT, MUDHOL, BY ALLOWING THIS CRIMINAL PETITION. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Though this petition is posted for admission, with the consent of both the Counsels, the matter is heard o n merits.

2. It is seen from the records that the respondent-Jayashree W/o the first petitioner-Gurudev S/o Hana mant Gurvar lodged a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 for several reliefs. That is to say restraining the petitioners from dispossessing from the house and also for awarding Rs.10,000/- per month as maintenance etc. and also claiming Rs.15,000/- towards damages. It is also alleged in the petition that the applicant therein has a right to share the house at Bagalkot with opponent No.1. The op ponents ill-treated and tortured her, thereafter about 8 y ears back by beating his wife and daughter drove her out from the matrimonial house. It is also alleged that since t hen the petitioner is staying in the adjacent house of the opponent and opponent has neglected and even now harassing her under one or other pretext. Therefore, she is comp elled to file petition under Domestic Violence Act.

3. In the petition it is not specified as to what is the nature of harassment that has been given by the pet itioners herein. The learned counsel for the petitioners st renuously contended that the petition is barred by limitatio n. The petition is filed alleging the incident taken plac e about 8 years back. Therefore, he contends that the petiti on under Domestic Violence Act is liable to be quashed.

4. Per contra, learned counsel for the respondent – wife submits that, she has filed a suit for partiti on and separate possession and the said suit was decreed i n respect of landed property and now she is residing in the house situated adjacent to the house of the petitio ners herein. It is also submitted that the first petiti oner filed a petition for divorce and the same is pending. There fore, the petition under Domestic Violence Act is maintainabl e before the trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Learned counsel for the petitioner brought to my notice the order passed by this Court in a similar matter in Crl.P.No.2419/2009 on 05.04.2013 and submits that t he said order passed by this court is applicable to th e facts and circumstances of this case. For the purpose of bet ter understanding whether the said order passed by this Court is applicable to the present case or not, it is jus t and necessary to look into the orders passed in that ca se.

“In the said case also, the wife alleged that she lived with her
husband in the matrimonial home up to November 2004 and she was
pregnant by then. She was treated cruelly by the petitioner and his
parents during that time. The wife left the matrimonial home as she
could not tolerate the torture of her husband and she was compelled
to eat certain substance in order to abort pregnancy. Making such
allegations she filed a petition under Section 12 of the Protection
of Women from Domestic Violence Act. The Trial Court has taken
cognizance of an offence which has taken place in the year 2005 and
issued summons to the petitioners. The learned judge of this Court
has observed the cause of action in the said case was 4 years prior
to the filing of the complaint. Under Section 468 of Cr.P.C., the
complaint could have been filed within one year. If the allegations
made in the complaint are proved, the punishment is one year. On
these grounds, this Court allowed the petition under Section 485 of
Cr.P.C. and quashed the entire proceedings.”

6. It is contended by the learned counsel for the petitioners that in the Divorce petition, an amount of Rs.1,000/- has already been awarded. It is admitted fact that the respondent has claimed maintenance in the divorce petition filed by her husband. She can workout her remedy so far as maintenance in the said Divorce Petition.

7. With these observations, I am of the opinion that, this petition under Domestic Violence Act is liable to be quashed which was filed after lapse of 8 years. In view of the same and in view of the observations made by this Court in similar matters noted above, the petition filed under Section 482 of Cr.P.C. deserves to be allowed.

Hence, I Pass the following order:

Petition filed under Section 482 Cr.P.C. is hereby allowed. Consequently, the complaint filed by the respondent herein in Crl.Misc.110/2003 before the P rl.Civil Judge and JMFC, Mudhol is hereby quashed. Further th e respondent is at liberty to agitate all these grou nds in the Divorce Petition.

(SD/-)

JUDGE

Rms

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

 

DIL visiting inlaws fewdays is NOT in dom relation wid them, NO DV! 498a, DV cocktail @ Delhi Sessions court

 

A young woman, a daughter in law, is invited to a party thrown by the father in law retiring from service. To attend this party, she stays at the in father in law’s place a few days. But some domestic quarrel develops between herself and her husband. She files Domestic violence case on four of in laws saying it all happened when she was at their place !!

The court appreciates the facts and says (a) this DIL is not in domestic relationship with the in laws and visiting them a few days does not become domestic relationship (b) The is a distinction between an offence or violence between people in a domestic relationship and those outside. For other alleged quarrels / fights / offences a separate 498a etc FIR has been lodged based on wife’s complaint and so that can’t be DV!! Quoting cornerstone cases, The Hon court discharges all the in laws !!

Excerpts :

“…….It has been further held in the said judgment that where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application u/S 12 of the D.V. Act on the basis of domestic relationship. It is the case of the respondent herself that after their marriage, they shifted to Vikas Puri and, thereafter, to Rohini. There is nothing in the application u/s 12 of the D. V Act to suggest that the respondent and her husband had been continuously living in the shared household as a matter of right at Janak Puri……”

” …….. 9. So far as the incident that occurred on 2.7.2014 is concerned, a separate FIR has been registered under Sections 324/498A/34 IPC at PS Janak Puri but the said incident cannot be covered under the D.V. Act. There is a distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. For taking this view I am supported with the judgment Vijay Verma (supra)…..”

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Delhi District Court

Satish Solanki & Ors vs Sujata on 22 December, 2015

Author: Sh. Parveen Kumar

IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBI­III, ROHINI COURTS, DELHI

Criminal Appeal No.70/15

Satish Solanki & Ors. ……..Appellants
vs.
Sujata ……..Respondent

File received on assignment on : 03.10.2015
Arguments heard on : 15.12.2015
Judgment announced on : 22.12.2015

JUDGMENT:

1. This is an appeal against the order dated 2.7.2015 passed by Ld. MM, Mahila Court North­West, Rohini Courts, Delhi on application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short ‘D.V. Act’) whereby appellants were summoned to appear before the trial court.

2. Briefly stating, the facts relevant for the disposal of the present criminal appeal are that respondent was married to Vikas Solanki on 17.7.2013 at Delhi according to Hindu rites and ceremonies. Both were divorcee before their marriage. After marriage, respondent and her husband­ Vikas Solanki lived at Flat No. 1094, 9th Floor, SBI Enclave, Vikas Puri, New Delhi. On 3.11.2013, they shifted to House No. H­19/129, Sector­7, Rohini, Delhi and lived there upto 13.3.2014. Thereafter, the respondent left the company of her husband from their house at Rohini and stayed at her parental house. In May 2014, respondent again joined the company of her husband and stayed with him till 2nd July, 2014. It is averred that since 3.7.2014, respondent has been living at her parents house. On these allegations, application u/s 12 of D.V. Act was filed by respondent against her husband and appellants herein.

3. Appellant no. 1 is the father­in­law, appellant no. 2 is the mother­in­law, appellant no. 3 is the brother­in­law (Devar) and appellant no. 4 is the sister­in­law (Devarani) of the respondent. All were/are residents of B­1/152, Janak Puri, New Delhi.

4. I have heard Ch. Ram Kishan, Ld. Counsel for the appellants and Sh. D. K. Ahlwat, Ld. Counsel for the respondent. Ld. Counsel for the appellants has contended that appellant no. 1 has retired on superannuation as Supdt. from Govt. of NCT of Delhi on 30.6.2014 and on the eve of his retirement, a party was arranged at Janak Puri, New Delhi in the night of 30.6.2014. The said party was attended by respondent, her husband and others. The respondent and her husband were called from their residence at Rohini a few days before the day of party for helping in making arrangements. In the night of 2.7.2014, some domestic quarrel took placed between respondent and her husband whereupon she visited the Police Station Janak Puri on 3.7.2014 at about 6.00 PM and lodged a complaint. On her said complaint, FIR no. 748/2014 under Section 324/498A/34 IPC was registered. According to Ld. Counsel, only the violence committed in the shared household is covered under the provisions of the D.V. Act. The house at Janak Puri, a self acquired property of the father of appellant no. 1, cannot be considered a shared household as respondent and her husband were living separately in Vikas Puri and Rohini. They have come to the house of appellant no. 1 at Janak Puri on 30.6.2014 to attend the party thrown by him and stayed there for few days. Secondly, it is contended that the alleged incident that occurred on 2.7.2014 cannot be treated as an incident of domestic violence as separate FIR has been lodged for the said incident. In support of his contentions Ld. Counsel has relied upon judgments­S. R. Batra vs. Taruna Batra, 2007 (3) SCC 169; Vijay Verma vs. State, 2010 (118) DRJ 520; Sangeeta vs. Om Parkash, 2015 (3) JCC 1896; Preeti Gupta vs. State, 2010 (4) Crimes 19 (SC); Pushpendu vs. State, 2015 (2) JCC 1359 and Ashish Dixit vs. State, 2013 Crl. LJ 1178.

6. On the other hand, Ld. Counsel for the respondent has contended that there is no infirmity in the order passed by the trial court.

7. I have gone through the record.

8. Domestic relationship is defined under section 2 (f) of the D.V. Act. Domestic relationship arises in respect of an aggrieved person if the aggrieved person (respondent) had lived together with the appellants in a shared household. This living together can be either soon before filing of petition, or ‘at any point of time’. The phrase ‘at any point of time’ under the D.V. Act has been defined in judgment Vijay Verma (supra) wherein it has been held that it only means where an aggrieved person has been continuously living in a shared household as a matter of right. It has been further held in the said judgment that where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application u/S 12 of the D.V. Act on the basis of domestic relationship. It is the case of the respondent herself that after their marriage, they shifted to Vikas Puri and, thereafter, to Rohini. There is nothing in the application u/s 12 of the D. V Act to suggest that the respondent and her husband had been continuously living in the shared household as a matter of right at Janak Puri. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household.

9. So far as the incident that occurred on 2.7.2014 is concerned, a separate FIR has been registered under Sections 324/498A/34 IPC at PS Janak Puri but the said incident cannot be covered under the D.V. Act. There is a distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. For taking this view I am supported with the judgment Vijay Verma (supra).

10. Considering the facts and circumstances of this case, I am of the opinion that summoning of the appellants on an application u/s 12 of the D.V. Act filed by the respondent was not justified. Thus, the impugned order passed by the trial court is set aside. Appellants are discharged. The criminal appeal stands disposed of. Trial court record be sent back with a copy of the order and appeal file be consigned to record room.

Announced in open (Praveen Kumar) court today on 22.12.2015.

Special Judge (PC Act),
CBI­III, Rohini Courts, Delhi.

 

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

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

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

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

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

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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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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Madhya Pradesh High Court

Rajkishore Shukla vs Asha Shukla

22 September, 2015

M.Cr.C.No.9246/2014

Parties through their counsel.

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

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

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

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

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

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

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

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

This court has carefully gone through the aforesaid judgment.

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

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

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

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

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

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

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

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

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

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

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

(S.C. Sharma) Judge Karuna