Tag Archives: DV Act

Either lump sum OR monthly maintenance u/s 20 DV act. NOT both ! Cal HC Gem !

a mother files DV case on three of her children. The learned MM allows her petition and orders Rs 2000 p.m. from each of her sons AND a fixed deposit of rs 50,000/- per head. Sons appeal to sessions court who sets aside the lump sum payment and grants enhanced monthly maintenance of Rs 2500 per month per son. Mother goes on appeal to HC. HC appreciates the facts and points out that sec 20 of DV act allows only for lump sum OR monthly maintenance AND NOT both !! So HC affirms sessions court judgement and confirms that either Either lump sum OR monthly maintenance can only be granted under Sec 20 DV act !!


IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present : THE HON’BLE JUSTICE SANKAR ACHARYYA

C.R.R. No. 1012 of 2015

In the matter of :

Shahira Khatoon Mullick
     Vs.
Rabiul Haque Mullick & Ors.

For the petitioner    : Mr. Suman De; advocate.

For the private respondents  : Mr. S.K. Humayun Rezzak; advocate.

Heard on              : 06.01.2016, 20.01.2016, 29.01.2016,

08.02.2016.

Judgment on           : 29.03.2016

SANKAR ACHARYYA, J.

This revisional application under Sections 397/401/482 of the Code of Criminal Procedure has been filed by petitioner Shahira Khatoon Mullick against her three sons as opposite party nos. 1, 2 and 3 and the State of West Bengal as proforma respondent no. 4.

Petitioner has challenged the judgment dated 13.02.2015 passed by learned Additional Sessions Judge, Arambagh, Hooghly in Criminal Revision No. 01 of 2014 arising out of order dated 31.03.2014 passed by learned Judicial Magistrate, Additional Court, Arambagh in M.C. 83 of 2013.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Petitioner filed M.C. 83 of 2013 under the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act) against her three sons who are opposite party nos. 1, 2 and 3 herein. In the order dated 31.03.2014 learned Judicial Magistrate passed residence order and order granting monetary reliefs in favour of the petitioner. In that order direction was given to the opposite party nos. 1, 2 and 3 to provide Rs.2000/- each as monthly maintenance to the petitioner and to contribute Rs.50,000/- each in the fixed deposit to be opened in the name of the petitioner in some nationalised bank which is to be dedicated towards her unforeseen medical expenses and needs and treatments expenditure. Said order was challenged by opposite party nos. 1, 2 and 3 in Criminal Revision No. 01 of 2014. In that case learned Additional Sessions Judge, Arambagh allowed the revisional application in part and modified the order of learned Judicial Magistrate setting aside the order for contributing Rs.50,000/- each by the three opposite party nos. 1, 2 and 3 in favour of petitioner as fixed deposits and enhancing the sum of monthly maintenance allowance of the petitioner from Rs.2000/- to Rs.2500/- each payable by said three opposite parties. In this revisional application petitioner has challenged the legality, propriety and correctness of the impugned judgment passed by learned Additional Sessions Judge.

I have gone through the certified copy of the impugned judgment, revisional application and its annexure filed by the petitioner. Undisputedly, the petitioner is mother of the opposite party nos. 1, 2 and 3 and the petitioner is an octogenarian lady having other sons and daughters also.

In this revisional application, inter alia, it has been contended that learned Additional Sessions Judge erred in law setting aside the direction of learned Judicial Magistrate regarding the contribution of Rs.50,000/- each of the three opposite parties towards medical expenses of the petitioner. It has been claimed by the petitioner that Section 20 (1) (b) of the P.W.D.V. Act deals with medical expenses and according to Section 20 (3), maintenance may be paid in lump or monthly basis. Further claim of the petitioner is that in terms of Section 20 (1) (b) of the said Act, the Magistrate, which disposing of an application under Section 12 (1) of the said Act, may direct the respondent to pay medical expenses in addition to other monetary relief. In the same tune, Mr. Suman De, learned counsel advanced his arguments that learned Additional Sessions Judge failed to appreciate that the power of learned Magistrate under Section 20 (3) of the said Act is in addition to the provisions of Section 20 (1) of the said Act and not disjunctive in nature. Petitioner also contended that in view of the provision of appeal under Section 29 of the Act learned Additional Sessions Judge ought to have dismissed the revisional application against the order of learned Judicial Magistrate.

Mr. Rezzak, learned counsel for the opposite party nos. 1, 2 and 3 argued that learned Magistrate erred in passing order for payment of monthly maintenance and lump sum amount both although Section 20 (3) of the P.W.D.V. Act provides for payment of either monthly maintenance or a lump sum amount. He advanced arguments that learned Additional Sessions Judge rightly modified the order of learned Magistrate by proper interpretation of the statutory provisions which requires no interference by this Court.

Regarding maintainability of the revisional application in the Court of learned Additional Sessions Judge, I like to mention that said learned Court is competent to hear an appeal under Section 29 of the P.W.D.V. Act. Statutory bar under Section 397 (2) of the Code of Criminal Procedure is not attracted against the revisional application as per determining question in that Court. In the impugned judgment learned Additional Sessions Judge did not take up for consideration of any matter beyond the scope of determination in an appeal under Section 29 of the P.W.D.V. Act. Yet, it was proper for the opposite party nos.1and 3 to file their petition of appeal under Section 29, P.W.D.V. Act instead of their revisional application before the Court below. It does not appear from the materials on record that present petitioner raised the question of maintainability of revisional application before learned Additional Sessions Judge. Having considered the above aspects I am of the view that excepting the form of application instead of petition of appeal under Section 29 of the P.W.D.V. Act filed by the petitioners in the Court below there was no major defect in proceeding the revisional application before learned Additional Sessions Judge. In my considered opinion, when the substance of the revisional application was entertainable in law and was considered judicially by a competent Court, the defect in form of application which was presented before it does not vitiate the entire proceeding. As such, the legality, propriety and correctness of the impugned judgment should be considered on merits by this Court in the present case.

In respect of observation made in the impugned judgment about enhancement of monthly maintenance of the petitioner from Rs.2000/- to Rs.2500/- payable by each of the three sons of the petitioner there is no challenge from either party before this Court. The only point in issue on merit is whether learned Additional Sessions Judge has fallen in error making observation that the provision under Section 20 (3) of the P.W.D.V. Act empowers the Magistrate to pass an order for an appropriate lump sum payment or monthly payment of maintenance, as the nature and circumstances of the case may require and that the learned Court below has passed an order directing the petitioners (opposite party nos. 1 and 3 herein) to pay both monthly maintenance and also to pay Rs.50,000/- each which is beyond the scope of the provisions of Section 20 (3) of the P.W.D.V. Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

|  Section 20 of the P.W.D.V. Act reads as:-
  |  
  |  “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 and as a result of the domestic
  |  violence and such relief may include, but is 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 have the power to 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 the local limits of whose jurisdiction the
  |  respondent resides.
  |  
  |  5. The respondent shall pay 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”.

In the instant case applicability of the P.W.D.V. Act is not in question. In Sub-Section 1 of Section 20 of that Act Clauses (a), (b), (c) and (d) illustrations have been mentioned for taking into consideration of the monetary relief in composite. In the impugned judgment learned Additional Sessions Judge considered the adequacy, fairness, reasoning and consistency with the standard of living of the petitioner herein for determining the monthly maintenance of the petitioner and for exempting the opposite party nos. 1 and 3 from any liability for payment of lump sum amount in connection with the order of learned Judicial Magistrate. In this case the only determining factor centres around the question as to whether the word ‘or’ mentioned in Sub-Section (3) of Section 20 of the P.W.D.V. Act is conjunctive or disjunctive. Learned counsel for the petitioner tried to impress upon this Court that the said word has been used in the statute to denote conjunctive but learned counsel for the opposite party nos. 1 and 3 argued that the said word is disjunctive. In the impugned judgment said word has been interpreted as disjunctive. Plain reading of the Sub-Section (3) of Section 20 of the P.W.D.V. Act empowers the Magistrate to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In my opinion, according to the said provisions the Magistrate shall consider the requirement of the aggrieved person according to the nature and circumstances of the case and pass order for payment of monetary relief to the aggrieved person by respondent either in the form of appropriate lump sum amount or in the form of monthly payment of maintenance but not both. As such, said word “or” has been used by the legislature in the statute to denote it as disjunctive. Therefore, I find that learned Additional Sessions Judge has rightly interpreted that word as disjunctive in the impugned judgment. Learned Additional Sessions Judge, maintaining propriety observed correctly that learned Magistrate has ordered both an appropriate lump sum and monthly payment of maintenance which is beyond the scope of the provision of Section 20 (3) of the P.W.D.V. Act.

In summing up my discussions made above I find and hold that the impugned judgment does not suffer from material infirmity on merit and it needs no interference in this revisional process. As a result, this revisional application is liable to be dismissed.

Accordingly, this revisional application is dismissed on contest but without any order as to costs. A copy of this judgment be sent to the learned Additional Sessions Judge, Arambagh for drawing his attention to the provisions of Section 29 of the P.W.D.V. Act and for future guidance.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.

(SANKAR ACHARYYA, J.,)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


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


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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)…..”

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

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.

 

Child’s maintenance under DV to be equally borne by husband & wife !! Delhi sessions court

* wife has filed DV case on hubby
* Kid’s needs assessed at Rs 16000 per month based on the status of parties
* husband and wife to pay the maintenance in equal amounts
* however wife manages other restraint orders on husband’s property. She somehow proves her contribution to the apartments in question. In spite of restraint the court permits renting of properties

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

IN THE COURT OF ADDITIONAL SESSIONS JUDGE CUM SPECIAL JUDGE­03, (PC ACT) (CBI)
PATIALA HOUSE COURTS, NEW DELHI

ID No. 02403R0074822015
Criminal Appeal No. 16/2015

Ajit Pal Singh
S/o Sh. Narender Singh
A­2479, Ground Floor,
Netaji Nagar, Opposite Palikia Bhawan,
New Delhi – 110023.  …..Appellant

Versus

Cherry Singh
W/o Sh. Ajit Pal Singh
D/o Col. Manmohan Singh Jassal,
R/o 4173, Second Floor, D­4, Vasant Kunj,
New Delhi – 110070.  …..Respondent

Date of institution     : 28.04.2015
Date of arguments     : 04.12.2015
Date of order         : 08.12.2015

JUDGEMENT

1. This criminal appeal has been filed under Section 29 of the Protection of Women from Domestic Violence Act 2005 and is directed against the impugned order dated 30.3.2015 passed by Ms Snigdha Sarvaria, Ld. Metropolitan Magistrate, New Delhi in CC No. 44/4/2014 vide which Ld. Metropolitan Magistrate was pleased to award maintenance in the sum of Rs.15,000/­ per month till pendency of the complaint to the minor son of the parties payable by appellant, who is the husband of respondent. Apart from it, the trial court also restrained the appellant from alienating or disposing of or parting with the possession or creating any encumbrance on two properties.

2. Respondent is the wife of the appellant. She had filed a complaint CC No.44/4/2014 against her husband i.e. the appellant under Section 12 of this Act. Along with this complaint she also moved an application under Section 23 of the Act praying for interim maintenance to the minor son of the parties till pendency of the complaint.

3. In this complaint, the complainant/respondent had also made a prayer that appellant may be restrained from alienating four properties.

4. After hearing the parties, Ld. Metropolitan Magistrate awarded an interim maintenance in the sum of Rs.15,000/­ per month for the minor son of the parties till pendency of the proceedings. In respect of the four properties, Ld. Metropolitan Magistrate carefully considered all facts and circumstances and passed a restraint order in respect of following properties :

A. Flat No. 106, Tower A, Springdales, Zirakpur, near Chandigarh.
B. Flat No. D­504, Estella, Sector­102, Gurgaon.

5. Aggrieved by this order, the appellant has filed this appeal.

6. First I take up the issue of the restraint order. Ld. Metropolitan Magistrate has carefully gone through the records of the properties furnished by the parties and I agree that the contribution of both the parties in the aforesaid properties is quite evident from the material produced before the trial court. Hence, I find no infirmity in the restraint order. The grievance of appellant is that by this restraint order, he cannot even let out the properties. It is submitted that if he is allowed to rent out the properties, he will be in a better position to pay the maintenance. Moreover, if left vacant, the properties will deteriorate. I agree with his submission to this extent. But the question will arise as to which of the parties will have the right to rent out the properties. The appropriate course would be that both the parties should agree to rent out the said properties through a common property dealer and the rent should be deposited in a joint bank account of the parties with a rider that such rent would be distributed equally between husband and wife. There may be many other proposals to make these properties profitable to all concerned. However, this job cannot be done at appellate stage. Of course, the parties are free to resolve this issue by taking recourse to mediation or through guidance of their lawyers or by taking appropriate order of the trial court. However, question of renting out the properties cannot be considered at the appellate stage. At the same time, I have already stated that I do not find any infirmity in the restraint order, which is not of a final nature and the trial court is fully empowered to vacate it or to modify at the stage of final disposal or earlier if it so desires.

7. Now I take up the question of grant of maintenance to the son of the parties. It is an admitted fact that both the parties are gainfully employed and are earning respectable salaries. Therefore, I agree with the opinion of the trial court that both the parties should proportionately share expenses of maintenance incurred on the minor child. Ld. Counsel for appellant has prayed for setting aside the maintenance order and in alternative reducing the same. I have already stated that when both husband and wife are earning, both of them are required to shoulder the expenses on their child. Therefore, setting aside the maintenance order is out of question.

8. The next question is as to whether the interim maintenance should be reduced.

9. Since the court have to pass the interim maintenance order at a very initial stage, the courts have to form an opinion on the basis of the material and affidavit filed by the parties. The correctness of such material and affidavits has to be dealt with at final stage. The respondent herein had filed an affidavit dated 17.10.2014 in respect of her details, assets and expenditure. Under the head of expenditure in column (V), she has mentioned the education tuition expenses of her child as under :

(v) Education of child

1. School Fees (Quarterly) ­ including tuition fee. Rs.10,500/­ on an average

2. Tutor Fees – Rs.3000/­ pm.

3. School Van Fees for afternoon – Rs.2000/­ pm.

4. Dance Class Van – Rs.500/­ pm

5. Dance Classes – Rs. 12,000/­ pa.

10. The aforesaid affidavit of respondent shows that respondent is spending around Rs.8000/­ per month only on education and education related activities upon her child. In view of the status of the parties, this much of expenditure is normal these days. It was argued by Ld. Counsel for appellant that appellant gets reimbursement of the school fee from her employer, however, no evidence could be shown of such reimbursement except school certificate, which shows that same was issued for the purpose of reimbursement of the fee. This school certificate is not enough to form a primafacie view unless actual document of reimbursement of school fee by her employer is produced by the appellant. Hence, it cannot be said at this stage that appellant is getting reimbursement of the school fee of her child.

11. Considering the primafacie expenditure on education of the child and status of parties, it is reasonable to accept that an approximate sum of Rs.8000/­ per month must have been spent by the respondent on food and clothing etc. for the child. Hence, the total expenditure upon the child appears to be Rs.16,000/­ per month, which should be shared equally by the parties.

12. The impugned order would show that no reason has been given as to how the monthly expenditure of the minor son has been calculated by the trial court. In the preceding paragraph, I have calculated the monthly expenditure on the child at Rs. 16,000/­ per month, which should be shared equally by father as well as mother. Thus, the appellant being the father of minor child is directed to pay a maintenance in the sum of Rs.8000/­ per month to respondent (who is the wife of appellant and mother of the minor son Master Angad) from the date of filing of the complaint till final disposal. In case, respondent is getting maintenance for her child from any other court, the same would be adjusted by the trial court in the present maintenance. The impugned order is modified to the extent as above only in respect of the maintenance. Accordingly, the appeal is partly allowed.

13. Parties/their counsels are directed to appear before the trial court on 19.12.2015.

14. Copy of judgement along with trial court record be returned to the trial court. Appeal file be consigned to record room.

Announced in the open court on 8.12.2015.

(Vinod Kumar)
Additional Sessions Judge cum Special Judge­03,
(PC Act) (CBI), Patiala House Courts New Delhi

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Lorry Driver’s wife files DV, gets 6000 p.m. So… women’s lib has reached all sections !! Jai Hind !!

Lorry Driver’s wife files DV, gets 6000 p.m. So… women’s lib has reached all sections !! Jai Hind !!

* template DV, template cries and complaints. in fact some of the claims are so similar to the other case I posted today, one would be confused as to which case he / she is reading !! 🙂 🙂
* In this case wife claims husband earns 25000 p.m., Hon court does NOT accept the same, court re assesses drivers wages at Rs 11000 p.m.
* Hon court refuses many of wife’s claims. Court disputes her medical exp claim as she has provided NO proof
* Hon court refuses order against alienation of assets as list of assets , details NOT provided
* Hon court grants Rs. 2500 for kid and Rs 1500 for wife. wife gets maintenance till her lifetime ! She also gets Rs 2000 p.m. for alternate accommodation (so in all Rs. 6000 p.m.)
* Since wife is living with her parents court also refuses to restrain husband from alienating assets !!

This case highlights how DV cases have reached all rungs of society and there is NO escaping from this menace, whether you are rich or poor

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

CC No. 952/1/14
PS BHD Nagar
ID no. 02405R0236992014

Smt. Pooja
W/o Sh. Jai Singh
D/o Sh Randhir Singh
R/o RZ 156A, Block R
Dharampura Extn, Najafgarh
New Delhi -110043 …..Applicant

Versus

1. Jai Singh
2. Smt Kailasho devi
3. Sant Ram
4. Mahender
5. Praveen …..Respondents

( All R/o H. No 214, Hari Dass Enclave, near College, Jaroda Kalan Village, ND)

Date of Institution : 15.10.2014
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. Pooja against her husband Sh Jai singh / respondent no 1, Kailasho Devi (MIL) / respondent no 2, Sant Ram (FIL)/ respondent no 3, Mahender (BIL)/ respondent no 4, Praveen (BIL)/ respondent no 5.

2. The complainant states that she got married to respondent no 1 on 11.03.2012 and the couple was blessed with a baby girl Riya on 02.02.2013. Complainant states that soon after the marriage respondents started harassing her. On 20.04.2013, respondent no 2, 4 and 5 beat the complainant and threw her out of the matrimonial house. Complainant filed a complaint with PS BHD Nagar but no action was taken. It is also alleged that when complainant gave birth to child, she remained admitted in the hospital for 20 days but none of the respondents ever visited her or paid a single rupee towards the medical expenses. Complainant states that she remained for her parents house for 30 days after the delivery. Complainant alleges that she was harassed and tortured for the demand of Rs 50,000/- and she also gave a complaint with PS Dwarka sec 9 in this regard. The matter was referred to Mediation Centre, Dwarka and was compromised on 03.10.2013 under fear of registration of case. However, complainant was still harassed at her matrimonial house by the respondents and was beaten by respondent no 1. She alleges that respondent no 1 and 4 threatened to kill her but she was saved due to intervention of neighbours and relatives. Complainant states that she is totally dependent on her parents for herself and for the child while respondent no 1 is working as a driver and earning Rs 25000/-pm . It is further stated that respondent no 1 has no liability except to maintain the complainant and the child. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Complainant has prayed for protection order u/s 18 DV Act i.e. prohibiting respondents from committing/ aiding / abating any act of domestic violence against the complainant. Further, she has prayed that respondents be restrained from contacting her in any manner or alienating any assets held jointly by the couple or separately by them. 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 restraining the respondents from dispossessing the complainant or disturbing her possession in the shared household, restraining them from alienating the shared household or in the alternative secure same level of alternative accommodation or sum of Rs 8000/-p.m towards rent. She has also prayed that she be given possession of all her jewelery worth Rs 2 lakhs which is with the respondents.

Complainant has also prayed for monetary relief u/s 20 DV Act i.e medical expenses of Rs 3000/-pm, maintenance of day to day needs @ Rs 15000/-pm for herself and for the child. She has further prayed for compensation of Rs 5 lakhs on account of mental agony, harrassment etc .

3. The respondent was duly served and he entered appearance, however, he did not file reply despite repeated opportunities and accordingly he was proceeded ex parte on 23.09.2015.

Evidence In her support complainant examined herself as CW1 and tendered her affidavit in evidence as Ex.CW1. She relied on copy of her complaint dated 02.05.2013 as CW 2, copy of tuition fee card of child Riya as CW 3 and copy of her adhar card as CW4.

Complainant filed her affidavit of assets.

Brief Reasons for Decision and Decision :

Complainant has deposed that she was physically and verbally abused by respondents and in this regard she has relied on her complaint EX CW2, which reiterates similar allegations as made in the present complaint. Respondent has not filed his reply to dispute either the factum of marriage, the birth of child Riya or that the couple were living in a shared household of the complainant. Since the respondents are 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/ aiding / abeting any act of domestic violence against the complainant. Complainant has substantiated her allegations of physical / verbal abuse by relying on her complaint which is dated almost 1.5 yrs before filing of the present complaint. Accordingly, complainant is entitled to protection order. Respondents are restrained from committing/ aiding / abeting any act of domestic violence against the complainant. They are further restrained from contacting her in any manner or causing violence through her relatives.

Complainant has also prayed that respondents be restrained from alienating assets but no details have been provided. As such this portion of the prayer is denied.

Monetary Relief

Complainant has also prayed for monetary relief u/s 20 DV Act . She has claimed medical expenses of Rs 3000/-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 3000/-. This relief is accordingly denied.

Complainant has claimed maintenance of day to day needs @ Rs 15000/-pm for herself and for the child. She has filed her affidavit stating that her monthly expenditure is Rs 20000/-. She has claimed that she is spending Rs 2000/-pm on the school fees of the child and Rs 3000/- pm on the other expenses of the child. She claims that she is spending approximately Rs 9000/-pm on household expenditure apart from other miscellaneous expenditure of Rs 1000/-pm and medical expenses. She claims that she is unemployed while respondents no 1 is earning Rs 30000/-pm as a driver.

Even though, the evidence of complainant is unrebutted, complainant seems to have given an inflated figure for respondent no 1’s monthly earnings as a driver. Taking into account the minimum wages for a skilled labour, the monthly income of respondent no.1 is assessed to be Rs 11,000/-.

Although the monthly school fess as mentioned by the complainant in her affidavit is Rs 2000/- but her own document Ex CW3 reveals that it is Rs 1,000/- per month. Apart from that the monthly misc expenditure of Rs 3000/-pm seems to be inflated keeping in view the status of the parties. Accordingly, it is directed that complainant is entitled to monthly maintenance of Rs 2500/- towards the child and Rs 1500/- towards herself. This amount shall be payable till the marriage of the child Riya and till the life time of complainant respectively.

She has further prayed for compensation of Rs 5 lakhs on account of mental agony, harrassment etc . However, complainant has not explained how she has arrived at this amount. Therefore, this relief is denied.

Residence Order
Complainant has prayed for residence orders U/s 19 DV Act I.e restraining the respondents from dispossessing the complainant or disturbing her possession in the shared household. However, admittedly complainant has been is residing with her parents since Oct 2013. Therefore, there is no question of restraint against her dispossession or disturbing her possession in the shared household.

It has already been observed that complainant has proved that she was verbally and physically abused in her matrimonial house. Further, complainant has been ousted from the matrimonial house, which is in itself sufficient to constitute abuse. As such complainant is justified in living separately from the respondents. She has also prayed that she be provided alternative accommodation of the same level or be given a monthly rent of Rs 8000/-. As per complainant’s own case, she was living in a joint family at her matrimonial house which is her shared household. She has also claimed that her husband is a driver earning Rs 30000/-pm. Seeing such status of the parties, the rent claimed by complainant is not justifiable. In her own affidavit of assets she claims to be spending only Rs 3000/-pm on rent. Therefore, she is additionally entitled to a monthly rental of Rs 2000/- only. This amount shall be payable till the life time of complainant.

Since separate rent has been provided for, no order is passed restraining respondents from alienating the shared household.

Complainant has also prayed that she be given possession of all her jewelery worth Rs 2 lakhs which is with the respondents. However, she has neither described what such property is nor has she mentioned which of the respondents is in the possession of her articles. As such this potion of the prayer is declined.

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

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