Tag Archives: DV is moolah

Don’t contact wife by phone, mail, SMS or ANY means but keep paying her money EVERY MONTH !! COURT ORDER !!

Don’t contact wife, court orders man

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AHMEDABAD: A local court has ordered a person not to contact his wife in any manner — in person, over the phone, or through a third party.

A magisterial court on Mirzapur court campus has ordered a resident of Kaligam, we Narayansinh Borovist, not to contact his wife Binita, who currently lives in Ghatlodia at her maternal home. The court so ordered for Binita’s protection from physical and mental harassment from her husband after the woman filed a complaint under the provisions of the Protection of Women from Domestic Violence Act.

In June, the woman approached the court through the protection officer and sought directions for protection, shelter, and maintenance as well as compensation for domestic violence. She also demanded the streedhan back from her in-laws.

The court issued a notice, but the husband did not turn up to reply to his wife’s accusations. She complained that the husband used to torture her physically and mentally in inebriated condition. She claimed that she was repeatedly beaten and thrown out of her matrimonial home.

Demanding maintenance, she has supplied the husband’s salary slip of 2010, which revealed his salary was Rs 28,903 then.

As the husband did not appear for hearings, the court said that her claims remained uncontroverted. “If an order for her protection under section 18 of the DV Act is not passed, she may become victim of domestic violence in future also,” the court said.

The court ordered the husband to pay Rs 4,000 towards maintenance, Rs 2,000 for house rent and Rs 25,000 as compensation for the physical and mental torture.

The court ordered the payment of maintenance and house rent after considering that his salary must have been increased by at least Rs 6,000 after the implementation of the 7th

Pay Commission

— Read on m.timesofindia.com/city/ahmedabad/dont-contact-wife-court-orders-man/articleshow/65546705.cms

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Former Mr India accused of domestic violence: wife seeks 1 crore + 85000 per month ONLY 💰💰

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FORMER MR INDIA ACCUSED OF DOMESTIC VIOLENCE: ‘HE SPLURGES ON STEROIDS, GETS VIOLENT IF I OBJECT’
By Sharmeen Hakim, Mumbai Mirror | Updated: Jun 11, 2018, 08.22 AM IST

Avanti and Jivesh Shetty
Fitness trainer Jivesh Shetty denied the charges; lawyer says wife filed a case as she did not get along with Shetty’s mother.

Popular fitness trainer and former Mr India, Jivesh Shetty has been accused of domestic violence by his wife Avanti, who claims that he tried to assault her when she objected to his spending huge sums of money on ‘banned steroids and body supplements’. Avanti, 30, has also accused him of shirking his responsibilities as a father by not paying their 5-year-old daughter’s school fees.

In a case filed before a metropolitan magistrate in Girgaum, Avanti has further accused her 37-year-old husband of using his build to intimidate her. Saying that their daughter stands to lose a year as Shetty has ‘refused’ to pay her school fee, she has sought Rs 1 crore in damages and Rs 45,000 and Rs 40,000 as maintenance for her daughter and herself. She has also named his mother in the case filed under Protection of Women from Domestic Violence Act of 2005, claiming that she would verbally abuse and taunt her.
— Read on mumbaimirror.indiatimes.com/mumbai/cover-story/former-mr-india-accused-of-domestic-violence-he-splurges-on-steroids-gets-violent-if-i-object/amp_articleshow/64534512.cms

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

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

The Hon court concludes as follows “….

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

 

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

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH DAY OF DECEMBER 2015

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

CRIMINAL REVISION PETITION NO.758 OF 2015

BETWEEN:

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

AND:

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

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

ORDER

 

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

ORDER

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

Send a copy of this order to the Trial Court.

Sd/JUDGE

BSV/vgh*


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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


Well educated 31 year old daughter files DV on dad seeking 700 pounds per month! Looses completely. RajHC

In this classic case a well educated (post grad ) daughter wishes to pursue further education in ( she is 31 years old) and demands Pounds 700 from her father !! Daughter mother duo file a case on the father !! The mother is also employed !! Needless to say they looses the case

“…………..No law or custom has been shown by the petitioner under which a well educated daughter of the age of more than 30 years can claim her living expenses to the tune of 700 pound per month for pursuing her further higher studies from a foreign University. According to this provision deprivation of economic or financial resources which the the aggrieved person requires out of necessity also amount to economic abuse. For the applicability of this part of the provision, requirement of the aggrieved person must be out of necessity. In my opinion each and every expenses incurred or to be incurred by the aggrieved person for her study cannot be termed to be a requirement out of necessity. Expenses incurred or to be incurred by daughter of a person for her reasonable studies can be said to be a requirement out of necessity but living expenses incurred or to be incurred by a daughter for pursuing her further higher studies from a foreign University and more particularly in view of the fact that she has already obtained a post graduate degree from a reputed University in India and has already taken further studies from a foreign University and who is capable of earning her own income by joining a job and who has joined her further studies without the consent of his father rather against his wishes cannot be said to be a requirement out of necessity …………”

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

BENCH JAIPUR

ORDER

S.B.Criminal Revision Petition No.670/2016

Geeta Singh W/o Shri O.P.Meena D/o Late Shri Ramchandra
Meena, aged about 57 years, Resident of H-47, Tagore Path, Bani
Park, Jaipur (Raj.) Petitioner/Complainant.

Versus

1. State of Rajasthan through Public Prosecutor.

2. Shri Omprakash Meena S/o Late Shri Narain Meena, by
caste Meena, Resident of H-47, Tagore Path, Bani Park,
Jaipur at present residing at Flat No.304, Palm Grove
Apartment, Chitranjan Marg, C-Scheme, Jaipur.
Respondents

Date of Order 17.11.2016

HON’BLE MR. JUSTICE PRASHANT KUMAR AGARWAL

Mr.H.V.Nandwana and Mr.R.M.Bairwa, for the petitioner.
Mr.Prakash Thakuria,Public Prosecutor for State.
Mr.A.K.Bhandari Senior Advocate with Mr.Atul Bhardwaj, for the respondent.

The petitioner-complainant has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 2.5.2016 passed by the Additional Sessions Judge No.2, Jaipur Metropolitan, Jaipur in Criminal Appeal No.70/2015 whereby learned appellate Court by dismissing the appeal filed by the petitioner affirmed and upheld the order dated 7.11.2015 passed by the Additional Chief Metropolitan Magistrate No.6, Jaipur Metropolitan, Jaipur in Case No.270/2015 whereby learned trial Court refused to grant interim monetary relief to the petitioner’s daughter Miss.Geetanjali.

Brief relevant facts for the disposal of this petition are that petitioner-complainant wife of respondent-Shri Omprakash Meena filed a complaint/application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as “the Act”) claiming various reliefs provided under the Act. It was averred in the complaint that she and daughter of the parties Miss.Geetanjali are aggrieved person within the meaning of the Act. One of the reliefs sought is that respondent may be directed to pay 700 pounds per month as living expenditure under Section 20 of the Act for the period from September 2014 to April 2015 as arrear accrued for that period and thereafter from May 2015 onwards to Miss. Geetanjali as presently she is pursuing her higher studies at Cardiff University, England. It was further averred that petitioner has taken a loan of Rs. 16 lacs from a bank for the further education of their daughter in England. It was also averred that respondent is an Officer of Indian Civil Services and is presently getting Rs.1,96,000/- per month as salary but he refused to incur the living expenses of Miss. Geetanjali. Petitioner sought interim relief as per Section 23 of the Act during the pendency of the complaint. In his reply to the complaint, it was averred by the respondent that presently age of their daughter is 31 years and all her school and college education expenses were incurred by him and even educational and all other expenses for her higher studies at Nottingham, England in the year 2009 were incurred by the respondent. It was further averred that Miss.Geetanjali was sent for further studies/education to England by the complainant without the consent of respondent rather against his wishes. It was also averred that Miss.Geetanjali is a mature girl of 31 years capable of earning her own income and complainant, an officer of the Rajasthan Administrative Services, is presently getting Rs.1,40,000/- as salary and she is capable to incur all expenses which are being sought from the respondent. It was further averred that as Miss.Geetanjali is pursuing her higher studies abroad without the consent of her father rather against his wishes, she is not entitled to claim any amount from him as living or other expenses.

Learned trial Court vide order dated 7.11.2015 declined to grant interim monetary relief claimed as living expenses for pursuing higher studies at a University in England observing that complainant herself is an Administrative Officer in Government of Rajasthan and Miss. Geetanjali has attained the age of 31 years and previously she was in job in Delhi. The matter was unsuccessfully carried by the petitioner in appeal which was dismissed by the appellate Court vide impugned order by recording the same reasons as recorded by the trial Court. It was also observed by the appellate Court that no reliable documentary evidence has been produced on record about higher education of Miss.Geetanjali in England and the expenses incurred by her for her education as well as living expenses.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions.

The question involved in this petition for determination by this Court is whether unmarried daughter of respondent, who is of the age of more than 30 years and who has already completed her Post Graduation from a reputed University in India like Delhi University and who also pursued her further studies at Nottingham, England in the year 2009, is an aggrieved person within the meaning of the Act and if yes, whether she can claim interim monetary relief as her living expenses for pursuing her further studies without the consent of her father (respondent) rather against his witneses from a University abroad merely by the reason that presently she does not have her own independent source of income and her other educational expenses are being incurred by her mother (petitioner) after taking loan from a bank.

Sub-section (1) of Section 20 of the Act is as follows:- While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but 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.

Thus, according to this provision all expenses incurred by an aggrieved person as a result of the domestic violence can be awarded to the aggrieved person from the respondent but such expenses must be incurred by the aggrieved person as a result of domestic violence committed by the respondent. As per sub-section (2) of Section 20 of the Act, the monetary relief must be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. Sub-section (1) of Section 23 provides that in any proceeding under the Act, Magistrate may pass such interim order as he deems just and proper. Thus, according to this provision monetary relief as interim measure can also be awarded during the pendency of a proceeding under Section 12 of the Act.

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

Thus, to be an aggrieved person for the purpose of the Act, following conditions are required to be fulfilled:

(i) the woman must have a domestic relationship with the respondent;

(ii) she must be subjected to some kind of domestic violence by the respondent.

As per clause (f) of Section 2, 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

In the present case, it cannot be denied that being daughter, Miss.Geetanjali has domestic relationship with the respondent her father but only by that reason she cannot claim to be an aggrieved person unless it is further found that she was subjected to some kind of domestic violence by the respondent. Clause (g) of Section 2 of the Act provides that “domestic violence” has the same meaning as assigned to it in section

  1. What is domestic violence has been provided in Section 3 which is as follow:-

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

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

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

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

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.–For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes–

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes–

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.–For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

For the purpose of present controversy between the parties “economic abuse” is relevant and is required to be seen and considered. According to sub-clause (a) of clause (iv) to explanation-I appended to Section 3 of the Act, deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity and also maintenance.

The question in the present case is whether refusal by the respondent to incur living expenses of his daughter can be said to be commision of economic abuse.

No law or custom has been shown by the petitioner under which a well educated daughter of the age of more than 30 years can claim her living expenses to the tune of 700 pound per month for pursuing her further higher studies from a foreign University. According to this provision deprivation of economic or financial resources which the the aggrieved person requires out of necessity also amount to economic abuse. For the applicability of this part of the provision, requirement of the aggrieved person must be out of necessity. In my opinion each and every expenses incurred or to be incurred by the aggrieved person for her study cannot be termed to be a requirement out of necessity. Expenses incurred or to be incurred by daughter of a person for her reasonable studies can be said to be a requirement out of necessity but living expenses incurred or to be incurred by a daughter for pursuing her further higher studies from a foreign University and more particularly in view of the fact that she has already obtained a post graduate degree from a reputed University in India and has already taken further studies from a foreign University and who is capable of earning her own income by joining a job and who has joined her further studies without the consent of his father rather against his wishes cannot be said to be a requirement out of necessity and even if father has refused to bear such expenses, it cannot be said that the daughter has been subjected to economic abuse within the meaning of the Act. Although, the Act has been enacted to provide more effective protection of the rights of women but that does not mean that a woman can claim any expenses as monetary relief from the respondent. Unless the act of the respondent comes within the purview of the domestic violence as specified under Section 3 of the Act and unless the petitioner is an aggrieved person, no relief can be granted to her. In the facts and circumstances of the case it cannot be said that Miss. Geetanjali has been subjected to economic abuse within the meaning of the Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.

(PRASHANT KUMAR AGARWAL), J

teekam

Reserved order


*****************************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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NO RELIEF under DV act because this is a property dispute !! Delhi District court !!

Mother claims maintenance, compensation etc etc from Son and Daughter in law. She claims that she was “… subjected to ill treatment by the respondents causing physical, emotional and economic violence upon her….” However court notices that all complaints are regarding some property dispute and denies ANY relief. “….Hence, from the material on record it is quite apparent that the dispute is civil in nature pertaining to some property pursuant to which some quarrel between parties have occurred. From the evidence led, the complainant has failed to show the existence of a ‘domestic relationship’ since the dispute has arose. It is the complainant’s own case that prior to separation of family members, they were all peacefully residing as one unit. No instance of domestic violence committed during that time has been alleged. …”

While we pity hapless elders and mothers being thrown out of household, we are unable to digest misuse of DV act

Probably this is a good case where the “logic” / “ratio” can be used by husbands (please note this is a District court) . Please note that a “mother” may be judged differently from a “wife” when claims of DV are made !!

==================================

IN THE COURT OF MS. VIJETA SINGH RAWAT:
MM-03: (MAHILA COURT): SOUTH EAST DISTRICT:
SAKET COURTS : NEW DELHI

CC- 12/1/15

ID No. of the Case : 02406R0005422014

Chanda Begum
W/o Sh. Tofique Ahmad
R/o House No.F-526 (Old No.D-115),
Extn.-2, Gali No.1,
20 Feeta Road, Jaitpur Extension,
Badarpur, New Delhi-110044 …….Complainant

Versus

  1. Mohd. Sajid (Son), S/o Sh. Tofique Ahmad
    2.Sahista Begum (Daughter-in-law), W/o Mohd. Sajid
    Both r/o House No.F-526 (Old No.D-115),
    Extn.-2, Gali No.1,
    20 Feeta Road, Jaitpur Extension,
    Badarpur, New Delhi-110044 …… Respondents

Date of institution of case : 10.01.2014
Date of Reserving order : 30.03.2016
Date of Order : 01.07.2016

JUDGMENT

1.The present complaint u/s. 12 of The Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act’) has been instituted on 10.01.2014 by Chanda Begum (hereinafter referred to as ‘the complainant’) against Mohd. Sajid (Son) and Sahista Begum (daughter-in-law) (hereinafter referred to as ‘respondents No.1 and 2) seeking following reliefs :-

a)Pass apposite protection orders as prayed in para No.5 of the petition.

b)To pay monthly monetary relief of Rs.7,000/- per month to the complainant towards maintenance.

c) To pay compensation to the tune of Rs.5,00,000/- to the complainant for her intolerable sufferings and mental agony.

d) To pay Rs.25,000/- towards expenses of said proceedings and other legal expenses incurred by the applicant/complainant under compelling circumstances;

e) Prohibiting the respondents from causing theft of electricity by putting wire or otherwise in the shop at the ground floor of the shared household in possession of the respondents and causing mental and economic losses and harassment to the complainant;

f) restraining the respondents from creating any third party interest in the portion of the shared household in their possession or encumbering the same;

g) pass such order or orders under provisions of this Act thereby protecting the applicant/complainant from domestic violence.

AVERMENTS

2.The brief facts of the present case are that complainant is the mother of respondent No.1 and mother-in-law of respondent No.2; that she is the owner of property No.F-526 (Old No.D-115, Extension No.2, Gali No.1, 20 Feeta Road, Jaitpur Extension, Badarpur, New Delhi-110044) which is the shared household; that complainant has five sons and her entire family which used to reside in the aforesaid property has now separated and two married sons live separately, one has expired but his widow and children are dependent upon complainant and one youngest son is also with the complainant; that respondents also have a separate accommodation but are forcibly retaining possession of one room at first floor and shop at ground floor; that husband of complainant is a rickshaw puller and to make both ends meet, the complainant needs the property in illegal possession of respondents. It is further alleged that due to the property being the bone of contention, the respondents have subjected complainant to domestic violence by way of physical assault and verbal abuses which have been complained against.

3.Notice of the complaint was issued to the respondent vide order dated 10.01.2014.

4.Respondent No.1 entered appearance on 24.04.2014 and reply on behalf of respondents was filed on 22.09.2014.

5.In the reply filed preliminary objection has been taken that no domestic relationship exists between parties and hence, no relief under this Act is maintainable. It has been denied that complainant has been subjected to ill treatment by the respondents causing physical, emotional and economic violence upon her. The ownership of property is disputed. However, possession as alleged is not denied by the respondents. It is also stated that the complainant does not meet maintenance from the respondents as she is drawing rental income of about Rs.21,000/- per month. It is also denied that widow of the deceased son alongwith her children are dependent upon the complainant as she is running a beauty parlour. It is denied that any protection order is required by the complainant as the parties are residing separately. Since, respondents did not appear, they were proceeded ex-parte vide order dated 15.03.2016.

EVIDENCE

6.Matter was then listed for ex-parte complainant evidence. By way of complainant evidence, the complainant examined herself as CW1 and relied upon affidavit Ex.CW1/A along with following documents :-

a)Ex.CW1/1 police complaint dated 23.08.2013 to SHO PS Jaitpur.

b)Ex.CW1/2 police complaint dated 23.08.2013 to the office of Head Enforcement.

c)Ex.CW1/3 complaint received at PS Jaitpur vide DD No.25B on 11.12.2013.

7.Witness was not cross-examined as respondent is ex-parte. Thereafter, complainant evidence was closed on the same date.

8.Final arguments were heard by this Court.

9.This Court has thoughtfully considered the material on record and arguments advanced by the complainant.

ISSUES

10.The issues which are required to be proved to entitle a relief under the Act are as under :-
A)Whether the complainant was having a domestic relationship with the respondent in a shared household?
B)Whether complainant was subjected to domestic violence by the respondent so as to qualify her to be an aggrieved person under the Act?
Further, since, we are dealing with a quasi criminal proceeding, the proof test required is of preponderance of probabilities.

ISSUE A

11.As per sec. 2(f), “”domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

The burden to prove issue (A) was upon the complainant. The complainant has averred in paragraph No.4 (e) of her complaint ‘that respondents despite having an alternate accommodation continued forcibly retaining in their possession one room at first floor and a shop at ground floor of the shared household despite repeated requests from the complainant to vacate the same.’ Further, the above is reiterated in paragraph No.6 of affidavit Ex.CW-1/A. Even in Ex.CW-1/3 there is a clear stipulation that respondents are residing at a rented accommodation and are forcibly retaining in their possession a room and a shop in the disputed property. The tenor of Ex.CW-1/2 and Ex.CW-1/3 is also to the effect that parties have a dispute regarding property No.F- 526 (Old No.D-115, Extension No.2, Gali No.1, 20 Feeta Road, Jaitpur Extension, Badarpur, New Delhi-110044). Hence, from the material on record it is quite apparent that the dispute is civil in nature pertaining to some property pursuant to which some quarrel between parties have occurred. From the evidence led, the complainant has failed to show the existence of a ‘domestic relationship’ since the dispute has arose. It is the complainant’s own case that prior to separation of family members, they were all peacefully residing as one unit. No instance of domestic violence committed during that time has been alleged. Hence, the issue is decided against the complainant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

ISSUE B

  1. In view of finding of issue No.A, the present issue needs no consideration.

RELIEFS

13. In view of the findings on issue A, all reliefs are declined. Complaint is dismissed. Copy of the judgment be given Dasti to the parties.

File be consigned to Record Room after due compliance.

(Announced in the open Court on 01st July 2016)

(VIJETA SINGH RAWAT)

MM-03: (MAHILA COURT)

SED:SAKET COURTS:NEW DELHI

01.07.2016

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