Tag Archives: Dv series

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

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

From Live Law website !!

By: Ashok Kini

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

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

Factual Matrix

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

The Curious Question

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

No one can take advantage of a vacated ex parte order

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

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

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

Section 23(1) is the Key

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

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

Read the Order Here

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

 

DV just 2 harass husband+inlaws & waste time of court. Wife never came to court !! DV dismissed. JM Chandigarh

Wife living abroad files fake DV and does NOT even appear… Husband appeals for dismissal and gets case dismissed 

Excerpts :

“…Moreover a specific plea has been taken by the applicant/respondent that on 2.3.2007 and 3.4.2007, the dates on which the alleged occurrence took place, the complainant was not even in the country. No specific reply has been given by the complainant regarding this plea….”

“….From the perusal of the case file it is also observed that the complainant also did not show the courage to at any time to come into the court. It seems that the present complaint has been filed just to harass the respondent and to waste the precious time of the court. Therefore, finding merits in the application filed by the applicant/respondent the same is hereby allowed and the present complaint is hereby dismissed. ….”

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In the court of Sh.Sudhir Parmar, HCS, Judicial Magistrate

1st Class, Chandigarh.

Computer ID No.36014P0071692007.

Complaint No.679 of 13.4.2007.

Date of Decision: 11.10.2007.

Smt.Rashpal Kaur wife of Gurinderjit Singh Kuku aged 42 years, D/o.Sr.Mohinder Singh Kalar presently residing at H.No.3176, Industrial Co-operative House Building Limited Sector 51, Chandigarh.

….. Complainant.

Versus

1 Gurinderjit Singh Kuku son of Sh.Lal Singh, resident of H.No.207, Sector 16-A, Chandigarh.

2 Joginder Pal Kaur wife of Lal Singh, resident of H.No.207, Sector 16-A, Chandigarh second address of both above mentioned respondents village & P.O. Bhairupa, Tehsil Rampuraphul, District Bathinda.

3 Suraj Kaur wife of S.S. Channi, D/o. Lal Singh, Resident of H.No.926, Sector 39, Chandigarh.

….. Respondents.

Application for dismissal of the complaint filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 being not maintainable.

********

Present:Sh.BBS Sobti, counsel for respondents.

Sh.Pardeep Bedi, counsel for complainant.

O R D E R:

This order shall dispose of an application for dismissal of complaint filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 being not maintainable.

2. Brief facts of the application are that the complaint was filed by the complainant indicating the alleged incidents of domestic violence of 2.3.2007 and 3.4.2007. Thereafter the complainant herself moved an application for amendment of the complaint whereby she sought to amend the complaint by amending the dates of the alleged violence incidents of 2.3.2007 and 3.4.2007. The said application was dismissed by this court while passing a detailed order after hearing both the parties. After the dismissal of the said application it is admitted case of the complainant that no incident of alleged domestic violence had taken place on the dates mentioned in the present application. Most probably the complainant was not in India also. It is further submitted in the application that this court had taken cognizance on the complaint simply because the complainant had alleged in the complaint that the said incident had taken place within the jurisdiction of this court and when it is the own admission of the complainant that the incident had taken place on the said dates, therefore the present complaint is without any cause of action. Moreover, this court has entertained the complaint only on the basis of arising of the alleged cause of action as indicated in para no.16 of the complaint as envisaged under Section 27(i) (c) of The Protection of Women from Domestic Violence Act, 2005 and since now the present complaint is without any cause of action, therefore same is liable to be dismissed being not maintainable.

3. The complaint was also not maintainable against respondent no.3 who is the married sister-in-law of the complainant being sister of respondent no.1, who was married much before the marriage of the complainant with the respondent no.1 and was residing separately since long and as such she by no stretch of imagination falls within the definition of domestic relationship as defined under Section 2(f) of the Act. Dismissal of the application has been prayed for.

4. Reply of the same has been filed by the complainant stating therein that the complaint is false and frivolous. Mentioned of the incidents is a matter of record and the application for amendment of complaint is also a matter of record. The complaint cannot be dismissed on the short ground that the dates of occurrence mentioned in the complaint are not correct. The occurrence mentioned in the complaint is a fact which can be proved by leading evidence by complainant as well as her witnesses. Even the incorrect date will not affect the complaint in as much as the acts of physical violence can be proved by the complainant. It is immaterial if there is a discrepancy in the dates or the incorrect dates have been mentioned. Though the application for amendment of the complaint was moved by the complainant and even if the said application for amendment having been dismissed, it does not render the complaint of the complainant having been filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 a nullity. This court has come to the conclusion as to whether the complainant was subjected to the acts of physical violence on the basis of the evidence which is put on the file. Other averments made in the application have specifically been denied and dismissal of the application has been prayed for.

5. I have heard the learned counsel for the parties and have perused the case file minutely.

6. The Domestic Violence is undoubtedly a human rights issue and serious deterrent to development. The phenomena of Domestic Violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomena in its entirety. Therefore, the present Act has been enacted to provide for more protection of the rights of woman guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Section 27 of The Protection of Women from Domestic Violence Act describes the jurisdiction of the court of Judicial Magistrate 1st Class or the Metropolitan Magistrate which describes as under:-

“(1)The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be within the local limits of which-

(a)the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b)the respondent resides or carries on business or its employed; or

(c)the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India”.

7. This Section lays down that the Magistrate, within the local limits of whose jurisdiction the aggrieved person permanently or temporarily resides or carried on business or is employed or the respondent resides or carried on business or is employed or the cause of action has arisen, shall be the competent Magistrate to grant protection orders and other orders and to try offences under the Act. Sub-section (2) provides that any order made under the proposed legislation shall be enforceable throughout India. In the present complaint as per its fact the cause of action which gave rise to the present complaint occurred on 2.3.2007 when the respondent no.1 thrown away the complainant and her children from the matrimonial home and on 3.4.2007 when the respondent visited in the house of complainant in Sector 51, Chandigarh and insulted and humiliated her and created a scene thereon. On that very day the respondents also threatened the complainant that in case she will not leave the city then she will be eliminated and the children will be kidnapped. This act has created terror in the mind of the complainant and her children, therefore, the present complaint has been filed. Lateron, it is the admitted case of complainant that the incidence of violence as mentioned on the dates 2.,3.2007 and 3.4.2007 were actually happened on 8.4.2007 in place of 3.4.2007 and in this regard an application for making correction in the incidence has been filed which was dismissed by this court while passing a detailed order dated 23.7.2007. The said order was never challenged by the complainant. From these facts it is observed that infact no incidence of any violence had taken place with the complainant. The present complaint has been filed just to harass the respondents. Moreover a specific plea has been taken by the applicant/respondent that on 2.3.2007 and 3.4.2007, the dates on which the alleged occurrence took place, the complainant was not even in the country. No specific reply has been given by the complainant regarding this plea. It seems that complainant has admitted this fact that she was not in the country on these dates. Therefore, it is abundantly clear that no cause of action accrued to the complainant against the respondents on the dates mentioned in para no.16 of the complaint. So, the present complaint does not satisfy the ingredients of Section 27(c) of The Protection of Women from Domestic Violence Act.

8. Further more, during the course of arguments it is observed that respondent no.3 is married sister-in-law of the complainant who was married much before the marriage of the complainant and has been residing separately since long with her husband, therefore, respondent no.3 does not fall within the definition of Domestic violence as envisaged under Section 2(f) of the Act. Therefore, no case is made out against the respondent no.3 also. From the perusal of the case file it is also observed that the complainant also did not show the courage to at any time to come into the court. It seems that the present complaint has been filed just to harass the respondent and to waste the precious time of the court. Therefore, finding merits in the application filed by the applicant/respondent the same is hereby allowed and the present complaint is hereby dismissed. File be consigned to the record room. Announced: Judicial Magistrate 1st Class,

11.10.2007. Chandigarh.