Tag Archives: DV

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*


*****************************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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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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wife getting 7 K p.m. u/s 24 HMA, tries DV in addition & COMPLETELY LOOSES ! Delhi MM court

Wife who is getting Rs 7000 p.m. as maintenance under sec 24 of HMA files a fake DV case where she is unable to proove Physical abuse or emotional abuse or economic abuse and completely loosed here case !!

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IN THE COURT OF Ms. BHAVNA KALIA: METROPOLITAN
MAGISTRATE: MAHILA COURT­ 01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI

CC No: 92/1/11, 61/16

Jurisdiction of Police Station : Lodhi Colony

Silky Gulati
W/o Sh. Sandeep Gulati
D/o Sh. Ram Prakash Khurana
R/o H. NO. D­49, B.K. Dutt Colony, New Delhi ………Aggrieved

Versus

(i) Sandeep Gulati
S/o Sh. Amrit Lal Gulati

(ii) Amrit Lal Gulati
S/o Late Sh. Sunder Dass Gulati

(iii) Jyotsa Gulati
S/o Sh. Amrit Lal Gulati

(iv) Shakshi Gulati
D/o Sh. Amrit Lal Gulati

All R/o C­50, Gali No. 10,
New Govindpuri ……..Respondents

Date of filing : 10.03.2011
Date of arguments : 04.11.2016
Date of judgment : 19.11.2016

JUDGMENT

COMPLAINT:

  1. The aggrieved has filed an application u/s 12 of Protection of Woman From Domestic Violence Act, 2005 (hereinafter referred to as the Act). The aggrieved has prayed for the following reliefs.
  2. Protection order u/s 18 of the Act.

  3. Residence order u/s 19 of the Act.

  4. Monetory relief in the sum of Rs.55,000/­ u/s 20 of the Act.

  5. Monetory relief in the sum of Rs.30,000/­ per month (wrongly mentioned as Rs.25,000/­ as the total comes to Rs.30,000/­) u/s 20 of the Act.

  6. Compensation in the sum of Rs.1,00,000/­ u/s 22 of the Act.

  7. The aggrieved has asked for the above stated reliefs on the ground that domestic violence was inflicted upon her by the respondents. On the basis of the complaint summons were issued to all the respondents. It is the case of the aggrieved that she got legally married to respondent no.1, namely, respondent no. 1 on 16.02.2008. They had one girl child, namely, Priyanshi from the marriage who is in her care and custody and they both are residing at the aggrieved’s parental house. It is stated that in the marriage, parents of the aggrieved gave dowry as per their status to the respondents. Besides this valuable gold and silver jewelery was also given by the parents of the aggrieved to the respondents. The relatives of the aggrieved and respondent also gave gold and silver jewelery to the aggrieved. aggrieved stated that respondents kept all her istridhan illegally in her matrimonial house. She stated that after marriage she was brought to her matrimonial home where she and respondent no. 1 stayed as husband and wife. The attitude of the respondents was indifferent from the inception of marriage. respondent no. 1 would fight with her and shout at her on petty matters without any valid reason. All respondents misbehaved with her and maltreated her. She was taunted for bringing less dowry and was asked to bring more dowry from her parents. In July 2008, respondent no. 1 asked her to bring Rs. 2 lakhs from her parents and when the aggrieved refused to do so, she was beaten mercilessly by him with fists and blows and he also gave her a kick on her private part because of which she sustained a lot of pain. She said that after 6 months respondent no. 1 again asked her to bring Rs. 2 lakhs from her parents and when she complained to her in­laws, they supported respondent no. 1 and abused the aggrieved. They told her that respondent no. 1 was their only son and they were expecting more dowry in his marriage. She said that she was beaten by respondent no. 1 at instigation of other respondents. She told her parents about the same and her parents expressed their inability to meet the demand. She told the respondents about the inability of her parents, but they remained adamant and continued to harass and beat her. They tortured her both physically and mentally. She stated that when she was in the advanced stage of pregnancy, respondent no. 1 gave merciless beatings to her by fists and blows and after her delivery, she was again beaten by respondent no. 1 for not giving birth to a male child. She further said that respondent no. 1 had no love and affection towards her and their minor child and hence, in connivance with and at instigation of other respondents, he wanted to get rid of the aggrieved and do second marriage. She said that for this reason, respondent no. 1 also filed a case for divorce. aggrieved also filed a case before CAW Cell, Nanakpura on 23.11.2010, where respondent no. 1 agreed to take her back but till date he did not do so and later flatly refused to keep her as his wife. She said that respondent no. 1 did not pay any maintenance to her, for herself and the child. She was made to work like a maid whole day when she stayed with him. She tried to make him understand that he should care about her and their child’s welfare, but to no avail. She hoped that he would amend his attitude, but he did not do so. She submitted that her sister­in­law stole most of her costly belongings, but when she complained about the same to respondent no. 1, she was beaten mercilessly. She tolerated their behaviour for the sake of her marriage. She said that respondent no. 1 was a habitual drunk and under the influence of alcohol he would quarrel with her and beat her. She said that he spent his earnings on his drinking. On 8.10.2010 she was thrown out of her matrimonial house with her child with threats that till she got Rs. 2,00,000/­ she would not be allowed to reside with respondent no.

  8. Since then she has been residing on rent and is totally dependent upon her parents and other relatives for her day to day needs. She stated that respondent no. 1 has failed to maintain them even though he is working in a private company and earning about Rs. 70,000/­ per month. She said that she is unemployed. She has prayed for protection orders, residence orders, monetary relief, custody orders and compensation.

  9. Reply to the application was filed by the respondents. It is stated in the reply that the type of relief asked for by the aggrieved has not been specifically mentioned. It is further submitted that in the divorce case filed by the respondent no.1, aggrieved has stated that she wished to stay with him and did not want her articles back. It is further submitted that the present application is filed only to put pressure on the respondents and hence, must be dismissed. It is further submitted that respondent no. 1 Gulati has been disowned by his father. Respondent no. 1 has admitted that he got married with the aggrieved on 16.02.2008 and both of them have one girl child, namely, Priyanshi. However, respondent has stated that it was the aggrieved who left her matrimonial house with her father and took the child with her alongwith all her istridhan. He has stated that because of cruelty suffered by him, he has already filed a divorce petition under HMA before the court of Ld. ADJ, Karkardooma Courts. He has denied demanding any dowry from the aggrieved. He has stated that the amount spent by the parents of the aggrieved on the marriage was as per their desire. He stated that even after the marriage, he did not demand for any dowry. He has stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. Keeping in view all the circumstances, parents of respondent no. 1 disowned him by giving intimation to the concerned police authorities and also by way of publication. Respondent no. 1 stated that aggrieved used to quarrel with him and use filthy language and also used to shout at him. It is stated that her behaviour became intolerable for the respondents and also their neighbours to bear. He further stated that the word ‘brother­in­law’ used in para 5 is incorrect as respondent no. 1 does not have any brother. He stated that it is impossible to accept that on the first day of marriage, he and his parents quarreled with the aggrieved and passed wrong comments against her. He has denied that respondents demanded Rs. 2 lakhs from the aggrieved for which aggrieved has not filed any proof. It is submitted that nature of respondents is not such that they would demand any dowry and the allegations are made by the aggrieved only to defame them. Respondents have denied that they beat or tortured the aggrieved as it was not in their character to do so. It is further stated that there is no truth in the statement that respondents were unhappy on the birth of a female child. In fact, respondents stated that for them the birth of female child is considered as coming of Goddess Laxmi. He has stated that the allegations that he wanted to do a second marriage is false. Respondent no. 1 has stated that regular rudeness, habit of abusing the elders, raising hands on him and pushing his parents was the regular habit of the aggrieved for which she was asked to improve herself many times, but she did not improve. It is further submitted that complaint filed with CAW Cell reveals that no incident took place and the IO of the case had advised the aggrieved to improve. It is stated that Rs. 1500/­ to Rs. 2000/­ were being paid to the aggrieved as pocket money which has not been mentioned by the aggrieved. Respondent no. 1 has stated that from the very beginning aggrieved was not interested in marrying him. He stated that as soon as the parties came out of the CAW Cell, aggrieved abused respondents and hence, it was impossible for him to take her back to the matrimonial house. Respondent no. 1 had denied that the aggrieved was treated as a maid. Rather, he has stated, that she was given all the respect and honour which was beyond the expectations of her parents also. Respondent stated that aggrieved was never ready to amend her behaviour. It is denied that respondent Shakshi Gulati stole the articles of the aggrieved or that the aggrieved was beaten mercilessly. It is stated that no FIR was filed for the same. Respondent no. 1 has stated that brother of aggrieved also threatened him on the phone that he had the power to get him killed. Respondent stated that aggrieved and her brother used to visit his office often just to create an atmosphere so that he may be removed from service. Respondent no. 1 had stated that he has never consumed alcohol. It is further stated that one letter dated 08.10.2010 written by the aggrieved is self explanatory as to the fact that the aggrieved left her matrimonial home at her will. It is further stated that the aggrieved has mentioned in para no. (i) that she is residing with her parents, but in para XIX she has stated that she is residing on rent. No rent receipt has been filed. It is further stated that address provided by the aggrieved is of her parents which implies that she stays with her parents. Respondent no. 1 has stated that he loves his daughter a lot and has requested aggrieved to allow him to see her, but she has declined. Respondent denied that he draws salary in the sum of Rs. 70,000/­ per month. He has stated that aggrieved is also qualified and working in a private firm of her relative and earning good salary. It is stated that aggrieved is not entitled to any reliefs under the Act.

COMPLAINANT’S EVIDENCE

  1. In her affidavit Ex.CW1, aggrieved has reiterated the contents of the complaint. She has further filed list of dowry articles as Ex.CW1/A. She has filed one copy of complaint filed with CAW Cell, Nanak Pura as Ex.CW1/B. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

During her cross examination, she stated that she had not filed any bills with regard to the articles which were given by her father in the marriage. She has further stated that no jewelery bills have been filed. She has further stated that she has not mentioned the name of any person in whose presence she was beaten or the date on which she was beaten. She has further stated that she has not filed any proof of the same. She has stated that she did not know of any brother­in­law about whom she has mentioned in the affidavit. She stated that even though she is a graduate, she is weak in English language. She has denied the suggestion that because of this reason, name and date of persons who had beaten her up, were not mentioned in her affidavit. She has stated that it was her who had stated the contents of the affidavit to her counsel. She further could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. She further said that on the very next day of her marriage, respondent no. 1, 2 and 3 started taunting her and harassing her by saying that her father had not given a Sofa in marriage. She said that the Sofa was given later in the marriage. She admitted that the said fact is not mentioned in her affidavit. She did not file any complaint with regard to the items allegedly stolen by her sister­in­law (respondent no. 4) nor has she filed any list with the court. She said that the items stolen by respondent no. 4 in the month of January/February 2009, were lying in the locker of her Almira the keys of which used to be with her husband. She said that the entire jewelery received by her in the wedding was in that locker. She denied the suggestion that she was not treated like a maid or that she did not do the entire household work. She admitted that she had never seen her husband drink alcohol, but she had seen him several times in drunk condition when he returned home. She could not remember any date when he had done so. She said that she had never complained to her in laws regarding the same. She admitted that she had not mentioned in her complaint given at PS Lodhi Road and PS Jagatpuri that her husband used to drink. She has further admitted that she did not write in these complaints about the beatings given to her for demand of Sofa by respondents. She said that the respondent no. 1 used to spend his entire income on alcohol as he used to say that himself. She was given Rs. 1500/­ per month for running the house. She said that she used the amount for taking care of herself and her daughter. Other expenses were borne by father of respondent as it was a joint family. She admitted that her father­in­law retired much before her marriage. She said that she was told by her husband that the expenses were borne by his father, but she did not verify the same. She said that she did not know whether these facts are mentioned in her affidavit or not. She said that her husband and father­in­law demanded Rs. 2 lakhs from her in July 2008, but she did not remember the exact date. She further had no proof that she was thrown out of the matrimonial house on 08.10.2010. She again said that complaint had been filed at PS Jagatpuri, but the said fact was not mentioned in it. She said that she did not file any rent receipt or gave address of premises on which she was residing as tenant. She said that she had not filed any receipt of the play school in which her daughter is going. She did not remember the exact salary of respondent no. 1. She said that she did not take her daughter to any doctor after the incident of throwing of her daughter as mentioned in Ex.CW1/B. She did not know of any girl whom her husband wished to marry. She said that she was not working prior to her marriage, but she had got one FD on 07.08.2013 amounting to Rs. 1.5 lakhs in her name. She denied the suggestion that she used to assist her father in his business and got income for herself. She denied the suggestion that she is working even today. She said that it is mentioned in her complaint that she was going to her parent’s house on her own with her father. She admitted that she returned to her parental home on 08.10.2010 with her father. She said that by sexual violence, she meant that her husband used to force sexual activities upon her. She did not remember the date when motorcycle was demanded from her. She said that Rs. 2 lakhs were again demanded, but she did not remember the date, time or the year. She admitted that on 0810.2010, she called the police and on the same day went to her parent’s house with her father. She admitted that she had not filed any bills with regard to Ex.CW1/A. She admitted that when she was pregnant, she was beaten by respondents, but she did not file any complaint. She admitted that respondents had agreed before CAW Cell that they would take her back to the matrimonial home, but she denied the suggestion that she objected to the same. She said that her husband used to drink often, but not regularly. She denied the suggestion that she herself was non­ cooperating, both at Delhi and Lucknow. She denied the suggestion that at Lucknow her neighbor met her for keeping good behaviour with respondent. She denied the suggestion that she left her Lucknow matrimonial home and returned to Delhi without informing anyone. She said that she came with her husband. She admitted that she had told her husband that she wished to stay in Delhi and not Lucknow. She admitted that she came to Delhi from Lucknow 2­3 days before 08.10.2010.

No other witness was examined in CE.

RESPONDENT’S EVIDENCE

  1. One witness i.e respondent himself was examined in RE. He tendered his evidence by way of affidavit Ex.RW1/A and relied on copy of letter dated 23.11.2010 (Mark A), copy of istridhan articles of aggrieved (Mark B), Copy of letter dated 08.10.2010 written by aggrieved (Mark C).
  • RW 1 has reiterated the contents of his WS in his affidavit Ex.RW1/A. In addition, he has stated that aggrieved left the matrimonial home with their daughter. It is stated that she went with her father on her own and took all her articles with her. It is further submitted that because of her cruelty, respondent no. 1 had filed divorce petition. It is further submitted that no demand for dowry was ever raised from the aggrieved or her parents as the same was against law. The amount spent on the marriage was as per the desires of aggrieved and her parents. He stated that the aggrieved regularly quarreled with him and used filthy language. He stated that she shouted on him and his parents and this behaviour was regular on part of the aggrieved. Respondent no. 1 stated that the present case has been filed only to defame him and his family. He has stated that there was no reason for him to demand Rs.2 lakhs from the aggrieved. Aggrieved has not filed any proof for the said demand. He stated that the allegations on him that he beat the aggrieved with fists and blows and also gave her a kick are false. Rather, he stated that it was the aggrieved who used to behave like this. He has stated that no proof has been filed by the aggrieved for the same. He stated that he never intended to go for a second marriage and because of the continued misbehaviour of the aggrieved he was forced to file a divorce petition. Certain documents are filed by respondent no. 1, but the same are photocopies and cannot be read in evidence. He said that from the very beginning aggrieved was not interested in marrying him and thus, not interested in living with him.

  • During his cross examination, he stated that since aggrieved left the matrimonial house in October 2010, she had been staying with her parents. He said that he had never beaten or harassed the aggrieved after marriage and he never demanded Rs. 2 lakhs from her. He said that it was not his family’s habit. He said that aggrieved left the matrimonial home on her own by giving in writing to police authorities that she was leaving her matrimonial home with her father. He said that there was only one complaint filed with CAW Cell, which was withdrawn by the aggrieved subsequently. He said that the complaint filed at PS Lodhi Colony was sent back after reconciliation. He further stated that he had filed a divorce petition in Karkardooma Courts on the ground of cruelty and misbehaviour. He denied the suggestion that because he wanted to remarry, he had filed the divorce petition. He denied the suggestion that because he wanted to remarry, he had harassed and beaten the aggrieved.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    LEGAL PROVISIONS TO BE SEEN:

    1. In order to claim any Relief under the Act, it is imperative for the aggrieved person to show that she shared a domestic relationship with the respondent and she was subjected to domestic violence during the said period.
  • As per the Act, domestic relationship which is defined in section 2(f) 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.

  • As per section 2(s) of the said Act, shared household means a household where the person aggrieved lives or has at any time lived in a domestic relationship with the respondents. Shared household means a house belonging to or taken on rent by the husband or the house which belongs to joint family of which husband is a member 1.

  • In the definition of domestic violence u/s 3 of the Act, it is stated that there must be an act, omission or commission or conduct of respondents 1 Neha Jain & anr. v. Gunmala Devi & Anr. RSA 282/2015 decided on 30.7.2015 which amounts to domestic violence. To constitute Domestic Violence, the conduct of the respondents should be such as to imply that the aggrieved was harassed or tortured by the said act. It is stated u/s 3 (a) of the Act, that there must be harm or injury or endangering the health, safety, life, limb or well being, whether mental or physical of the aggrieved, to cause physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Section 3 (b) provides that domestic violence shall also be committed if the respondent 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 dowry. Section 3 (c) of the Act provides that conduct mentioned in clause (a) and clause (b), if, has the effect of threatening to the aggrieved or any person related to her, may amount to domestic violence. Section 3 (d) of the Act, provides that to constitute domestic violence, there may be physical or mental injury or harm caused to the aggrieved person. In the explanation to Section 3 physical abuse, sexual abuse, verbal and emotional abuse and economic abuse have been defined.

  • Domestic violence is defined in section 3 of the Act as any act or omission on part of the respondent which causes physical, sexual, verbal, emotional and economic abuse to the aggrieved or an act or omission which 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 an act which threatens or which causes physical or mental harm to the aggrieved.

  • ANALYSIS OF SUBMISSIONS IN VIEW OF THE LEGAL PROVISIONS:

    1. PWDV Act contemplates Domestic violence in the nature of harassment for dowry demand or physical abuse or verbal or emotional abuse or sexual abuse or economic abuse or all of these including threatening.
  • In order to see whether domestic violence was inflicted upon the aggrieved, it is important to see whether she was abused in any way as stated in the Act, and the same would be clear from her complaint and evidence of parties. The abuses are dealt with separately as under:

  • (i) Harassment for dowry demand: In the complaint aggrieved has stated that she was harassed again and again to get Rs. 2 lakhs from her parents. During her cross examination, she stated that she could not file any bills with regard to any articles given by her father in marriage. She stated that she had mentioned the name of the person and the date on which the dowry was demanded from her. On perusal of her affidavit, she had stated that she was harassed by her in laws for bringing less dowry. Then she had stated that respondents fought with her and shouted on her on petty matters without any reason. She had stated that in July 2008, respondent no. 1 asked her to bring 2 lakh from her parents, but when she objected, she was beaten. Then after six months respondent no. 1 again demanded Rs. 2 lakhs. When she again refused, she stated that she was abused by all the respondents saying that respondent no. 1 was their only son and they were expecting much more dowry. When she told her parents about the same, they expressed their inability to fulfill the demand. She has further stated that respondent no. 1 was a habitual drunk and neglected to maintain her and respondent no. 2 and 3 used to exert pressure upon her to bring Rs. 2 lakhs cash. During her cross examination, she has stated that on her next day of marriage, she was taunted by respondent no. 2 and 3 for not bringing a Sofa in the wedding. No demand of Sofa is mentioned in the complaint and the same appears to be an after thought. She admitted that she had not seen her husband drinking alcohol, but she said that she had seen him in drunk condition. She said that dowry was demanded in July 2008, but she could not remember the exact date. She said that when the second time Rs. 2 lakh were demanded, she could not remember the date, time and year. However, respondent in his affidavit has stated that no dowry was demanded from the aggrieved as it was not in his nature to do so. He has further stated that no explanation has been given by the aggrieved as to why the dowry was demanded. He has further stated that the allegations are vague. Respondent in his cross examination has stated that he never demanded Rs. 2 lakhs from the aggrieved. There has been no further cross examination of the respondent on this point. Thus, this fact stands admitted that there was no demand for dowry and hence, proved. Further considering that the allegations with regard to beatings and harassment are also vague,it cannot be said that the aggrieved was ever harassed for dowry. Allegations of dowry demand are serious in nature and without proper proof, it cannot be said that respondent no. 1 demanded dowry from aggrieved. The allegations od dowry demand and harassment are vague. Aggrieved could not state as to who demanded dowry from her, when the same was demanded and why wasit demanded. Two demands of Rs. 2 lakhs have been stated, but they are six months apart. It cannot be said that she was harassed or tortured for dowry.

    (ii) Physical abuse: It means any act or conduct which is of such a nature as to cause bodily harm to the aggrieved person and includes assault, criminal intimidation and criminal force. In the present case, even though the aggrieved has stated that she was beaten by the respondent, but the bodily harm that might have been caused to her has not been proved. It was on the aggrieved to prove that she received physical injuries because of conduct of respondent but she has not been able to prove even one injury. She could not tell the names of persons in whose presence she was beaten nor when she was beaten. She herself admitted in her cross examination that she had not filed any proof of the same. She could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. It is hard to believe that if a person was beaten on the first day of marriage, she would not remember who did it, unless it was someone she did not know. Thus, aggrieved has not been able to prove physical abuse.

    (iii) Verbal and Emotional abuse: It includes insults, ridicule, humiliation, name calling or insults or ridicule specially with regard to not having a child or a male child. In her complaint, aggrieved has stated that after the delivery of her child, she was beaten by respondent no. 1 mercilessly for not bearing a male child. It is further stated that respondent no. 1 had no love and affection towards the minor child as he was unhappy as the child was a girl and not a boy. She has stated the same in her affidavit. It is further submitted by the aggrieved that respondent did not give any maintenance for the child. It is submitted by the respondent in his reply that birth of a female child for him, was like coming of Goddess Laxmi. He has further submitted in his evidence that he used to give Rs.1500/­ to Rs. 2000/­ for maintenance of his wife and daughter, which has been admitted by the aggrieved in her cross examination. Further the aggrieved had not stated as to when after the delivery of her child was she beaten by respondent no. 1 and if she was beaten mercilessly why did she not get herself medically examined. Also she had stated that she was beaten by respondent no. 1 for not bearing a male child, but it is not stated that respondent told her so that he did not want a made child. However, since she has not been cross examined on this point, it appears that the respondent admitted the same. However, respondent has stated in his affidavit that he considered the birth of a daughter as coming of Goddess Laxmi and he also used to give maintenance for maintaining his wife and daughter. He has not been cross examined on this point and thus, this fact stands admitted. Considering that there are two contradictory facts which stand admitted, other evidence has to be seen to examine whether the respondent no. 1 actually harassed the aggrieved for not bearing a male child. The aggrieved and respondent both have admitted that respondent no. 1 gave maintenance for the girl child, hence, it cannot be said that he was against the birth of the girl child. On preponderance of probabilities, this fact weighs in favour of respondent no. 1.

    (iv) Sexual abuse: It includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. In the present case, there are no such allegations. In her complaint, aggrieved has not made any allegations with regard to sexual abuse. No complaint has been made in her affidavit with regard to sexual abuse. Only in para 28 of her affidavit, she has written that respondent no. 1 may be directed not to repeat violence (physical, mental and sexual). Aggrieved has stated in her cross examination that by sexual violence, she meant that her husband used to force sexual activities upon her. Considering that there are no allegations whatsoever of sexual abuse, one statement of the aggrieved in her cross examination that her husband used to force sexual activities upon her is not relevant.

    (v) Economic abuse: Economic abuse means deprivation of economic or financial resources to which aggrieved is entitled. It is admitted fact that respondent no. 1 used to pay maintenance to her and their daughter and he did not deprive her of any financial resources. Further it is admitted fact that she left her matrimonial home on her own, thus it cannot be said she was deprived by the respondents of the financial resources. Further from the order of this court dated 21.05.2012, it is clear that u/s 24 HMA, aggrieved is already getting maintenance @ Rs. 7000/­ per month from the respondent no. 1 and she does not have any right to claim additional maintenance under the Act. However, in her affidavit, she has stated that respondent no. 1 did not care about her and neglected to pay any amount towards her and her child’s maintenance. This statement is false considering that u/s 24 HMA, aggrieved has already been granted maintenance. Also while the parties were in domestic relationship, admittedly respondent no.1 was giving Rs. 1500/­ to Rs. 2000/­ to her as pocket money and other respondents were maintaining the household expenses. Thus, there appears to be no economic abuse.

    (vi) Threatening the aggrieved with regard to above stated abuses: There are no allegations with regard to any threats.

    (vii) Physical or mental harm: It means any injury or harm, whether mental or physical, caused to the aggrieved person. No medical has been filed by the aggrieved to show any physical harm suffered by her. As far as mental harm/injury is concerned, it appears that she was mentally disturbed by the fact that respondents allegedly were demanding dowry and that she got the impression that respondent no. 1 wanted to remarry. Respondent no. 1 has categorically stated that he never wanted to remarry and he had filed for divorce only because he was tired of the misbehaviour of the aggrieved. Considering that there was no dowry demand, no harassment and no physical abuse suffered by the aggrieved, it cannot be said that she suffered any mental harm or injury. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    1. From the entire evidence on record, allegations of the aggrieved have not been proved. They are vague in nature and sufficient proof has not been brought on record. On the other hand, respondent no. 1 has filed his affidavit completely denying the allegations of the aggrieved and he has not been cross examined on those points. It is clear from the evidence that the aggrieved left her matrimonial home with her father at her own will and she was not thrown out. She has herself stated that she came from Lucknow and after 2­3 days let her matrimonial home. No explanation is given by her. It appears that when she came from Lucknow, she had made up her mind that she would leave her matrimonial home. Further respondent in his cross examination stated that she left the matrimonial house and gave in writing to the police authorities that she was leaving her matrimonial home with her father. Respondent has not been cross examined on this point. Aggrieved has stated at one place that she was living on rent, but at other place, she has stated that she is living with her parents. Contradictory statements make her testimony unreliable. Respondent no. 1 has further stated that there was only one complaint in CAW Cell which was withdrawn by the aggrieved, but aggrieved has stated in her affidavit that he had agreed to take her back, but later flatly refused to do so. Respondent in reply stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. He further stated in his cross examination that one complaint was also filed at PS Lodhi Colony, but he same was not lodged and aggrieved was sent back after conciliation. Aggrieved has also stated that her sister­in­law stole her articles from her Almirah, but she has stated that keys of the Almirah were with her husband. It appears that she has made unncessary/baseless allegations against her sister­in­law just to drag her in the present matter. No FIR/complaint was filed for loss of articles. No reason is given as to why she suspencted her sister in law. It is evident that aggrieved has made false allegations against her sister in law.
  • In view of the above analysis of submissions, on preponderance of probabilities, it cannot be said that respondents committed domestic violence upon the aggrieved. Hence, her complaint u/s 12 PWDV Act is dismissed. No relief as contemplated under the Act is allowed to the aggrieved.

  • In view of the above observations the present application u/s 12 PWDV Act is disposed of.

  • Pronounced in open court
    (BHAVNA KALIA) on 19.11.2016
    M.M./(Mahila Court)­01/South District New Delhi

    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 !!

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    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


    Practicing Advocate wife with 8 bank accounts gets 30 K pm. Exposed during appeal @ Allahabad HC

    A practicing advocate wife files DV and also manages to get a Rs 30000 p.m. maintenance award. She seems to have completely hidden her earnings and assets at the sessions / magistrate court proceedings. Further, her frauds are exposed during this appeal at the HC

    “…32. In any case it has come on record that wife has become Advocate and she has number of accounts (approx eight), as such, matter requires reconsideration. Amount has to be fixed, keeping in view the income of the husband as well as income of the aggrieved person requiring her to live with the standard of living to which person is accustomed. …”

    “…33. It is apparent that Prathama Singh is appearing as counsel in number of cases. She is a regularly practicing Advocate, consequently, courts below are required to consider the matter afresh in the light of documents, which have been placed before the Court. Revision thus deserves to be allowed. …”

    Not only is the wife well qualified and earning well, she seems to have used as counsel, ppl using fradulent means to hoodwink the courts “…34. It has been brought to the notice of this court that Pankaj Tiwari and Pal Singh Yadav appeared on behalf of Prathama Singh by using different enrollment numbers. …” !!!

    “…35. Problem is compounded further by Shri Shiv Pal Singh, who filed an affidavit through Sri Ravi Shanker Tiwari. Shiv Pal Singh in his affidavit states that he was shocked to know that his name and enrolment number was used by lawyers. He states in para-5 of the affidavit that he does not know either Prathama Singh or Pal Singh Yadav, who have used his enrolment number. In para-6 of affidavit, it is stated that Pal Singh Yadav has not only used the enrolment number but has also used the name of counsel in different cases. ….” !!!

    “..40. Moreover enrollment number of other Advocates are being used brazenly with impunity not only before this Court but other courts of district Lucknow.

    41. Prima facie, it appears to be a case of impersonation using somebody else’s name and identity. A fraud has been done, which is apparent from the record….”

    “…46. Since fraud appears to have been played while filing petition under Section 12 of D.V. Act by concealing material facts in the ends of justice exercising power under Sections 397/401 & 482/483 Cr.P.C., order dated 02.09.2015 passed by Additional Sessions Judge, Court No. 17, Lucknow as well as order dated 25.06.2014 passed by learned Additional Chief Judicial Magistrate-II, District Lucknow are set-aside. Concerned Magistrate is directed to decide the application under Section 12 of D.V. Act considering the entire matrix of the case, in the light of observations made in the judgment, expeditiously, if possible within two months from today. …”

    “…49. Senior Registrar will get the Vakalatnama available in this file sealed and an F.I.R. lodged against Pal Singh Yadav for impersonation, stealing and using the identity of other Advocate by using his name and enrolment number. ….”

    ==========

    HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

    (Reserved)

    Case :- CRIMINAL REVISION No. – 879 of 2015

    Revisionist :- Chiranjeev Kumar Arya

    Opposite Party :- State Of U.P. & Another

    Counsel for Revisionist :- Ranjana Srivastava,Ratnakar Rao,Vinay Tripathi

    Counsel for Opposite Party :- Govt. Advocate,Pankaj Tiwari,Shri Pal Singh Yadav

    Hon’ble Sudhir Kumar Saxena, J.

    1. This revision has been filed by husband aggrieved with the order dated 02.09.2015 passed by Additional District & Sessions Judge, court No. 17, Lucknow under Section 29 of Protection of Women from Domestic Violence Act, 2005 (in short ‘the Act’).
    2. It appears that Prathama Singh claiming to be the wife of present revisionist filed an application under Section 12 of the Act before learned Magistrate, Lucknow. Application was allowed by learned Magistrate ordering Rs. 1000/- per month as interim maintenance. An appeal was filed against said order by the wife of revisionist claiming maintenance @ Rs. 30,000/- per month. Said appeal has been allowed by Additional Sessions Judge, Court No. 17, Lucknow on 02.09.2015. This very order has been challenged in revision.

    3. I have heard Smt. Ranjana Srivastava, learned counsel for revisionist and Sri Pankaj Tiwari, learned counsel appearing for respondent.

    4. A preliminary objection has been raised by Sri Pankaj Tiwari that revision against the order passed in appeal under Section 29 of the Act would not be maintainable. He has relied upon the judgment of Hon’ble Apex court given in Criminal Appeal No. 2070 of 2014, Shalu Ojha vs. Prashant Ojha in which Hon’ble Apex Court while discussing the scheme of D.V. Act in para-27 has been pleased to observe as under: “It can be seen from the DV Act that no further appeal or revision is provided to the High Court or any other Court against the order of the Sessions Court under Section 29.”

    5. Under Section 12 of the Act, application is filed before Magistrate. Magistrate has power to pass protection order under section 18, residence order under section 19, monetary relief order under Section 20, custody order under section 21 and compensation order under Section 22 of this Act. Under Section 23 of the Act, Magistrate can pass ex-parte interim order as it deems fit and proper. Appeal is provided under Section 29 of the Act. Section 28 provides that proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and offence made under section 31 shall be governed by the Code of Criminal Procedure. Section 31 provides for penalty for breach of orders. Such offences have been made non-cognizable and non- bailable under Section 32 of the Act. Section 29 of the Act is being reproduced below: “Section 29: There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be whichever is later.”

    6. From the above it is apparent that orders passed by Magistrate are to be governed by the procedure prescribed under Cr.P.C. and said order can be challenged in appeal before the court of session. Court of session is admittedly an inferior/subordinate criminal court to High Court. Section 397 of Cr.P.C. enables High Court or session court to call for record of any proceeding from any inferior criminal court.

    7. Section 397 Cr.P.C. is being reproduced below:- “Calling for records to exercise of powers of revision;- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

    8. Hon’ble Apex Court in the case of Thakur Das (Dead) by Lrs. vs. State of Madhya Pradesh and another (AIR (1978) 1 SCC 27 ) while interpreting the provisions of section 6 of Essential Commodities Act, 1955, has held in para-11, as under: “We are accordingly of the opinion that even though the State Government is authorized to appoint an appellate authority under Section 6C, the legislature clearly indicated that such appellate authority must of necessity be a judicial authority. Since under the Constitution the courts being the repository of the judicial power and the officer presiding over the court drives his designation form the nomenclature of the court, even if the the appointment is made by the designation of the judicial officer the appellate indicated is the court over which he presides discharging functions under the relevant Code and placed in the hierarchy of courts for the purposes of appeal and revision. Viewed from this angle, the Sessions Judge, though appointed an appellate authority by the notification, what the State Government did was to constitute an appellate authority in the Sessions court over which the Sessions Judge presides. The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal court in relation to High Court. Therefore, against the order made in exercise of powers conferred by S. 6C. a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under Sections 435 and 439 of the Code of Criminal Procedure 1898 which was in force at the relevant time and such revision application would be competent.” (Emphasis Supplied)

    9. It is true that there is no provision in the Act providing further appeal or revision before the High Court against the order passed by the Court of session in appeal under Section 29 of the Act. However, no finality has been attached to the order passed under Section 29.

    10. Breach of the order passed by the Magistrate or Sessions Judge is punishable under Section 31 of the Act and procedure prescribed in the Cr.P.C. has been made applicable by virtue of section 28 of the Act. Moreover, proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act are also governed by the Cr.P.C. Nothing otherwise has been provided in the Act like attaching finality to the order passed by the Magistrate or Sessions Judge or excluding further recourse. Courts of Session are established under Section 9 of Cr.P.C. Presiding Officer of Sessions court is appointed by the High Court. High court has also been empowered to appoint Additional Sessions Judge and Assistant Sessions Judge.

    11. Sections 397 and section 401 Cr.P.C. prescribe revisional powers of High Court. Section 397 Cr.P.C. contemplates that revisional power can be exercised by the High Court not only on the application of aggrieved person but also suo moto.

    12. Section 4 (2) of Cr.P.C. provides that all offences under any other law (other than I.P.C.) shall be investigated, inquired into, tried and otherwise dealt with according to provisions of Cr.P.C. Section 4 of Cr.P.C. is being reproduced below:  “4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

    13. It is thus, apparent that the supervisory power or revisional jurisdiction of the High Court has not been excluded by any provisions of the D.V. Act expressly or impliedly.

    14. Thus, revisional power of the High Court is not dependent upon any other statute providing for offences unless there is a specific exclusion of Cr.P.C.

    15. A Division Bench of Allahabad High Court in case of Shafaat Ahmad vs. Smt. Fahmida Sardar, AIR 1990 All 182, while considering the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, has laid down that this Act is silent so far as revisional power is concerned but it is of no consequence as Act does not exclude the application of Cr.P.C. Para-2 of the judgment is being reproduced below: “A preliminary objection has been raised on behalf of the wife that the revision is not maintainable and the learned counsel for the wife has referred to the case of A.A. Abdullah. AIR 1988 Guj 141. In this case some other point was under consideration and casually to support the argument that the matter should be disposed of expeditiously the single Judge of Gujarat High Court observed that it would be worthwhile to note that no appeal or revision is provided against the order passed by the Magistrate under Section 3 or 4 of the Act. The learned Judge was not deciding the point whether revision is maintainable or not. This stray observation was made casually while considering other point. Hence, it appears that this point was not properly debated and this stray observation cannot be of much help. The simple thing is that under the Act this order is passed and was passed by the Magistrate. Section 397 of the Code of Criminal Procedure provides that the High court may call and examine the record of any proceedings before any inferior criminal court and the Court of the Magistrate is an inferior criminal court. Hence, there is no reason why the order should not be revisable by the High court. The fact that it has not been said in the Act that the order is revisable, is of no consequence. A provision need not be made in every Act and it is sufficient if it is provided in one Act. The Act provides that the order is to be passed by the Magistrate and the Cr.P.C. provides that the order of the Magistrate can be revised by the High Court. The Act does not exclude the application of the Cr.P.C. So, Cr.P.C. has to be given effect and the order passed by the Magistrate under Section 3 of the Act becomes revisable in view of the provisions in the Cr.P.C.. Therefore, the preliminary objection is rejected.” (Emphasis Supplied)

    16. Similar question was raised before Hon’ble Kerala High Court in Crl. M.C. No. 969 of 2010 (Baiju and another vs. Latha and others) wherein Hon’ble Thomas P. Joseph (J) has held in Para-16 of the Judgment as under: “The next question is whether the judgment of the Court of Sessions in an appeal under Section 29 of the Act is amenable to the revisional jurisdiction of the High Court under Section 397(1) and 401 of the Code. I stated that the appeal is governed by the provisions of the Code though right of appeal is provided by Section 29 of the Act. The Act does not say that judgment of the Court of Sessions is subject to challenge before any other court. Under Section 397(1) of the Code, High Court may call for and examine the records of any proceeding before any inferior criminal court. A Court of Sessions is a criminal court inferior to the High Court for the purpose of exercise of revisional power under Section 397(1) and 401 of the Code. Section 397 (1) of the Code empowers the courts specified therein to call for records of the inferior criminal court and examine them for the purpose of satisfying themselves as to whether a sentence, finding or order of such inferior court is legal, correct or proper or whether the proceedings of such inferior court is regular. The object of conferring revisional power is to give the superior criminal courts supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury in the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. The power of revision is supervisory in character enabling the superior courts to call for records of the inferior criminal courts and examine them for the purpose of satisfying themselves that the sentence, finding, order or proceeding of such inferior court is legal, correct or proper. The Allahabad High Court in Shafaat Ahmad vs. Smt. Fahmida Sardar (AIR 1990 All. 182) considered whether an order under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act is revisable under Section 397(1) of the Code.”

    17. Hon’ble Kerala High Court relied upon the judgment of Division Bench of Allahabad High Court in Saman Ismail vs. Rafiq Ahmad and another (2002 Cr.L.J. 3648) in which, it was held that even if, Act does not provide any procedure of the revision Magistrate being criminal court, his order is amenable to revisional jurisdiction.

    18. Brother Hon’ble Manoj Misra, J. in Crl. Misc. Writ Petition No. 15337 of 2012 (Prabhunath Tiwari & another vs. State of U.P. and another) has held that order passed in appeal under Section 29 of the Act is amenable to revisional jurisdiction. Relevant para is being quoted below: “Having considered the preliminary objection raised by learned A.G.A. as also on perusal of the provisions of Section 28, 29 and 31 of the Protection of Women from Domestic Violence Act, 2005, I do not find any provision under the said Act, which may provide finality to an order passed in exercise of powers under Section 29 of the Act. Moreover, as the proceedings under Section 31 of the Protection of Women from Domestic Violence Act, 2005 are governed by the provisions of the Code of Criminal Procedure, 1973 as revision would be maintainable before the High Court against the appellate order passed by a Court of Session in exercise of power under Section 29 of the Act.”

    19. Madurai Bench of Madras High Court in Crl. R.C. (MD) No.287 of 2012of (Arivazhagan vs. M. Uma and others) has held that a criminal revision against the order passed by Magistrate was not maintainable as he has an alternative viable remedy of an appeal as per Section 29 of the Act. This decision, therefore, does not deal with relevant point.

    20. In the case of Shalu Ojha vs. Prashant Ojha (supra) there was a protection order passed by Magistrate awarding Rs. 2.5 lacs towards monthly maintenance, an appeal was preferred under Section 29 of the Act. In appeal an interim order was passed by Additional Sessions Judge. Appeal was dismissed for non compliance of the interim order. Matter was taken to High Court and ultimately to Apex Court. No question whether order passed in appeal was revisable under Section 397 Cr.P.C. was before the Court. It has been stated in the above case that in D.V. Act no further appeal or revision has been provided to the High Court. Relying upon these observations this Court (Hon’ble Mahendra Dayal, J.) has held that no further appeal or revision is maintainable. Relevant paragraph of the judgment passed in Writ Petition (M/S) No. 7926 of 2015 ( Mrs. Manju Sree Robinson & 2 others vs. State of U.P. and others) is reproduced below: “Having heard learned counsel for the parties and having gone through the case laws relied upon by the parties, I find that the latest pronouncement of the Hon’ble Supreme Court is that against the order passed by the Session Judge in appeal, no further appeal or revision is maintainable. In these circumstances, the only remedy available is to file writ petition or an application under Section 482 Cr.P.C. Since the jurisdiction of this Court under Article 226 of the Constitution of India is an extra ordinary jurisdiction, the aggrieved party has a right to seek remedy under section 482 Cr.P.C. would be maintainable. At this stage, Mr. Lalit Shukla submits that the writ petition may be treated as an application under Section 482 Cr.P.C., to which learned counsel for the opposite party no. 2 submits that this writ petition should be dismissed and liberty be given to the petitioners to file application under section 482 Cr.P.C. Since this exercise would amount to further delay in the matter therefore, in the interest of justice, the petitioners are permitted to convert this writ petition into application under Section 482 Cr.P.C.”

    21. Hon’ble Apex Court has only said that in D.V. Act no further appeal or revision has been provided.

    22. Code of Criminal Procedure has not been excluded in the D.V. Act. Since, High court’s supervisory power of revision which it can exercise suo moto against the order passed by subordinate criminal courts i.e. Magistrate or Sessions Judge has not been taken away, this court is of the view that observation made by Apex Court has been wrongly interpreted and the view taken by Hon’ble Manoj Misra, J. in the case of Prabhu Nath Tiwari (supra) appears to be a correct law. Division Bench of this court referred above was not placed before Hon’ble M. Dayal, J. Consequently, this Court is of the opinion that Sessions Judge being subordinate/inferior criminal court to the High court and there being no specific exclusion of the Cr.P.C., the revisional power of the High Court, against the order passed under Section 29 of the D.V. Act are intact and unaffected. In view of above, preliminary objection raised by Sri Pankaj Tiwari is overruled.

    23. So far as merits are concerned, it has been alleged in the application filed under Section 12 of D.V. Act that applicant Prathama Singh was married to Chiranjeev Kumar Arya on 28.02.2009. She was serving as teacher on contract basis in Kasturba Gandhi Residential Girls School, Nindura, Barabanki, which job she left on 19.08.2010. She came to know on 21.03.2011 that her husband has established illicit relations with other lady. She was turned out on 21.03.2011 from her husband’s house and thereafter she took admission in Narvdeshwar Mahavidhyalaya, Lucknow. Her father has retired while husband is earning nearly Rs. 3,64,000/- per annum. She is residing in rented house and preparing for judicial service etc. She claimed Rs. 30,000/- per month apart from Rs. 5,00000/- (five lacs) as lump sum amount. It was also stated in para-22 of the affidavit that against the husband petition under Section 125 Cr.P.C. and petition under Section 24 of Hindu Marriage Act have been filed, while husband has filed case under Section 13 of Hindu Marriage Act.

    24. Learned Magistrate in its order dated 25.06.2014 has observed that Family court has already ordered payment of Rs. 2000/- per month as interim maintenance. A sum of Rs. 1000/- per month was ordered by the Magistrate under D.V. Act.

    25. An appeal was filed by wife against the order passed by Magistrate, which has been allowed on 02.09.2015 by Additional Sessions Judge, Lucknow.

    26. Appellate Court was of the view that income of the husband comes to Rs. 30,000/- per month while wife is staying in rented house as such amount of Rs. 5000/- per month would be just and proper towards maintenance.

    27. In the revision filed in this court, it is alleged that parents of wife are residing in Barabanki while in-laws at Hardoi, as such, there is no justification for her to live in Lucknow. Copy of the order whereby service of Prathama Singh was terminated shows that she was found to be indiscipline, negligent and mischievous (Upadravi). It is further submitted that despite repeated request she did not stay in Hardoi, as such, husband had to file a petition for divorce on 22.04.2011 before Family Court, Hardoi, which was transferred to Family court, Lucknow. It is stated in para-14 that she is a Science teacher, runs a coaching from which she earns Rs. 25,000/- per month. She is an advocate and has willingly deserted her husband (para-15). In para-16 it is specifically mentioned that wife has strong financial position. She has six accounts in different banks namely UCO bank, Lalbhag, Aliganj, United Bank of India etc. Details of the account number and amount lying in the said accounts, have also been given, which shows that there is a one recurring deposit account, two fixed deposit account and rest are saving account.

    28. A short counter affidavit has been filed by Smt. Pathama Singh. In short counter affidavit, it is stated that income of husband is more than Rs. 40,000/- per month. The order for terminating her services was subject matter of writ petition No. 6076 (S/S) of 2010, said writ petition was disposed of directing District Magistrate to decide the matter within one month after giving opportunity to the petitioner.

    29. Smt. Prathama Singh however, has not denied the allegation made in para- 15 & 16 to the effect that she is an advocate having number of accounts in various banks.

    30. Rejoinder affidavit has been filed by husband, in which it is stated that petition was filed concealing the fact that she is an Advocate and she is an earning member. Moreover, she was terminated because of her character and conduct, as is apparent from the termination order and not because of domestic violence as alleged by her. It is further stated that the transfer application seeking transfer of the matter from Family Court, Hardoi to Lucknow was filed by Pal Singh Yadav (Enrolment No. UP-6850 of 2007) and Awadhesh Kumar Yadav. Enrolment number shown by Pal Singh Yadav belongs to Sri Shiv Pal Singh, Advocate, as such, Pal Singh Yadav has used the enrolment number of another counsel i.e. Sri Shiv Pal Singh. Actual enrolment number of Pal Singh Yadav is U.P.-04987 of 2014. It is apparent from papers filed alongwith supplementary affidavit by Chiranjeev Kumar Arya-revisionist, that Prathama Singh, Shiv Pal Singh & Pal Singh Yadav were Advocates for petitioner, and petition was dismissed on 29.05.2015. In writ petition No. 1065 (M/B) of 2015, it has been shown that Prathama Singh and Pal Singh Yadav were counsel for petitioner.

    31. Submission of learned counsel is that Prathama Singh an Advocate has been appearing regularly before the Courts, thus petition under section 12 of the D.V. Act was filed by concealment of facts. She is not unable to maintain herself. Allegation made in para-10 of the affidavit as well as in petition filed under Section 12 of D.V. Act that she is studying and dependent solely upon father, is incorrect. In para-15 of the petition, it is stated that she does not earn anything and is dependent fully upon her parents. This petition has been filed by concealing the fact that she is a regular practicing Advocate. Courts below should not have ordered any maintenance under the D.V. Act. Had she disclosed the facts of her income, courts below would not have passed impugned order. Apart from six accounts mentioned in revision, two more accounts have been detailed in supplementary affidavit (one FD and one saving in SBI Barabanki).

    32. In any case it has come on record that wife has become Advocate and she has number of accounts (approx eight), as such, matter requires reconsideration. Amount has to be fixed, keeping in view the income of the husband as well as income of the aggrieved person requiring her to live with the standard of living to which person is accustomed.

    33. It is apparent that Prathama Singh is appearing as counsel in number of cases. She is a regularly practicing Advocate, consequently, courts below are required to consider the matter afresh in the light of documents, which have been placed before the Court. Revision thus deserves to be allowed.

    34. It has been brought to the notice of this court that Pankaj Tiwari and Pal Singh Yadav appeared on behalf of Prathama Singh by using different enrolment numbers. In the case at hand Vakalatnama has been filed by Pankaj Tiwari and Pal Singh Yadav. Enrolment number shown in Vakalatnama of Pankaj Kumar Tiwari is UP-1514 of 1996 and that of Pal Singh Yadav is UP-6850 of 2007. In the court of District Judge, Lucknow, Vakalatnama was filed by Pal Singh Yadav and Pankaj Kumar Tiwari with enrolment numbers shown above. Further enrolment number 6850 of 2007 belongs to Shri Shiv Pal Singh as is apparent from Annexure RA-5. Enrolment number of Prathama Singh is UP-4988 of 2014. Enrolment number of Pal Singh Yadav is UP-4987 of 2014. Shocked by these revelations, this court called for report from the District Judge, Lucknow, who reported that in seven courts below Pal Singh Yadav, Shiv Pal Singh, Prathama Singh, Awadesh Kumar, Pankaj Kumar Tiwari have filed their Vakalatnama using different enrolment numbers.

    35. Problem is compounded further by Shri Shiv Pal Singh, who filed an affidavit through Sri Ravi Shanker Tiwari. Shiv Pal Singh in his affidavit states that he was shocked to know that his name and enrolment number was used by lawyers. He states in para-5 of the affidavit that he does not know either Prathama Singh or Pal Singh Yadav, who have used his enrolment number. In para-6 of affidavit, it is stated that Pal Singh Yadav has not only used the enrolment number but has also used the name of counsel in different cases. In para-7 of the affidavit, it is stated that he never appeared before the Family court. Paras- 5, 6, 7 & 8 of the affidavit filed by Sri Shiv Pal Singh, Advocate, are being reproduced below: 5. That it was orally informed to the Hon’ble Court that the deponent do not know Prathama Singh, who is one of the opposite party No. 2 in the instant case nor does he knows Sri Pal Singh Yadav, who from the record has been shown to use the registration number of the deponent as his own. 6. That it has also come to the fore through the counsel for the petitioner that Sri Pal Singh Yadav has not only used the enrolment number of the deponent but in a few cases he has also used the name of the deponent as counsel for his different clients, which was without any authority or any knowledge of the deponent and as such the such act of Pal Singh Yadav is not only Mischievous but against the ethics of the legal practice which needs to be dealt with by stern hands. 7.That at the very outset the deponent craves leave of this Hon’ble court to state that he has not visited the family curt even once not to say that he has formed any such caucus or racket. It is further reiterated that the deponent has not signed any vakalatnama with these persons nor has he authorized any of them to use his name as he even does not know them personally. 8.That the action of Pal Singh Yadav is so grave and unethical that he deserves to be taken out of the roll of the registered practitioner not only from the Bar Council of U.P. but if it all he is member of any of the Associations he is liable to be expelled from the same as well. Such act of Pal Singh Yadav or any of his associate amounts to polluting the purest stream of justice as a lawyer is not only the officer of the court but he is indispensable in our judicial system and as such his duty towards the society as well as the Hon’ble Courts is to remain honest and put the truth as far as possible and his knowledge before the Hon’ble court but the action of the erring lawyer is such that it further erodes the already lost faith from the fraternity by the respective clients.

    36. He prayed that matter be referred to Bar council so that they are stripped of their registration at the Bar.

    37. Pankaj Tiwari states that Pal Singh Yadav is his junior. One Vakalatnama filed by Sri Pankaj Tiwari alongwith Pal Singh Yadav in case of Navneet Kaur vs. Kamaljeet, before this court shows that enrolment number of Pankaj Tiwari is 1514 of 2006 and Pal Singh Yadav’s continues to by 6850/2007. It is apparent that Pankaj Tiwari, Pal Singh Yadav, Prathama Singh have been jointly practicing, as is apparent from the names appearing in cases filed before this Court. Pal Singh Yadav is using the enrolment No. 6850 of 2007, which belongs to Shiv Pal Singh, who is a member of Oudh Bar having enrolment No. UP06850/2007. It is also apparent from the affidavit that Shiv Pal Singh’s name in addition to enrolment number has also been used by these persons, as is apparent from the name of the Advocates (alongwith Pankaj Tewari, Prathama Singh and Pal Singh Yadav) (SA-1) appearing in 407 Cr.P.C. petition No. 38 of 2008. It further appears that Pal Singh Yadav has filed a petition as Proprietor of Vidhya Travel Agency, as such, he appears to be engaged in travel business. In this case Pankaj Tewari & Prathama Singh are his advocates (SA-2). Sri Pal Singh Yadav appeared and stated that under some mistaken belief he had used the enrolment number of Shiv Pal Singh. Such an explanation from a law graduate well-versed with the procedure of the court is not acceptable at all and is rejected.

    38. Pal Singh Yadav himself is party in Case No. 130 of 2012 pending before A.C.J.M. Court No. 20, Lucknow. Pal Singh Yadav has also been shown as accused in Crime Nos. 312 of 2009 & 168 of 2009, under Sections 384, 506, 420 & 406 I.P.C. respectively, Police Station Naka Hindola, Lucknow. These cases are pending before A.C.J.M. Court No. 32, Lucknow. It is also apparent from the record that Pal Singh Yadav, Prathama Singh were enrolled by Bar Council on the same day i.e. on 28th August, 2014 and their enrolment numbers are UP-4987 of 2014 and UP-4988 of 2014 respectively.

    39. It appears that Pankaj Tewari too has used two different enrolment numbers (A) U.P.1514 of 1996 filed in this case (B) UP-1514 of 2006 filed in case No. 270 of 2013 (984 of 2013) under Section 12 of D.V. Act P.S. Alambagh filed before Additional Civil Judge (Junior Division/JM-II) (Navneet Kaur vs. Kamaljeet Sachdeva and others).

    40. Moreover enrolment number of other Advocates are being used brazenly with impunity not only before this Court but other courts of district Lucknow.

    41. Prima facie, it appears to be a case of impersonation using somebody else’s name and identity. A fraud has been done, which is apparent from the record.

    42. In case of K.D. Sharma vs. Steel Authority of India Limited, (2008) 12 SCC 481 Hon’ble Apex Court has held that High Court will be failing in its duty if it does not reject the petition on the same ground. It was a case where fraud was made upon court. Concealment in filing case also amounts to fraud. Relevant paragraph of the case is being reproduced hereinbelow :- “26. It is well settled that “fraud avoids all judicial acts, ecclesiastical or temporal” proclaimed Chief Justice Edward Coke of England about three centuries before. Reference was made by the counsel to a leading decision of this Court in S.P. Chengalvaraya Naidu vs. Jagannath wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every court. 27. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry vs. Govt. of A.P. Considering English and Indian cases, one of us (C.K.Thakker, J.) (SCC p.231, para 22) ’22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.’ The court defined “fraud” as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In Fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam.”

    43. In case of A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and others, (2012) 6 SCC 430, Hon’ble Apex Court has held as under: “2.15. The adversarial system lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the inquisitorial system. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth.”

    44. Relying upon these decisions, it is urged by learned counsel for revisionist that entire proceedings are liable to be quashed, as fraud vitiates everything. Submission has force, but material that wife is practising advocate having sufficient income reflected from various Bank accounts has been placed before this court for the first time, it is but proper that matter is remanded to learned Magistrate to take a holistic view of the matter while deciding the application under Section 12 of D.V. Act.

    45. In view of discussions made above, this revision is allowed.

    46. Since fraud appears to have been played while filing petition under Section 12 of D.V. Act by concealing material facts in the ends of justice exercising power under Sections 397/401 & 482/483 Cr.P.C., order dated 02.09.2015 passed by Additional Sessions Judge, Court No. 17, Lucknow as well as order dated 25.06.2014 passed by learned Additional Chief Judicial Magistrate-II, District Lucknow are set-aside. Concerned Magistrate is directed to decide the application under Section 12 of D.V. Act considering the entire matrix of the case, in the light of observations made in the judgment, expeditiously, if possible within two months from today.

    47. An Advocate has an independent identity and personality. It takes years to shape the personality and build an image. This image works althrough his life. Lot of dedication, commitment, sincerity and impeccable integrity is required to generate and sustain an image. Using somebody else’s identity and name is most sacrilegious act as such outrage and annoyance of Sri Shiv Pal Singh is not unfounded and is fully justified.

    48. So far as prayer of Sri Shiv Pal Singh, Advocate seeking action against Pal Singh Yadav, Advocate is concerned, matter is referred to Bar Council of Uttar Pradesh and Oudh Bar Association. Till a final decision is taken by State Bar Council, Pal Singh Yadav, Advocate is restrained from entering the premises of High Court, Lucknow Bench, Family Court, the court of District Judge, Lucknow and other courts subordinate to him.

    49. Senior Registrar will get the Vakalatnama available in this file sealed and an F.I.R. lodged against Pal Singh Yadav for impersonation, stealing and using the identity of other Advocate by using his name and enrolment number.

    50. Investigating Officer will also investigate the role of other Advocates/personnel who were also party to the fraud played with the court.

    51. Copy of the order along with affidavit of Sri Sheo Pal Singh, Advocate will be sent to District Judge Lucknow, Secretary, Bar Council of Uttar Pradesh as well as President Oudh Bar Association for taking action against erring Advocates in accordance with law.

    52. Senior Registrar will also issue instruction to computer section to ensure that enrolment number and other details of counsels are properly verified before approving the case.

    Order Date : 29.06.2016

    Reena/-