Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! CrPC 125 Quashed – Madras HC

However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed.

Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! Madras HC

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :       07.03.2018

Date of Verdict :     26.06.2018

CORAM THE HONOURABLE MR.JUSTICE M.S.RAMESH

Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017

S.Suriya Devi  …Petitioner in Crl.O.P.27507/2017 & Respondent in Crl.O.P.10089/2017

V.

Thilip Kumar …Respondent in Crl.O.P.27507/2017 & Petitioner in Crl.O.P.10089/2017

Prayer in Crl.O.P.No.27507/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the Family Court, Coimbatore to dispose the petition in M.C.No.38 of 2017 expeditiously pending on the file of the Family Court, Coimbatore within time frame as fixed by this Court.

Prayer in Crl.O.P.No.10089/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to quash the proceedings in M.C.No.38 of 2017 on the file of the Additional Family Court, Coimbatore.

For Petitioner in Crl.OP.27507/2017 : Ms.V.S.Usha Rani & Respondent in Crl.OP.10089/2017

For Petitioner in Crl.OP.10089/2017 : Mr.R.Baskar & Respondent in Crl.OP.27507/2017

C O M M O N O R D E R

While the husband had filed the petition in Crl.O.P.No.10089 of 2017 seeking for quashing the maintenance case in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore preferred by the respondent/wife, Crl.O.P.No.27507 of 2017 has been filed by the wife seeking for an expeditious disposal of her petition in MC.No.38 of 2017.

2.Heard Ms.V.S.Usha Rani, learned counsel for the wife and Mr.R.Baskar, learned counsel for the husband.

3.For the sake of convenience, the facts revealed in Crl.O.P.No.10089 of 2017 is being addressed to. The marriage between the petitioner and the respondent herein was performed on 25.05.2014. After brief stay together for less than two months, both the parties had separated. According to the petitioner, the respondent had left the matrimonial house on 13.07.2014. During their estranged relationship, the petitioner herein left the country on 14.02.2015 in connection with his employment.

4.It is in connection with the estranged relationship, the respondent herein had filed a complaint under the Protection of Women from Domestic Violence Act, 2000 in DVA.No.27 of 2016 seeking for various reliefs including the relief of monthly maintenance, in which the respondent’s husband and in-laws were made as party respondents. On receipt of summons in the domestic violence case for the complaint dated 25.05.2016, the petitioner/husband herein moved a quash petition in Crl.O.P.No.2972 of 2017, which is pending against the petitioner herein.

5.But, would the aggrieved person be entitled to claim maintenance simultaneously under the provisions of Code of Criminal Procedure Code as well as Domestic Violence Act for the same cause of action? The scheme of Domestic Violence Act is to provide for an effective protection of the lives of women guaranteed under the Constitution, who are the victims of violence of any kind occurring within the Family for incidental matters. Section 125 Cr.P.C., empowers the Magistrate to order for maintenance when it is established that the person having sufficient means, neglects or refuses to maintain his wife. Whenever such an order of maintenance is passed under Section 125 Cr.P.C., and in the given circumstances, the aggrieved person is of the view that there has been further acts of domestic violence, incurring expenses and loss, the order already passed under Section 125 Cr.P.C., will not preclude the aggrieved person in invoking the provision under Section 20 of the Domestic Violence Act. However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law. In the judgment relied upon by the learned counsel for the petitioner reported in 2015 (4) LW 545 [B.Prakash V. Deepa and another], this Court had observed as follows:-

17.The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.

18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.

6.In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.

7.Insofar as Section 20(3) of Domestic Violence Act is concerned, the same has to be read along with sub section (1) and the powers of the Magistrate to order for a lumpsum payment or a monthly payment under sub section (3) is a continuation of the powers vested on the Magistrate while ordering monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. In other words, whenever an application seeking for monetary relief under Section 20(1) is made and when the Magistrate comes to the conclusion that such a monetary relief is required to be ordered in favour of the aggrieved person, he shall have powers to order such an amount either as lumpsum payments or monthly payment of maintenance as provided under sub section (3) of the Act. In any case, the amount referred to under sub section (3) is only for the maintenance of the aggrieved person.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed. No prejudice would be caused to the respondent by quashing the proceedings since her interest has already been protected in her earlier proceedings under Domestic Violence Act.

9.In view of the aforesaid discussions, the petition in Crl.O.P.No.10089 of 2017 is allowed. Consequently, the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore stands quashed. In view of the quashing of the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore, Crl.O.P.27507 of 2017 seeking for expeditious disposal of the maintenance case, stands dismissed. Consequently, connected Miscellaneous Petitions are closed.

26.06.2018 Speaking order

Index : Yes

Internet : Yes

DP To The Additional Family Court, Coimbatore.

M.S.RAMESH, J.,

DP Order in Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017 26.06.2018

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

Don’t contact wife, court orders man

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

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

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

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

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

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

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

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

Pay Commission

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

WIFE CAN’T file sec 125 & DV on SAME grievances !! Woman asking 1 lakh per month looses Crpc125 !! S.Suriya Devi vs ThileepKumar – Madras HC on 26 June, 2018

Madras High Court

S.Suriya Devi vs & on 26 June, 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.03.2018
Date of Verdict : 26.06.2018
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
Crl.O.P.Nos.27507 & 10089 of 2017
and Crl.M.P.Nos.6680 & 6681 of 2017

S.Suriya Devi …Petitioner in Crl.O.P.27507/2017
& Respondent in Crl.O.P.10089/2017
V.
Thilip Kumar …Respondent in Crl.O.P.27507/2017 & Petitioner in Crl.O.P.10089/2017 Prayer in Crl.O.P.No.27507/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the Family Court, Coimbatore to dispose the petition in M.C.No.38 of 2017 expeditiously pending on the file of the Family Court, Coimbatore within time frame as fixed by this Court.
Prayer in Crl.O.P.No.10089/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to quash the proceedings in M.C.No.38 of 2017 on the file of the Additional Family Court, Coimbatore.
For Petitioner in Crl.OP.27507/2017 : Ms.V.S.Usha Rani & Respondent in Crl.OP.10089/2017 For Petitioner in Crl.OP.10089/2017 : Mr.R.Baskar & Respondent in Crl.OP.27507/2017 C O M M O N O R D E R While the husband had filed the petition in Crl.O.P.No.10089 of 2017 seeking for quashing the maintenance case in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore preferred by the respondent/wife, Crl.O.P.No.27507 of 2017 has been filed by the wife seeking for an expeditious disposal of her petition in MC.No.38 of 2017.
2.Heard Ms.V.S.Usha Rani, learned counsel for the wife and Mr.R.Baskar, learned counsel for the husband.
3.For the sake of convenience, the facts revealed in Crl.O.P.No.10089 of 2017 is being addressed to. The marriage between the petitioner and the respondent herein was performed on 25.05.2014. After brief stay together for less than two months, both the parties had separated. According to the petitioner, the respondent had left the matrimonial house on 13.07.2014. During their estranged relationship, the petitioner herein left the country on 14.02.2015 in connection with his employment.
4.It is in connection with the estranged relationship, the respondent herein had filed a complaint under the Protection of Women from Domestic Violence Act, 2000 in DVA.No.27 of 2016 seeking for various reliefs including the relief of monthly maintenance, in which the respondent’s husband and in-laws were made as party respondents. On receipt of summons in the domestic violence case for the complaint dated 25.05.2016, the petitioner/husband herein moved a quash petition in Crl.O.P.No.2972 of 2017, which is pending against the petitioner herein.
5.But, would the aggrieved person be entitled to claim maintenance simultaneously under the provisions of Code of Criminal Procedure Code as well as Domestic Violence Act for the same cause of action? The scheme of Domestic Violence Act is to provide for an effective protection of the lives of women guaranteed under the Constitution, who are the victims of violence of any kind occurring within the Family for incidental matters. Section 125 Cr.P.C., empowers the Magistrate to order for maintenance when it is established that the person having sufficient means, neglects or refuses to maintain his wife. Whenever such an order of maintenance is passed under Section 125 Cr.P.C., and in the given circumstances, the aggrieved person is of the view that there has been further acts of domestic violence, incurring expenses and loss, the order already passed under Section 125 Cr.P.C., will not preclude the aggrieved person in invoking the provision under Section 20 of the Domestic Violence Act. However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law. In the judgment relied upon by the learned counsel for the petitioner reported in 2015 (4) LW 545 [B.Prakash V. Deepa and another], this Court had observed as follows:-
17.The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.
18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the 16 passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.
6.In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.
7.Insofar as Section 20(3) of Domestic Violence Act is concerned, the same has to be read along with sub section (1) and the powers of the Magistrate to order for a lumpsum payment or a monthly payment under sub section (3) is a continuation of the powers vested on the Magistrate while ordering monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. In other words, whenever an application seeking for monetary relief under Section 20(1) is made and when the Magistrate comes to the conclusion that such a monetary relief is required to be ordered in favour of the aggrieved person, he shall have powers to order such an amount either as lumpsum payments or monthly payment of maintenance as provided under sub section (3) of the Act. In any case, the amount referred to under sub section (3) is only for the maintenance of the aggrieved person.
8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed. No prejudice would be caused to the respondent by quashing the proceedings since her interest has already been protected in her earlier proceedings under Domestic Violence Act.
9.In view of the aforesaid discussions, the petition in Crl.O.P.No.10089 of 2017 is allowed. Consequently, the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore stands quashed. In view of the quashing of the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore, Crl.O.P.27507 of 2017 seeking for expeditious disposal of the maintenance case, stands dismissed. Consequently, connected Miscellaneous Petitions are closed.
26.06.2018 Speaking order Index : Yes Internet : Yes DP To The Additional Family Court, Coimbatore.
M.S.RAMESH, J., DP Order in Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017 26.06.2018
— Read on indiankanoon.org/doc/192512190/

No #DV relief if woman did NOT #divorce first Husband and was in ADULTERY with second fella !!! #BombayHC

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bombay High Court

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bench: M. S. Patil

1 Cri.Rev.Apln 82/17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 82 OF 2017

Reshma Begum W/o Gajanfar Kazi, APPLICANT

Aged 30 years, Occ. Household,

R/o. At present N-6, A, 120 CIDCO,

Aurangabad, Taluka & Dist. Aurangabad

V E R S U S

[1] The State of Maharashtra RESPONDENTS

[2] Gajanfar Kazi @ Jawed S/o Kazi

Qaiseruddin, Aged 41 years, Occ.

Mechanic, R/o. Katkatgate,

Aurangabad, Taluka & Dist. Aurangabad

Mr. N.R. Shaikh, Advocate for the Applicant

Mr. A.R. Kale, A.P.P. for the Respondent No.1-State

Mr. H.I. Pathan, Advocate for the Respondent No.2

CORAM : MANGESH S. PATIL, J.

Reserved On : 29 June 2018

Pronounced On : 25 July 2018

J U D G M E N T :

Rule. Rule is made returnable forthwith. By consent, the matter is heard finally.

2 Cri.Rev.Apln 82/17

1. Very short issue that arises for determination in this Revision is as to the interpretation of provision of Section 2 [f] of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as ‘the D.V. Act‘]. The factual matrix leading to revision can be put in a short compass.

2. The applicant who belongs to Jain Hindu community was married to one Shantaram Mahadu Ughade and the couple begotten a child out of the wedlock. It was averred that, that marriage was brought to an end by virtue of a customary divorce on 15.10.2011. It is averred that she thereafter came in contact with the respondent No.2 who is a Muslim by religion. The acquaintance blossomed into an affair. He was already married and was having children. She got converted to Islam and the couple entered into a marital tie in presence of a Kazi on 21.07.2012. The couple also got a child out of such relation on 29.04.2013. However, a dispute arose and the couple separated. She filed a proceeding under Section 12 of the D.V. Act against him in the Court of Judicial Magistrate First Class at Aurangabad bearing Criminal Misc. Application No.28 of 2013.

3. The respondent No.2 contested the proceeding primarily on 3 Cri.Rev.Apln 82/17 the ground that the applicant was already married and so was he. The marriage between the two was not legally possible, since they were already having subsisting marital relation. He also denied even that she was staying with him in some kind of relation.

4. The learned Magistrate allowed the application holding that the relationship between the two was in the nature of marriage and was covered by Section 2 [f] of the D.V. Act and granted various reliefs.

5. Being aggrieved, the respondent No.2 preferred Appeal under Section 29 of the D.V. Act bearing Criminal appeal No. 156 of 2015. The learned Addl. Sessions Judge by the impugned Judgment and order dated 12.01.2017 relying upon Judgment of the Supreme Court in the case of Velusamy Vs. D. Patchaiammal; 2010 (3) Bom. C.R. (Cri.) 764 (S.C.) concluded that the applicant and the respondent No.2 were not qualified to enter into a legal marriage since they were already married and their marriages were in subsistence. The relationship was not covered by Section 2 [f] of the D.V. Act. She was not entitled to take recourse to the provision of Section 12 of the D.V. Act. The appeal was allowed and the Judgment and order passed by the Magistrate was set aside. Hence, this Revision.

4 Cri.Rev.Apln 82/17

1. The learned Advocate for the applicant submitted that since the applicant had already got the customary divorce in the form of execution of Notarized Deed on 15.11.2011, her first marriage had come to an end. Since the respondent No.2 is Muslim, his personal Law permits him to solemnize the second marriage. Since there is evidence in the form of testimony of Kazi and a Nikahnama demonstrating that the marriage was solemnized between the applicant and respondent No.2, the relationship between the two was in the nature of marriage within the meaning of Section 2 [f] of the D.V. Act. The couple had also has a child out of the relation. There was a birth certificate of the child which demonstrated that the couple was holding themselves out as husband and wife and the relationship was duly covered under that provision. The observation and the conclusion drawn by the Magistrate was unassailable. The learned Addl. Sessions Judge has ignored these aspects and without any cogent and convincing reason, quashed and set aside the Judgment of the Magistrate. There is no sufficient legal basis to substantiate the interpretation of the learned Addl. Sessions Judge. The impugned Judgment and order is not tenable in law and be quashed and set aside, thereby restoring the Judgment and order passed by the Magistrate.

Though the respondent No.2 has been disputing all the 5 Cri.Rev.Apln 82/17 averments, there is enough material to show that the applicant and the respondent No.2 had established a kind of relationship. They had entered into marriage ceremony in presence of a Kazi [PW 2]. A Nikahnama was executed [Exhibit 35]. There is also a Birth Certificate showing that a child was born to the applicant and the respondent No.2 was shown as the father of the child.

However, it is necessary to ascertain, whether such kind of relationship is covered by the definition of domestic relationship as contained in Section 2 [f] of the D.V. Act. The definition reads thus :

“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.

It is important to note that the interpretation put on the definition and particularly the words ‘relationship in the nature of marriage’ by the Supreme Court in the case of Velusamy [supra] to mean :

6 Cri.Rev.Apln 82/17

[a] The couple must hold themselves out to society as being akin

to spouses.

[b] They must be of legal age of marry.

[c] They must be otherwise qualified to enter into a legal

marriage, including being unmarried.

[d] They must have voluntarily cohabited and held themselves out

to the world as being akin to spouses for a significant period of time.

Even in the case of Indra Sarma v. V.K.V. Sarma; AIR 2014 S.C. 309, a comparison has been made between the relations which are in the nature of marriage and live in relationship and guidelines have been culled out to distinguish between the two.

1. Perusal of these decisions makes it abundantly clear that not all the live in relationships are covered by the provision of Section 2 [f] of the D.V. Act. It is only those which qualify to be the relationship in the nature of marriage which are governed by that provision. In order to constitute such relationship, a legal marriage between the two must be possible.

7 Cri.Rev.Apln 82/17

1. There is one more aspect which needs such an interpretation to be put to words ‘relationship in the nature of marriage’ contained in Section 2 [f] of the D.V. Act. It is well recognized principle of interpretation of statute that a statute should be interpreted in a manner which would not promote illegality. It has made a provision to enable a woman in a relationship in the nature of marriage to seek various remedies under the D.V. Act. One cannot put an interpretation to Section 2 [f] of the D.V. Act which would promote an adulterous relationship which is an offence punishable under Section 494 of the Indian Penal Code. Therefore, these words will have to be interpreted in a conducive and harmonious manner so as not to offend a penal provision contained in the Code. Therefore looked at from this angle, one cannot interpret this provision which would offend any law. The legislature in its wisdom has enacted the Law so as to cover and protect not only a legally wedded wife but has gone a step further to bring in its ambit a woman who has been in a relationship in the nature of marriage. Use of word ‘marriage’ to qualify the relationship is conspicuous and the only interpretation that can be put is that the marriage between the couple must be legally possible. Any other interpretation which would offend any other law would not be permissible.

Once it is clear that in order to enable the applicant to claim 8 Cri.Rev.Apln 82/17 any relief under the D.V. Act the relation between her and the respondent No.2 was not in the nature of marriage, she is clearly not entitled to claim any relief under that Act. Admittedly, on her own admission, her first marriage was still in subsistence, and if that be so, she could not have married legally with the respondent No.2 albeit he is a Muslim and his personal law permits him to solemnize the second marriage. In view of such state of factual matrix and the evidence, the observation and the conclusion drawn by the learned Addl. Sessions Judge that the relationship between these two did not fall into the ‘domestic relationship’ as defined under Section 2 [f] of the D.V. Act is unassailable. The Revision is dismissed.

The rule is discharged.

[ MANGESH S. PATIL, J. ] SRM/25/7/18

Nor shared a household if parties residing in separate portions with separate kitchen. DV act not applicable !! No harassment possible 😂😂

In this classic is a delhi District Court clearly states that for DV provisions to become applicable a household should be a shared household and for such a shared household parties should be living under the same roof with the same kitchen and sharing the entire household.

People living in separate portions with separate kitchen cannot be considered as people living with in the shared household…

****

Neha vs ) Smt. Rajo on 5 July, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03
(SOUTH), SAKET COURTS, NEW DELHI

Criminal Appeal No. 65/18

1) Neha
D/o Sh. Hira Lal

2) Smt. Dakha Devi
W/o Sh. Ram Dhan

3) Simran (minor aged about 15 years)
D/o Sh. Hira Lal
All R/o H-I/188, Madangir,
New Delhi-110062
……….. Appellants

Versus

1) Smt. Rajo
W/o Sh. Hans Raj

2) Pappu
S/o Not known

3) Pinki
………..Respondents

Date of Institution : 13.02.2018
Arguments heard on : 05.07.2018
Date of order : 05.07.2018

JUDGMENT
1. This appeal has been preferred u/s 29 of Protection of Women From Domestic Violence Act (hereinafter referred as ‘ D.V. Act’) for assailing the order dated 12.01.2018 vide which the application filed by the aggrieved persons u/s 12 of D.V. Act was dismissed by the trial court by holding that there exists no domestic relationship between aggrieved persons and respondents.

CA No.65/18
Neha & Ors. vs. Smt. Rajo & Ors. Page No.1/7
2. Brief facts of the case which are necessary for the disposal of present appeal are that aggrieved person/appellant no.2 Smt. Dakha Devi is the mother in law of the respondent no.1. Respondent no.1 is the daughter of respondent no.2 while respondent no.3 is the niece of respondent no.1. As per the averments made in the application u/s 12 of D.V. Act, Smt. Dakha Devi with other aggrieved persons namely Neha and Simran who are her grand daughters, is living at the house no. H-I/188 Madangir. The father of aggrieved Neha and Simran is working as driver while their mother has already expired. It is alleged that respondent no.2 in collusion with her other relatives i.e. respondent no.2 & 3, is harassing and ill treating the aggrieved persons by using filthy language and picking up frequent quarrel with them. Whenever, respondent no.1 was asked to mend her ways, she extended threats to implicate aggrieved persons in false cases. Respondent no.1 also threatened the aggrieved persons to vacate the house or else she will dispossess them forcibly from the house. The husband of respondent no.1 had expired in the year 2010 as he was suffering from HIV and after his death, respondent no.1 went to her parental home where she resided for one year but thereafter, she again returned to her matrimonial home and started harassing the aggrieved persons. As per the application, the aggrieved persons are residing on the back side of the house while respondent no.1 is residing in the front portion of the same house.
3. Trial court record shows that before issuing summons in the matter, the DIR was called from protection officer and as per the DIR, respondent no.1 as well as the aggrieved persons are residing in CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.2/7 the different portions of same house and respondent no.1 has been using her separate kitchen for last 10-12 years. Whereas, respondent no.2 to 3 are the relatives of respondent no.1 and they are residing at their own house at a different address.
4. Vide impugned order, the trial court heard the arguments on the maintainability of the application and dismissed the application on the ground that there was no domestic relationship between the aggrieved persons and respondents so as to maintain the application under D.V. Act.
5. I have carefully perused the impugned order as well as entire trial court record.
6. Counsel for the has appellant vehemently argued that since the aggrieved persons as well as respondent no.1 are living in the same house belonging to aggrieved person Dhaka Devi and while living in the shared house, respondent no.1 has subjected aggrieved persons to the act of domestic violence therefore, Ld. Magistrate was not justified in dismissing the application at the outset for absence of domestic relationship.
7. On the other hand, Ld. counsel appearing for respondents argued that respondent no.1 is residing independently in the front portion of the house and she is maintaining her own kitchen and as such, there never existed any domestic relationship between her and the aggrieved person as they never resided under the same roof. It is further argued that respondent no.1 has never subjected the CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.3/7 aggrieved persons to any harassment as alleged by them.
8. At the outset, it is necessary to mention that D.V. Act was enacted with a specific purpose to provide protection to the aggrieved person who lives with the respondent in the shared household against the acts of domestic violence and for claiming any relief under D.V. Act, there needs to exist a ‘domestic relationship’ between the parties. Domestic relationship has been defines in Section 2(f) of D.V. Act which reads as under:-
“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, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
9. In Vijay Verma vs. State of NCT of Delhi & Ors., 2010 (118) DRJ 707, while discussing the ambit and scope of term ‘domestic relationship’ as defined in Section 2(f) of the Act, it was held that “domestic relationship comes to an end” once the son alongwith his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband ……..domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household.”
10. It is apparent that in order to make a person as respondent in a petition u/s 12 D.V. Act, there must exist a domestic CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.4/7 relationship between the respondent and the aggrieved person. If there is no domestic relation between the respondent and aggrieved person, the court of MM cannot pass an order against such person under the Act. The definition of domestic relationship under section 2
(f) of the act speaks of living together at any point of time. However, it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, a person can be a respondent but if the relationship does not continue and the relationship had been in past and is not in present, a person cannot be made respondent on the ground of past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. Reliance placed on Harbans Lal Malik vs. Payal Malik, 2010 (3) CC cases (HC) 543 wherein, the Hon’ble High court further held as under:-
“18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad. ”
CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.5/7
11. Hence, though the definition u/s 2(f) of DV Act speaks of living together at any point of time in a shared household but, it covers within its ambit only those cases where domestic relationship continued and in said situation if the parties have lived together at any point of time in a shared household, the person can be respondent but if the relationship does not continue and has come to an end on account of parties shifting out of the shared household and setting up their own separate household, then such members can neither sue as an aggrieved person nor can be sued as respondent under D.V. Act.
12. Careful perusal of the trial court record shows that the aggrieved persons/appellants are living in the back portion of the house whereas, respondent no.1 was living in the front portion of the house but, they are living in their separate household having their separate kitchen. In the entire application u/s 12, it is nowhere the claim of the appellants that they have ever lived with the respondents in the same shared household as a member of joint family. The other two respondents are the relatives of respondent no.2 who are living at a separate address and even in the application or in the present appeal, their addresses have not been mentioned by the aggrieved person which shows that they are not even aware of address of said two respondents. In the DIR filed by the protection officer, it is clearly mentioned that respondent no.1 is though living in the same house but she is living in a separate portion and is having a separate kitchen for last 10-12 years. In said circumstances, it is apparently clear that there is no continuity of domestic relationship and hence, no domestic CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.6/7 relationship exists between the appellants and respondent no1. Regarding allegation of ill treatment and harassment at the hands of respondents, the aggrieved persons may avail separate remedy under law but, the remedies provided under D.V. Act cannot be availed without establishing the existence of domestic relationship. Whereas, in the facts and circumstances of the case, there is no prima facie case of domestic relationship between the parties. Hence, I concur with the findings of the trial court that the application u/s 12 of D.V. Act was not maintainable and was liable to be dismissed. I do not find any illegality or infirmity in the order of the trial court. The appeal is found meritless and accordingly dismissed.
13. TCR be sent back to the trial court alongwith copy of this order.
14. Appeal file be consigned to record room.
Announced in open Court on 05.07.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally signed John by John Doe Date:
2018.07.06
Doe 19:40:40
+0530

CA No.65/18
Neha & Ors. vs. Smt. Rajo & Ors. Page No.7/7
— Read on indiankanoon.org/doc/149025469/