Tag Archives: fake DV

Married woman can’t file S125, DV, 125 on second fella / lover boy !! Mumbai HC

A woman married to one Shamrao Bhopaji Ambhore files DV and CrPC 125 cases on another man by name Gautam Jairam Gawai claiming she was living together with the second fella and also begot two children. On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Jairam Gawai (the second fella !!)  But the courts still award maintenance to that woman !!

The non-applicant (accused !!) fella goes on appeal to the Hon Bombay HC

The Hon Bombay HC appreciates the facts of the case and declares “…Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the non-applicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. ….”

The maintenance ordered to the woman is completely dismissed !!

Since the parentage of the children is also NOT clear, the accused / second fella is fully absolved of liabilities

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

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPLICATION [APL] NO.664 OF 2011

Gautam s/o Jairam Gavai,
Aged 47 years,
Occupation-Service,
R/o. Washim Bypass, Akola,
Tahsil and District-Akola. .. PETITIONER/
APPLICANT

.. Versus ..

1] Sau. Ragini alleged w/o Gautam,
Gavai, Aged – Major,
Occupation-Service,
R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola.

2] Vaibhav Gautam Gavai

3] Nipun Gautam Gavai
All resident of C/o. Raginin Gautam
Gavai, R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola. .. RESPONDENTS

……….
Shri Rahul Dhande, Advocate for petitioner/applicant,
Shri A. Malnas, Advocate for respondents.
……….

WITH
CRIMINAL APPLICATION [APL] NO.229 OF 2015

Gautam Jairam Gawai,
Aged about 46, Occupation-Service,
Resident at Shivar, Akola,
presently residing at Sidharth Wadi,
Bye-pass Road, Akola,
Old City, Akola. .. APPLICANT

.. Versus ..

1] Ragini Gautam Gawai w/o Shamrao
Ambhore, Aged about 34,
Occupation-Service,
Residing at Kamla Nagar,
Washim Bye Pass, Akola,
Tahsil and District-Akola,
Police Station Old City, Akola.

2] The State of Maharashtra, through
its District General Police, Akola. .. RESPONDENTS

ig ……….

Shri Rahul Dhande, Advocate for applicant,
Shri A. Malnas, Advocate holding for Shri A.J. Mirza, Advocate for respondent no.1,
Shri M.J. Khan, A.P.P. for respondent no.2.
……….

CORAM : KUM. INDIRA JAIN, J.

DATED : JANUARY 20, 2017.

ORAL JUDGMENT

1] By these applications under Section 482 of the Code of Criminal Procedure, applicant has assailed the judgment and order of the Family Court, Akola in Petition No.E-82/2010 passed on 21.10.2011, order dated 31.12.2014 passed by the Judicial Magistrate, First Class, Akola in Miscellaneous Criminal Case No.949/2010 and order dated 18.3.2015 passed by the Adhoc Additional Sessions Judge, Akola in Criminal Appeal No.11/2015.

2] Heard the learned counsel for the parties. Since common questions of facts and law arise in these two applications, they are disposed of by common judgment.

3] The facts giving rise to the applications may be stated, in brief, as under : Respondent no.1 claiming herself to be the wife of applicant, filed an application under Section 125 of the Code of Criminal Procedure before the Family Court, Akola. She pleaded that she was married to applicant Gautam Gawai on 11.5.1997. They have two sons Vaibhav and Nipun born out of the said wedlock. According to respondent Ragini, till Diwali 2009, they led happy married life. After Diwali-2009, quarrel between respondent and applicant started and applicant used to treat her as maid servant. He started harassing her and ultimately left the house, not to return forever. She made efforts to find out his whereabouts. She was not successful and so she informed about the same to the Superintendent of Police. According to respondent, both the children were studying in English Medium School. She was unable to maintain herself. She, therefore, claimed maintenance for herself and the children. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

4] Applicant appeared in the proceedings and contested the same. He denied marriage between him and respondent Ragini. According to applicant, he was married to Suvarna on 9.5.1990. The couple were blessed with three children. Marriage between applicant and Suvarna still subsists. Further submission is that respondent is a legally wedded wife of one Shamrao Bhopaji Ambhore and her marriage was solemnized on 01.03.1995 under the provisions of the Special Marriage Act. He contended that on false grounds, application for maintenance came to be filed and prayed to reject the same.

5] On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Gawai. However, keeping in view the object of the provisions relating to maintenance, the learned Judge thought it appropriate to consider the prayer for maintenance under Section 26 of the Family Courts Act and awarded maintenance at the rate of Rs.1500/- per month to the applicant. It is this order which is the subject matter of Criminal Application No.664/2011.

6] In another proceeding, respondent presented an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (In short “Domestic Violence Act”) claiming relief of protection order, monetary relief and compensation. This application was presented almost on the same grounds on which an application under Section 125 of the Code of Criminal Procedure was filed by her. Considering the evidence, the learned Judicial Magistrate, First Class, partly allowed the application and granted maintenance at the rate of Rs.2000/- per month to the applicant under Section 20 of the Domestic Violence Act. The order was carried in appeal before the District Court, Akola. Applicant preferred an application seeking stay to the judgment and order passed in Misc. Criminal Case No.949/2010. Vide order dated 18.3.2015, the learned Adhoc Additional Sessions Judge, Akola allowed the application and stayed the impugned judgment, subject to condition of depositing 50% of the outstanding amount within one month from the date of order, with further condition that non-compliance of the same, would result into automatic end to the stay order. The order passed by the learned Judicial Magistrate, First Class and the order on Exh.5 passed by the learned Adhoc Additional Sessions Judge are the subject matter of Criminal Application No.229/2015.

7] Learned counsel Shri Dhande submits that marriage between applicant and respondent is in dispute. Family Court has categorically held that there was no legal marriage between applicant and respondent. He submits that respondent could not establish dissolution of marriage in accordance with the law and in such circumstances, respondent was not entitled for maintenance under Section 125 of the Code of Criminal Procedure.

8] Regarding protection under the Domestic Violence Act, learned counsel submitted that domestic relationship between applicant and respondent is not established and in the absence of proof of domestic relationship, respondent was not entitled to any protection under the provisions of the Domestic Violence Act. In support of the submissions, learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal (2010 (10) SCC 469 and of this Court in the case of Shri Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye and another (2013 BCI 535). Reliance is also placed on the judgment dated 27.1.2015 passed by this Court in Criminal Writ Petition No.773/2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

9] Per contra, learned counsel for respondent strongly supports the order impugned in both the applications. It is submitted that strict proof of legal marriage is not required in the proceeding under Section 125 of the Code of Criminal Procedure and so far as the protection under the Domestic Violence Act is concerned, this is an admitted fact that for a long long years, applicant and respondent resided together and they have two children out of the said relationship. The learned counsel submits that in such a situation no interference is required in extra-ordinary jurisdiction and prays to reject the applications.

10] With the assistance of the learned counsel for the parties, this court has gone through the reasons recorded by the learned Judge of the Family Court, learned Judicial Magistrate, First Class and the learned Adhoc Additional Sessions Judge. Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the non-applicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. The cases referred by the learned counsel for applicant reiterate the well settled propositions of law in this regard.

11] In the case on hand, so far as the domestic relationship between applicant and respondent is concerned, applicant could not establish the same as required under Section 2 (f) of the Domestic Violence Act. Though she states that her previous marriage with Shamrao Ambhore was dissolved by a deed of dissolution, she could not prove the said deed of dissolution in accordance with the law. Once respondent admits her marriage with Shamrao Ambhore in the year 1995, it was for her to prove that after dissolution of the said marriage, she married to non-applicant or enter into domestic relationship with non-applicant. In the absence of proof regarding dissolution of first marriage of respondent Ragini, the courts below committed serious error in holding that she entered into domestic relationship with the non-applicant whose first marriage with Suvarna was also in existence on 11.5.1997.

12] As stated above, Family Court has held that Ragini was not the legally wedded wife of Gautam Gawai and proceeded to consider the application under Section 125 of the Code of Criminal Procedure under Section 26 of the Family Courts Act and awarded maintenance to her. The provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 read thus – 26. Relief in other suits and legal proceedings :- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly deniying an opportunity to non- applicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

13] So far as maintenance to minors is concerned, it can be seen from the municipal record that name of father of Vaibhav was initially shown as Sanjay and later on tried to be rectified as Gautam. Regarding Nipun, there is no convincing evidence to show that he was born to respondent from applicant. Exh.28 is considered as a letter by applicant to S.D.P.O. and reliance is placed on the admissions therein. On cursory look at Exh.28, it can be seen that on 1.1.2010, S.D.P.O. recorded statement of applicant in the course of enquiry. Applicant has not admitted the statement. In the absence of unequivocal admission on the part of applicant Gautam and for want of legal proof, reliance could not have been placed on contents of Exh.28 to fasten paternity of children on him.

14] In the above circumstances, this court finds that the case of the respondent is completely out of purview of the provisions of Section 125 of the Code of Criminal Procedure and the provisions of Domestic Violence Act. As impugned orders suffer from material legal infirmities, interference in extra-ordinary jurisdiction is warranted. Hence, the following order. (1) Criminal Application (APL) No.664/2011 is allowed The impugned order dated 21.10.2011 in Petition No.E.82/2010 passed by the Family Court, Akola is quashed and set aside. Rule is made absolute in the aforesaid terms. (2) Criminal Application (APL) No.229/2015 is allowed. Rule is made absolute in terms of prayer clauses (a)-(i), (ii) and (iii). No order as to costs.

(Kum. Indira Jain, J.)

Gulande, PA


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

 

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 !!

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

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

    How a DV case on husband & SEVEN more is sent back by Allah.HC ! No DV against females & ppl NOT in dom. relation

    Section 2(q) of DV Act : “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person..” .

    “…Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. ..”

    “It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court……”

    #DV_case #DVCase_on_eight_ppl !! #WhyNotOneDozen !! ?? #FakeDV #fakeDVisMoolah

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

    HIGH COURT OF JUDICATURE AT ALLAHABAD

    Court No. – 48

    Case :- APPLICATION U/S 482 No. – 19953 of 2016

    Applicant :- Mohd. Alam @ Raja And 7 Ors

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

    Counsel for Applicant :- Ved Prakash Pandey

    Counsel for Opposite Party :- G.A.

    Hon’ble Pramod Kumar Srivastava,J.

    Heard learned counsel for the applicants, learned AGA and perused the records.

    The proceedings of Complaint Case No. 339/2014, Sections 18/12, 20, 21, 23 and 31 of Protection of Women from Domestic Violence Act? has been challenged.

    Under these provisions, aggrieved person may be women or child under the age of 18 years. Applicants of said complaint case is wife and his three years’ son. The proceeding under said Act can be carried out against the ‘respondent’. The definition of ‘respondent’ is given in Section 2 (q) of said Act is as under:- “Section 2(q)-, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court.

    With these observations, this application is disposed of.

    Order Date :- 11.7.2016

    SR


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

     

    Brother, father inlaw asking to have relations! DV case 13 yrs after marriage & 3 yrs after husband’s death! P&H HC quash

    Sad tale of how Domestic violence act is rampantly misused and seven people including 4 women are harassed to for one woman’s greed !!

    A woman has filed a false domestic violence case on her mother-in-law, father- in-law, three married sisters-in-law and their husbands. This is 13 years after the marriage and 3 years after the death of the husband. Accused, married sisters-in-law along with their husbands were residing separately (complainant was living at Chandigarh while accused 1 to 6 were living in various districts of Haryana !!) . The complainant pleads that she had been denied a right in the property (which is a civil matter not connected to any violence). The Trial court takes the case and also issues notice to distant relatives asking them to appear

    The relatives approach P & H HC and seek a quash

    The Hon P & H HC notes and orders as follows “….9. In the present complaint, the complainant had implead the in-laws and the distant relatives. The trial Court had summoned all the respondents without even waiting for the report of the Protection Officer. The trial Court should have applied its mind and should have examined the contents of the complaint before issuing notice to the distant relatives who were residing separately. There was no averment in the complaint that they had at any point of time lived together. The complaint had been filed three years after the death of the husband of the complainant. No specific instance of domestic violence had been mentioned. As regards the share in the property there is a civil remedy and can not be gone into in these proceedings under the Domestic Violence Act. There is also the bar of limitation in the present fact situation. I have no hesitation in holding that continuation of the proceedings under the Act against the petitioners is an abuse of the process of law. 10. Therefore, the petition is allowed and the aforementioned complaint as well as the subsequent proceedings arising therefrom, are quashed….”


    In the High Court of Punjab and Haryana at Chandigarh

    Crl. Misc. No. M-24081 of 2015

    Date of Decision: 23.05.2016

    Rajbala and others ……Petitioners

    Versus

    Seema Gupta …..Respondent

    CORAM : HON’BLE MRS. JUSTICE ANITA CHAUDHRY

    Present: Mr. Anshul Mangla, Advocate for the petitioners.

    Mr. Vivek Khatri, Advocate for the respondent.


    ANITA CHAUDHRY, J(ORAL)

     

    1. This petition has been filed under Section 482 Cr.P.C. for quashing the criminal complaint bearing No. RBT-03-2 dated 6.6.2003 filed under Section 12, 17, 18, 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005 (Annexure P-1) and the order dated 6.6.2013 and all the consequent proceedings arising out of the same.
    2. The petitioners have been summoned in the complaint filed under the Domestic Violence Act, 2005 (‘Act’ for short). The petitioners are the relatives of the husband of the complainant. The husband of the complainant had died on 21.4.2010 in a road accident. The complaint was filed against the mother-in-law, father- in-law, three married sisters-in-law and their husbands. It has been filed 13 years after the marriage and three years after the death of the husband. The petitioners have pleaded that false allegations had been levelled and they had never claimed custody of the minor children and the married sisters-in-law along with their husbands were residing separately and the petition has been filed only to harass them. The complainant was seeking maintenance and a separate residence as well as damages and a restraint order against any domestic violence. The complainant as per her allegations had left the matrimonial home on 1.11.2012. It was pleaded that she had been denied a right in the property.
    3. The trial Magistrate issued notice to the respondents heard both the sides on the application claiming interim maintenance as well as interim order qua residence in the shared household. The trial Court recorded a finding that the respondent had failed to show that her husband had any right in the house, the property was in the name of the mother-in-law and relying upon the decision of the Apex Court in ‘S.R.Batra and another versus Smt. Taruna Batra 2007(1) DMC 1(SC)’ interim maintenance and relief of residence was denied. The case was thereafter fixed for the presence of the remaining respondents.
    4. I have heard the counsel for the parties and have perused the documents placed on record.
    5. Counsel for the petitioners have vehemently contended that the petitioners are the close relatives of the husband and were living separately and there was no single instance of domestic violence and the complaint had been filed three years after the death. It was urged that the trial Magistrate without even ascertaining the correctness of the allegations and without ascertaining whether all of them were living together, had issued notice. It was urged that no specific instance has been given in the complaint and vague allegations of taunts and beatings and wild allegations that the brothers-in-law and father-in-law pressurized her to maintain relations with them have been levelled. It was urged that the complainant and her husband were living in Chandigarh and petitioners No. 1 to 6 are living in different districts of Haryana, the sisters-in-law were living with her husbands in separate residence and the proceedings were only an abuse of the process of law. Reliance was placed upon Suo Motu versus Ushaben Kishorbhai Mistry 2016(2) R.C.R. (Criminal) 421, Om Parkash Syngal and others versus Aditi Garg 2016(2) R.C.R. (Criminal) 12, Chandrawati Devi and others versus State of Bihar and another 2014(4) ECrC 53, Inderjit Singh Grewal versus State of Punjab and another 2011(4) R.C.R. (Criminal) 1, Ashish Dixit and others versus State of U.P. and another 2013(2) R.C.R. (Criminal) 340, Devanand Baliram Wankhade and others versus State of Maharashtra and others 2015 All MR (Crl.) 3618, Anoop and others versus Vani Shree 2015(2) R.C.R. (Criminal) 989, Smt. Geeta and others versus State of U.P. and another 2014(5) R.C.R. (Criminal) 577 and Nandan Singh Manrai versus State and others 2011(2) R.C.R. (Criminal) 271.
    6. The submission on the other hand was that the remedy was available and the petitioners could approach the Magistrate and when a specific remedy is provided, the petition under Section 482 Cr.P.C. was not maintainable. It was also urged that the provisions of the Act provide for a remedy under the civil law and the petition under Section 482 Cr.P.C. could not have been resorted to.
    7. A Division bench of the Gujrat High Court was faced with a similar objection. The Division Bench in ‘Suo Motu versus Ushaben Kishorbhai Mistry 2016(2) R.C.R. (Criminal) 421’ examined the provisions of the Act and the judgments referred before it concluded as under:-
      • “27. In view of the aforesaid observations and discussion, the following conclusions:
      • (i) The provisions of the Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court.
      • (ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing.
      • (iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion.
      • (iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure coupled with the power of the Court under Section 28(2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23of the Act.
      • (v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.
      • (vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice.”
      • This Court in ‘Om Parkash Syngal and others versus Aditi Garg reported in 2016(2) R.C.R. (Criminal) 12 had held that the violence committed by a person while living in the shared household can only constitute domestic violence and other acts of violence when one is living separate may be punishable under the different provisions of the Indian Penal Code and the other penal laws but cannot be covered under the Domestic Violence Act.
    8. In Chandrawati Devi’s case (supra), the complainant had never lived with the brother-in-law and the mother-in-law and had claimed a share in the property and money of the deceased husband. It was held that the matter could not be decided in a complaint filed under the Domestic Violence Act and the matter could be taken up in a partition suit and the proceedings were quashed. The issue of maintainability was also decided therein and it was held that the extra ordinary remedy and the inherent power under Section 482 Cr.P.C. could be invoked when it was to prevent the abuse of the process of law and to secure justice.
    9. In the present complaint, the complainant had implead the in-laws and the distant relatives. The trial Court had summoned all the respondents without even waiting for the report of the Protection Officer. The trial Court should have applied its mind and should have examined the contents of the complaint before issuing notice to the distant relatives who were residing separately. There was no averment in the complaint that they had at any point of time lived together. The complaint had been filed three years after the death of the husband of the complainant. No specific instance of domestic violence had been mentioned. As regards the share in the property there is a civil remedy and can not be gone into in these proceedings under the Domestic Violence Act. There is also the bar of limitation in the present fact situation. I have no hesitation in holding that continuation of the proceedings under the Act against the petitioners is an abuse of the process of law.
    10. Therefore, the petition is allowed and the aforementioned complaint as well as the subsequent proceedings arising therefrom, are quashed.

     

    (ANITA CHAUDHRY)

    JUDGE

    May 23, 2016

    Gurpreet

    India is a land of culture ! Dating is NOT common, but FALSE rape , 498a is VERY common !! :-)

    • India is a land of great culture. SEX before marriage is NOT common. Dating is NOT common. However FAKE rape, 498a is very common in India. Recently it was found that 70+ % of rape cases filed in Delhi were fake. They were either “rape to force a marriage” or “rape to extract money” or completely fake to settle scores !!
    • Since the last 15 or so years, courts have repeatedly stated that 498a and Dv act is often misused to harass the husband and in laws
    • Still there is NO change in fake cases. Fake rape is a recent lucrative addition !!

    Screenshot - 15_05_2016 , 11_23_46