Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal revision petition, a Single Judge Bench comprising of Rathnakala, J. held that the obligation of the husband to maintain the wife continues throughout the matrimonial life and the husband cannot get away with an excuse that for many years no request was made by the wife for the maintenance amount.

In the present case, the wife filed a petition under S. 12 of the Act for various relief. The learned Magistrate ordered maintenance and compensation in favor of the wife which was modified by the lower appellate court. The husband-revision petitioner, challenged the maintainability of the petition filed by the wife under S. 12 of the Act for maintenance and compensation. Learned counsel for the petitioner submitted that there was no cause to file the petition since there was no harassment/ill treatment or domestic violence as defined under S. 3 of the Act.

The Court, rejecting the contention of the petitioner held that domestic violence under S. 3 of the Act, includes economic abuse also. The omission of the husband in neglecting to maintain the aggrieved wife falls within the description of S. 3 of the Act. The husband was living with another woman, which was another form of domestic violence, emotional. It was held that the petitioner was guilty of offence of domestic violence under the Act and could not escape liability. [Kasturi v. Subhas, Criminal Revision Petition No. 539/2017, dated August 3, 2017]

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsHigh Courts

High Court of Orissa : In a path breaking decision the Bench comprising of S.K. Sahoo, J.,while answering a vital question that whether a women being an ‘aggrieved person’ can file an application before the Magistrate under the Protection of Women from Domestic Violence Act for domestic violence against the accused/respondent irrespective of the fact whether she is living in with the accused/respondent in share-household or not at the time of filing an application, observed for subjecting a woman to any act of domestic violence as defined under Section 3 of the PWDV Act and maintaining an application under Section 12 of the  Act, it is not necessary that the woman concerned must be living with the accused/respondent under one roof or in a shared household at the time of presenting the application to the Magistrate.

The petitioner had challenged the order passed by learned Sessions Judge and the  SDJM, Bhubaneswar basing its reliance on the case, Amit Agarwal v. Sanjay Aggarwal reported in 2016 (2) Crimes 783, that the suit filed by the opposite party under the provisions of PWDV Act is not maintainable on various grounds including that there existed no “domestic relationship” between the parties for almost 4 years therefore, without existence and continuance of domestic relationship between the parties, taking recourse to the provisions of the PWDV Act by the opposite party against the petitioner is not maintainable in the eye of law.

The Court upholding the contentions of the learned council for the opposite party observed that an ‘aggrieved person’ can file an application in case she is subjected to any act domestic violence although it is it is not necessary that the ‘aggrieved person’ concerned must be living with the respondent under one roof or in a shared household at the time of presenting the application to the Magistrate however,the ‘aggrieved person’ if have lived together with the respondent at any point of time, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, can maintain an application before the Magistrate under Section 12.

The Court dismissed the review criminal petition as being devoid of merits and stated that learned Magistrate has rightly rejected the petition filed by the petitioner challenging maintainability of the proceeding under the PWDV Act since the opposite party is the ‘aggrieved person’ within the meaning of the Act and the alleged overt acts committed by the petitioner of regularly coming to the rented house of the opposite party at Bhubaneswar and subjecting her to physical and mental torture after living separately, on the opposite party as mentioned in the application prima facie makes out a case of domestic violence and merely because they are living at separate places since 2012 does not snapped their ‘domestic relationship’ of being husband and wife. [Giridhari Nath v Mamitarani Sutar, 2016 SCC OnLine Ori 818, decided on 11th November, 2016]

 

Case BriefsSupreme Court

Supreme Court: Dealing with an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 that provides that the word “respondent” will only mean an adult male, the Bench of Kurian Joseph and R.F. Nariman, JJ said that the words “adult male” in Section 2(q) of the Act should stand deleted since these words do not square with Article 14 of the Constitution of India.

Taking note of various sections of the Act, the Court held that it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Also, if “respondent” is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household. This again is an important indicator that the object of the Act will not be sub-served by reading “adult male person” as “respondent”.

Regarding the word “adult”, the Court said that it is not difficult to conceive of a non-adult 16 or 17 year old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. It was held that even the expression “adult” in the main part is Section 2(q) is restrictive of the object sought to be achieved by the kinds of orders that can be passed under the Act and must also be, therefore, struck down, as this word contains the same discriminatory vice that is found with its companion expression “male”.

The Court said that the microscopic difference between male and female, adult and non-adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted which was provided only to carve out an exception to a situation of “respondent” not being an adult male. [Hiral P. Harsora v. Kusum Narottamdas Harsora, 2016 SCC OnLine SC 1118, decided on 06.10.2016]

Case BriefsHigh Courts

 Orissa High Court: While dealing with the question relating to jurisdiction under Section 27 of the Protection of Women from Domestic Violence Act, 2005, the Bench  comprising of S.K. Sahoo, J., held that even if an aggrieved person is residing at a place for a temporary period of time,  she has the right to file an application and seek relief under Section 12 of the said Act, before the competent court within the local limits  of whose jurisdiction such place situates.

The widowed mother, respondent herein, was compelled to leave the house in the twilight of her life by her son and daughter-in-law, the petitioners herein. After being subjected to physical and mental cruelty, the mother was constrained to take shelter in the house of her elder daughter at Phulbani. She filed an application under Section 12 of the 2005 Act in the Court of S.D.J.M., Phulbani against the petitioners seeking reliefs under the Act. The present application sought transfer of the case to Berhampur on the ground that the Court at Phulbani had no jurisdiction to entertain the same.

The Court held that in view of Section 27, if the ‘aggrieved person’ either permanently or temporarily resides at a place, the Court of Judicial Magistrate of the First Class within the local limits of whose jurisdiction such place situates is competent to entertain an application under Section 12  and to grant protection order and other orders under the Act or try the offences under the Act. Dismissing the application,  the Court observed that ‘residence’ as defined under Section 27  includes both temporary and permanent residence of the aggrieved person. The Court further stated the meaning of the word ‘temporary’ as lasting, existing, serving for a time only which is not permanent. Thus a temporary residence is a temporary dwelling place where the aggrieved person resides, irrespective of residing there permanently or for considerable length, but for the time being. The Court stated that temporary residence does not include a place where the aggrieved person may stay or reside for the purpose of filing a case against another or a place where the aggrieved person has gone on a casual visit, a lodge or hostel or a guest house or an inn where she stays for a short period rather a place where the aggrieved person was force to reside for the time being in view of the commission of domestic violence. [Rabindra Nath Sahu  v.  Susila Sahu, 2016 SCC OnLine Ori 592, decided on September 14, 2016]

Case BriefsHigh Courts

Madras High Court: Deciding the question that arose for consideration, the Court held that a complaint lodged under the Domestic Violence Act would amount to an abuse of process of law in case it is filed as a legal remedy to claim right over property. A Single Bench comprising of S. Vimala, J. quashed the impugned order D.V.O.P No. 10 of 2015 of the learned Judicial Magistrate, Dindigul as illegal relying on the contentions of the counsel for the petitioner that the complaint filed by the respondent was not maintainable as it did not disclose any act of domestic violence as contemplated under the said Act and the respondent was not residing in the property as a shared household but rather as a tenant .
The Court observed that a dispute regarding property rights needs to be resolved by a civil court and if it is given the colour of domestic violence, then it is a case of abuse of the process of law and it needs to be quashed. The Court further observed that instead of establishing the rights in the civil court if a complaint is filed under the Domestic Violence Act as an outcome of personal animosity, grudge and only to extract money then such complaint is not maintainable under the Act and has to be quashed. [B. Sakunthala v. Vasantha, 2016 SCC OnLine Mad 9109, decided on September 7, 2016]

Case BriefsHigh Courts

Allahabad High Court: Allowing the revision, the Court observed that the supervisory power or revisional jurisdiction of the High Court provided for under Sections 397(1) and 401 of the Code of Criminal Procedure, 1973 is not negated or affected by the absence of a provision for appeal to the High Court under the Protection of Women from Domestic Violence Act, 2005. It was observed that the 2005 Act provided no finality to the order passed under Section 29 and there was no specific exclusion of the CrPC.

The revision was filed by the aggrieved husband against the order of the Additional District and Sessions Judge under Section 29 of the DV Act for payment of maintenance at Rs 30,000 per month towards his wife. The counsel for the opposite party relying on the judgment of the Apex Court in Shalu Ojha v. Prashant Ojha, (2015) 2 SCC 99 submitted that the revision was not maintainable.

Upholding the view of Manoj Misra, J. in Prabhunath Tiwari v. State of UP, 2012 SCC Online All 3172 the Court said that the revisional power of the High Court against the order passed under Section 29 of the Domestic Violence Act are “intact and unaffected”. The supervisory power of the High Court “has not been excluded expressly or impliedly” by the Act. Therefore, the Sessions Court was subject to the revisionary power of the High Court. Moreover, while examining the merits of the case, it was revealed that the wife was a practicing advocate and she was in a position to maintain herself. In the light of the documents presented, the Court held that the petition filed under Section 12 of the Act was filed under concealment of facts and hence shall be considered afresh.

Taking a serious note of the unethical practice by certain advocates of using the identity of another advocate using his name and enrolment number, the Court observed that an advocate has an independent identity and personality. It takes years to shape the personality and build an image. This image works all through his life. Lot of dedication, commitment, sincerity and impeccable integrity is required to generate and sustain an image. Using somebody else’s identity and name is most sacrilegious act. Supplementary investigation was ordered against Advocate Pal Singh Yadav, for impersonation, stealing and using the identity of another advocate by using his name and enrollment number. The Court issued restraining orders against him from entering the premises of the High Court, Lucknow Bench, the Family Court, the Court of District Judge, Lucknow and other courts subordinate to him. [Chiranjeev Kumar Arya v. State of UP, 2016 SCC OnLine All 486, decided on June 29, 2016]

High Courts

Bombay High Court: In a recent judgment, a bench comprising of S.B. Shukhre, J has clarified that a married woman who is living with her husband but is in a relationship with another man cannot seek maintenance from her paramour under the Protection of Women from Domestic Violence Act.  In the present case, a complaint was lodged by a woman against  her paramour and his two kids. The man against whom the complaint was filed had approached this Court challenging an order passed by the magistrate directing him to pay the complainant maintenance and the registration of a complaint under the Domestic Violence Act.

The Counsel for the appellant argued that the respondent (woman) could not have entered into a ‘domestic relationship’ as under section 2 of the Act as it is an admitted fact that she is a married woman and her marriage still subsists. The respondent-woman opposed the petition, arguing that whether she was in a domestic relationship with the appellant or not could be decided in light of the contentions and evidence brought on record only by the trial court. The Court ruling in favour of the man held  it is crystal clear that 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 establishes a long standing relationship with a man as his concubine or mistress, she would not be entitled to protection under the provisions of the Act.Narayan Jangluji Thool vs. Mala,2015 SCC OnLine Bom 407 decided on 27-1-2015

 

Supreme Court

Supreme Court: Considering the catastrophic increase in the crime against women, especially in domestic violence matters under the Protection of Women from Domestic Violence Act, 2005 (DV Act), the bench of S.J. Mukhopadhaya and Kurian Joseph, JJ held that such matters need to be looked upon seriously and that the Police without proper verification and investigation cannot submit a report that no case is made out. The Court, further, said that before forming a definite opinion and filing the report, the Investigating Agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others, however, it is for the Court to decide finally whether to take cognizance for any offence under any of the provisions of the DV Act or not.

The appellant, appearing through Counsel Debasis Misra, had alleged that the respondents had, with the intent to extort dowry from her, had maltreated her and ousted her from her matrimonial home. However, upon filing of a complaint under the DV Act, she was taken back in her matrimonial home by her in-laws with the assurance that she will not be maltreated and will be kept in a nice manner. On the other hand, the respondents, through their Counsel Naresh Bakshi, refuting the allegations of dowry demand, contended that the complaint filed by the appellant under the DV Act was false and an action under Section 182 IPC be taken against her. The Court, rejecting the contention of the respondents, held that the investigating agency failed to show that the appellant had given information which she believed to be false and hence, a case under Section 182 IPC is not made. Santosh Bakshi v. State of Punjab, Criminal Appeal No.1251 of 2014, decided on 30.06.2014

To read the full judgment, refer to SCCOnLine