Domestic Violence: Protection of Women from Domestic Violence Act, 2005 Ten Landmark Judgments Name OF THE CASE: 1. VIJAY VERMA VS STATE N.C.T. OF DELHI & ANR. COURT: DELHI HIGH COURT JUDGE: SHIV NARAYAN DHINGRA FACTS OF THE CASE: The petitioner herein had filed an application under Section 12 of Protection of Women from Domestic Violence Act making her brother and his wife as respondents. She sought an interim order from the Court of M.M. for immediate residence rights and police protection so that she could stay at premises No. A-181, Defense Colony, Delhi, whenever she visited India. The petitioner is a permanent resident of USA and is living in USA since year 2000. She came to India on a visit on 15th July, 2008 and alleged that when she went to her parental house on 16th July, 2008, she was not allowed to enter her parental house and hence the application. Learned MM in her order observed that in this case the petition was more in a nature of claiming right in the property. The whole dispute seemed to be property dispute between the parties and there was no ground to pass an interim order of residence. The learned ASJ upheld this contention in appeal. JUDGMENT: SHIV NARAYAN DHINGRA, J "I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, and she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father." SOURCE (http://lobis.nic.in/dhc/SND/judgement/16-082010/SND13082010CRLMM38782009.pdf)
NAME OF THE CASE: 2. NAGESH MALIK VS PAYAL MALIK
COURT: DELHI JUDGE: H.L. DATTU & CHANDRAMAULI KR. PRASAD FACTS OF THE CASE: The facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husband contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008. JUDGMENT: H.L. DATTU & CHANDRAMAULI KR. PRASAD Shri Basava Prabhul Patil, learned senior counsel appearing for the contemnor/respondent would submit that pursuant to the directions issued by this Court, the respondent herein has deposited a sum of Rs.2 lacs before the learned Magistrate (Mahila Court), South East District, New Delhi. Further, today he is offering a demand draft for a sum of Rs.50, 000/- to the learned counsel appearing for the complainant. Both sides would agree that the aforesaid amounts would satisfy the interim directions issued by this Court upto the end of July, 2012. The complainant, if she so desires, is at liberty to withdraw the sum of Rs.2 lacs deposited by the contemnor before the learned Magistrate. The learned counsel appearing for the complainant acknowledges the draft handed over by Shri Patil,
learned senior counsel, for and on behalf of the contemnor. In view of this, nothing survives in this Contempt Petition and the same is accordingly, disposed. SOURCE (http://www.legalcrystal.com/904738).
NAME OF THE CASE: 3. Diwan Singh Mehra Vs State Nct Of Delhi And Anr COURT: DELHI JUDGMENT: JUSTICE SHIV NARAYAN DHINGRA FACTS OF THE CASE: By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch. JUDGMENT: The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the "respondent" as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them. SOURCE (http://indiankanoon.org/doc/70637199/)
NAME OF THE CASE: 4. Sirajuddin Khan @ Siraj vs Dr. Shahnaz Firdous on 22 January, 2013 JUDGMENT: Tarun Kumar Kaushal FACTS OF THE CASE: Fact of the case, in short, are that on 04/4/2006 marriage of petitioner no.1 with respondent was solemnized. After about 3 years of matrimonial relationship differences arose. On 23/08/2009 respondent lodged FIR at Mahila Thana, Jabalpur at Crime No. 42/2009 against the petitioners under section 498A, and 506 IPC read with section 3/4 of Dowry Prohibition Act. On 18/09/2009 in the court of JMFC, Jabalpur, respondent preferred an application under section 12 of Act of 2005. Simultaneously, on 22/09/2009 respondent preferred an application for grant of maintenance against the petitioner/husband in the Court of JMFC, Jabalpur under section 125 Cr.P.C. During the pendency of these aforesaid cases and also during pendency, of this petition in the year 2011, respondent preferred an application seeking divorce under section 2 of Dissolution of Muslim Act, which is pending in the Family Court Jabalpur. JUDGMENT: Taking over all facts and circumstances of the case into consideration, it is revealed that application of Domestic Violence Act was filed subsequent to the lodging of FIR under section 498A IPC against the petitioners. Domestic Violence Act provides an alternative remedy for seeking compensation etc in addition to the existing provision. Chance of abuse of process is also negligible because aggrieved party is bound to inform fact of pendency of all previous cases of such nature and order is passed after hearing both the parties taking into account all such cases. It is not a case of Double Jeopardy and is not a case of abuse of process of court. Court will proceed according to merits of the case and according to law applicable on them. No case of abuse of process and quashment of proceedings is made out. Accordingly petition is dismissed. SOURCE (http://indiankanoon.org/doc/110861200/?type=print)
NAME OF THE CASE: 5. Satish Sharma vs State & Anr. on 19 August, 2011 CORAM: HON'BLE MR. JUSTICE AJIT BHARIHOKE COURT: IN THE HIGH COURT OF DELHI FACTS OF THE CASE: The facts relevant for the disposal of this petition are that the petitioner is husband of Late maternal aunt of Gaurav Sharma. Respondent No.2 Shipali Sharma was married to Gaurav Sharma on 29.04.2005. The marriage between them was not a success, which led to filing of a divorce petition by Gaurav Sharma. When respondent No.2 was served with the notice of divorce petition, she filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005(for short "the Act") against Gaurav Sharma and five others, including the petitioner. Learned Metropolitan Magistrate, on consideration of the complaint under the Act found prima facie case against four out of six respondents named in the complaint and issued process for appearance against them. Petitioner is one of those named accused persons. Feeling aggrieved by the above, petitioner Satish Sharma has preferred this petition under Section 482 Cr.P.C. seeking quashing of the complaint against him. JUDGMENT: AJIT BHARIHOKE On reading of the above, it is apparent that allegations made in the complaint qua the petitioner are vague and general in nature. The allegations relate to the alleged incidents of the year 2005 and 2006. Admittedly, prior to filing of complaint under Section 12 of the Act, respondent No.2 did not file any complaint with the Police or any authority regarding harassment or cruel treatment meted out to her by her in-laws or the petitioner. It is not disputed that husband of respondent No.2 had filed a divorce petition against her and she was served with the notice of divorce petition on 21.01.2008. The complaint under Section 12 of the Act has been filed after the receipt of the notice of the divorce petition. From this, it can be safely inferred that the
complaint filed by respondent No.2 is a counterblast to the divorce petition. Otherwise also, undisputedly the petitioner is residing separately in his house at B-336 Hari Nagar which is at a fair distance from the matrimonial home of respondent No.2 i.e. H-1/125, Ground Floor, Vikas Puri. Therefore, I find it difficult to believe that the allegations of domestic violence made in the complaint against the petitioner are correct. On overall consideration of facts of this case, it appears that the complaint so far as the petitioner is concerned, appears to be motivated and it Crl.M.C.2305/2008 Page 9 of 10 appears to have been filed by respondent No.2 with a view to exert pressure upon her in-laws, particularly the husband who has filed divorce petition against her. Thus, in my view, the complaint qua the petitioner is nothing but an abuse of process of law, as such the complaint as well as the summoning order dated 31.05.2008 qua the petitioner are liable to be set aside. In view of the discussion above, petition is allowed and the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 as also the summoning order dated 31.05.2008 qua the petitioner are hereby set aside. SOURCE (http://indiankanoon.org/doc/125692481/)
NAME OF THE CASE: 6. Om Prakash Vs. State of Rajasthan & Anr COURT: JAIPUR JUDGMENT: R.S.CHAUHAN FACTS OF THE CASE: Facts of the case are that the respondent-wife filed an application under Section 12 of the Act against the petitioner-husband before the trial court wherein she claimed that she got married with the petitioner twelve years back in Jaipur. But ever since her marriage, her in-laws and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since last seven years. Thus, she prayed for maintenance. The respondenthusband filed reply to the application and denied the contents thereof. After hearing both the parties, vide order dated 07.02.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.800/- per month as maintenance to the respondent-wife. Being aggrieved by the said order, the petitionerhusband filed an appeal before the appellate court. However, vide order dated 23.10.2010, the learned appellate court upheld the order dated 07.02.2009 and dismissed the appeal. Hence, this petition before this Court. Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently contended that according to the complainant herself, she was married with the petitioner twelve years prior to 2008. Moreover, according to her, the petitioner and the respondent are living separately ever since 2001. Therefore, ever since 2001, no act of domestic violence has been committed. Yet, both the learned courts below have allowed an application under Section 12 of the Act. Since the Act came into force on October 26, 2006, the Act cannot be given a retrospective effect and cannot be made applicable to the alleged acts of domestic violence, which may have taken place prior to 2001.
JUDGMENT: Poverty is not a defense against the right of a woman. Therefore, the petitioner is both legally and morally bound to pay maintenance of Rs.800/- per month to the respondentwife. Furthermore, the Act does not require that the aggrieved person must stay with the offending husband. Hence, merely because the respondent-wife is not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act. Therefore, the contention raised by the learned counsel for the petitioner is without any foundation. For the reasons stated above, this Court does not find any illegality or perversity in the impugned orders. This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed. SOURCE (http://www.lawyerscollective.org/files/OM%20PRAKASH.pdf)
NAME OF THE CASE: 7. S.R. Batra And Anr vs Smt. Taruna Batra BENCH: S.B. Sinha & Markandey Katju Facts of the Case: Smt. Taruna Batra got married to Shri Amit Batra on 14th April 2000 and they had a male child born to them in the 27th November 2001. As per the prevailing practice, after their marriage, Smt. Taruna Batra shifted into the home of Shri Amit Batra along with her in-laws Shri S.R. Batra and Smt. Dhanwanti Batra. The House is though a two floor building registered in the name of Smt. Dhanwanti Batra, but they all resided on the ground floor of property situated at No. B-135 of Ashok Vihar in Phase I at Delhi110052. In early 2002, few months after their son was born, relations between the Smt. Taruna and Shri Amit Batra started deteriorating. According to Smt. Taruna, Shri Amit Batra treated her cruelly. This made them shift to the second floor of the said property, which became Smt. Taruna’s matrimonial home. However, their shifting to the second floor did not improve their relations, rather on the contrary, their relations deteriorated to such an extent that Shri Amit Batra filed a divorce petition. To this Smt. Taruna registered an FIR against Shri Amit Batra and other family members under the provisions of Sections 406/498A/506 and 34 of the Indian Penal Code (alleged to be counterblast to the Divorce petition). On the basis of this complaint Shri Amit Batra and his parents were arrested in January 2003. The happening of these events made it difficult for Smt. Taruna to stay at her matrimonial home and therefore she shifted to her parents' residence.
JUDGMENT: Disagreeing with the view of the High Court the apex court observed that unlike in England where the rights of spouses to the matrimonial home was governed by the Matrimonial Homes Act, 1967, no such right exists in India. The Court held that the house belonged to the mother–in-law of the respondent and hence the respondent cannot claim right to live in the said house. The court also held that the house could not be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor was it joint family property. Accordingly, the appeal was allowed. It laid down, that only in three instance can the wife claim the husband’s house as the matrimonial home, they being; if the property was in the name of the husband; or if the husband was paying rent of the property; or if the husband was a member of a joint family and the property being undivided. The court also went on to discuss the legal obligation of the husband to provide residence to the wife. The fact that Amit Batra applied for a divorce from the Petitioner (although the divorce petition is now said to have been dismissed in default) does not take away his obligation. Consequently, Amit Batra shifting from the second floor of the said property to Ghaziabad would not ipso facto shift the Petitioner's matrimonial home to Ghaziabad. Hence according to the Supreme Court in the present case there was no obligation of the respondent to let the petitioner reside in the house that does not belong to their son. SOURCE (http://www.lawyersclubindia.com/articles/Case-Comment-S-R-Batra-v-TarunaBatra-1250.asp#.U7OYV5SSwcs)
NAME OF THE CASE: 8. Rajkumar Rampal Pandey Vs. Sarita Rajkumar Pandey COURT: BOMBAY FACTS OF THE CASE: The petitioner and respondent got married on 18.5.2001. The petitioner is working as marketing executive. Sometime in the month of February, 2004, the respondent-wife joined the petitioner and started residing with him in the shared household. The continuous acrimony between them resulted in matrimonial discord, leading to divorce petition by the husband on the ground of mental cruelty being Petition No. A-113/2007 and criminal complaint under Sections 498-A, 306 read with Section 34 of the Indian Penal Code by the respondent-wife against the petitioner-husband. The respondent-wife moved an application before the Family Court, Bandra under Section 26 of the Protection of Women from Domestic Violence Act, 2005 ('the Domestic Violence Act' for short) to seek declaration that she has a right to reside in the shared
house i.e. residential flat No. A-102, 'Om Adarsh Co-op. Housing Society Ltd. Deonar,' Gowandi (hereinafter called the 'subject-flat') and decree of permanent injunction restraining respondent-husband, his mother and relatives from evicting, dispossessing and/or excluding the respondent-wife from the subject flat is said to be a shared household. The aforesaid application was opposed by the petitioner-husband, on the various grounds, contending that the subject flat is in the name of his mother. The flat situate at 'Pamakuti, Chunna Bhatti' is in the name of his grandfather, occupied by his aunt and other relatives. In short, he denied his interest in the subject-flat. He has also challenged the maintainability of the subject application and prayed for rejection thereof. JUDGMENT: This petition, filed by petitioner-husband under Article 227 of the Constitution of India, is directed against the order dated 29.7.2008 passed below Exh. 10 in Petition No. A-113 of 2007 by the Principal Judge of the Family Court, Bandra, Mumbai whereby the petitioner, his mother, sister, other relatives, servants and agents are restrained from obstructing the respondent-wife to reside in a shared household. Rule, returnable forthwith. Heard finally by consent of parties. Perused the petition. SOURCE (http://www.legalcrystal.com/367832)
NAME OF THE CASE: 9. Aruna Parmod Shah vs Union Of India BENCH: V Sen, P.Bhasin JUDGMENT Vikramajit Sen, J. FACTS OF THE CASE: This Petition was originally listed before a Single Judge of this Court. The Petition contains two prayers - (a) for declaring the Protection of Women from Domestic Violence Act, 2005 (for short 'Act) as ultra vires the Constitution of India and (b) to quash the
proceedings before the Metropolitan Magistrate, New Delhi. Very briefly stated, the Petitioner admits that a Ring Ceremony had been performed between him and Respondent No. 2, but no marriage had been celebrated. Respondent No. 2 however appears to have taken the stance that their marriage was duly solemnized. Learned Counsel for the Petitioner has assailed the vires of the Act on the ground that inasmuch as it provides protection only to women and not to men, the statute offends Article 14 of the Constitution of India. It is beyond cavil that legislation must be presumed to be legally sound and proper, and therefore the burden of proving that it is unconstitutional rests heavily on the Petitioner who asserts so. It has been laid down that if it is evident that a statute is predicated on an intelligible differentia between persons falling within the protection of the provision viz-a-viz those falling outside, and this classification/differentia bears a reasonable nexus to the object sought to be achieved by the legislation, it would not infract or impinge upon the equality doctrine articulated and enshrined in Article 14 of the Constitution. JUDGMENT: After hearing learned Counsel for the petitioner at great length we had suggested to him that it would be in the interest of justice of the petitioner to address and concentrate upon prayer (b) relating to the quashing of the proceedings before the Metropolitan Magistrate. He has, however, insisted that the Act is ultra vires the Constitution, thereby needlessly wasting public time on an issue in respect of which no arguments of substance have been articulated. The challenge to the vires of the Protection of Women from Domestic Violence Act is misconceived and devoid of merit. The challenge is dismissed with costs of Rupees Three Thousand to be paid by the Petitioner to Legal Aid for Women, Children, SC, ST and Poor, Delhi High Court, New Delhi to be deposited within two weeks from today. SOURCE (http://www.indiankanoon.org/doc/511970/)
NAME OF TH CASE: 10. Smt. Neetu Singh Vs. Sunil Singh COURT: Chhattisgarh Judge: L.C. Bhadoo and; Sunil Kumar Sinha, JJ. FACTS OF THE CASE:
Facts necessary for the disposal of this appeal are that the appellant herein filed an application under Section 12 of the Act, 2005 read with Section 7 of the Family Courts Act, 1984, in the Court of Judge, Family Court, and Bilaspur on 13-6-2006 with the averments that the appellant was married to respondent on 28-4-2003 as per the Hindu custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and neglect behaviour. In connection with demand of money in-laws started beating the appellant and she was thrown out of the matrimonial house, against which reports were lodged in the Police Station on 7-8-2003 and 16-9-2004. On 9-11-2004, the appellant sent a notice to the respondent reminding him about his matrimonial duties, thereafter the appellant filed an application under Section 125 of the Cr. P.C. in the Court of Chief Judicial Magistrate, Bilaspur, from where same has been transferred to the Family Court, Bilaspur. The Family Court vide its order dated 20th April, 2005 passed an order for interim maintenance to the tune of Rs. 1500/- per month. Her husband is earning about Rs. 20,000/-per month. The in-laws have refused to return her articles which were given to her by her parents in her marriage. On the contrary, they have levelled false allegation of character assassination against the appellant, complaint of which was made by her in the Police Station. Ultimately, the appellant demanded Rs. 2 lakhs which were spent by her parents on arrangement of the marriage i.e. on tent, shamiyana & food, an amount of Rs. 1, 56,792, value of articles, which were given to her in the dowry and Rs. 1 lakh for subjecting her to cruelty and character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence of the appellant, passed the impugned order. JUDGMENT: In view of the above scheme of the Act, especially as per the provisions of Section 26 of the Act, the appellant herein is entitled to seek relief available to her under Sections 18, 19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family Court, Bilaspur. But the appellant is required to move an application under Section 26 read with Section in which she is seeking relief. However, instead of doing that, the appellant moved an independent fresh application under Section 12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application under Section 12 cannot be filed before Family Court because proceeding under Section 12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application. In the circumstances, we do not find any illegality or infirmity in the order impugned passed by the learned Judge, Family Court. The appeal is, therefore, liable to be dismissed and it is hereby dismissed. Still the appellant is entitled to move an application under Section 12 of the Act, 2005 before the Family Court in the maintenance proceeding said to be pending before that Court. SOURCE (http://www.legalcrystal.com/496843)
