Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the Appellate Court whereby her appeal against the trial court order rejecting the application for grant of interim maintenance was dismissed.

The petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with it filed another application under Section 23 seeking interim maintenance. The application was rejected by the trial court on the sole ground that the petitioner and the respondent-husband were equally qualified. That she was previously employed and had not disclosed any cogent explanation so as to disable her to earn her living. The appeal filed by the petitioner against this order was dismissed by the Appellate Court. Aggrieved thereby, the petitioner filed the present revision.

Arvind Kumar with Vaibhav Kumar, Advocates represented the petitioner. Per contra, Sofia Bhambri, Advocate appeared for the respondent.

The High Court was of the view that both the courts below erred in not appreciating the decisions wherein it had been specifically held: “capacity to earn and actually earning are two different things.” Reference was made to the recent decisions in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816 and Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775.

In the present case, the Court noted that it was not the case of the respondent that petitioner was actually employed or earning. The only ground taken was that she is qualified and capable of earning. Reliance was placed on the Supreme Court decision in Shailja v. Khobbanna, (2018) 12 SCC 199, wherein it was held that whether the wife is capable of earning or whether she is actually earning two different things. The High Court observed: “Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income.”

In such view of the matter, it was held that the impugned orders of the trial court as well as the Appellate court could not be sustained and were, therefore, set aside. Accordingly, the petition was allowed and the matter was remitted to the trial court with a direction to pass appropriate order assessing interim maintenance after taking into consideration the income of the respondent as well as his dependant family members within 3 months.[Binita Dass v. Uttam Kumar, 2019 SCC OnLine Del 9666, decided on 09-08-2019]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, 2019 SCC OnLine Bom 659, decided on 18-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of R.K. Gauba, J. dismissed a husband’s petition filed against the order of Metropolitan Magistrate as confirmed by Additional Sessions Judge whereby he was directed to pay interim maintenance allowance of Rs 3500 to his wife and Rs 2000 for his minor daughter.

The parties were married to each other and a daughter was born to them from the wedlock. On account of certain circumstances, the wife left the matrimonial home along with the daughter. Subsequently, she filed a petition under Section 12 of the Protection of Women and Domestic Violence Act, 2005. On her application, the Metropolitan Magistrate directed the husband to pay the interim maintenance allowance as mentioned above. The husband challenged the order in an appeal which was dismissed by Additional Sessions Judge, Aggrieved thereby, he filed the present petition under Section 482 CrPC.

S.C. Singhal, Advocate for the husband submitted that he was unemployed and therefore unable to pay the allowance. It was also submitted that the wife was gainfully employed in a beauty parlour for the proof of which certain photographs were produced.

The High Court held that mere photographs showing the wife’s presence in a parlour were not sufficient to prove that she had a regular income sufficient to maintain herself and the minor daughter, Furthermore, the husband made a cursory statement that he was unemployed, but did not disclose as to how he had been surviving all along. The Court was of the view that he was concealing facts and intentionally withholding information about his income. In such a situation, the Court approved the course adopted by Metropolitan Magistrate as per which he assumed husband’s income notionally on the basis of minimum wages and passed the order of interim maintenance. Resultantly the petition was dismissed. [Khem Chand v. Bhagwati, 2019 SCC OnLine Del 6776, Order dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. dismissed a petition filed by the petitioner-wife for a right to possession in the house owned by her father-in-law.

The wife had filed a suit under Section 12 of the Protection of Women from Domestic Violence Act, 2005 impleading her husband and father-in-law. Concededly, the wife lived with her son in a portion of the house which was owned by the father-in-law. The wife submitted that she was allowed to live in the said house under a family arrangement. She claimed a right to possession in the shared household under the Act. The question that arose for consideration was whether the property in question or any portion thereof could be described under the facts and circumstances as a shared household?

The High Court perused Section 2(s) of the Act which describes a shared household. It was conceded at the bar that right of residence under the above mentioned special legislation can be claimed and pressed only against the husband and not against the father-in-law. It was observed as inherent in definition of shared household that the person against whom the right of residence is claimed qua the household described as such, should have a right, title or interest therein. In the facts of the present case, it was held that the wife has no such right of residence, as her claim which was through her husband could not be sustained. The partition suit filed by the husband against his father as also the claim brought through her son had already been rejected by the civil court which had attained finality. It was held that the petitioner was only a permissive user of the house and as such could not force herself on the owner of the property, particularly when she had no vested or legal right to claim residence in his property. For reaching the said conclusion, the Court relied on the Supreme Court decision in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169. The petition was accordingly dismissed. [Manju Gupta v. Pankaj Gupta,2018 SCC OnLine Del 11337, Order dated 30-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J., dismissed a criminal revision petition filed against the decision of the Additional Sessions Judge who reversed the judgment of the Judicial Magistrate allowing the application filed by the revisioner under Section 12 of Domestic Violence Act, 2005.

The revisioner belong to Jain Hindu community and was previously married to one Shantaram Mahadu. Subsequently, on separation, she had an affair with Respondent 2, a Muslim by religion. The revisioner converted to Islam and contracted marriage with him. However, dispute arose and the couple separated. The revisioner filed an application under Section 12 which was opposed by Respondent 2 mainly on the ground that marriage between the two was not legally possible as they had prior subsisting marriages. However, the Magistrate allowed the application, which decision was reversed by the Sessions Court in the impugned judgment.

The High Court interpreted the words “relationship in the nature of marriage” appearing in Section 2(f) which defines “domestic relationship”. Noting the interpretation of the words by the Supreme Court in Velusamy v. D. Patchiammal, (2010) 10 SCC 469, as well as Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the High Court observed that all live in relationships are not in the nature of marriage. Not all live in relationships are covered by Section 2(f). It is only those which qualify to be in the nature of marriage that are governed by the provision. In order to constitute such relationship, a legal marriage between the two must be possible. Since, in the instant case, first marriage of the revisioner was still subsisting, there could not have been a possibility of a legal marriage between her and Respondent 2. Further, a statute should be interpreted in a manner which would not promote illegality. Section 2(f) could not be interpreted in such a way so as to promote adulterous relationships. Thus, it was held that the instant relationship was not covered under “domestic relationship”, and the revisioner was not entitled to any relief under the Act. The revision was, accordingly, dismissed. [Reshma Begum v. State of Maharashtra,2018 SCC OnLine Bom 1827, dated 25-07-2018]

Case BriefsHigh Courts

Bombay High Court (Goa Bench): A Single Judge Bench of the Goa Bench comprising of C.V. Bhadang, J. allowed a criminal writ petition filed against the judgment of the Sessions Judge whereby the petitioner was directed to pay maintenance to his adult son.

Earlier, Respondent 1 (wife of the petitioner) had filed an application under Section 12 of Protection of Women from Domestic Violence Act 2005 (DV Act), seeking, inter alia, monetary reliefs. Learned Magistrate by his order granted interim maintenance of Rs. 8000 per month for Respondent 2, son of the petitioner. It was not disputed that Respondent 2 was a major, aged 25 years. The petitioner filed an appeal before the Sessions Judge against the order of the Magistrate contending that under the provision, only a ‘child’ is entitled to maintenance. However, the Sessions Judge dismissed his appeal holding that the petitioner was liable to pay maintenance to Respondent 2 since he was an engineering student with no source of income. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court referred to Section 2(b) of the DV Act. On perusal of the section, the Court observed that ‘child’ within the meaning of the section means any person below the age of 18 years. In light of the undisputed fact that Respondent 2, son, was 25 years of age, the High Court held that he could not be included within the definition of ‘child’ as envisaged under Section 2(b). Hence, the petition was allowed and the impugned order was set aside. [Antonio De Matos Sequira Almeida v.  Felicidade Wilma Almeida, 2018 SCC OnLine Bom 1123, dated 04-06-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Janak Raj Kotwal, J. quashed the proceedings pending against the petitioners under Section 12 of J&K Protection of Women from Domestic Violence Act, 2010.

The respondent filed an application under Section 12 against her in laws. The petitioners sought quashing of the said applications and proceedings arising therefrom. Contention of the petitioners was that they were never in a domestic relationship with the respondent in as much as she never stayed with them in a shared household.

The High Court perused the record and found favour with the contention put forth by the petitioners. Section 2(a) defined the term ‘aggrieved person’ and Section 2(f) defined ‘domestic relationship’. Reading both the sections in juxtaposition, the High Court opined that an application under Section 12 can be filed by a women against whom she is in a domestic relationship, i.e., with whom she lives. In the present case, it was clear that the respondent and her husband had stayed in Noida all throughout their wedded life, whereas the respondents were residents in Mohali. Therefore, the domestic relationship was not established between petitioners and the respondent and hence, Section 12 could not be attracted to the case. Accordingly, the impugned application was quashed. [Raghav Agnihotri v. Neha Sharma, 2018 SCC OnLine J&K 301, dated 18-05-2018]

Case BriefsHigh Courts

High Court of Himachal Pradesh: A Bench comprising of  Sandeep Sharma, J. has set aside the judgment passed by Fast Track Court and restored the judgment passed by the trail court, in which the complaint filed by the wife of the petitioner under Section 12 of the Domestic Violence Act was dismissed.

The complainant wife initially filed a complaint under Section 12 of the Domestic Violence Act alleging domestic violence against her husband and in-laws. This complaint was rejected by the trial court for want of merit in the application. An appeal was filed to the Fast Track Court, in which even though the court found no proof of domestic violence, it granted the complainant a maintenance allowance after observing that she had no independent source of income. Against this judgment, the petition was filed by the husband of the complainant.

The petitioner argued that since no evidence was led by the complainant which proved violence against him, the maintenance allowance was not tenable in law. The court agreed with the arguments of the petitioner and observed that even the appellate court was not convinced of evidence led by the complainant. Perusal of the complaint by the court nowhere suggested that maltreatment and violence was ever meted out to her. Further, neither any specific instance was reported with regard to the violence, nor any independent witness from the locality was associated by the complainant to prove the allegations. Further, the Court found evidence that the complainant left the house on her own after being caught red handed with a person, with whom she had illicit relations. In view of these findings, the Court concluded that the appellate court got swayed by emotions and ignored overwhelming evidence while granting maintenance. Consequently, the judgment of the appellate court was set aside and judgment of the trial court was upheld. [Anil Kumar v. Shashi Bala, 2017 SCC OnLine HP 626, decided on 2-5-2017]

Case BriefsHigh Courts

High Court of Rajasthan: While deciding the validity and legality of the criminal miscellaneous petition filed under Section 482 CrPc, by the petitioners, the Bench comprising of P.K.Lohra, J., while exercising its power under Section 482 Cr PC, held that the criminal complaint filed against the petitioner, under Sections 498-A, 323, 406 & 504  IPC and Section 12 of the Domestic Violence Act, 2005 if allowed to be continued before the trail court, would obviously result in abuse of the process of the court since the complaint lacks mentioning of specific instances of domestic violence directed towards the complainant.

The complainant is the respondent/wife of the deceased husband, who died while the proceedings were taking place in the trial court on account of complaint lodged by the her under DV Act and IPC against the deceased husband, his parents and her sister-in-law. The learned counsel for the petitioner submitted that since the acrimony started between the deceased husband and respondent wife since then the latter is not living with the former hence there is no iota of evidence to indicate that she has been subjected to domestic violence by the petitioners therefore, the complaint has been designed to harass the petitioners, which is a glaring example of abuse of the process of the Court.

The Court allowing the instant petition held that the bare reading of the complaint makes it abundantly clear that it does not disclose any specific instance of domestic violence against the petitioners hence in the absence of concrete proof relating to the instance of domestic violence a casual reference of the name of the family members i.e. petitioners in the complaint without there being any allegation of their active involvement in the matter is sufficient to conclude that complaint is in fact designed to harass the petitioners and if the criminal complaint is allowed to be proceeded in the trial court it would obviously result in abuse of the process of the Court. [Sudama Dutt Sharma v. State Of Rajasthan, Criminal Misc. (Pet.)  No. 1524 of 2011, decided on 8th November, 2016]

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the issue that whether a complaint under the Domestic Violence Act is maintainable even after a decree of divorce has been passed, the bench of Anita Chaudhry, J., held that the provisions of the Domestic Violence Act can only be invoked if the marital relationship is in existence, therefore once a marital relationship is ended by a decree of divorce, a complaint under Domestic Violence Act cannot be filed at all.

The present case was filed seeking the quashment of complaint filed under the Domestic Violence Act. It is to be noted that the marital relationship between the petitioner and his wife had ended by an exparte divorce decree. The counsel for the petitioner, Sukhbir Singh contended that, since the marriage of the petitioner and his wife has ended therefore the complaint under the Domestic Violence Act is not maintainable.

The Court perused the relevant provision of the Domestic Violence Act, namely Section 2(a) and 2(f) while answering the accompanying question that whether a divorced woman is included in the definition of an ‘aggrieved person’. It was observed by the Court that the language of the concerned provision uses ‘who is’ and ‘has been’, both of which have been used in the present tense, clearly establishing that there has to be a marital relationship in existence. Similarly, Section 2(f) stresses about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is ‘are related’ by marriage, which again is in present tense. The relevant provisions indicate the legislative intent to protect women who are living in a domestic relationship. Therefore for a complaint under the Domestic Violence Act to sustain, it is necessary that the marriage between the aggrieved person and the respondent is in existence. [Amit Agarwal v. Sanjay Aggarwal, 2016 SCC OnLine P&H 4200, decided on 31.05.2016]