Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., allowed a petition filed by the husband and quashed trial court’s order whereby it had partly allowed the wifes’ application filed under Section 20 of the Protection of Women from Domestic Violence Act, 2005.

The wife, along with her minor son, filed a domestic violence petition against the husband. By its order, the trial court partly granted the application in terms of Section 20 directing the husband to pay a monthly maintenance of Rs 5,000. Subsequently, the wife appealed to the additional sessions judge who partly allowed the appeal by enhancing the maintenance to Rs 7,000. Aggrieved, thereby the husband filed the revision petition.

Agha Iftikhar, Advocate for the husband submitted that there was no finding of any act of domestic violence being committed by the petitioner against the wife. It was further submitted that such a finding was a sine qua non for the trial court to grant any relief under the Act. On the other hand, A.D. Bhobe, Advocate appearing for the wife fairly did not dispute the above-said submission.

The High Court took note of the submissions made by the husband that he shall continue to pay Rs 5,000 per month for a limited period for the wife and minor son. Resultantly, the Court allowed the petition and quashed the impugned order. However, it was left open for the wife to take recourse to any other remedy as may be available under law. The husband was directed to pay a monthly sum of Rs 5,000 for a period of six months. [Vijayanand Dattaram Naik v. Vishranti Vijayanand Naik, 2019 SCC OnLine Bom 314, dated 13-02-2019]

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Delhi High Court: The Bench of Sanjeev Sachdeva, J. ordered mother-in-law of the petitioner to provide her an alternate accommodation and compensation under provisions of Protection of Women from Domestic Violence Act, 2005.

Petitioner and her husband lived together in the property which is subject matter in this case. In 2012, the husband left the matrimonial house and the respondent (mother-in-law) directed the petitioner to leave the house. She is alleged to have filed a suit for permanent injunction after which the litigation story began. After several litigations, the Metropolitan Magistrate passed a residence order in favour of the petitioner. It was alleged that the order was not complied with and moreover the mother-in-law sold the subject property to a third party while the matter was still pending adjudication before the court.

Rajeev Ranjan Pandey, Advocate submitted on behalf of the petitioner that the respondent was liable to be prosecuted for breach of court orders.

The High Court referred to Sections 12, 19, 20 and 31 of the DV Act. It was noted that the subject property was sold for Rs 3,40,00,000. It was also noted that there was no order restraining the mother-in-law from selling the property and as such she could not be penalised under Section 31 which prescribe punishment for breach of court orders. In such a situation, the Court balanced the corresponding rights of the parties by directing the mother-in-law to provide an alternate accommodation in a property similar in nature in the same locality. Interim compensation of Rs 75,000 was also directed to be paid while pendency of proceedings Section 20 before the trial court. Furthermore, 1/6th of the sale consideration received was directed to be deposited with the trial court. The petition was disposed of in such terms. [Shachi Mahajan v. Santosh Mahajan, 2019 SCC OnLine Del 6418, dated 10-01-2019]

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Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. dismissed a criminal writ petition filed by the husband praying quashing of FIR under Section 498-A IPC and complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (DV Act).

The grounds for seeking quashing of the FIR and the complaint was that they were registered to wreak vengeance and were beyond the period of limitation as the parties separated in 2014. It is pertinent to note that the wife had filed a complaint before CAW Cell in 2015 where a settlement was arrived at between the parties at pre-litigation mediation. However, it was not fully acted upon and even after an application the earlier complaint could not be revived. Thus, the filed fresh complaint in 2018.

The High Court was of the view that the FIR was within the period of limitation. Relying on Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 and Asha Ahuja v. Rajesh Ahuja, 2003 SCC OnLine Del 316, the Court held that Section 468 CrPC which deals with “bar to taking cognizance after lapse of period of limitation” is to be read with Section 473 which provides for “extension of period of limitation in certain cases”. Further relying on Arun Vyas v. Anita Vyas, (1999) 4 SCC 690, it was held that is a continuing offence and each occasion of “cruelty” is a new starting point of limitation. As far as a complaint under Section 12 DV Act is concerned, it was noted that it related to the grant of maintenance for the wife and minor child. It was held that “not providing maintenance is a continuous cause of action and even if for three years the wife did not claim maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 DV Act and the complaint thereon cannot be dismissed being barred by limitation”. In such view of the matter, the petition was dismissed. [Anthony Jose v. State (NCT of Delhi), 2018 SCC OnLine Del 12956, decided on 05-12-2018]

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Himachal Pradesh High Court: A Single Judge Bench comprising of Dharam Chand Chaudhary, J. dismissed a criminal revision petition that was filed against the order of the Sessions Judge wherein he reversed the order of Chief Judicial Magistrate granting maintenance to the petitioner under Domestic Violence Act, 2005.

The petitioner was married to the respondent and they had school going children. She alleged that the respondent and his mother treated her and the minor children with cruelty. She submitted that the children were studying in a public school and their expenses were high. The respondent was a government doctor earning Rs 1.5 lakhs per month. Taking note of such factual details,  the Chief Judicial Magistrate directed the respondent to pay Rs 30,000 per month to the petitioner by way of interim allowance. On appeal, the said order was reversed by the Sessions Judge vide the order under challenge herein.

The High Court perused the record and observed that the Chief Judicial Magistrate passed the order without recording any prima facie finding qua alleged instances of maltreatment to the petitioner and the children, by the respondent and his mother. The Court held that in a case of domestic violence, in order to seek the relief of interim maintenance under Section 23 of the Act, a prima facie case qua maltreatment and existence of instances of domestic violence was required to be made out which was not done in this case. Moreover, the Sessions Court did not close the right of the petitioner to claim interim maintenance rather remanded the matter to the trial court for disposal under the law. The High Court did not find any fault with the order impugned. Consequently, the petition was dismissed. [Ashmin Kashmiri v. Pushkar Kashmiri,2018 SCC OnLine HP 841, dated 04-07-2018]

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Karnataka High Court: A Single Judge Bench comprising of Anand Byrareddy, J. allowed a criminal petition filed by a Muslim male holding that he was entitled to invoke the provisions of Protection of Women from Domestic Violence Act 2005 (DV Act).

The petition was filed under Section 482 CrPC by the petitioner, a male. Being aggrieved by certain acts of his wife and her family, the petitioner invoked the provisions of DV Act. Learned City Civil and Sessions Judge was not impressed by the action brought on behalf of the petitioner as in his opinion, the Act was heavily loaded in favor of women and it does not contemplate any male member being aggrieved by domestic violence. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court relied on the Supreme Court decision in Hiralal P. Harsora v.  Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Hon’ble Court had struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted. The High Court observed that if the said sub-section is read after deletion of the expression ‘adult male’, it would appear that any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act. Having stated thus, the High Court held that petitioner’s complaint could not have been trashed merely on the ground that the Act does not contemplate provisions for men. The petition was accordingly allowed. [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 18.04.2018]

Update: By an order dated 28.04.2018, Byrareddy J. withdrew the above-mentioned order and restored the petition to the file.

The order reads as – “Notwithstanding Section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2018 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to web host the order passed earlier and to take note of the fact that the order is withdrawn.” [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 28-04-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., addressed a Writ Petition filed addressing the order of the Family Court in regard to the payment of maintenance to the wife under Protection of Women from Domestic Violence Act, 2005 without considering the essence of Section 20 and Section 12 of the said Act in reference to the person being “Aggrieved Person” in the Act.

The petitioner-husband has submitted that the respondent-wife after taking away the children from their joint custody invoked Section 34, 37(2), 38 and 39 of the Specific Relief Act along with this she had prayed for a restrained order against the husband for their son Aryaman. Further, the respondent- wife under Section 20 of the said Act had preferred an application for monetary relief of Rs. 5 Lakhs per month as she was entitled for a maintenance of that much amount by taking into consideration her lifestyle and the earning capacity of the husband. For the said reasons and the filed application, order of the family court came into respondent’s favour by granting maintenance of Rs. 2 lakhs per month and primarily the reason for this order was the earning capacity of the petitioner-husband.

However, it has been contended in the present petition, by the learned counsel for the petitioner that, the trial court has passed an erroneous order as they have ignored the essence of Section 12 in which such an appeal is preferred. The said S.12 focuses on the term “aggrieved person”, which clearly has been ignored in the present application filed by the respondent-wife as no pleading attributing to domestic violence has been stated which brings to no relief be granted in reference to the said Act. It has also been claimed by the learned counsel for the petitioner that the point where the petitioner’s company was under the process of liquidation and the petitioner had already resigned from his services and he was still continuing to cater the expenses of his daughter and son was not taken into relevance at all.

Therefore, by taking into consideration all the stated facts and circumstances of the case, the high court by duly taking into consideration the point of petitioner’s earning capacity and his company being under the process of liquidation, partly allowed the petition on the basis that the family court’s approach has been grossly erroneous and it needs to be reconsidered on the matter of grant of maintenance. [Prakash Kumar Singhee v. Amrapali Singhee, 2018 SCC OnLine Bom 1197, dated 04-05-2018]