Monday, December 5, 2011
Sunday, November 13, 2011
Violation of Human Rights
Reports of the victims should compulsorily be recorded at police station and it should be registered under proper provisions of law. Copy of F.I.R. has to be made available to the person concerned free of cost (Police Regulations).
Any person brought to the Police Station is not to be subjected to torture, beating or any third degree treatment (Supreme Court Verdict).
If a person is called to the Police Station, he/she has to be given the traveling allowance (section 160, (2) Cr.P.C.).
The arrested person has to be given reasons for his arrest. He has a right to consult an advocate and defend himself (Section 150(1) Cr.P.C.).
The arrested person has to be produced before the competent magistrate within 24 hours (Section 167 Cr.P.C.)..
If a person is arrested without a warrant, issued by a court of law, the Station Officer of the Police Station has to inform the District Magistrate(D.M.) / Sub Divisional Magistrate(S.D.M) without any delay.
The arrested person is entitled to food etc. at the Police Station (Police Regulations).
No arrested person is to be hand-cuffed while being taken to court or another prison, without the authority of the court (Supreme Court Verdict).
A person under police remand has to be compulsorily medically examined as soon as possible, within 24 hours.
All bruises, wounds and injuries etc. are to be recorded in a 'Memo', and it is to be signed by the police personnel and the accused (Supreme Court Verdict).
The arrested person can make a local telephone call to contact anybody. If the telephone is not available, such information will be sent through mail.
If a person dies under police custody, the District Magistrate(DM) / Sub Divisional Magistrate(SDM) should enquire into the causes of death (Section 176 Cr.P.C.). The family members or any other person can help the Magistrate to enquire into the causes of death.
If a person dies under police custody, the Human Rights Commission has to be informed.
If anything is recovered from the accused, a 'Memo' is to be made, the material has to be kept under proper safety and it's receipt has to be given.
All police officials have to bear their name badges during interrogation (Supreme Court Verdict).
No female has to be detained in the Police Station without proper reasons. The ladies should not be subjected to indecent or improper behavior.
If a lady is victim of rape or molestation, a very high level of sensitivity and urgency has to be exhibited by the police. As far as possible, the F.I.R. of a lady is to be recorded by a lady constable or it should be recorded in the presence of a lady constable. The statement of a victim of rape or molestation has to be recorded in the presence of her relatives and she should be sent for medical examination, in the presence of at least a male family member. If it is not possible, the victim should be accompanied by a lady constable (Supreme Court Verdict).
Complaints against police atrocities/inaction should be made to the concerned Circle Officer/Additional S.P./S.P./S.S.P./ D.I.G. (Range)/I.G. (Zone) or D.G.P.
In special cases S.D.M./A.D.M/D.M. or Commissioner should be approached.
Any person brought to the Police Station is not to be subjected to torture, beating or any third degree treatment (Supreme Court Verdict).
If a person is called to the Police Station, he/she has to be given the traveling allowance (section 160, (2) Cr.P.C.).
The arrested person has to be given reasons for his arrest. He has a right to consult an advocate and defend himself (Section 150(1) Cr.P.C.).
The arrested person has to be produced before the competent magistrate within 24 hours (Section 167 Cr.P.C.)..
If a person is arrested without a warrant, issued by a court of law, the Station Officer of the Police Station has to inform the District Magistrate(D.M.) / Sub Divisional Magistrate(S.D.M) without any delay.
The arrested person is entitled to food etc. at the Police Station (Police Regulations).
No arrested person is to be hand-cuffed while being taken to court or another prison, without the authority of the court (Supreme Court Verdict).
A person under police remand has to be compulsorily medically examined as soon as possible, within 24 hours.
All bruises, wounds and injuries etc. are to be recorded in a 'Memo', and it is to be signed by the police personnel and the accused (Supreme Court Verdict).
The arrested person can make a local telephone call to contact anybody. If the telephone is not available, such information will be sent through mail.
If a person dies under police custody, the District Magistrate(DM) / Sub Divisional Magistrate(SDM) should enquire into the causes of death (Section 176 Cr.P.C.). The family members or any other person can help the Magistrate to enquire into the causes of death.
If a person dies under police custody, the Human Rights Commission has to be informed.
If anything is recovered from the accused, a 'Memo' is to be made, the material has to be kept under proper safety and it's receipt has to be given.
All police officials have to bear their name badges during interrogation (Supreme Court Verdict).
No female has to be detained in the Police Station without proper reasons. The ladies should not be subjected to indecent or improper behavior.
If a lady is victim of rape or molestation, a very high level of sensitivity and urgency has to be exhibited by the police. As far as possible, the F.I.R. of a lady is to be recorded by a lady constable or it should be recorded in the presence of a lady constable. The statement of a victim of rape or molestation has to be recorded in the presence of her relatives and she should be sent for medical examination, in the presence of at least a male family member. If it is not possible, the victim should be accompanied by a lady constable (Supreme Court Verdict).
Complaints against police atrocities/inaction should be made to the concerned Circle Officer/Additional S.P./S.P./S.S.P./ D.I.G. (Range)/I.G. (Zone) or D.G.P.
In special cases S.D.M./A.D.M/D.M. or Commissioner should be approached.
Wednesday, July 13, 2011
BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT Crl M.P. No. 1234 of 2008 IN C.C. No. 1234 of 2007 Crime No: 1234 of 2007 (On the file of All Women Police Station) Ms. Star Lady - Petitioner / Accused (A2) Vs State represented by The Inspector of Police - Complainant/ Respondent All women’s police station AFFIDAVIT of MS. STAR LADY I Ms. Star Lady daughter of ____________ Christian female aged about ____ years residing at ___________________________________________ do solemnly swear and state as follows. 1. I submit that I am the _________ accused (A-__)herein U/s 498A I.P.C and U/s 4 and 6 of DP Act. 2. I submit that I do not dispute my identity 3. I submit that I am a permanent resident of __________ . 4. I submit that I have appeared before this Hon’ble court and copies of the charge sheet has been served on me on 7.12.2005 and the first questioning was also over on 10.12.2005. The case is posted for trial. 5. I submit that a. I am aged about ___ years, I am a housewife, I have two minor school going children aged about 16 years girl and about 11 years old girl, I do not have any elders at home to support me in taking care of my children, my husband works abroad, my frequent travel to personally appear before this Hon’ble court would put me and my children into undue hardship. b. I submit I am aged about 50 years old; I am disabled person with amputed left leg; I travel about 500 kms by bus; my frequent travel to personally Page: 1 Corr: appear before this Hon’ble court would put me and my children into undue hardship. c. I submit I am 80 years old, female with partial blindness; with support to travel from my hometown/village to attend the court hearing; my frequent travel to personally appear before this Hon’ble court would put me and my children into undue hardship. d. I am female; 55 years old with Type 2 diabetic petition with hyper blood pressure, enclosed is the medical report to support the same; my frequent travel to personally appear before this Hon’ble court would put me and my children into undue hardship and would jeopardize my health. 6. I submit that I need to travel everytime from ________ which is about 500 kms which is very far away from this Hon’ble Court 7. I submit that I may be exempted from personal appearance before this Hon’ble court for the subsequent hearing. 8. I submit that I may be permitted to engage M/s _________________________ to represent for and on my behalf as my counsel and they would appear before this Hon’ble court on all dates on my behalf. 9. I further submit that I hereby undertake that I will appear before this Hon’ble court on occasions whenever required and at Sec. 313 Cr.P.C questioning stage as well as on the date of judgment. 10. I submit that I shall not plead any prejudice for not being present in person during the trial Page: last page 2 Corr: I therefore respectfully pray that this Hon’ble court may be pleased to dispense with my personal appearance accused number __ (A-__), on condition that the accused will appear before this Hon’ble court whenever is required, at the time of.313 Cr.P.C questioning and on the date of judgment and permit the petitioner to be represented by her counsel of M/s _________________________________________ during the petitioner’s absence and thus render justice. Solemnly affirmed at ________ on this the 21st day of January 2006 and signed in my presence Deponent Before me Advocate, City BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT Crl M.P. No. 1234 of 2008 IN C.C. No. 1234 of 2007 Crime No: 1234 of 2007 (On the file of All Women Police Station) Ms. Star Lady - Petitioner / Accused (A2) Vs State represented by The Inspector of Police - Complainant/ Respondent All women’s police station Petition filed under Cr.P.C 205 to dispense with personal appearance. For the reasons stated in the accompanying affidavit, this Honorable Court may be pleased to dispense with the personal appearance of accused number __ (A-__), on condition that the accused will appear before this Hon’ble court whenever is required, at the time of.- 313 Cr.P.C questioning and on the date of judgment and permit the petitioner to be represented by her counsel M/s _________________________________________ during the petitioner’s absence and thus render justice. Dated this 21st day of January 2006 Counsel for petitioner / accused BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT Crl M.P. No. 1234 of 2008 IN C.C. No. 1234 of 2007 Crime No: 1234 of 2007 (On the file of All Women Police Station) Ms. Star Lady - Petitioner / Accused Vs State represented by The All women’s police station - Complainant/ Respondent Petition filed under Cr.P.C 205 to dispense with personal appearance -judgement
Pallonji Shapoorji Mistry v. Kader Oli - Crl.O.P.(MD).No.9397 of 2006 [2007] RD-TN 759 (1 March 2007)
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DATED : 01/03/2007
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.O.P.(MD).No.9397 of 2006
1.Pallonji Shapoorji Mistry
2.Cyrus P.Mistry
3.Shapoor P.Mistry .. Petitioners Vs.
Kader Oli .. Respondent Criminal Original Petition is filed under Section 482 Cr.P.C., praying to direct the learned Judicial Magistrate No.II, Dindigul, to permit the petitioners counsel, who is on Special Vakalat u/s.205 Cr.P.C. to receive the copies and proceed further in the said C.C.No.212 of 2004 on the file of the Judicial Magistrate No.II, Dindigul.
For Petitioners : Mr.K.V.Venkatapathy Senior Counsel
For Mr.G.Vijay Anand Associates
For Respondent : Mr.R.Shanmuga Sundaram Senior Counsel
For Mr.K.S.Ramachandran :ORDER
The petitioners herein are accused Nos.6,8 and 9 in C.C.No.212 of 2004 at present pending on the file of the learned Judicial Magistrate No.II, Dindigul. The said case was instituted on private complaint by the respondent herein alleging commission of offences punishable under Sections 406,417,420,422,423,468 and 120(B) IPC.
2. The learned Judicial Magistrate No.II, Dindigul, after recording the statements of the complainant and the witnesses and after perusing the documentary evidence produced by the complainant, dismissed the said complaint as not maintainable by an order dated 24.05.2004 under Section 202 Cr.P.C.
3. Challenging the said order, the respondent herein/complainant preferred a revision before this Court (Madurai Bench of Madras High Court) in Crl.R.C.(MD).No.5 of 2005 and the same was allowed by an order dated 09.02.2005 directing the Judicial Magistrate to take the complaint on file and issue process to the respondents therein and pass orders in accordance with law.
4. As against the said order passed by this Court, the respondents/accused persons preferred a Special Leave Petition (Crl.)No.1894 of 2005 on the file of the Honourable Supreme Court and the same was eventually disposed of as withdrawn with liberty to file a petition for discharge. Thereafter instead of filing a petition for discharge, the petitioners herein chose to file Crl.O.P.No.9761 of 2005 on the file of this Court seeking an order quashing the criminal proceedings in C.C.No.212 of 2004 on the file of the Judicial Magistrate No.II, Dindigul. The said criminal original petition was also dismissed on 10.03.2006 and the Special Leave Petition filed against the said order, viz., S.L.P.(Crl).No.1942 of 2006 was also dismissed with an observation that the petitioners could move an application under Section 205 Cr.P.C before the trial Court. Pursuant to the said observation made by the Honourable Supreme Court, the petitioners herein filed a petition under Section 205 (1) Cr.P.C. before the trial Court in Crl.M.P.Nos.4953 to 4955 of 2006. The said petitions were allowed on 19.09.2006 by the learned Judicial Magistrate No.II, Dindigul, directing that they should appear in person before the trial Court on the next hearing date, viz., 27.10.2006 for receiving the copies of the complaint and other documents. Contending that already copies of the complaint and other documents had already been received and that the supply of copies of necessary documents could be made to the counsel on record, as the petitioners have been permitted to appear through counsel dispensing with their attendance in person under Section 205 Cr.P.C., the insistence upon personal appearance at the stage is quite unnecessary and unreasonable. The petitioners have come forward with this criminal original petition seeking a direction to the learned Judicial Magistrate No.II, Dindigul not to insist upon the personal appearance of the petitioners herein simply for the purpose of receiving copies.
5. The respondent has entered appearance through a counsel and has chosen to make his submissions on merit in the main o.P. itself and prayed for the disposal of the main criminal original petition on merit.
6. The submissions made by Mr.K.V.Venkatapathy, learned senior counsel appearing for the petitioners and also by Mr.R.Shanmuga Sundaram, learned senior counsel appearing for the respondent have been heard.
7. The petitioners have sought for a direction under Section 482 Cr.P.C. to the learned Judicial Magistrate No.II, Dindigul not to insist upon the personal appearance of the petitioners herein just for the purpose of receiving the copies.
8. Admittedly, the trial Court did pass an order in the petitions filed under Section 205 Cr.P.C. dispensing with the personal appearance of the petitioners for the time being and permitting the petitioners to appear through a counsel, of course with a condition that the petitioners should appear on a specified future date. The grievance of the petitioners is that when the trial Court has chosen to dispense with the personal appearance of the petitioners under Section 205 Cr.P.C, they should not be directed to appear in person unreasonably. Admittedly the discharge petitions filed by the petitioners are yet to be disposed of.
9. According to the learned senior counsel for the petitioners, the personal appearance of the petitioners shall not be necessary before the disposal of the discharge petition. The learned senior counsel for the petitioners also submits that in the event of dismissal of the discharge petition, the petitioners will not seek exemption from personal appearance at the time of framing of charges and that hence a time may be fixed for the disposal of the discharge petition without insisting upon personal appearance of the petitioners herein.
10. The learned senior counsel for the respondent also represents that the said representation made by the learned senior counsel for the petitioners can be recorded and a direction as prayed for may be issued, directing the learned Judicial Magistrate No.II, Dindigul not to insist upon the personal appearance of the petitioners till the disposal of the discharge petition with a further direction that the discharge petition should be disposed of within a time frame to be fixed by the Court. Both the counsel agree that a time of one month shall be reasonable.
11. In view of the above said representation, this Court comes to a conclusion that a direction to the Judicial Magistrate No.II, Dindigul not to insist upon the personal appearance of the petitioners till the disposal of the discharge petition with a further direction that the discharge petition should be disposed of within a period of one month from this date.
12. In the result, this Criminal Original Petition is disposed of accordingly.
SML
To
The Judicial Magistrate No.II,
Dindigul.
Sec 205 CrPC Petition -dispense with personal appearance -Template
BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused (A2)
Vs
State represented by
The Inspector of Police - Complainant/ Respondent
All women’s police station
AFFIDAVIT of MS. STAR LADY
I Ms. Star Lady daughter of ____________ Christian female aged about ____ years
residing at ___________________________________________ do solemnly swear
and state as follows.
1. I submit that I am the _________ accused (A-__)herein U/s 498A I.P.C and U/s 4
and 6 of DP Act.
2. I submit that I do not dispute my identity
3. I submit that I am a permanent resident of __________ .
4. I submit that I have appeared before this Hon’ble court and copies of the charge
sheet has been served on me on 7.12.2005 and the first questioning was also
over on 10.12.2005. The case is posted for trial.
5. I submit that
a. I am aged about ___ years, I am a housewife, I have two minor school
going children aged about 16 years girl and about 11 years old girl, I do
not have any elders at home to support me in taking care of my children,
my husband works abroad, my frequent travel to personally appear before
this Hon’ble court would put me and my children into undue hardship.
b. I submit I am aged about 50 years old; I am disabled person with amputed
left leg; I travel about 500 kms by bus; my frequent travel to personally
Page: 1
Corr:
appear before this Hon’ble court would put me and my children into undue
hardship.
c. I submit I am 80 years old, female with partial blindness; with support to
travel from my hometown/village to attend the court hearing; my frequent
travel to personally appear before this Hon’ble court would put me and my
children into undue hardship.
d. I am female; 55 years old with Type 2 diabetic petition with hyper blood
pressure, enclosed is the medical report to support the same; my frequent
travel to personally appear before this Hon’ble court would put me and my
children into undue hardship and would jeopardize my health.
6. I submit that I need to travel everytime from ________ which is about 500 kms
which is very far away from this Hon’ble Court
7. I submit that I may be exempted from personal appearance before this Hon’ble
court for the subsequent hearing.
8. I submit that I may be permitted to engage M/s _________________________
to represent for and on my behalf as my counsel and they would appear before
this Hon’ble court on all dates on my behalf.
9. I further submit that I hereby undertake that I will appear before this Hon’ble court
on occasions whenever required and at Sec. 313 Cr.P.C questioning stage as
well as on the date of judgment.
10. I submit that I shall not plead any prejudice for not being present in person
during the trial
Page: last page 2
Corr:
I therefore respectfully pray that this Hon’ble court may be pleased to dispense with
my personal appearance accused number __ (A-__), on condition that the accused
will appear before this Hon’ble court whenever is required, at the time of.313 Cr.P.C
questioning and on the date of judgment and permit the petitioner to be represented
by her counsel of M/s _________________________________________ during
the petitioner’s absence and thus render justice.
Solemnly affirmed at ________ on this
the 21st day of January 2006 and signed
in my presence
Deponent
Before me
Advocate, City
BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused (A2)
Vs
State represented by
The Inspector of Police - Complainant/ Respondent
All women’s police station
Petition filed under Cr.P.C 205 to dispense with personal appearance.
For the reasons stated in the accompanying affidavit, this Honorable Court may be
pleased to dispense with the personal appearance of accused number __ (A-__), on
condition that the accused will appear before this Hon’ble court whenever is required, at
the time of.-
313 Cr.P.C questioning and on the date of judgment and permit the petitioner to be
represented by her counsel M/s _________________________________________
during the petitioner’s absence and thus render justice.
Dated this 21st day of January 2006
Counsel for petitioner / accused
BEFORE THE CHIEF
METROPOLITION MAGISTRATE
COURT
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused
Vs
State represented by
The All women’s police station
- Complainant/ Respondent
Petition filed under Cr.P.C 205 to
dispense with personal appearance.
Counsel for the accused (A-__)
Date of filing : 21st June 2011
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused (A2)
Vs
State represented by
The Inspector of Police - Complainant/ Respondent
All women’s police station
AFFIDAVIT of MS. STAR LADY
I Ms. Star Lady daughter of ____________ Christian female aged about ____ years
residing at ___________________________________________ do solemnly swear
and state as follows.
1. I submit that I am the _________ accused (A-__)herein U/s 498A I.P.C and U/s 4
and 6 of DP Act.
2. I submit that I do not dispute my identity
3. I submit that I am a permanent resident of __________ .
4. I submit that I have appeared before this Hon’ble court and copies of the charge
sheet has been served on me on 7.12.2005 and the first questioning was also
over on 10.12.2005. The case is posted for trial.
5. I submit that
a. I am aged about ___ years, I am a housewife, I have two minor school
going children aged about 16 years girl and about 11 years old girl, I do
not have any elders at home to support me in taking care of my children,
my husband works abroad, my frequent travel to personally appear before
this Hon’ble court would put me and my children into undue hardship.
b. I submit I am aged about 50 years old; I am disabled person with amputed
left leg; I travel about 500 kms by bus; my frequent travel to personally
Page: 1
Corr:
appear before this Hon’ble court would put me and my children into undue
hardship.
c. I submit I am 80 years old, female with partial blindness; with support to
travel from my hometown/village to attend the court hearing; my frequent
travel to personally appear before this Hon’ble court would put me and my
children into undue hardship.
d. I am female; 55 years old with Type 2 diabetic petition with hyper blood
pressure, enclosed is the medical report to support the same; my frequent
travel to personally appear before this Hon’ble court would put me and my
children into undue hardship and would jeopardize my health.
6. I submit that I need to travel everytime from ________ which is about 500 kms
which is very far away from this Hon’ble Court
7. I submit that I may be exempted from personal appearance before this Hon’ble
court for the subsequent hearing.
8. I submit that I may be permitted to engage M/s _________________________
to represent for and on my behalf as my counsel and they would appear before
this Hon’ble court on all dates on my behalf.
9. I further submit that I hereby undertake that I will appear before this Hon’ble court
on occasions whenever required and at Sec. 313 Cr.P.C questioning stage as
well as on the date of judgment.
10. I submit that I shall not plead any prejudice for not being present in person
during the trial
Page: last page 2
Corr:
I therefore respectfully pray that this Hon’ble court may be pleased to dispense with
my personal appearance accused number __ (A-__), on condition that the accused
will appear before this Hon’ble court whenever is required, at the time of.313 Cr.P.C
questioning and on the date of judgment and permit the petitioner to be represented
by her counsel of M/s _________________________________________ during
the petitioner’s absence and thus render justice.
Solemnly affirmed at ________ on this
the 21st day of January 2006 and signed
in my presence
Deponent
Before me
Advocate, City
BEFORE THE CHIEF METROPOLITION MAGISTRATE COURT
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused (A2)
Vs
State represented by
The Inspector of Police - Complainant/ Respondent
All women’s police station
Petition filed under Cr.P.C 205 to dispense with personal appearance.
For the reasons stated in the accompanying affidavit, this Honorable Court may be
pleased to dispense with the personal appearance of accused number __ (A-__), on
condition that the accused will appear before this Hon’ble court whenever is required, at
the time of.-
313 Cr.P.C questioning and on the date of judgment and permit the petitioner to be
represented by her counsel M/s _________________________________________
during the petitioner’s absence and thus render justice.
Dated this 21st day of January 2006
Counsel for petitioner / accused
BEFORE THE CHIEF
METROPOLITION MAGISTRATE
COURT
Crl M.P. No. 1234 of 2008
IN
C.C. No. 1234 of 2007
Crime No: 1234 of 2007
(On the file of All Women Police Station)
Ms. Star Lady - Petitioner / Accused
Vs
State represented by
The All women’s police station
- Complainant/ Respondent
Petition filed under Cr.P.C 205 to
dispense with personal appearance.
Counsel for the accused (A-__)
Date of filing : 21st June 2011
Tuesday, May 10, 2011
MIL and SIL can file DV on DIL
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST) ROHINI COURTS: DELHI
Crl. Revision No. 367/2010
1. Santosh Kaur
W/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
2. Ms. Ritu Kashyap
D/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
3. Mrs. Sarika Mehta
W/o Sh. Kamal Mehta
R/o F-8, 2nd Floor,
Kamla Nagar,
Delhi
............ Revisionists
Versus
Smt. Nidhi Kashyap
W/o Sh. Gaurav Kashyap
D/o Sh. K.C. Ahuja
R/o C-4/428, Lawrence Road,
Delhi – 110035
............ Respondent
Date of institution: 29.5.2010
Arguments heard on: 16.8.2010
Date of Decision: 28.8.2010
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 1 of 16
ORDER:
This revision has been filed against the summoning
orders dated 24.2.2010, 25.3.2010 and 23.4.2010 passed by the
Ld. Trial Court in the petition filed by the respondent Nidhi
Kashyap under Section 12 of the Protection of Women from
Domestic Violence Act, 2005. The revisionist no.1 Smt.
Santosh Kaur is the mother-in-law of the respondent whereas the
revisionist no.2 Ms. Ritu Kashyap is her unmarried sister-in-law
(Nanand) and respondent no.3 Mrs. Sarika Mehta is her married
sister-in-law (Nanand).
Briefly the case of the respondent Nidhi Kashyap/
applicant before the Trial Court is that she was the class mate of
revisionist no.2 Ritu Kashyap who is the real sister of Gaurav
Kashyap (respondent no.1 before the Ld. Trial Court) and had
friendly relations with him. According to Nidhi Kashyap, her
father is a property dealer and mother is a bank employee and
they have strong a financial background. It is pleaded that they
are only two sisters and therefore as a part of well planned
conspiracy, the revisionists before this court induced her to enter
into a matrimonial relationship with Gaurav Kashyap despite the
fact that both belonged to different communities. According to
the respondent, her marriage with Gaurav Kashyap was
solemnized secretly on 29.7.2008 at Arya Samaj Mandir, Birla
Line, Kamla Nagar, Delhi according to Hindu rites and
ceremonies after which she left for her parental home as she was
asked to disclose the factum of her marriage to them only after
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 2 of 16
45 days. It is further pleaded by Nidhi Kashyap that on
12.9.2008 when she entered into her matrimonial home at 6-D,
Janta Flats, Satyawati Colony, behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi the revisionists before this court, under a
well planned design conspiracy and in a pre planned manner,
called her parents at their home and disclosed the factum of the
marriage of their son with the present respondent (Nidhi
Kashyap) on which her parents received a serious shock but
finding no alternative they ultimately gave their consent and
approval to the matrimonial ties and on 12.10.2008 as per the
demands of her in-laws, her parents organized a joint reception
where they gave a large amount of gold and jewellery and
domestic articles and cash to her. According to Nidhi Kashyap,
the respondent before this court court, the revisionists are in
domestic relationship with her due to her matrimonial
relationship with Gaurav Kashyap (respondent no. 1 before the
Ld. Trial Court). She has alleged that on 13.10.2008 after she
entered into her matrimonial home, her Nanand the revisionist
no.2 Ritu Kashyap raised a demand of Hundai i10 car and it was
made clear to her that in case if she wants to live peacefully she
would have to ask her parents to satisfy their demands. Again on
13.10.2008, her mother-in-law Smt. Santosh Kashyap the
revisionist no.1 before this court took a sum of Rs.20,000/- from
her purse against her will and consent and in the evening the
revisionists no.2 and 3 took away entire gold and diamond
jewelleries except one Mangal Sutra, one gold ring, nose pin
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 3 of 16
and ear rings and thereafter did not return the same to her despite
her repeated requests and demands. The present respondent
Nidhi Kashyap has also mentioned numerous other occasions
alleging that the revisionists before this court had been
disclosing their intent and expectations for cash and other
articles from time to time and she had been subjected to
harassment, torture and violence on account of the repeated
dowry demands made by the revisionists before this court
including her married sister-in-law Sarika Mehta. According to
Nidhi Kashyap, her entire jewellery is lying with her in-laws. A
petition under Section 9 of the Hindu Marriage Act filed by
Gaurav Kashyap the husband of the present respondent is also
pending adjudication before the Ld. ADJ, Rohini. She has
alleged that she has been compelled to make a complaint before
the Crime Against Women Cell, Pitam Pura, Delhi on account of
the callous conduct on the part of her in-laws including the
present revisionists. She has further alleged that her husband
Gaurav Kashyap is the owner of property bearing no. 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi and he and his parents are owning and
possessing 100 sq. plot as Samaipur Badli, Delhi. Further, she
has alleged that her husband Gaurav Kashyap and his parents are
owning and possessing the HIG Flat in TDI Sonepat having a
market value to the tune of Rs.22 lacs and are running a factory
under the name and style of MCO Chemical, Samaypur, Delhi
and are owning and possessing two godowns at Samaypur and
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 4 of 16
Swaroop Nagar and her husband Gaurav Kashyap is having one
house at Sri Nagar, Bharat Nagar, Delhi. It is also alleged by the
respondent before this court that her husband and his parents are
owning and possessing a Maruti 800 car bearing no. DL-6019
and are also owning a truck Tata-407 and two victor bikes. She
has now demanded that her husband Gaurav Kashyap i.e. the
respondent no.1 before the Ld. Trial Court is under a legal
obligation to maintain her and she requires independent
residential accommodation which is available at the rental value
of Rs.10,000/- per month excluding the water and electricity
charges and also requires Rs.30,000/- per month for her
maintenance and Rs. 5 lacs on account of mental torture, pain
and agony suffered by her. According to the present respondent
she cannot remain dependent upon her parents for her shelter and
therefore, her husband Gaurav Kashyap is required to make the
arrangements for separate residential accommodation. In her
petition, the present respondent Nidhi Kashyap has further
demanded that her husband and her in-laws including the present
revisionists should be restrained from entering into her parental
home and from making any kind of communication to her and
from committing any act of Domestic Violence and aiding or
abetting in the commission of acts of domestic violence.
Further, she has demanded that they be restrained from
alienating and parting with her istridhan articles and also from
creating any third part interest and parting with the possession of
the property bearing No. D-6, Janta Flats, Satyawati Colony,
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 5 of 16
Behind Laxmi Bai College, Ashok Vihar, Delhi and property
bearing no. 77, Bharat Nagar Delhi till her husband make the
provisions for her independent residential accommodation. She
has also claimed Rs.3,000/- from her in-laws including the
present revisionists as litigation expenses.
Pursuant to the aforesaid petition, the Ld. Trial Court
sought a Domestic Incident Report from the Protection Officer.
The said report was duly filed which I have duly perused. The
said report clearly reflects that Smt. Sarika Mehta the revisionist
no.3 before this court is not a member of the shared household
and is separately residing at her matrimonial home residing at F-
8, 2nd Floor, Kamla Nagar, Delhi with her husband Sh. Kamal
Mehta whereas Smt. Santosh Kaur the mother-in-law and Ritu
Kashyap the unmarried sister-in-law are all residing at 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Delhi. The
report further shows that only one incident of domestic violence
on 3.7.2009 by the husband has been reported on which day the
present respondent was beaten by her husband and was asked to
leave the house. The report further reflects that the only incident
of verbal and emotional abuse are of insults for not having
brought dowry, demeaning, humiliating, undermining, ridicule
and name calling by her husband and her in-laws and preventing
her from meeting a particular person. She has also alleged
economic violence upon her by her husband by not providing her
money, food, clothes, medicine etc. and forcing her out of the
matrimonial house and has alleged that her in-laws including the
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 6 of 16
present revisionists have disposed off her istridhan articles by
selling or pawing the same without her consent and forcibly
taken away her salary, income or wages etc.
The revisionists before this court have alleged that
the orders of summoning are also bad as they have been passed
without calling upon the respondent to furnish and establish the
material facts necessitated for passing such orders. It is
submitted that no domestic violence has ever been committed by
the revisionists upon the respondent before this court
(complainant before the Ld. Trial Court) and the petitioner under
the Domestic Violence Act has been filed on false and frivolous
grounds and the complaint filed by the present respondents
against them before Crime Against Women Cell, Pitam Pura has
been filed only to harass, humiliate and to extort money from
them. The revisionists have pointed out that the marriage of
Gaurav Kashyap with the present respondent was a simple one
without any demand and was an outcome of the love affair.
They have pointed out that the parents of the present respondent
were against her marriage and therefore, they secretly got
married without informing their family members at Arya Samaj
Mandir which was a dowry less marriage and the respondent had
come in wearing clothes and it is in this background that the
parents of Gaurav Kashyap including the revisionists organized a
reception on 12.10.2008 at Janak Vatika, Bharat Nagar. The
revisionists have further pointed out that on 3.7.2009 the present
respondent Nidhi Kashyap picked up a quarrel with her husband
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 7 of 16
Gaurav Kashyap and called her father with 5-6 other people who
beaten up Gaurav Kashyap and even shouted on road and use
abusive language for Gaurav Kashyap. Thereafter the present
respondent went to her parent's house by saying that she would
not live nor would maintain any relations with them and Gaurav
Kashyap made umpteen efforts to bring her back but she refused.
According to the revisionists they are themselves aggrieved and
victim of the violence inflicted upon them by the present
respondent. It is further stated that all the properties mentioned
by the present respondent does not belong to the husband of the
respondent. The revisionists have placed their reliance on the
following authorities:
1. S.R. Batra & Anr. vs. Smt. Taruna Batra reported in 1
(2007) SLT 1.
2. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu reported
in 2007 (96) DRJ 697.
3. Mohd. Maqeenuddin Ahmed & Ors. Vs. The State of
Andhra Pradesh & Anr. reported in 2008 (1) JCC 85.
The Protection of Women from Domestic Violence
Act, 2005 is a special legislation in favour of women. It is the
duty of the court to ensure that this special legislation reaches
out to the effected lot but at the same time is not allowed to be
misused by anyone.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 8 of 16
Wikipedia defines domestic relationship between
two individuals as a legal or personal relationship to live
together or share one domestic life but are neither joined by
marriage nor the civil union.
The Indian law i.e. Protection of Women from
Domestic Violence Act, 2005 does not define family but it
defines Domestic 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. Domestic relations
are meant to cover sisters, widows, mothers and daughters and
single women. The Indian law does not specify separate
relationship and mentions members in a joint family.
The intent of Protection of Women from Domestic
Violence Act, 2005 is to protect the value system and institution
of family and save it from destruction. This being so, the
provisions of the Protection of Women from Domestic Violence
Act, 2005 have to be so interpreted to ensure that the existing
family system is preserved. The misuse and abuse of the Act is a
matter of serious concern for the courts who are required to be
careful and ensure that a woman petitioner is not made a puppet
or pawn in the hands of her male relatives so as to manipulate
the Protection of Women from Domestic Violence Act, 2005
and use it for ulterior motives.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 9 of 16
In the present case it is an admitted case of the parties
before this court that the respondent Nidhi Kashyap who is the
wife of Gaurav Kashyap (respondent no.1 before the Ld. Trial
Court) has filed the complaint under special legislation
(Protection of Women from Domestic Violence Act, 2005)
wherein she has spared none and roped the entire family
including the young unmarried sister-in-law who was her friend
and class-mate even before her marriage and also her married
sister-in-law who is residing separately with her own family. It
is admitted that the marriage between the present respondent
Nidhi Kashyap with Gaurav Kashyap was solemnized secretly
and was an outcome of a love affair as Nidhi Kashyap was
known to Gaurav Kashyap through the revisionist no.2 Ritu
Kashyap who was the batch mate of Nidhi Kashyap and was
studying with her. It is also an admitted case of the parties that
on having come to know of marriage a reception had been
organized after which the present respondent Nidhi Kashyap
started staying with her husband and her in-laws. It appears that
unfortunately the said marriage is not worked out resulting into
spade of litigation between the parties and Gaurav Kashyap even
filed a petition under Section 9 of the Hindu Marriage act
which is still pending adjudication and the present respondent
Nidhi Kashyap has filed a case in Crime Against Women Cell
alleging dowry demands and harassment against one and all.
The provisions of the Protection of Women from
Domestic Violence Act, 2005 have been invoked by the
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 10 of 16
respondent Nidhi Kashyap not only against her husband Gaurav
Kashyap but also against her aged father-in-law Mohan Lal
Kashyap (respondent no.2 before the Ld. Trial Court), motherin-
law Smt. Santosh Kaur (present revisionist no.1 before this
court), unmarried sister Ritu Kashyap (revisionist no.2 before
this court with whom Nidhi Kashyap was previously studying
and through whom she came to know Gaurav Kashyap and had a
love affair), married sister Smt. Sarika Mehta and her husband
Sh. Kamal Mehta who both are residing at F-8, 2nd Floor, Kala
Nagar, Delhi.
At the very outset I may observe that merely because
the revisionist no.3 Smt. Sarika Mehta happen to be the real
sister of the husband of present respondent would not ipso-facto
imply a domestic relationship to the extent as contemplated
under the Protection of Women from Domestic Violence Act,
2005 as she is residing separately with her own husband and
cannot be deemed to be a member of the shared household as a
joint family. The revisionist no.2 Ritu Kashyap is a young girl
of 22 years who had been the classmate of the present
respondent and through whom the present respondent had came
into contact with Gaurav Kashyap and had an affair culminating
into the marriage. The revisionist no.1 is the aged mother-in-law.
The allegations against her are general and non specific.
Daughters married or unmarried cannot be terrorized
into abandoning their parental family under the fear of their
involvement into litigations connected with Domestic Violence.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 11 of 16
Married sisters residing in their own matrimonial houses are not
a part of the shared household or joint family as contemplated
under the Protection of Women from Domestic Violence Act,
2005 but at the same time they have certain rights in their
parental home which cannot be denied to them. Even an
unmarried sister of the husband residing in the shared household
with her parents has certain rights which cannot be taken away.
Making wild allegations against an unmarried sister-in-law of a
tender marriageable age by an estranged wife of brother
tentamounts to inflicting violence upon her and it is the duty of
the court to ensure that she is protected from the same. Violence
can also be inflicted by an estranged wife or daughter-in-law or
sister-in-law upon other members of the husband's family to gain
and secure personal points and financial control or for separating
her husband from his parents and other family members. In the
zeal and endeavour to implement the rights of one woman
(daughter-in-law) it is necessary for the courts to ensure that the
rights of another woman (in her capacity as mother-in-law or
sister-in-law married or unmarried) are not taken away or
infringed in any manner. The Protection of Women from
Domestic Violence Act, 2005 protects the mothers, sisters and
daughters from any kind of physical and mental abuse or
violence in as much as it does the daughter-in-law. The court as
a protector and implementor of rights, is required to perform a
balancing act. It is necessary to ensure that it does not get
swayed by the astute legal drafting of the counsels and is
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 12 of 16
required to get at the truth of the allegations by examining the
pleadings on the touch-stone of reasonableness and probabilities.
Where a complaint appears to have been filed on filmsy grounds
only to humiliate the family members, the same is required to be
thrown out at the earliest opportunity. Mother-in-law or sister'sin-
law (married or unmarried) cannot be permitted to be
subjected to harassment only because they happen to be related
to the estranged husband of the woman (complainant).
In the present case firstly I have considered the
allegations reflected in the Domestic Incidence Report and the
allegations so made by the complainant Nidhi Kashyap before
the court which do not inspire confidence and appears to have
been made in routine. The respondent has alleged that the
present revisionists had forcibly taken away her salary and
wages which allegations on the face of it are false and incorrect
since it is an admitted case of the respondent before this court
that she is not working. The question of her husband or in-laws
taking away her salary, income, wages etc. under these
circumstances does not arise.
Secondly the report of the Protection Officer also
show that the dowry related harassment pertains to the demand
of car and cash of Rs.3 lacs. The respondent Nidhi Kashyap has
also attached the list of Stridhan articles alongwith the petition to
support and substantiate her allegations regarding
misappropriation of her Stridhan articles which I have perused. I
may observe that the said list so attached along with the petition
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 13 of 16
is not a duly authenticated list signed by both the parties as
required under the Dowry Prohibition Act. This is the list of
articles which only the respondent Nidhi Kashyap claims were
her stridhan which list does not bear the signatures of the
respondent. Under the given circumstances as the list is not
signed by both parties, it was necessary for the complainant
Nidhi Kashyap to have attached alongwith her list the receipts/
bills showing purchase of these articles which has not been done.
Therefore, the above allegations also do not appear to be credible
and truth-full particularly keeping in view the background that
the marriage between the respondent and Gaurav Kashyap was a
secret, runaway marriage as an outcome of a love affair which
marriage was kept secret for many days and ultimately when the
same was disclosed to the parents of the respondent by her inlaws
a joint reception was organized.
Thirdly the present respondent Nidhi Kashyap has
not placed on record any document to show that her husband is
the owner of any of the aforesaid properties or have any
independent right over the same. The allegations are non
specific and general. It is settled law that the claim for
alternative accommodation can only be made by a women
against her husband and not against in-laws or other
relatives nor can she claim any right to stay in the said house
(Ref: S.R. Batra & Anr. Vs. Smt. Taruna Batra reported in 1
(2007) SLT 1 and Shumita Didi Sandhu Vs. Sanjay Singh
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 14 of 16
Sandhu reported in 2007 (96) DRJ 697). The present
respondent has not placed on record any document to show that
the properties in the present case belonging to her husband
Gaurav Kashyap and the complaint in Crime Against Women
Cell.
Lastly it is an admitted case of the parties including
that of the complainant Nidhi Kashyap that her marriage with
Gaurav Kashyap is an outcome of the long standing love affair
between them. She was a classmate of the revisionist no.2 Ritu
Kashyap through whom she was introduced to Gaurav Kashyap
(her real brother) with whom she developed love affair
culminating into a secret marriage which was disclosed to her
parents much later. This being the background of the case, the
allegations made by the complainant against one and all family
members of her husband where none have been spared do not
appear probable. It is apparent on the face of the pleadings that
they have been so drafted so as to involved all the family
members of the husband sparing none including the present
revisionists who are the aged mother-in-law, unmarried sister-inlaw
of marriageable age and married sister-in-law residing
separately. This, it appears has been done for the purpose of
harassing the entire family of the husband with a sinister motive
and design to harass and humiliate them. Given the background
of the case, the allegations made against the Revisionists on the
face of it do not appear to be truthful and probable warranting
any interference from the court under this Special Legislation.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 15 of 16
In view of the above background and in the interest
of justice, I hereby set aside the orders of dated 24.2.2010,
25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby
summoning the present revisionists i.e. Smt. Santosh Kaur, Ms.
Ritu Kashyap and Smt. Sarika Mehta since there does not exist
sufficient material on record to summon them and to proceed
against them under the Protection of Women from Domestic
Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.8.2010 ASJ-II(NW): Rohini
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 16 of 16
Santosh Kaur Vs. Nidhi Kashyap
CR No. 367/2010
28.8.2010
Present: None for the Revisionists.
None for the respondent.
Vide my separate detailed order dictated and
announced in the open court, I set aside the orders of dated
24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial
Court thereby summoning the present revisionists i.e. Smt.
Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since
there does not exist sufficient material on record to summon
them and to proceed against them under the Protection of
Women from Domestic Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
(Dr. Kamini Lau)
ASJ-II (NW)/ 28.8.2010
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 17 of 16
JUDGE-II (NORTH-WEST) ROHINI COURTS: DELHI
Crl. Revision No. 367/2010
1. Santosh Kaur
W/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
2. Ms. Ritu Kashyap
D/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
3. Mrs. Sarika Mehta
W/o Sh. Kamal Mehta
R/o F-8, 2nd Floor,
Kamla Nagar,
Delhi
............ Revisionists
Versus
Smt. Nidhi Kashyap
W/o Sh. Gaurav Kashyap
D/o Sh. K.C. Ahuja
R/o C-4/428, Lawrence Road,
Delhi – 110035
............ Respondent
Date of institution: 29.5.2010
Arguments heard on: 16.8.2010
Date of Decision: 28.8.2010
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 1 of 16
ORDER:
This revision has been filed against the summoning
orders dated 24.2.2010, 25.3.2010 and 23.4.2010 passed by the
Ld. Trial Court in the petition filed by the respondent Nidhi
Kashyap under Section 12 of the Protection of Women from
Domestic Violence Act, 2005. The revisionist no.1 Smt.
Santosh Kaur is the mother-in-law of the respondent whereas the
revisionist no.2 Ms. Ritu Kashyap is her unmarried sister-in-law
(Nanand) and respondent no.3 Mrs. Sarika Mehta is her married
sister-in-law (Nanand).
Briefly the case of the respondent Nidhi Kashyap/
applicant before the Trial Court is that she was the class mate of
revisionist no.2 Ritu Kashyap who is the real sister of Gaurav
Kashyap (respondent no.1 before the Ld. Trial Court) and had
friendly relations with him. According to Nidhi Kashyap, her
father is a property dealer and mother is a bank employee and
they have strong a financial background. It is pleaded that they
are only two sisters and therefore as a part of well planned
conspiracy, the revisionists before this court induced her to enter
into a matrimonial relationship with Gaurav Kashyap despite the
fact that both belonged to different communities. According to
the respondent, her marriage with Gaurav Kashyap was
solemnized secretly on 29.7.2008 at Arya Samaj Mandir, Birla
Line, Kamla Nagar, Delhi according to Hindu rites and
ceremonies after which she left for her parental home as she was
asked to disclose the factum of her marriage to them only after
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 2 of 16
45 days. It is further pleaded by Nidhi Kashyap that on
12.9.2008 when she entered into her matrimonial home at 6-D,
Janta Flats, Satyawati Colony, behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi the revisionists before this court, under a
well planned design conspiracy and in a pre planned manner,
called her parents at their home and disclosed the factum of the
marriage of their son with the present respondent (Nidhi
Kashyap) on which her parents received a serious shock but
finding no alternative they ultimately gave their consent and
approval to the matrimonial ties and on 12.10.2008 as per the
demands of her in-laws, her parents organized a joint reception
where they gave a large amount of gold and jewellery and
domestic articles and cash to her. According to Nidhi Kashyap,
the respondent before this court court, the revisionists are in
domestic relationship with her due to her matrimonial
relationship with Gaurav Kashyap (respondent no. 1 before the
Ld. Trial Court). She has alleged that on 13.10.2008 after she
entered into her matrimonial home, her Nanand the revisionist
no.2 Ritu Kashyap raised a demand of Hundai i10 car and it was
made clear to her that in case if she wants to live peacefully she
would have to ask her parents to satisfy their demands. Again on
13.10.2008, her mother-in-law Smt. Santosh Kashyap the
revisionist no.1 before this court took a sum of Rs.20,000/- from
her purse against her will and consent and in the evening the
revisionists no.2 and 3 took away entire gold and diamond
jewelleries except one Mangal Sutra, one gold ring, nose pin
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 3 of 16
and ear rings and thereafter did not return the same to her despite
her repeated requests and demands. The present respondent
Nidhi Kashyap has also mentioned numerous other occasions
alleging that the revisionists before this court had been
disclosing their intent and expectations for cash and other
articles from time to time and she had been subjected to
harassment, torture and violence on account of the repeated
dowry demands made by the revisionists before this court
including her married sister-in-law Sarika Mehta. According to
Nidhi Kashyap, her entire jewellery is lying with her in-laws. A
petition under Section 9 of the Hindu Marriage Act filed by
Gaurav Kashyap the husband of the present respondent is also
pending adjudication before the Ld. ADJ, Rohini. She has
alleged that she has been compelled to make a complaint before
the Crime Against Women Cell, Pitam Pura, Delhi on account of
the callous conduct on the part of her in-laws including the
present revisionists. She has further alleged that her husband
Gaurav Kashyap is the owner of property bearing no. 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi and he and his parents are owning and
possessing 100 sq. plot as Samaipur Badli, Delhi. Further, she
has alleged that her husband Gaurav Kashyap and his parents are
owning and possessing the HIG Flat in TDI Sonepat having a
market value to the tune of Rs.22 lacs and are running a factory
under the name and style of MCO Chemical, Samaypur, Delhi
and are owning and possessing two godowns at Samaypur and
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 4 of 16
Swaroop Nagar and her husband Gaurav Kashyap is having one
house at Sri Nagar, Bharat Nagar, Delhi. It is also alleged by the
respondent before this court that her husband and his parents are
owning and possessing a Maruti 800 car bearing no. DL-6019
and are also owning a truck Tata-407 and two victor bikes. She
has now demanded that her husband Gaurav Kashyap i.e. the
respondent no.1 before the Ld. Trial Court is under a legal
obligation to maintain her and she requires independent
residential accommodation which is available at the rental value
of Rs.10,000/- per month excluding the water and electricity
charges and also requires Rs.30,000/- per month for her
maintenance and Rs. 5 lacs on account of mental torture, pain
and agony suffered by her. According to the present respondent
she cannot remain dependent upon her parents for her shelter and
therefore, her husband Gaurav Kashyap is required to make the
arrangements for separate residential accommodation. In her
petition, the present respondent Nidhi Kashyap has further
demanded that her husband and her in-laws including the present
revisionists should be restrained from entering into her parental
home and from making any kind of communication to her and
from committing any act of Domestic Violence and aiding or
abetting in the commission of acts of domestic violence.
Further, she has demanded that they be restrained from
alienating and parting with her istridhan articles and also from
creating any third part interest and parting with the possession of
the property bearing No. D-6, Janta Flats, Satyawati Colony,
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 5 of 16
Behind Laxmi Bai College, Ashok Vihar, Delhi and property
bearing no. 77, Bharat Nagar Delhi till her husband make the
provisions for her independent residential accommodation. She
has also claimed Rs.3,000/- from her in-laws including the
present revisionists as litigation expenses.
Pursuant to the aforesaid petition, the Ld. Trial Court
sought a Domestic Incident Report from the Protection Officer.
The said report was duly filed which I have duly perused. The
said report clearly reflects that Smt. Sarika Mehta the revisionist
no.3 before this court is not a member of the shared household
and is separately residing at her matrimonial home residing at F-
8, 2nd Floor, Kamla Nagar, Delhi with her husband Sh. Kamal
Mehta whereas Smt. Santosh Kaur the mother-in-law and Ritu
Kashyap the unmarried sister-in-law are all residing at 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Delhi. The
report further shows that only one incident of domestic violence
on 3.7.2009 by the husband has been reported on which day the
present respondent was beaten by her husband and was asked to
leave the house. The report further reflects that the only incident
of verbal and emotional abuse are of insults for not having
brought dowry, demeaning, humiliating, undermining, ridicule
and name calling by her husband and her in-laws and preventing
her from meeting a particular person. She has also alleged
economic violence upon her by her husband by not providing her
money, food, clothes, medicine etc. and forcing her out of the
matrimonial house and has alleged that her in-laws including the
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 6 of 16
present revisionists have disposed off her istridhan articles by
selling or pawing the same without her consent and forcibly
taken away her salary, income or wages etc.
The revisionists before this court have alleged that
the orders of summoning are also bad as they have been passed
without calling upon the respondent to furnish and establish the
material facts necessitated for passing such orders. It is
submitted that no domestic violence has ever been committed by
the revisionists upon the respondent before this court
(complainant before the Ld. Trial Court) and the petitioner under
the Domestic Violence Act has been filed on false and frivolous
grounds and the complaint filed by the present respondents
against them before Crime Against Women Cell, Pitam Pura has
been filed only to harass, humiliate and to extort money from
them. The revisionists have pointed out that the marriage of
Gaurav Kashyap with the present respondent was a simple one
without any demand and was an outcome of the love affair.
They have pointed out that the parents of the present respondent
were against her marriage and therefore, they secretly got
married without informing their family members at Arya Samaj
Mandir which was a dowry less marriage and the respondent had
come in wearing clothes and it is in this background that the
parents of Gaurav Kashyap including the revisionists organized a
reception on 12.10.2008 at Janak Vatika, Bharat Nagar. The
revisionists have further pointed out that on 3.7.2009 the present
respondent Nidhi Kashyap picked up a quarrel with her husband
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 7 of 16
Gaurav Kashyap and called her father with 5-6 other people who
beaten up Gaurav Kashyap and even shouted on road and use
abusive language for Gaurav Kashyap. Thereafter the present
respondent went to her parent's house by saying that she would
not live nor would maintain any relations with them and Gaurav
Kashyap made umpteen efforts to bring her back but she refused.
According to the revisionists they are themselves aggrieved and
victim of the violence inflicted upon them by the present
respondent. It is further stated that all the properties mentioned
by the present respondent does not belong to the husband of the
respondent. The revisionists have placed their reliance on the
following authorities:
1. S.R. Batra & Anr. vs. Smt. Taruna Batra reported in 1
(2007) SLT 1.
2. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu reported
in 2007 (96) DRJ 697.
3. Mohd. Maqeenuddin Ahmed & Ors. Vs. The State of
Andhra Pradesh & Anr. reported in 2008 (1) JCC 85.
The Protection of Women from Domestic Violence
Act, 2005 is a special legislation in favour of women. It is the
duty of the court to ensure that this special legislation reaches
out to the effected lot but at the same time is not allowed to be
misused by anyone.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 8 of 16
Wikipedia defines domestic relationship between
two individuals as a legal or personal relationship to live
together or share one domestic life but are neither joined by
marriage nor the civil union.
The Indian law i.e. Protection of Women from
Domestic Violence Act, 2005 does not define family but it
defines Domestic 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. Domestic relations
are meant to cover sisters, widows, mothers and daughters and
single women. The Indian law does not specify separate
relationship and mentions members in a joint family.
The intent of Protection of Women from Domestic
Violence Act, 2005 is to protect the value system and institution
of family and save it from destruction. This being so, the
provisions of the Protection of Women from Domestic Violence
Act, 2005 have to be so interpreted to ensure that the existing
family system is preserved. The misuse and abuse of the Act is a
matter of serious concern for the courts who are required to be
careful and ensure that a woman petitioner is not made a puppet
or pawn in the hands of her male relatives so as to manipulate
the Protection of Women from Domestic Violence Act, 2005
and use it for ulterior motives.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 9 of 16
In the present case it is an admitted case of the parties
before this court that the respondent Nidhi Kashyap who is the
wife of Gaurav Kashyap (respondent no.1 before the Ld. Trial
Court) has filed the complaint under special legislation
(Protection of Women from Domestic Violence Act, 2005)
wherein she has spared none and roped the entire family
including the young unmarried sister-in-law who was her friend
and class-mate even before her marriage and also her married
sister-in-law who is residing separately with her own family. It
is admitted that the marriage between the present respondent
Nidhi Kashyap with Gaurav Kashyap was solemnized secretly
and was an outcome of a love affair as Nidhi Kashyap was
known to Gaurav Kashyap through the revisionist no.2 Ritu
Kashyap who was the batch mate of Nidhi Kashyap and was
studying with her. It is also an admitted case of the parties that
on having come to know of marriage a reception had been
organized after which the present respondent Nidhi Kashyap
started staying with her husband and her in-laws. It appears that
unfortunately the said marriage is not worked out resulting into
spade of litigation between the parties and Gaurav Kashyap even
filed a petition under Section 9 of the Hindu Marriage act
which is still pending adjudication and the present respondent
Nidhi Kashyap has filed a case in Crime Against Women Cell
alleging dowry demands and harassment against one and all.
The provisions of the Protection of Women from
Domestic Violence Act, 2005 have been invoked by the
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 10 of 16
respondent Nidhi Kashyap not only against her husband Gaurav
Kashyap but also against her aged father-in-law Mohan Lal
Kashyap (respondent no.2 before the Ld. Trial Court), motherin-
law Smt. Santosh Kaur (present revisionist no.1 before this
court), unmarried sister Ritu Kashyap (revisionist no.2 before
this court with whom Nidhi Kashyap was previously studying
and through whom she came to know Gaurav Kashyap and had a
love affair), married sister Smt. Sarika Mehta and her husband
Sh. Kamal Mehta who both are residing at F-8, 2nd Floor, Kala
Nagar, Delhi.
At the very outset I may observe that merely because
the revisionist no.3 Smt. Sarika Mehta happen to be the real
sister of the husband of present respondent would not ipso-facto
imply a domestic relationship to the extent as contemplated
under the Protection of Women from Domestic Violence Act,
2005 as she is residing separately with her own husband and
cannot be deemed to be a member of the shared household as a
joint family. The revisionist no.2 Ritu Kashyap is a young girl
of 22 years who had been the classmate of the present
respondent and through whom the present respondent had came
into contact with Gaurav Kashyap and had an affair culminating
into the marriage. The revisionist no.1 is the aged mother-in-law.
The allegations against her are general and non specific.
Daughters married or unmarried cannot be terrorized
into abandoning their parental family under the fear of their
involvement into litigations connected with Domestic Violence.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 11 of 16
Married sisters residing in their own matrimonial houses are not
a part of the shared household or joint family as contemplated
under the Protection of Women from Domestic Violence Act,
2005 but at the same time they have certain rights in their
parental home which cannot be denied to them. Even an
unmarried sister of the husband residing in the shared household
with her parents has certain rights which cannot be taken away.
Making wild allegations against an unmarried sister-in-law of a
tender marriageable age by an estranged wife of brother
tentamounts to inflicting violence upon her and it is the duty of
the court to ensure that she is protected from the same. Violence
can also be inflicted by an estranged wife or daughter-in-law or
sister-in-law upon other members of the husband's family to gain
and secure personal points and financial control or for separating
her husband from his parents and other family members. In the
zeal and endeavour to implement the rights of one woman
(daughter-in-law) it is necessary for the courts to ensure that the
rights of another woman (in her capacity as mother-in-law or
sister-in-law married or unmarried) are not taken away or
infringed in any manner. The Protection of Women from
Domestic Violence Act, 2005 protects the mothers, sisters and
daughters from any kind of physical and mental abuse or
violence in as much as it does the daughter-in-law. The court as
a protector and implementor of rights, is required to perform a
balancing act. It is necessary to ensure that it does not get
swayed by the astute legal drafting of the counsels and is
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 12 of 16
required to get at the truth of the allegations by examining the
pleadings on the touch-stone of reasonableness and probabilities.
Where a complaint appears to have been filed on filmsy grounds
only to humiliate the family members, the same is required to be
thrown out at the earliest opportunity. Mother-in-law or sister'sin-
law (married or unmarried) cannot be permitted to be
subjected to harassment only because they happen to be related
to the estranged husband of the woman (complainant).
In the present case firstly I have considered the
allegations reflected in the Domestic Incidence Report and the
allegations so made by the complainant Nidhi Kashyap before
the court which do not inspire confidence and appears to have
been made in routine. The respondent has alleged that the
present revisionists had forcibly taken away her salary and
wages which allegations on the face of it are false and incorrect
since it is an admitted case of the respondent before this court
that she is not working. The question of her husband or in-laws
taking away her salary, income, wages etc. under these
circumstances does not arise.
Secondly the report of the Protection Officer also
show that the dowry related harassment pertains to the demand
of car and cash of Rs.3 lacs. The respondent Nidhi Kashyap has
also attached the list of Stridhan articles alongwith the petition to
support and substantiate her allegations regarding
misappropriation of her Stridhan articles which I have perused. I
may observe that the said list so attached along with the petition
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 13 of 16
is not a duly authenticated list signed by both the parties as
required under the Dowry Prohibition Act. This is the list of
articles which only the respondent Nidhi Kashyap claims were
her stridhan which list does not bear the signatures of the
respondent. Under the given circumstances as the list is not
signed by both parties, it was necessary for the complainant
Nidhi Kashyap to have attached alongwith her list the receipts/
bills showing purchase of these articles which has not been done.
Therefore, the above allegations also do not appear to be credible
and truth-full particularly keeping in view the background that
the marriage between the respondent and Gaurav Kashyap was a
secret, runaway marriage as an outcome of a love affair which
marriage was kept secret for many days and ultimately when the
same was disclosed to the parents of the respondent by her inlaws
a joint reception was organized.
Thirdly the present respondent Nidhi Kashyap has
not placed on record any document to show that her husband is
the owner of any of the aforesaid properties or have any
independent right over the same. The allegations are non
specific and general. It is settled law that the claim for
alternative accommodation can only be made by a women
against her husband and not against in-laws or other
relatives nor can she claim any right to stay in the said house
(Ref: S.R. Batra & Anr. Vs. Smt. Taruna Batra reported in 1
(2007) SLT 1 and Shumita Didi Sandhu Vs. Sanjay Singh
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 14 of 16
Sandhu reported in 2007 (96) DRJ 697). The present
respondent has not placed on record any document to show that
the properties in the present case belonging to her husband
Gaurav Kashyap and the complaint in Crime Against Women
Cell.
Lastly it is an admitted case of the parties including
that of the complainant Nidhi Kashyap that her marriage with
Gaurav Kashyap is an outcome of the long standing love affair
between them. She was a classmate of the revisionist no.2 Ritu
Kashyap through whom she was introduced to Gaurav Kashyap
(her real brother) with whom she developed love affair
culminating into a secret marriage which was disclosed to her
parents much later. This being the background of the case, the
allegations made by the complainant against one and all family
members of her husband where none have been spared do not
appear probable. It is apparent on the face of the pleadings that
they have been so drafted so as to involved all the family
members of the husband sparing none including the present
revisionists who are the aged mother-in-law, unmarried sister-inlaw
of marriageable age and married sister-in-law residing
separately. This, it appears has been done for the purpose of
harassing the entire family of the husband with a sinister motive
and design to harass and humiliate them. Given the background
of the case, the allegations made against the Revisionists on the
face of it do not appear to be truthful and probable warranting
any interference from the court under this Special Legislation.
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 15 of 16
In view of the above background and in the interest
of justice, I hereby set aside the orders of dated 24.2.2010,
25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby
summoning the present revisionists i.e. Smt. Santosh Kaur, Ms.
Ritu Kashyap and Smt. Sarika Mehta since there does not exist
sufficient material on record to summon them and to proceed
against them under the Protection of Women from Domestic
Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.8.2010 ASJ-II(NW): Rohini
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 16 of 16
Santosh Kaur Vs. Nidhi Kashyap
CR No. 367/2010
28.8.2010
Present: None for the Revisionists.
None for the respondent.
Vide my separate detailed order dictated and
announced in the open court, I set aside the orders of dated
24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial
Court thereby summoning the present revisionists i.e. Smt.
Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since
there does not exist sufficient material on record to summon
them and to proceed against them under the Protection of
Women from Domestic Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
(Dr. Kamini Lau)
ASJ-II (NW)/ 28.8.2010
CR No. 367/10, Santosh Kaur Vs. Nidhi Kashyap Page No. 17 of 16
HC: Under DV Act it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance
HC: Under DV Act it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance
Crl.Misc.No.M-25966 of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHCrl.Misc.No.M-25966 of 2008.
Decided on: March 25, 2010.
Navrose Singh and others
.. Petitioners
VERSUS
State of Haryana and another
.. Respondents
***
CORAM: HON’BLE MR.JUSTICE M.M.S.BEDI ***
PRESENT Mr.Raghujeet Singh Madan, Advocate, for the petitioners.
Ms.Shubhra Singh, DAG, Haryana.
M.M.S. BEDI, J. (ORAL)
Petitioners seek quashing of proceedings under the complaint initiated by respondent No.2 Parminder Kaur, against the petitioners under the provisions of the Protection of Women from Domestic Violence Act, 2005, inter alia, on the grounds that the proceedings have been initiated with an oblique motive to aggravate the agony by adding another litigation to the earlier cases filed by the respondent. Besides this, it has been argued that the ladies cannot be added as respondents in proceedings under the Protection of Women from Domestic Violence Act, 2005, as per definition of respondent under Section 2 (q) of the Act, which reads as follows: -
“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved …1
Crl.Misc.No.M-25966 of 2008
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.”
I have heard counsel for the petitioners as well counsel for the respondent.
The summoning order Annexure P-1, indicates that the petitioners have been merely summoned and given a liberty to either appear in person or through duly authorized counsel in the Court to show why the reliefs claimed by the respondent should not be granted. It is made clear that under the provisions of the Protection of Women from Domestic Violence Act, 2005, it is not statutory obligation of the respondents to personally appear before the Court or to furnish bail bonds for appearance. The appearance of respondents under the provisions of the Protection of Women from Domestic Violence Act, 2005, is not the requirement of law unless and until, the Court exercises discretion to direct the parties to appear in person for some specific purpose. It is the wish of the petitioners either to appear in person or engage a counsel and pursue the proceedings before the Judicial Magistrate, Dabwali. It is also open to the petitioners to avoid the appearance on behalf of female respondents in the light of definition of respondent under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, laid down in Ajay Kant and others Vs. Smt.Alka Sharma, 2007 (4) RCR (Crl.), Page 930. Disposed of.
(M.M.S.BEDI)
JUDGE
March 25, 2010.
rka
…2
MILS and SIls should be protected from DV
NEW DELHI: The mother and sisters of a man are equally protected in a dispute with his wife under the Domestic Violence Act and they cannot be made accused without a scrutiny of charges against them, a Delhi court has said.
"The Protection of Women from Domestic Violence Act, 2005 protects the mothers, sisters and daughters from any kind of physical and mental abuse or violence in as much as it does the daughter-in-law. The court as a protector and implementor of rights, is required to perform a balancing act," Additional Sessions Judge Kamini Lau.
The court said that raising allegations by a woman against her mother-in-law and sisters-in-law without any substance would rather cause violence to them.
"Making wild allegations against an unmarried sister-in-law of a tender marriageable age by an estranged wife of brother tantamounts to inflicting violence upon her and it is the duty of the court to ensure that she is protected from the same.
"Violence can also be inflicted by an estranged wife or daughter-in-law or sister-in-law upon other members of the husband's family to gain and secure personal points and financial control or for separating her husband from his parents and other family members," the court said.
It further said that mother-in-law or sisters-in-law (married or unmarried) cannot be permitted to be subjected to harassment only because they happen to be related to the estranged husband of the woman (complainant).
"It is necessary to ensure the court does not get swayed by astute legal drafting of the counsel and is required to get at the truth of the allegations by examining them on the touch-stone of reasonableness and probabilities. Where a complaint appears to have been filed on grounds only to humiliate the family members, the same is required to be thrown out at the earliest opportunity", the court said.
The court made these observations while setting aside an order to summon the mother, two sisters-in-law including the married one of a man on a complaint filed by his wife alleging harassment.
ASJ Lau pointed out that the complainant alleged that her in-law had forcibly taken away her salary and wages which is false and incorrect as she herself admitted that she was not working. The court also said that the allegations regarding harassment for dowry do not appear to be "credible and truthful" particularly in view of the background that the marriage between the sparring couple was a secret, runaway marriage as an outcome of a love affair between them.
The woman said that she had married the man in July, 2008 and had faced harassment and torture for dowry.
"The Protection of Women from Domestic Violence Act, 2005 protects the mothers, sisters and daughters from any kind of physical and mental abuse or violence in as much as it does the daughter-in-law. The court as a protector and implementor of rights, is required to perform a balancing act," Additional Sessions Judge Kamini Lau.
The court said that raising allegations by a woman against her mother-in-law and sisters-in-law without any substance would rather cause violence to them.
"Making wild allegations against an unmarried sister-in-law of a tender marriageable age by an estranged wife of brother tantamounts to inflicting violence upon her and it is the duty of the court to ensure that she is protected from the same.
"Violence can also be inflicted by an estranged wife or daughter-in-law or sister-in-law upon other members of the husband's family to gain and secure personal points and financial control or for separating her husband from his parents and other family members," the court said.
It further said that mother-in-law or sisters-in-law (married or unmarried) cannot be permitted to be subjected to harassment only because they happen to be related to the estranged husband of the woman (complainant).
"It is necessary to ensure the court does not get swayed by astute legal drafting of the counsel and is required to get at the truth of the allegations by examining them on the touch-stone of reasonableness and probabilities. Where a complaint appears to have been filed on grounds only to humiliate the family members, the same is required to be thrown out at the earliest opportunity", the court said.
The court made these observations while setting aside an order to summon the mother, two sisters-in-law including the married one of a man on a complaint filed by his wife alleging harassment.
ASJ Lau pointed out that the complainant alleged that her in-law had forcibly taken away her salary and wages which is false and incorrect as she herself admitted that she was not working. The court also said that the allegations regarding harassment for dowry do not appear to be "credible and truthful" particularly in view of the background that the marriage between the sparring couple was a secret, runaway marriage as an outcome of a love affair between them.
The woman said that she had married the man in July, 2008 and had faced harassment and torture for dowry.
SC finds fault with DV Act
SC finds fault with Domestic Violence Act
New Delhi, December 19, 2006First Published: 00:00 IST(23/2/2007)
In its first ever judgment under the recently notified Protection of Women from Domestic Violence Act, 2005, the Supreme Court has ruled that a wife’s claim for alternative accommodation lie only against her husband and not against in-laws and that her right to ‘shared household’ would not extend to the self-acquired property of her in-laws.
“In our opinion, the claim for alternative accommodation can only be made against the husband…,” a Bench of Justice SB Sinha and Justice Markandey Katju said dismissing the claim of a Delhi woman who had claimed her right for alternative accommodation under Section 19(1)(f) of the Act.
The Bench also interpreted the concept of ‘shared household’ under Section 17(1) of the Act. It clarified “the wife is only entitled to claim a right of residence in a shared household, and a ‘shared household’ would mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.”
The court also commented on poor drafting of Section 2(s) of the Act, which defines ‘shared household’. Terming the definition of ‘shared household’ in Section 2(s) of the Act as “not very happily worded”, the Bench said it “appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and does not lead to chaos in society,” it observed.
The court allowed an appeal filed by the father-in-law and mother-in-law of a woman, living in the property owned by the mother-in-law, who had claimed right to residence in a shared household and also that of an alternative accommodation under the new law notified on October 26, 2006.
Under Section 17(1) of the Act, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
Further, Section 19(1)(f) of the Act provides that a woman can seek a direction to her husband to secure same level of alternate accommodation for herself as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.
The apex court’s ruling makes it amply clear that shared household would mean only the house belonging to the husband or taken on rent by him or the house belonging to the joint family of which he is a member. It further clarified that the wife’s claim for alternative accommodation can be made only against the husband.
Sandhya Batra was married to one Anand Batra (both names changed) on April 14, 2000 and the couple was residing at a house owned by the husband’s mother at Ashok Vihar, Phase-I, Delhi.
After Anand filed a divorce petition, Sandhya lodged dowry demand cases against her husband and in-laws including married sister-in-law and they had to visit Tihar Jail.
Initially she shifted to her parents’ residence due to the dispute but when she returned to her in-laws’ place, the house was locked. She filed a suit for getting entry to the house.
However, it was alleged that even before the suit could be decided, she, along with her parents, forcibly broke open the locks of the house at Ashok Vihar belonging to her mother-in-law. It was further alleged by her in-laws that they had to stay in their office as she terrorised them and that they finally shifted to Mohan Nagar, Ghaziabad.
The trial judge granted her temporary injunction on March four 2003 and restrained her in-laws from interfering with her possession. However, the order was reversed on September 17, 2004 by the Senior Civil Judge, who held that she had no right to the properties other than those of her husband.
The Delhi High Court restored the order of the trial judge holding that “mere change of the residence by the husband would not shift the matrimonial hone from Ashok Vihar, particularly when the husband had filed a divorce petition against the wife.”
Her in-laws challenged the HC order before the SC where her counsel contended that in view of the coming into effect of the Act, she could not be dispossessed from the property in question.
Her counsel further contended that the definition of ‘shared household’ “includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship”.
But the apex court rejected the argument, saying if it was accepted then “it will mean that wherever the husband and wife lived together in the past that property becomes a hared household.
“It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc.
“If the interpretation canvassed by the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist on living in all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd,” it said.
Allowing her in-laws’ appeal, the apex court said “the property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband…is a member. It is the exclusive property of the appellant No 2, mother of Anand Batra. Hence it cannot be called a ‘shared household’.”
DV quash petition format
IN THE HIGH COURT OF JUDICATURE AT __________
IN ITS CRIMINAL APPELLATE JURISDICTION
DISTRICT __________
Misc. CRIMINAL APPLICATION NO. OF 2010
IN THE MATTER OF ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA
AND
IN THE MATTER OF SEC. 482 OF CR.P.C.
AND
IN THE MATTER OF ORDER DATED dd/yy PASSED BY THE LD. JMFC, ______. COURT, ________
1) wwwwwwwww wwwwwww wwwwwwww
Age : aa years, Occupation : Service
Having his address at:
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Ssssssss jjjjjjjj kkkkk
Aaaaaaa aaaa
2) rrrrrrr eeeeeeeeee ffffff
Age : qq years, Occupation : Retired
Having his address at:
Aaaaaaaa nnnnnnnn mnnnm,
Ssssssss jjjjjjjj kkkkk
Aaaaaaa aaaa ……….. PETITIONERS
V/S.
1) pppppp kkkkkkl jhhhhk
Having her address at:
Ttttttt rrrrrrrrr eee
Aaaaaaa ddddddd fffffff,
ttttttt .. RESPONDENT
TO,
THE HON’BLE THE CHIEF JUSTICE
AND THE OTHER HON’BLE COMPANION JUDGES
OF THE HIGH COURT OF JUDICATURE
AT __________
THE HUMBLE PETITION OF THE PETITIONERS (ORIGINAL RESPONDENTS NO. 1 & 2) ABOVE NAMED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA R/W. SEC. 482 OF CR.P.C. FOR QUASHING THE PROCEEDINGS OF M.C.A. NO. xx/09 UNDER DOMESTIC VIOLENCE ACT PENDING ON THE FILE OF THE LD. JMFC, COURT, WWWWWWWW
MOST RESPECTFULLY SHEWETH THAT:
1. The petitioners submit that by way of present petition, the petitioners are challenging the proceedings initiated by respondent herein under the provisions of Protection of Woman from the Domestic Violence Act, 2005 (hereinafter referred to as DV Act for the sake of brevity). Subsequent to the report of the Protection Officer under Sec. 12 of the DV Act before the Ld. JMFC (Cccc.), MMMMMM the Ld. Court took cognizance and initiated the proceedings. The petitioners herein had applied to the Ld. Court to dismiss the complaint, as the respondent does not fall under the definition of “aggrieved person” as her marriage is null and void as per the facts presented in the subsequent paragraphs. The Ld. Court had declined that application by its order dated xx/yy/zzzz. Since, the respondent has complained claiming her relationship with the petitioner to be of wife and since by law, that status fails due to the nullity of her marriage with the petitioner; based on the materials placed on record, this order is bad in law and without the jurisdiction. Hence, the petitioners are filing this petition under article 226 and 227 of the Constitution of India 1950, read with the Sec. 482 of the Code of Criminal Procedure, 1973, challenging the legality of the impugned order.
2. The petitioners submit that the brief facts leading to filing of the present petition are as described in the following paragraphs.
3. That the petitioner no.1 and petitioner no. 2 are son and father respectively, and petitioner no.1 has filed a suit on dt. 15/12/2008 in the Hon. Family Court, Xxxxxxxx under sec. 11, read with 5(i) of Hindu Marriage Act 1955 for declaration of nullity of his marriage with the respondent, being the suit no. CA cccc/09. Annexed hereto as Annexure I is a certified copy of the suit. Before the marriage, the respondent had represented to the petitioners that she was legally divorced and, therefore, competent to solemnise the marriage again, which was later found to be untrue. The petitioners later revealed that she was not in possession of decree of divorce on the date of her marriage with the petitioner no.1. On the date of the said marriage (aa/bb/cccc), the respondent’s earlier divorce matter was pending with the Hon. Family Court of MMMMMM. Annexed hereto and marked as Annexure II is the certified copy of the divorce petition of her earlier husband under Sec. 13 and Sec. 13 B both, of Hindu Marriage Act.
4. That after said marriage, the respondent stayed with petitioners at ________ for 7 days during dd/mm/yy evening to aa/bb/cccc and left to her parental home at MMMMMM on her own, in the evening on aa/bb/cccc. From the conduct of the respondent during these 7 days, the petitioner was compelled to go into the past history of the respondent, wherein it was found that she was not in possession of legal decree of her divorce at the time of her marriage with the petitioner. Also, it was found that she had litigations going on under Sec. 498, 114, 420, 506 (2) etc. of CrPC with her earlier husband and in-laws. All that within a time span of about a year, had led her husband to prefer divorce petition under Sec. 13 of the Hindu Marriage Act at the Family Court of MMMMMM, as is presented in Annexure II.
5. It was revealed from the Court records that the respondent had obtained from her husband a sum of Rs. five lakhs in the form of permanent alimony in return to consent of divorce. Annexed hereto and marked as Annexure III is the certified copy of her statement on oath admitting the facts as above before Hon. Court.
6. It is respectfully submitted that the relationship of husband–wife was also not established between the respondent and petitioner no. 1 during those seven days. Then shocked by all above revelations, the present petitioner no.1 took immediate action to file the petition on dd/mm/2008, before the Hon. Family Court of Xxxxxxxx, as mentioned before, to get declaration to the effect that this marriage is void ab-initio, in accordance with sec. 11, read with 5(i) of Hindu Marriage Act 1955.
7. That, during this time, the respondent and her brother and sister-in-law started giving threats on life of petitioner no.1 by phone, and also illegitimately demanded money, for not harming him physically. Due to such threatening phones, the petitioner no. 2 had to lodge a police complaint on dd/mm/08, against the respondent’s brother and his wife, under Sec. 507 of CrPC with the Bbbbbbb Police Station. Annexed hereto and marked as Annexure IV is a copy of this FIR and chargesheet. The same is pending with the Ld. Court of Metropolitan Magistrate, Bbbbbbb, Xxxxxxxx, being the case no. qq/09.
8. Subsequently, on dd/mm/yy, the respondent lodged a complaint under Sec. 498 (A) of CrPC and others against the (a) petitioner no.1, (b) his parents, (c) a married sister and (d) maternal Grandma – (c) and (d), though not living with the petitioner no.1, annexed hereto as Annexure V is a copy of this FIR. After due inquiry into the complaint, the Ccccccc Police issued B summary in favour of the petitioners in August 2009, annexed hereto and marked as Annexure VI is the certified copy of that police report, which is lying with the LD. Court at Mirzapur, Xxxxxxxx, being the case no. www/ee.
9. That, the respondent and many of her relatives, alongwith a bunch of criminals had assaulted the house of petitioner no.1’s mother on d/m/y, with a view to physically harm the petitioner no.1 and his family. The petitioner no.1 and the family were not in house, but due to respondent’s effort to break the house, they had hand scuffle with the watchman and the neighbours of the society. A complaint for the same was given in writing, by mother of the petitioner no.1, at Ccccccc Police station. Annexed hereto and marked as Annexure VII is a copy of the written complaint of petitioner’s mother made to the Ccccccc Police Inspector.
10. That, later on, on 3/2/2009, a report came to be filed by the Protection Officer of MMMMMM city, which was submitted to JMFC (Cccc.), MMMMMM wherein it is inter-alia stated that the Petitioners had abused and tortured Respondent and also demanded dowry. That the Respondent has also asked for appropriate relief pertaining to Protection under Sec. 18, Right to Residence under Sec. 19 and monetary relief under Sec. 20 of the DV Act. The same being the case no. dd/yy, is pending with the Ld. JMFC (ddddddd) Court of MMMMMM. Annexed hereto and marked as Annexure VIII is a copy of the relevant case papers. It is respectfully stated that this case and an order dated dd/yy under the matter, passed by the Ld. JMFC, xxx. Court, MMMMMM, below Ex.qq in M.C.A. No.ww/09 are the subject matters of this petition.
11. In the above proceedings, the petitioner no.1 had applied to the Ld. Court of JMFC (vvv.), MMMMMM, as annexed hereto and marked as Annexure IX, that the complainant does not fall into the definition of “aggrieved person” from the capacity of wife, as per the Domestic Violence Act, as she was not possessing legal decree of dissolution of her earlier marriage, rendering her marriage with the petitioner no. 1 void ab-initio, hence rendering the said complaint devoid of locus standi, as the capacity of Respondent on which the case is based, itself is non-existent and ipso jure void, since inception. This application of the petitioners had been declined by the Ld. Court by its order as annexed hereto and marked as Annexure X.
12. That in reference to the above, the petitioners respectfully agree that any woman in a defined relationship can complain under Domestic Violence Act, but since here, the respondent has complained assuming the relationship of wife, which itself proves to be void-since-inception by law at her own instance, results into failure of establishing the relationship as defined in the DV Act. Thereby the respondent fails to fall in the definition of aggrieved person in the capacity of a wife. In light of the above argument, the said order of the Ld. Court of JMFC (zzzz.), MMMMMM is bad in law and the said matter under the Domestic Violence Act is not maintainable, and hence is liable to be dismissed in limine.
13. That while submitting as above, the petitioners rely on the observation made by the Hon. High Court of Mumbai in its judgement dtd. 3rd May, 2010 of Mangala Bhivaji Lad vs. Dhondiba Rambhau Aher, being FAMILY COURT APPEAL NO. 117 OF 2006, which is as follows: “Since the institution of marriage and the very relationship of husband and wife originates from the personal law applicable to the parties, there can be no escape from reference to the personal law while understanding the expressions “husband” and “wife” used in different statutes. As far as Hindus are concerned, the law relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore unless the marriage is valid under the provisions of the Hindu Marriage Act the parties entering into such a marriage cannot describe themselves as “husband” and “wife” for the purposes of application of different statutes or for deriving the benefits available under different statutes.” Also that, according to this judgement, since as per law, the said marriage is void ab-initio irrespective of the declaration of the same (which is optional), the petitioner no.1’s status is not subject to (and is independent of) the Hon. Family Court’s declaration to that effect. Hence, on this aspect also, the premises taken under the impugned order of Ld. Court of JMFC (mmm.), MMMMMM, is missing in legality.
14. Since one cannot take advantage of her own wrong, and since she, not being a legally wedded wife, could not assume the capacity of wife for the complaint under the DV Act, it would not be in the interest of justice that this case proceeds in the said Court, and the petitioners are further subjected to harassment. In those circumstances, the impugned order of Ld. JMFC (nnnnn), MMMMMM, pending against the petitioners is required to be quashed and set aside and the complaint under the DV Act is required to be dismissed in limine.
15. That, during the course of petitioner no.1’s petition at Hon. Family Court, Xxxxxxxx, the respondent had also filed a petition under Sec. 125 of CrPC, annexed hereto as Annexure XI, against the petitioner no.1, which she had withdrawn at her own instance, finding it devoid of locus standi, her not being a legally wedded wife. However, later on, she filed an application under Sec. 24 of Hindu Marriage Act, 1955, as annexed hereto as Annexure XII, against the petitioner no.1. In the proceedings, she had intentionally suppressed the fact that she was employed in a Govt. job presenting herself as jobless and devoid of proper knowledge to get a job. Due to that false representation, the Family Court had ordered interim maintenance under Sec. 24 of Hindu Marriage Act, 1955 in her application. Later on, on getting the proofs of her job at a Govt. undertaking “ttttttt” (earlier “hhhhhh iiiiiii lllll”) and her income as annexed hereto as annexure XIII, the petitioner no.1 has applied for the review and cancellation of that maintenance order, and a contempt and perjury application against Respondent in the same court. Annexed hereto and marked as Annexure XIV is a copy of these applications.
16. The petitioners further respectfully submit that, in respondent’s FIR under IPC 498 (A) against the petitioners, the Investigating Officer has issued B summary, negating the charges made by the respondent, which are of similar nature to those in the case in question. Hence, over and above the facts mentioned before, on merit also the respondent’s case does not make a prima facie case of Domestic Violence, particularly when the respondent’s relation with the petitioner itself is a part of respondent’s malicious design, fraught with ulterior and oblique motive of making money by abusing the process of law. Hence, in light of the all above facts, allowing the proceeding to continue would be an abuse of the process of the court and that the ends of justice require that the proceeding ought to be quashed. The petitioners hereby most respectfully and assertively would like to drive at a point that this case is conspicuously that of a woman who by taking inappropriate advantage of the pious custom of institution of marriage, has entered into the house of petitioner putting on a mask of a wife, with sole intention of abusing the law for shelling out easy money from him, as is amply evident in the history of respondent’s earlier marriage.
17. The Petitioners crave leave to add, amend, alter or modify the grounds urged hereinabove.
18. The Petitioners have not filed any other petition or application previously before this Hon’ble Court for the reliefs claimed herein under.
19. In light of the above, The Petitioners therefore most respectfully pray that this HON’BLE COURT BE PLEASED TO:
a) Issue rule in the above petition.
b) Issue writ of certiorari or any other writ, order or direction in the nature of certiorari, for quashing and setting aside the order dated dd.mm.yyyy passed by the Ld. JMFC, gggg Court, MMMMMM below Ex. ee in M.C.A. No.ss/09.
c) Stay the further proceedings of M.C.A. No.ss/09 under Domestic Violence Act, 2005 pending on the file of the Ld. JMFC, zzzz. Court, MMMMMM, till the hearing and final disposal of the present petition,
d) Issue order to pay the cost to the petitioner,
e) Pass such other and further orders as may be deemed just, proper and reasonable.
AND FOR THIS ACT OF KINDNESS THE PETITIONERS HERE, AS IS DUTY BOUND, PRAY FOREVER.
PLACE: XXXXXXXX XXXXXX YYYYYYY ZZZZZZ
DATE:
YYYYYYY K ZZZZZZ
AFFIDAVIT
I, Xxxxxx Yyyyyyy Zzzzzz, adult, residing at ddd, trrrr eee ww, zzzzzzz, Xxxxxxxx, do hereby solemnly affirm and state on oath that what is stated hereinabove from paragraphs 1 to 18 is true to the best of my knowledge and information, and I believe the same to be true and correct. The content of paragraph 19 is prayer clause.
SOLEMNLY AFFIRMED AT XXXXXXXX ON THIS ____ DAY OF September, 2010.
XXXXXX YYYYYYY ZZZZZZ
For himself and on behalf of petitioner no. 2
(DEPONENT)
IN THE HIGH COURT OF JUDICATURE AT XXXXXXXX
IN ITS CRIMINAL APPELLATE JURISDICTION
DISTRICT XXXXXXXX
CRIMINAL WRIT PETITION NO. OF 2010
1) XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY uuuuuu ZZZZZZ
.…..…PETITIONERS
V/S.
1) ssssssss ssssssssa aaaaaaaaa ..…………RESPONDENT
I N D E X
| NO. | PARTICULARS | PAGE NO. | ANNEXURE |
| 1. | Criminal Writ Petition | | |
| 2. | Petitioner no.1’s Family suit for declaration of nullity No. wwww/08 | | 1 |
| 3. | Respondent’s earlier husband’s divorce petition under Sec. 13 | | 2 |
| 4. | Respondent’s statement on affidavit about alimony of Rs. 5/- lacs | | 3 |
| 5. | Petitioner no.1’s father’s FIR against the brother and sister in law of Respondent alongwith the chargesheet | | 4 |
| 6. | Respondent’s FIR under 498 and ors against the petitioner no.1 and family | | 5 |
| 7. | B summary of FIR against the petitioners under 498 and ors | | 6 |
| 8. | Petitioner no.1’s mother’s complaint against the Respondent and others at Ccccccc police station | | 7 |
| 9. | Respondent’s complaint under DV Act against the petitioners | | 8 |
| 10. | Petitioner no.1’s application at LD. JMFC (Cccc.) MMMMMM in the matter under DV Act | | 9 |
| 11. | Order dated dd/yy passed by the Ld. JMFC, cccc. Court, MMMMMM | | 10 |
| 12. | Respondent’s application under Sec. 125 of CrPC at Family Court, Xxxxxxxx | | 11 |
| 13. | Respondent’s application under Sec. 24 of HMA at Family Court, Xxxxxxxx | | 12 |
| 14. | Proofs of job and income of the respondent | | 13 |
| 15. | Review application of the petitioner at Family Court | | 14 |
Dated this day of September 2010
Xxxxxxxx
1) XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY ssssssss ZZZZZZ
PETITIONERS
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