Crl.MC No. 1766/10 & 1773/10
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 24, 2010 Date of Order: 8th October, 2010
Bhupender Singh Mehra ... Petitioner
Through: Mr. Brajesh Kumar, Advocate
Versus
State NCT of Delhi & Anr. ... Respondent
Through: Mr. Anurag, Advocate for R-2
Diwan Singh Mehra ... Petitioner
Through: Mr. Brajesh Kumar, Advocate
Versus
State NCT of Delhi & Anr. ... Respondent
Through: Mr. Anurag, Advocate for R-2
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions.
2. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection
Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.
3. Section 12 of the Domestic Violence Act reads as under:
12. Application to Magistrate.-
(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration any
domestic incident report received by him from the
Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid
or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if
any, left after such set off.
(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.
4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act.
Section 2(q) reads as under:
2(q) “respondent” means any adult male person who is or
has been in a domestic relationship with the aggrieved
person and against whom the aggrieved 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.
5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of
laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.
6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.
September , 2010 SHIV NARAYAN DHINGRA, J.
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http://lobis.nic.in/dhc/SND/judgement/08-10-2010/SND08102010CRLMM17732010.pdf
Crl. MC No.2853/09 & Crl. Rev.P 581.09
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 16th, 2010
Date of Order: September 22nd , 2010 Crl. M.C. No.2853/2009 22.09.2010
Joginder ...Petitioner
Versus
State NCT of Delhi & Anr. ...Respondents
Counsels:
Mr. K.K. Manan, Mr. Nipun, Mr. Safdar Ali and Mr. Ashish George for petitioner.
Mr. O.P. Saxena, APP for State/respondent.
AND
Crl. Rev. P. No.581/2009
Usha ...Petitioner
Versus
State & Ors. ...Respondents
Counsels:
Mr. Amit Khanna for petitioner.
Mr. O.P. Saxena, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. These two petitions, one preferred by husband and one by wife are against an order dated 18th July, 2009 passed by learned Sessions Judge, Delhi whereby the leaned Sessions Judge dismissed the appeal of both the parties against an order passed by learned Metropolitan Magistrate fixing an interim maintenance for wife and the child @ Rs.5,000/- per month under Domestic Violence Act and the order refusing to pass a residence order in favour of wife.
2. The husband assailed the order on the ground that he was employed with BSES as a diploma engineer and his total salary at the time of passing the order was hardly Rs.6,491/- and presently it was around Rs.7,000/- per month. He has placed on record the salary certificate issued by his employer i.e. BSES which shows that his gross salary in June, 2009 was Rs.7,000/- and after statutory deductions of labour welfare fund, provident fund, insurance, ESI, his net salary comes to Rs.6491.25. His latest salary certificate shows that his gross salary in the month of June and July 2010 was Rs.7,500/- per month and the net salary after statutory deductions was Rs.6976.25 per month.
3. I consider that while passing the interim order for maintenance, the court has to keep in mind the means and earning of the husband and the law in respect of grant of maintenance to wife and child. Over the times, the courts have evolved a formula that if there are three dependents on the salary of husband, the husband would be entitled to half of the salary and the other two dependents would be entitled to remaining half. In the present case, when the salary of the husband was around Rs.6500/-, granting of interim maintenance of Rs.5,000/- for wife and child was unjust and improper. I, therefore, consider that the order of learned Metropolitan Magistrate and learned ASJ needs modification. The impugned order passed by learned MM and learned ASJ is modified to the extent that the interim maintenance payable to wife and child instead of Rs.5,000/- shall be half of the salary of husband which comes to around Rs.3400/- per month.
4. With above modification, the petition of husband is allowed partly and the petition filed by wife for enhancement of maintenance and for residence order is hereby dismissed being not maintainable in view of the circumstances.
September 22, 2010 SHIV NARAYAN DHINGRA, J
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