Is The Supreme Court Ready To Reinterpret “Cruelty”?

Is The Supreme Court Ready To Reinterpret “Cruelty”?

Aditya Bhattacharya and Tanushree Pande*

Recently, the courtroom battle between two senior government officials to seek divorce might have gained some attention but the legal aspect was absolutely ignored by the media. Samar Ghosh v. Jaya Ghosh¹ has reinterpreted the stand taken by the Hon’ble Supreme Court in the field of family law. For the first time the Court took into consideration circumstantial aspects of family life such as “rationing in emotions in the arena of love, affection, future planning and normal human relations” to invoke Section 13(1)(i-a) of the Hindu Marriage Act that deals with mental cruelty. If the judgments of the Supreme Court is taken into consideration, then the first time the Court took a clear and definitive stand on the aspect of mental cruelty was in N.G. Dastane (Dr.) v. S. Dastane² where the Court clearly and categorically said that the conduct of cruelty should be of such character that it should leave a reasonable apprehension that it would be harmful to live with the other spouse any more. But then we also see that the Indian courts never interpreted the decision of Dastane v. Dastane² in any further matter, neither did we see courts taking any cognizance of the foreign judgments especially of the Australian and American courts which were reinterpreting matters related to family law in the light of the neo conservative values in commonwealth societies. The 1970s saw Rosenbaum v. Rosenbaum³ and the 1990s saw Hybertson v. Hybertson⁴ which again and again said that mental cruelty in the matter of divorce has to be reinterpreted in the light of changing times; the court has to take into consideration the local customs, traditions, ethnic and religious backgrounds, physical or mental health of the other spouse and other cultural differences to decide upon mental cruelty. The Indian courts in early 1980s tried to come up with a clear stand in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan⁵ where the concept of changing social needs and values were taken care of but again we see that the judicial pronouncements were mere verbatim reproductions of Dastane v. Dastane², the concept of married life and all the emotional and physical aspects were never aptly discussed by the courts.

The age of interpretation
Post-1985 we see a catena of cases which did nothing but repeat and re-repeat the concept of marriage but never dwelled into the emotional aspects and the circumstantial aspect upon which a married life is established, in Shobha Rani v. Madhukar Reddi⁶ where the Supreme Court gave a brief but definitive test for “cruelty” and said:

In Rajani v. Subramonian⁷ the Kerala High Court aptly observed that:
“… concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by our standard of modern civilization in the background of cultural heritage and traditions of our society.”

What made the above decision of the Kerala High Court special is the independent stand it gave in conjunction with the concept of mental cruelty. The decision was short and sweet, the age-old decisions of Fleck v. Fleck⁸ and Bravery v. Bravery⁹ were not taken into consideration; it was an all in all independent decision with reference to the changing Indian mindset. The 1990s witnessed nothing special, the previous matters were moulded into different situations producing the same results. V. Bhagat v. D. Bhagat¹⁰ was the only decision which came up with a concrete stance on mental cruelty. The Supreme Court in this matter said that mental cruelty is not based upon the intention of the parties; relief to the party cannot be denied on the ground of absence of any deliberate or wilful ill-treatment. So, for the first time we see that “intention” is not a factor that needs to be considered to check cruelty.

The modern junction
The advent of 21st century saw Chetan Dass v. Kamla Devi¹¹ where we see the Supreme Court refusing to accept any submission to establish “irretrievable breakdown of marriage”. The decision came as a great surprise as the Court refused to recognise the social pattern of the urban Indian who has grown out of the traditional mould of safeguarding relationships and is ready to move away from difficult and impractical matrimonial liabilities. In 2002 Savitri Pandey v. Prem Chandra Pandey¹² and Gananath Patnaik v. State of Orrisa¹³ added two more tests to establish mental cruelty, the “test of reasonable apprehension” and “test of social and economic status”. The above decisions clearly interpret that the Indian courts were still trapped in the conservative mindset, they refused to give decisions which could help an ailing spouse come out of a relationship which is destroying his/her life, dignity and psyche. It was only in 2004 that we see the courts again in action, in A. Jayachandra v. Aneel Kaur¹⁴ where the Court went beyond the purview of direct evidence associated with “mental cruelty” and said:

“In cases where there is no direct evidence the court has to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that the court has to consider the evidence in matrimonial disputes.”

The ratio of A. Jaychandras case¹⁴was further used in Vinita Saxena v. Pankaj Pandit¹⁵ where it was said that one has to see beyond the normal circumstances to establish cruelty. Further in the same year the Court clearly indicated in Rishikesh Sharma v. Saroj Sharma¹⁶ that where it is not possible for parties to live together, the courts should not compel the parties to live together. The above decisions came as a great breather as the society needed such decisions. The concept of mental cruelty had gone a long way, no longer it was confined to danger related to life, limb and body¹⁷ but it was about practical reality. If two people cannot live a life together, the courts must not force them to live together, they must be given the independence to unburden themselves from the matrimonial liabilities. If the marriage has broken down beyond repair it would be unrealistic for law not to take notice of that fact and it would be harmful and injurious to the interests of the parties¹⁸. All these years the courts in spite of giving correct interpretations were reluctant to give a bold decision regarding the “mental cruelty” and its subsequent connection with “irretrievable breakdown of marriage”. Ghosh v. Ghosh¹ established this connection; the Court in this matter took into consideration even small pieces of arguments and looked beyond the concept of “normal wear and tear of matrimonial life” and interpreted the term in its strict sense. The Court was fresh and modern in its approach and came with a clear stand that if a spouse refuses to participate in the normal matrimonial routine and if he/she refuses to do all those little but important things which a spouse is supposed to do, then the whole foundation of matrimonial life is weak and if the parties feel that this foundation should be done away with, the courts should not force the two parties to be together again. What one needs to understand is that in the modern day “mental cruelty” is not about the mental anguish that two people in marriage experience, it is about the expression of responsibility towards one another. If one feels that the matrimonial strain is beyond the mental capacity of a person, he/she has every right to move away from it. The Indian judiciary took nearly two decades to understand that; but the biggest question lies now! What shall be the stand of the courts after Ghosh v. Ghosh¹, will it preserve its opinion or will it again start the game of interpretation?

* The authors are second-year students of law at the National Law Institute University, Bhopal.

1. (2007) 4 SCC 511

2. (1975) 2 SCC 326 : AIR 1975 SC 1534 : (1975) 3 SCR 967

3. (1976) 38 Ill.App.3d. 1 : 349 NE 2d 73

4. (1998) 582 NW 2d 402

5. (1981) 4 SCC 250 : 1981 SCC (Cri) 829 : AIR 1981 SC 1972 : (1981) 22 GLR 1175 : (1981) 3 Scale 1400

6. (1988) 1 SCC 105 : 1988 SCC (Cri) 60

7. AIR 1990 Ker 1, (1990) 1 DMC 561

8. 79 N D. 561

9. (1954) 1 WLR 1169

10. (1994) 1 SCC 337 : AIR 1994 SC 710 : 1993 (4) SCALE 488

11. (2001) 4 SCC 250 : AIR 2001 SC 1709 : 2001 (3) SCALE 399

12. (2002) 2 SCC 73 : AIR 2002 SC 591 : (2002) 1 SCR 50 : (2002) 1 UJ 273

13. (2002) 1 SCR 845

14. (2005) 2 SCC 22 : AIR 2005 SC 534 : (2004) (10) SCALE 1530

15. (2006) 3 SCC 778

16. (2007) 2 SCC 263

17. See Russell v. Russell, (1895) P. 315 (CA)

18. See Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558

 

http://www.ebc-india.com/practicallawyer/index.php?option=com_content&task=view&id=7006&Itemid=54

SC - Deserting newborn can be ground for divorce

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5078 OF 2005

Bhavnaben ....Appellant

Versus

Harshad Zinabhai Desai ....Respondent

O R D E R

Aggrieved by the judgment and order of the High Court dated 21.11.2003,granting decree for divorce,dissolving the marriage of the appellant and the respondent, wife has filed the above appeal.

Both the appellant and respondent got married on 02.04.1989 and a daughter as born on 22.12.1989.It is the case of the husband that immediately after a month i.e.on 30.01.1990, the appellant-wife left the matrimonial home and the child who was about five weeks at Dadra and deserted him.

When there was a series of civil and criminal proceedings,the husband filed a petition for divorce on 13.02.1992 at District Court, Dadra and Nagar Haveli at Silvassa.

The appellant-wife filed a written statement on 29.07.1992 disputing the claim of the husband.Before the District Court, the huaband apart from examining himself as PW-1 also examined one independent witness by name Mr.Natwarlal Shah as PW-2. The wife has examined as RW-1.

By order dated 26.11.1999,the District Court,Silvassa,dismissed husband's petition for divorce. Questioning the dismissal of his divorce petition,the husband filed First Appeal No.635 of 2000 before the High Court of Bombay.The High Court,after considering all the materials including the evidences of PW-1,PW-2 and RW-1 and after finding that

(a) wife has no justifiable reason to stay away from her husband,

(b) refusing to cohabit,

(c) leaving one month child uncared for, accepted the case of the husband and granted decree for divorce by dissolving their marriage.

Challenging the said order of the High Court, the wife filed the above appeal by way of special leave petition.

Hard learned counsel for the appellant as well as for the respondent.

We perused the relevant materials such as specific assertions in the form of the petition and counter,evidence of PW-1,PW-2 and RW-1 as well as the orders passed by the District Court and the High Court.

There is no reason to disbelieve the evidence of independent witness,Mr. Natwarlal Shah (PW-2).From the materials,the following facts have been found proved by the High Court:

i) The wife left the matrimonial home leaving the infant child of five weeks, on 30.01.1990.

ii) There was no justification for the wife to leave the matrimonial home on 30.01.1990.

iii) The wife unjustifiably threw the entire responsibility of bringing up the child of five weeks on the Respondent husband.

iv) The appellant-wife refused to cohabit with the husband during several reconciliation attempts made during the pendency of the proceedings.

v) Obstinate attitude adopted by the appellant-wife in refusing the husband's bona fide offer of reconciliation.

In addition to the above factual findings,the High Court has also concluded that the wife is guilty of desertion for a continuous period of more than two years without any justification and on this ground also the husband is entitled for a decree of divorce.

It is also pointed out that there is an irretrievable break down of the marriage between the spouses who have lived separately for nearly 20 years from 30.01.1990.

Taking note of all these aspects,factual findings by the High Court based on acceptable evidence,conduct of the appellant-wife in leaving the matrimonial home immediately after giving birth to a child and refusal to join atrimonial home, we feel that the High Court was fully justified in granting decree for divorce in favour of the husband.

We do not find any merit in the appeal filed by the wife,consequently,the same is dismissed.

No cost.

...................J.

(P. SATHASIVAM)

...................J.

New Delhi, (Dr.B.S. CHAUHAN)

September 08, 2010.

ITEM NO.104 COURT NO.10 SECTION IX

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CIVIL APPEAL NO. 5078 OF 2005

BHAVNABEN Appellant (s)

VERSUS

HARSHAD ZINABHAI DESAI Respondent(s)

(With appln. for permission to file rejoinder affidavit and office

report )

Date: 08/09/2010 This Appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE P. SATHASIVAM

HON'BLE DR. JUSTICE B.S. CHAUHAN

For Appellant(s) Mr. Nitin K. Gupta, Adv.

Mr. Shivaji M. Jadhav,Adv.

For Respondent(s) Mr. A.V. Savant, Sr.Adv.

Mr. Shishir Deshpande, Adv.

Mr. Amit Yadav, Adv.

Ms. Sujata Kurdukar,Adv.

UPON hearing counsel the Court made the following

O R D E R

The appeal is dismissed. No cost.

[ Usha Bhardwaj ] [ Savita Sainani ]

Court Master Court Master

Signed order is placed on the file.

http://courtnic.nic.in/supremecourt/temp/ac%20507805p.txt

Bombay HC saves man from impotency tag

JUDGMENT AWAITED

 

Bombay HC saves man from impotency tag

8 sep 2010

MUMBAI: Marital discord continues to flounder in a sea of legalese as harried courts try to reconcile differences between partners who don't even share a bed. The newest issue before Bombay HC in this territory is: can the police force a man to undergo medical tests to prove his manhood?

The issue arose before the Bombay high court when a Peddar Road-based woman sought the annulment of her 12-year-old marriage, claiming that it was never consummated. In her plea, she also complained of marital cruelty stemming from "his frustration".

On Monday, playing arbiter, the court suggested the couple, Shyam Talreja and Sunidhi Patel (names changed), divorce through mutual consent. But the proposition created further disagreements between the two: Patel insisted the consent terms mention her husband's "impotency", a demand Talreja opposed.

The judges, in a bid to avoid tainting the man with the stigma "no prudent person might agree to", offered a more "amiable phrase". "You may say 'there was no physical relationship between the parties' rather than 'non-consummation'," they said. The court has now asked the couple to sleep over its suggestion and return next Monday to settle the matter, failing which it is prepared to hear the husband's plea on merit.

The couple -- both in their late 30s -- hail from business families.

According to his lawyer, Edith Dey, Talreja worked for his father-in-law's stockbroking company but was sacked last year when marital trouble began. Late last year, Patel filed a complaint of physical cruelty against her husband and in-laws under Section 498-A of the Indian Penal Code (IPC). She alleged the physical violence was because of "his frustration arising out of impotency". The police arrested Talreja and his parents, but released them on bail.

Last month, Talreja said, when the police sought a change in his reporting schedule, he realised it was to have him tested for impotency at Nair Hospital. Aggrieved, he objected and got a medical report to show "all is well" from a private charitable hospital. But the police refused to accept Talreja's private report, forcing him to move the high court. A bench headed by Justice B H Marlapalle barred the medical tests.

Patel's lawyer Aabad Ponda on Monday said that a divorce which did not mention Talreja's "impotency" might mar her chances of remarriage and undermine the harassment she faced "for the last seven years". On her part, Dey questioned the "12-year delay in raising the impotency issue".

 

http://timesofindia.indiatimes.com/india/HC-saves-man-from-impotency-tag/articleshow/6516082.cms

Delhi Court expresses concern over misuse of Domestic Violence Act

 

judgment awaited

 

Delhi Court expresses concern over misuse of Domestic Violence Act

New Delhi, Aug 29 (PTI) A Delhi court has expressed its concern over the misuse of the Domestic Violence Act to settle civil dispute between sparring couples with the use of women as "pawn" by the male relatives.

"The misuse and abuse of the Protection of Women from Domestic Violence Act, 2005 is a matter of serious concern for the courts which 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 Act and use it for ulterior motives," Additional Sessions Judge Kamini Lau said.
The court said the purpose of passing the welfare law was to protect the family value system and not to create a civil right.
"The provisions of special legislation in favour of women cannot be abused as the short cut for establishing a civil rights where none exists," the court said.

"The intent of the Act is to protect the value system and institution of family and save it from destruction. This being so, the provisions of the Act have to be so interpreted to ensure that the existing family system is preserved," it said.
The court made the observation while dismissing an appeal of a woman who challenged an order rejecting her plea to be given a wholesome right to reside in a shanty also being occupied by her brother-in-law and sister-in-law.

"It is evident that the attempt of the appellant (woman) is to ensure the division of the property and create her independent right in the same under the garb of the present petition," the court said.

It also noted that the woman as well as her husband have "collusively" filed the petition by "camouflaging a dispute" and have sought the invocation of the Protection of Women from the Domestic Violence Act, 2005, with the sole object of seeking the removal of her brother-in-law and sister-in-law from the property in question.

"This court cannot be a party to any such attempt of the parties to abuse the special legislation enacted to grant immediate relief to women who are victims of Domestic Violence. The right of one woman (the appellant) cannot be implemented by infringing upon a similar right of another woman i.e. sister-in-law/jethani in the same property," ASJ Lau said.

http://www.dnaindia.com/india/report_delhi-court-expresses-concern-over-misuse-of-domestic-violence-act_1430257

http://www.asianage.com/delhi/need-check-misuse-dv-act-says-court-359

Domestic Violence Act: Court pulls up woman

 

A Delhi court has slammed a woman petitioner for misusing of the Protection of Women from Domestic Violence Act 2005.

Noting that Sunita Devi connived with her husband to file the petition against her in-laws, Additional Sessions Judge Kamini Lau said: “The intent of the Act is to protect the value system and institution of family. The misuse and abuse of the Act is a matter of serious concern for courts who must ensure that a woman petitioner is not made a puppet in the hands of her male relatives so as to manipulate the Act and use it for ulterior motives.”

The court was hearing the appeal of Sunita, who had appealed against the March order of a Metropolitan Magistrate, dismissing her petition under the Act.

The appellant said that her brother-in-law and sister-in-law requested shelter at her Delhi house in July 2008. Since then they abused her verbally and physically and with the brother-in-law even tried to kill her under the influence of alcohol, she claimed.

Alleging that they also looted Rs 7,700 from her, Sunita requested the court for grant of maintenance, compensation and also to pass protection orders under the Act.

The brother-in-law pleaded that it was his property and he had allowed Sunita and her husband to live there, but the papers of his ownership had been lost.

The court noted that none of the parties have papers to establish their ownership over the property constructed by DDA, and the home in which Sunita was living with her husband was separate from the one that her in-laws were residing in.

The domestic incident report also revealed that when Sunita came to live in the house, her husband and in-laws were already residing there.

The court said, “The attempt of the appellant is to ensure division of property and create her right under the garb of the petition. It is clear that she and her husband have collusively filed the petition by camouflaging a dispute. Such kind of abuse of the special legislation should be checked at the earliest.”

http://www.indianexpress.com/news/domestic-violence-act-court-pulls-up-woman/674243/0

Del HC -Multiple maintenance not allowed-wife filed PWDVA for maintenance after getting it from 125 crpc HAMA-Can’t misuse law to claim maintenance twice

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 25, 2010

Date of Order: 30th August, 2010

+ Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010

% 30.8.2010 Rachna Kathuria ... Petitioner Through: Mr. P.Narula, Advocate

Versus

Ramesh Kathuria ... Respondent Through:Mr. S.S.Saluja, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes. JUDGMENT

By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010 Page 1 of 3 she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance Crl.M.C.No. 130/2010 Page 2 of 3 already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

August 30, 2010 SHIV NARAYAN DHINGRA, J. vn

http://lobis.nic.in/dhc/SND/judgement/31-08-2010/SND30082010CRLMM1302010.pdf

PWDVA – Definition of temporary residence for jurisdiction – section 27 PWDVA

Crl.MC No.4044/2009  Sharad Kumar Pandey v Mamta Pandey       

IN THE HIGH COURT OF DELHI AT NEW DELHI  
Date of Reserve: August 10th 2010  

Date of Order:  September 01, 2010
Crl.M.C.No.4044 of 2009  01.09.2010

  Sharad Kumar Pandey          ...Petitioner         

  Versus  

  Mamta Pandey            ...Respondent   

Counsels:
Mr. S. Biswajit Meitei for petitioner.
Ms. Liyi Marli Noshi for respondent.

JUSTICE SHIV NARAYAN DHINGRA

1.  Whether reporters of local papers may be allowed to see the judgment?  Yes.
2.  To be referred to the reporter or not?          Yes.
3.  Whether judgment should be reported in Digest?        Yes.

JUDGMENT

1.  This petition under Section 482 Cr.P.C and under Article 227 of the Constitution of India has been preferred by the petitioner for quashing/ setting aside the order and judgment dated 3rd November 2009 passed by learned Additional Sessions Judge, Delhi dismissing the revision petition of the petitioner against an order passed by learned Magistrate taking cognizance of a  complaint under Section 12 of The Protection  of Women from Domestic Violence Act, 2005 (in short, “the Act”).  

2.  The contention raised by the learned counsel for the petitioner before the court of Magistrate and before the court of learned ASJ was  that the marriage between the parties was solemnized in Lucknow  on 22nd February 2004. Before marriage, the complainant/ respondent was living in Lucknow at her parental house and was doing Ph.D. research work in Lucknow under supervision of Mr. R. C. Tripathi. After marriage, the respondent/wife remained at Lucknow,  occasionally, she went to Shillong where petitioner i.e.  husband of the complainant wife/ was posted. The incident of domestic violence, if any, had taken place in Lucknow and nothing happened at Delhi. However, the complaint against the petitioner was lodged at Delhi. He submitted that the complainant/ wife had given address of 175, Gulmohar Enclave, New Delhi,   a  house where  brother-in-law of complainant/ wife namely Mr. Rajesh Ojha was residing. The Court at Delhi would have no jurisdiction. 

3.  The facts regarding  place of marriage and  residence are not in dispute. The learned Sessions Judge relying on Bhagwan Das and another v Kamal Abrol and others (2005) 11 SCC 66 observed that since the temporary residence being one of the incident of jurisdiction the controversy whether the residence of the wife at Delhi was a temporary residence or not, can be decided only after the evidence. He also observed that  the Domestic Violence  Act  being a  new Act,  there was lack of judgments  given by the superior courts on the issue and the issue would be clarified only when some decisions of superior courts come on this point. He observed that if the wife was able to prove that her temporary residence was in Delhi with her sister within the meaning of Section 27 of the Act, the trial court would have jurisdiction to decide the matter. However, this fact can be decided only on the basis of evidence, he left the question open. 

4.  Learned counsel for the petitioner submits that the residence of the wife with her sister at Delhi cannot give jurisdiction to the Court at Delhi when none of the incidents of domestic violence had taken place at Delhi nor the marriage took place in Delhi nor the wife ever, before filing the petition lived at Delhi nor the parents of the wife were living in Delhi nor the parties lived together at Delhi. It is submitted that this Court should clarify the position.

5.  Section 27 of the Domestic Violence Act, which is about jurisdiction reads as under:
“27. Jurisdiction.- 
(1)  The court of Judicial Magistrate of the first class or the
Metropolitan Magistrate, as the case may be, within the local limits
of which- 
(a)  the person  aggrieved permanently or temporarily resides or
carries on business or is employed; or 
(b) the respondent resides or carries on business or is employed;
or 
(c) the cause of action has arisen, shall be the competent court to
grant a protection order and other orders under this Act and to try
offences under this Act. 
(2) Any order made under this Act shall be enforceable throughout
India.” 

6.  Every statute has to be interpreted keeping in mind the purpose for which it has been enacted and the interpretation must be such so as to advance the purpose of the act and should not be such as to defeat the intention of the legislature. 

7. Under Domestic Violence Act, a complaint can be made by an aggrieved person or any other person (section 4) against the respondent and prayer can be made for obtaining various interim orders and reliefs as  given in various provisions of the Act. Section 5 of the Act provides that when a complaint of domestic violence is received by a police officer/ protection officer/ service provider or Magistrate and any of them is present at  the place of incident of domestic violence, he shall give information to an aggrieved person on various rights and facilities available in terms of Section 5(a) to  5(e).  This  section is followed by Section 6 where the service provider can request a shelter service provider  to  provide shelter to  her.  Section 6 envisages that as a result of domestic violence,if the aggrieved person has lost home or is not being allowed to reside in the shared household, a request is  to be made to the incharge of shelter home  for shelter. Section 7 provides  for duties of medical facility provider. This section also envisages commission  of physical cruelty on the aggrieved person and providing of medical facilities to her. Section 9 is about the duties and functions of protection officer. Section 9(b) again provides for preparation of domestic incident report by protection officer and submitting it to the Magistrate,  upon receipt of a complaint of domestic violence,  and forwarding the copies of this report to the incharge police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area. It is apparent that the protection officer‟s duties envisage preparation of a report of incident of domestic violence at the place of  violence  and sending copies to police station incharge and service provider so that the victim of domestic violence can be provided different services as available under the provisions of the Act. Section 9 (g) casts a duty on the protection officer to get the aggrieved person medically examined for bodily injuries and forwarding a copy of the report to the police station and the Magistrate having jurisdiction over  the area where domestic violence  is alleged to have taken place and section 9(f) of the Act  envisages to make available a safe shelter home to the aggrieved person, if she so requires. Section 9(h) requires protection officer to ensure that the order for monetary relief under section 20 of the Act is complied with and executed, in accordance with  the procedure prescribed under Cr.P.C. Section 10 gives duties/ powers  of  service providers and service provider has powers to record domestic violence report if the aggrieved person so desires and forward it to the protection officer and Magistrate and get the aggrieved person medically examined and to provide shelter in a shelter home. Section 12 provides that an aggrieved person can make an application to Magistrate for seeking one or more reliefs and the Magistrate before passing an order on such application,  shall take into consideration  the  domestic incident report, if any,  filed before  him  by  the protection officer or service provider. Section 12(4) provides that 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. Section 13 provides that a notice of date of hearing fixed under Section 12 shall be given by the Magistrate to the protection officer who shall get it served  by such  means as  may be prescribed,  on the respondent and on any other person within a maximum period of two days or such further reasonable time as may be allowed. Section 14 provides that the Magistrate at such stage of the proceedings, direct the respondent and the aggrieved person either singly or jointly to undergo counseling with any member of a service provider who possess such qualifications and experience in counseling as may be prescribed.  Section 18 provides that a Magistrate, after hearing the aggrieved person and the respondent, on being prima facie satisfied about domestic violence having taken place,  may  pass a protection order in favour of the aggrieved person and prohibit the respondent from committing certain acts as given in this section. Section 19 gives powers to  the Magistrate for passing residence orders and put conditions on respondent in the residence order. Section 19(5) provides that while passing orders under Section 19(1) to (5), the Court has power to pass an order directing the officer incharge of the nearest police station to go for the protection of the aggrieved person and to assist person making an application on her behalf. Sub section 7 provides that Magistrate may direct the officer incharge of the police station in whose jurisdiction the Magistrate is approached, to assist in implementation of the protection order. 

8.  From different provisions of this Act, it  is apparent that the scheme of the Act provides that protection officer, service provider and police to help the aggrieved person in not only approaching the court for redressal but to ensure that the domestic violence is not further perpetuated and an aggrieved person gets shelter either in the shelter home or after the residence order in the shared household. Thus, the place of domestic violence and the place of respondent are two places which  are the places of  actions under the Act which the Magistrate can take and give directions to other bodies created under the Act. However, still the Legislature provided that the jurisdiction can be invoked by an aggrieved person on the basis of temporary residence. It seems that this provision has been made for  such aggrieved person who has  lost her family residence and is compelled  to take residence, though  temporarily, either with one of her relatives or with one of her friends at  a  place where the domestic violence was not  committed  or her matrimonial home was  not there. Such  a  woman can invoke jurisdiction of the court where she  is  compelled to reside in view of commission of domestic violence, this temporary residence must be one which  an aggrieved person takes  under the circumstances of domestic violence. It may also be there that after domestic violence; an employed aggrieved person decides to take job at some other place and has to shift her residence. Section 27 provides that the court where an aggrieved person carries on business or has employment also has jurisdiction. The jurisdiction of the court would not be there where an aggrieved person starts residing deliberately only for the purpose of filing a case under domestic violence against respondent while  the place  has no relevance i.e. neither she has a relative or friend there neither a business nor a job and she  is helped by parents or other well-wishers to go to  a place and hire a house and lodge a report under  Domestic Violence Act.  Say  domestic violence is committed in Chennai, the woman comes to Delhi, she does not have job in Delhi, she does not have business in Delhi, she has no relative or friends in Delhi but she hires a house and files an application under Domestic Violence Act. Exercise of jurisdiction by the Magistrate in such cases would be contrary  to  the Act as the Act envisages help from police of the local area where domestic violence had taken place and  it envisages  visit by the protection officer to the share household and to the place of incident. Such providers may also find it difficult to serve respondent  if she moves far away from the place of Domestic Violence and the Magistrate may find it difficult to ask the protection officer and other service providers of far off places to help. 

9.  All legislative enactments on matrimonial disputes or custody matters make ordinary residence or residence or the place where parties lived together or the place of cause of action as a ground for invocation of jurisdiction of the Court. Domestic Violence Act is the first Act where a temporary residence of the aggrieved person has also  been made a ground for invoking the jurisdiction of court. The expression  “residence‟ means “to make abode‟  -  a place for dwelling. Normally place for dwelling is made with an intention to live there for considerable time or to settle there. It is a place where a person has a home. In Webster Dictionary, the residence means to dwell for length of time. The words  “dwelling place‟ or abode are synonyms. A  temporary  residence,  therefore, must be a temporary dwelling place of the person who has for the time being decided to make the place as his home. Although he may not have decided to reside there permanently or for a considerable length of time but for the time being, this must be place of her residence and this cannot be considered a place where the person has gone on a casual visit, or a fleeing visit for change of climate or simply for the purpose of filing  a case against another person.

10.  I, therefore, consider that the temporary residence, as envisaged under the Act is such residence where an aggrieved person is compelled to take shelter or compelled to take job or do some business, in view of domestic violence perpetuated  on her or she either been turned out of the matrimonial home or has to leave the matrimonial home. This temporary residence does not include residence in a lodge or hostel or an inn or residence  at  a  place only for the purpose of filing a domestic violence case. This temporary residence must also be a continuing residence from the date of acquiring residence till the application under Section 12 is disposed of and it must not be a fleeing residence where a woman comes only for the purpose of  contesting  the case and otherwise does not reside there. 

11.  In the present case, the aggrieved person is residing with her sister and has filed the petition under Domestic Violence Act. It cannot be said that her residence with her sister was a fleeing residence or was a temporary residence  acquired for  lodging the complaint  of domestic violence. Her sister‟s house is a place where  she has taken shelter and temporarily resides. I, therefore, find that there is no force in this petition. The petition is hereby dismissed with no orders to costs.        

SHIV NARAYAN DHINGRA, J
September 01, 2010                           

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http://lobis.nic.in/dhc/SND/judgement/01-09-2010/SND01092010CRLMM40442009.pdf

Del HC- Wealth of hubby’s kin can’t be basis for granting maintenance, mere allegations of high status of husband not sufficient for interim maintenance – PWDVA - HMA

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl. M.C. No. 4066 of 2009 & Crl. M.A. No. 13807/2009            01.09.2010

AMIT KHANNA                                 ... Petitioner 
        Through: Mr J.C. Mahindro, Advocate

Versus

PRIYANKA KHANNA & ORS.            ... Respondents
        Through: Respondent No. 1 in person
        Mr Sunil Sharma, APP for the State

Date of Reserve: 23rd July, 2010
Date of Order: 1st  September, 2010
AND Crl. M.C. No. 1416 OF 2010             
  .2010

PRIYANKA KHANNA                                         ... Petitioner 
        Through: In person.

Versus

STATE                    ... Respondent
        Through: Mr Sunil Sharma, APP for the State.
        Mr Sunil Sharma, APP for the State
Date of Reserve: 23rd July, 2010
Date of Order: 1st  September, 2010

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.

JUDGMENT
1.   By these petitions petitioners, husband and wife have  assailed order dated 26th  October, 2009, passed by learned Additional Sessions Judge (ASJ) in appeal.  Ms Priyanka Khanna had moved an application before earned Metropolitan Magistrate (MM) under Section 12 of Protection of Women from Domestic Violence Act and also made an interim application for residence, protection and maintenance.  Learned MM considered the income of the husband for the financial years 2004-05, 2005-06, 2006-07 and 2007-08 and found that annual gross income of the husband for the latest financial year i.e. 2007-08 was ` 3,47,550/-  (before deduction of tax).  She considered that gross monthly income of the husband was between ` 28,000/- and ` 29,000/-.  She awarded monthly maintenance of ` 10,000/- to the wife.  Apart from that, she also awarded  ` 5,000/-  per mensem (p.m.) as rent for residence.  Thus, she awarded ` 15,000/- p.m. to the wife.  In appeal, the learned ASJ enhanced the house rent payable to the wife  from  `   5,000/-  p.m.  to `   15,000/-  p.m.and maintenance from ` 10,000/-  p.m. to  ` 30,000/-  p.m., although, the  husband  had placed before the learned ASJ his latest salary slip showing gross monthly income of ` 41,000/-.  This enhancement was done by the learned ASJ on the ground that husband was a man of status and owner of vast movable and immovable properties and it was a matter of common knowledge that parties generally conceal their actual income and do not show their real income in the  Income Tax Returns. The respondent-wife was alone in this world.  She had lost her job and was unemployed and was living with her parents and dependent on them. It was also observed by the learned ASJ that it was very difficult  to find a suitable residence by paying ` 5,000/- p.m. 

2.  It is noteworthy that a petition  for divorce was filed by the husband which is pending before the court of ADJ and the learned ADJ after considering the material vide order dated 16th September, 2008, granted to the wife a monthly maintenance of ` 25,000/-  from the date of filing of application under Section 24 of Hindu Marriage Act till the disposal of the case and awarded ` 10,000/-  towards litigation expenses.  

3.  It  is evident  from the order passed by the learned ASJ that  he  has not enumerated the vast movable and immovable properties owned by the husband.  Mere allegations made by the wife that husband was a man of status and had vast movable and immovable properties would not give jurisdiction to the Court to pass an order of maintenance beyond the means of the husband.  When  allegations are made by the spouses  about the vast movable and immovable properties  of other, even for passing an interim order the allegations must be substantiated by some sort of documentary  evidence.   The properties existing in the name of sister-in-law, mother or father cannot be considered to be the properties of the spouses.  If such properties are considered as properties of husband, then property existing in the name of father of the wife, mother of the wife or brother or sister of the wife could reflect  her status  and income  and the courts can think that a wife has sufficient properties and she does not need maintenance. 

4.  After attaining self sufficiency and being employed, a man’s own income has to be the basis for fixing maintenance  for  his dependants whether wife, parents or children.  Properties of his brothers or parents cannot be a basis for fixing maintenance.  Status of a man is not determined from the status of his brothers or parents.  There may be many cases where a man is egoistic and does not take help from his rich parents or rich brother and does not maintain same status which his rich brother and parents may maintain.  

5.  In the present case, the marriage between husband and wife was not a marriage arranged by respective parents.  It was a love marriage after courtship of 8 years and I do not think that this courtship or love was  there between the parties before marriage because of the status of brothers of the husband or status of parents of the husband.  It has to be presumed that love was with the person and not with the property and it is the income and wealth of the husband which is to be looked by the  Court for deciding proper maintenance.  When the income of the husband was  ` 41,000/-  p.m., granting  maintenance  plus  rent of  ` 45,000/-  p.m.,  under no circumstance is justified.  I find the order passed by the learned ASJ unjustified and contrary to settled legal preposition.  The order of learned ASJ is hereby set aside. 

6.  Since the income of the husband is now ` 41,000/- p.m. without deducting tax and after deducting tax it would be around ` 38,500/-, a maintenance of ` 15,000/- p.m. and rent of ` 5,000/-  p.m.  would be the just maintenance.  This  would be payable from the date of order of the Appellate Court.  Prior to the date of order of
the Appellate Court, since the income of the husband was only ` 29,000/- p.m., the order of the Court of Metropolitan Magistrate would prevail.  However, this maintenance and amount towards rent is not over and above the maintenance awarded by the matrimonial court, neither this order shall affect the order passed by ADJ granting maintenance @ ` 25,000/- p.m.  The amount payable under this order shall be adjustable against other maintenance order. 

7.  Both petitions stand disposed of in view of my above finding and conclusion. 

SHIV NARAYAN DHINGRA, J.
SEPTEMBER 01,  2010
acm

http://lobis.nic.in/dhc/SND/judgement/01-09-2010/SND01092010CRLMM40662009.pdf