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Landmark Judgments On Domestic Violence Act Landmark Judgments On Domestic Violence Act

Bronze medal Reporter Advocate Koushalya Pattan Posted 23 Jul 2020
Landmark Judgments On Domestic Violence Act

SANDHYA WANKHEDE vs. MANOJ BHIMRAO WANKHEDE (Criminal Appeal No. 271/2011)

  • This issue has often remained a controversial one as Section 2(q) of Domestic Violence Act defines “respondent” as 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.
  • In view of the definition of the term respondent covering adult male person, the judiciary has time and again been confronted with the argument that an aggrieved person can file complain under the Domestic Violence Act against an adult male person only and not against the female relatives of the husband i.e. mother-in-law, sister-in-law.
  • However, the Supreme Court in the aforementioned case put to rest the issue by holding that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act . Therefore, complaints are not just maintainable against the adult male person but also the female relative of such adult male.

SABITA MARK BURGES vs. MARK LIONEL BURGES ( Writ Petition No. 4150/2013. 

  • Under Section 19 (1) (b) of Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.
  • In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.
  • Object behind enactment of Section 19 of Domestic Violence Act – 

In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as: 

It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietary rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.

MEENAVATHI vs. SENTHAMARAI SELVI ( CRL O.P. (Md) No. 12092 of 2008)

  • The Proviso to Section 19 clearly states that no order under Section 19 (1) (b) of Domestic Violence Act can be passed against any person who is a woman.
  • In this case it was held that in the guise of passing an order under Section 19 (1) (b) of Domestic Violence Act, such women members of the family cannot be directed to be removed from the shared household.
  • A similar observation was made by the High Court of Madras in the case of Uma Narayanan vs. Mrs. Priya Krishna Prasad, ( Criminal Original Petition No. 9277/2008)

wherein the Court observed that under Section 19 (1) (b) of Domestic Violence Act the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19 (1) (b) of Domestic Violence Act and with particular reference to the direction that could be issued under Section 19 (1) (b) of Domestic Violence Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.

V.D. BHANOT vs. SAVITA BAHNOT (SLP ( CRL.) No. 3916/2010)

  • In the case, the Apex Court upheld the Delhi High Court’s view that: “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act.
  • Hence, the Domestic Violence Act entitles the aggrieved person to file an Application under the Act even for the acts which have been committed prior to the commencement of the Domestic Violence Act

MOHD. ZAKIR vs. SHABANA & ORS.. ( Cri Appeal No. 926/2018)

In this very interesting case of 2018, High Court of Karnataka held that a petition under the Domestic Violence Act by the husband or an adult male can be entertained. To arrive at its decision, the High Court placed reliance on Supreme Court’s judgment in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora wherein the Supreme Court while striking down a portion of Section 2 (a) of the Act (defining “aggrieved person”) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) of the Act stood deleted.

  • In view of the aforesaid ruling of Apex Court, the High Court opined that If the said sub- section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women.
  • However, the aforesaid verdict of High Court passed by Justice Anand Byrareddy was later on withdrawn by him when an Advocate opposed the verdict alleging that the Supreme Court’s verdict in the Hirala Harsora case had been wrongly interpreted by the Judge.

INDIRA SARMA vs VKV SARMA (Criminal Appeal No. 926/2018)

  • In this case, the Supreme Court held that Not all live-in relationships are relationships in the nature of marriage.

Guidelines for testing the concept of live-in-relationship

  • Duration of relationship
  • Shared household
  • Pooling of resources and financial arrangements
  • Domestic arrangements
  • Sexual relationship
  • Children
  • Socialization in public
  • Intention and conduct of the parties.

LALITA TOPPO vs. STATE OF JHARKHAND & ANR ( Criminal Appeal No. 2656/2013)

  • In this recent case, the Supreme Court has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.

The Bench explained that 

The provisions contained in Section 3(a) of the Domestic Violence Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.

KAMLESH DEVI vs JAIPAL & ORS. ( SLP No. 34053/2019)

The Supreme Court has held that a mere vague allegation is not sufficient to bring the case within the domestic violence act.

  • Facts: The petitioner claimed that she and respondents are the family members of the same family and have been living in the same premises. Husband of the petitioner is retired from BSF and she has three daughters, namely, Urmila, Anusaya and Gaytri. Anusaya and Gaytri are unmarried daughters of the petitioner and have been going to Krishna Nagar College for their study.Further respondents have made a gang and are quarrelsome persons and whenever daughters of petitioner i.e. Anusaya and Gaytri went to their college, respondents Jaipal, Krishan Kumar and Sandeep followed them and teased them and also did obscene activities.
  • Husband of the petitioner Sube Singh also made a complaint to Sarpanch of Village Gaud against the respondents then in the presence of respectable persons of the village, the respondents also apologized in writing on 5.8.2008.Thereafter, they remained normal for some time but afterwards again started those obscene activities. Hence, finding no other alternative for protection from domestic violence, the complaint has been filed.
  • Trial Court after discussing the provisions of the Act found that none of the witnesses on record has established any fact to the effect that the respondents and the petitioner have been living in a shared household and the respondents have caused domestic violence upon them. The trial court also held that no violence whatsoever has been alleged of any kind within the premises of the shared household. Ld. Magistrate dismissed the case. Appeal filed before the High Court also got dismissed.

Left with no alternative, the petitioner approached the Supreme Court which also declined to give any relief observing: The High Court has rightly found in effect that the ingredients of domestic violence are wholly absent in this case. The petitioner and the respondents are not persons living together in a shared household. There is a vague allegation that the respondents are family members. There is not a whisper of the respondents with the petitioner. They appear to be neighbours. The special leave petition is dismissed”.

BINITA DASS vs UTTAM KUMAR (CRL REV P. 659/2017)

The High Court of Delhi in a case held that 

Magistrate cannot deny interim maintenance to a wife only because she has earning capacity or is a qualified person”.

Facts: Petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with the application had filed an interim application under Section 23 seeking interim maintenance. Said application has been rejected by the Trial Court by order solely on the ground that the petitioner and respondent are equally qualified and petitioner was previously employed and has not disclosed any cogent explanation or disability on her part so as to disable her to earn her living.

The High Court observed:

Clearly both the Trial Court as well as the Appellate Court have erred in not appreciating the judgments of this Court wherein it has specifically been held that capacity to earn and actually earning are two different things”

The High Court then observed and held:

It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income”.

KULDEEP SINGH vs. REKHA (Civil Writ Petition No. 10403/2010)

  • Madhya Pradesh High Court has held that if wife and husband lives the share households to establish their own household, the domestic relationship comes to an end in respect of parents and therefore complaint under DV Act cannot be maintained against them.
  • In this case, the court held that after the marriage, the wife came to her matrimonial house situated at Gwalior and resided with the family members of her husband. It is stated that in the year 2011 her husband got a job at Treasure Island, Indore and in the year 2012 her husband moved to Delhi and they started living there. When they were living at Indore and Delhi, applicant No.2 and 3 came there and demanded Rs.22, 00,000/- and harassed her. It is alleged that the applicant No.2 and 3 used to visit at Indore and Delhi and they reiterated the respondent No.1 with regard to dowry. Wife filed a complaint under Domestic Violence Act against several persons including her husband and his mother & father.

When the matter reached the High Court, it observed The aforesaid documents clearly established that after sometime of the marriage, respondent No.1 and her husband moved out joint family and established their own households at Indore and Delhi”.

It further observed: In this regard the provision of Domestic Violence Act is to be taken into account. Under the Domestic Violence Act the first per-condition is that the applicant must be an aggrieved person is a person defined in Section 2(a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act”. Finally the High Court quashed the case against parents-in-law by saying

This Court has carefully gone through the complaint preferred under Section 12 of the DV Act, and in the considered opinion of this Court, that in the present case, after sometime of the marriage the respondent goes with her husband leaves the share households to establish their own households at Indore and Delhi, and as a result domestic relationship comes to an end, therefore proceedings based upon the complaint initiated in the matter pending before the Judicial Magistrate, First Class- Indore is not maintainable against the applicant No.2 to 8 and deserves to be quashed”.

KUSUM SHARMA vs. MAHINDER KUMAR SHARMA (FAO 369 OF 1996 Decided on 14/1//2015)

The Delhi High court has stated that: the affidavit of assets, income and expenditure of both the parties are necessary to determine the rights of the parties and hence it is essential that both parties on sworn affidavits file the same before the court so as to pass orders regarding monetary reliefs"

Complied By: Koushalya Pattan, Advocate At High Court of Karnataka, Bengaluru

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