SANDHYA WANKHEDE vs. MANOJ BHIMRAO WANKHEDE (Criminal Appeal No. 271/2011)
SABITA MARK BURGES vs. MARK LIONEL BURGES ( Writ Petition No. 4150/2013.
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)
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)
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.
INDIRA SARMA vs VKV SARMA (Criminal Appeal No. 926/2018)
Guidelines for testing the concept of live-in-relationship
LALITA TOPPO vs. STATE OF JHARKHAND & ANR ( Criminal Appeal No. 2656/2013)
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.
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)
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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