Sukrit Verma and Anr. V. State of Raj. and Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 5th May 2011

Issues dealt —

  1. Women – an easy pray to male ego
  2. Need for PWDVA
  3. Section 20- a powerful tool for ensuring gender equality in economic terms
  4. “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”– Delhi High Court. Such an observation -clearly contrary to the provisions of law. Hence, this Court respectfully disagrees.
  5. Sensitivity of the Judges and recognition of moral and legal duty of husband to maintain the wife.

Relevant Excerpts are as follows:

1) Women – an easy pray to male ego

6.      Women have been subjected to violence, domestic or otherwise, throughout the pages of history-whether they be Helen of Troy, or Sita of Ramayana, whether they be Casandra of Troy, or Dropadi of Mahabharata. Women have been easy pray to the male ego, and dominance. Much as the Indian Civilization pays obedience to the feminine divine, but the harsh reality remains that throughout the length and breath of this country, women are assaulted, tortured, and burnt in their daily lives. The phenomenal growth of crime against women, has attracted the attention of the international community. The International organisations took a serious look at the epidemic called “domestic violence”. The Vienna Accord of 1994, and the Beijing Declaration and the Platform for Action (1995) felt the necessity for a proper law on this burning issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) asked the member nations to enact a proper law for dealing with the mischief of domestic violence.

2) Need for PWDVA

7. In India, although the criminal law deals with domestic violence in the form of Section 498-A IPC, but there was no provision in the Civil Law to deal with the said problem. In order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. The Act is a social beneficial piece of legislation, which should be given as wide and as liberal an interpretation as possible.

3) Section 20- a powerful tool for ensuring gender equality in economic terms

Thus, Section 20 of the Act is meant to ameliorate the financial condition of the aggrieved person, who may suddenly find herself to be without a hearth and home. Financially, the aggrieved person may exist in a suspended animation, if she is neither supported by the husband, nor by her parents. In order to protect women from such a pergutory, Section 20 bestows a right to seek monetary relief in the form of compensation and maintenance. Section 20, thus, is a powerful tool for ensuring gender equality in economic terms. Section 20, does not contain any exception in favour of the husband. In fact, it recognises the moral and legal duty of the husband to maintain the wife.

4) “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”– Delhi High Court. Such an  observation -clearly contrary to the provisions of law. Hence, this Court respectfully disagrees.

In an era of human rights, of gender equality, the dignity of women is unquestionable. Articles 14 and 15 of the Constitution of India recognise the dignity of women. The Constitution empowers the Parliament to enact laws in favour of women. Flowing from the constitutional ranges, Section 125 Code of Criminal Procedure, Section 24 Hindu Marriage Act, Section 20 Domestic Violence Act, ensure that women are paid maintenance by the husband. Section 26 of the Act further lays down that the maintenance paid under the Act, would be in addition to maintenance paid under any other law being in force for the time being. Therefore, the provisions of the Act are supplementary to provisions of other law in force, which guarantee the right of maintenance to the women. Hence, the observations made by Their Lordship of Delhi High Court, in the case of Sanjay Bhardwaj, that “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”. Such an observation is clearly contrary to the provisions of law. Hence, this Court respectfully disagrees with the opinion of Their Lordship of the Delhi High Court.

5) Sensitivity of the Judges and recognition of moral and legal duty of husband to maintain the wife.

19. The Law has always stood to favour of the women. For the Law recognises their vulnerability for survival in the cruel world. Women, being a keeper of hearth in home, need to be protected as they are the foundation of any society. If women are exposed to physical abuses, to sexual exploitation, the very foundation of the society would begin to weaken. It is only after recognising their importance, sociologically, that the ancient Indian Seers had opined that “Gods dwell only in those houses, where women are respected”. Thus, both the law and society recognise a moral and legal duty of the husband to maintain the wife

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Gajendra Singh Vs.  Smt. Minakshi Yadav and Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 5th May 2011

Issues dealt —

  1. Reference to International Conventions and Salient features of PWDVA
  2. Continuing acts of violence/ Retrospective operation

Relevant Excerpts are as follows:

1) Reference to International Conventions and Salient features of PWDVA

The Act is a beneficial piece of legislation, which is an outcome of the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). It is also a result of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Undoubtedly domestic violence is being committed in India on an epidemic scale. Although the criminal law deals with domestic violence in the form of Section 498-A IPC, it was felt that there is no remedy under the civil law. Therefore, in order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. Undoubtedly the Act is meant to protect the women from domestic violence committed against them by the husband and his family members. The Act has recognised the fact that domestic violence is limited not only to physical and mental cruelty, but can also extend to verbal and emotional abuse, and even to economic abuse. The Act has recognised the fact that mental cruelty can take the form of verbal and emotional abuse, such an abuse would include threat to causing physical abuse to any person in whom the aggrieved person is 14 interested. Moreover, the Act has recognised that aggrieved person has a right to economic resources of the husband and his family members, has a right to “stridhan”, and has a right to be maintained. In case her economic rights are violated by the husband or his family members, then according to Section 3 of the Act, domestic violence is committed. Since the Act is a social beneficial piece of legislation, Section 3 of the Act must be given a liberal interpretation.

2) Continuing acts of violence/ Retrospective operation

Moreover, she has been denied her stridhan, she has been denied maintenance, she had been denied access to shared household even after October 26, 2006. Hence, civil wrongs are continuing even after the date when the Act has come into force. Therefore the question of retrospective application of the Act does not arise in the present case. After all as long as the civil wrongs are continued to be committed after 2006, the Act will control such acts of domestic violence.

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Kaniz Fatima Vs. State of Rajasthan & Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 13th May 2011

Issues dealt —

  1. Women as Respondents

Relevant excerpts are as follows :

1) Women as Respondents:

8. Recently, the Hon’ble Apex Court in Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, reported in (2011) 3 SCC 650, considered the definition of “Respondent” defined under Section 2(q) of

the Act of 2005, and held that “although section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. Hon’ble Apex Court further held that legislature never intended to exclude female relatives of the husband or

male partner from the ambit of complaint that can be made under the provisions of 2005 Act. It is true that expression “female” has not

been used in the proviso to Section 2(q) also, but, no restrictive meaning can be given to expression “relative” nor has said {6} expression been defined to make it specific to males only.

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Om Prakash Vs. State of Rajasthan & Anr.

Rajasthan High Court, Jaipur Bench

Date of Order :- April 29, 2011

Issue dealt : Continuing acts of violence/ Retrospective operation

The relevant Excerpt is as follows :

“A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband. In case the said right is violated as a civil wrong the Act provides a remedy to the aggrieved person. Admittedly, even after coming into force of the Act on October 26, 2006, the respondent-wife is notbeing maintained by the petitioner-husband. Therefore, she is being subjected to economic abuse. Since a civil wrong is continuously being committed after October 26, 2006, obviously the Act would apply to the petitioner. Therefore, the question of retrospective application of the Act does not even arise in the present case. ”

On the Respondents contention that he is unable to pay, the court said

“The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Therefore, the contention that merely because the petitioner-husband happens to be a physically challenged person, the Act is inapplicable to him, the said contention is unsustainable. Moreover, poverty is not a defence against the right of a woman. Therefore, the petitioner is both legally and morally bound to pay maintenance of Rs.800/- per month to the respondent-wife. Furthermore, the Act does not require that the aggrieved person must stay with the offending husband. Hence, merely because the respondent-wife is not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act.

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A.Sreenivasa Rao And Others vs The State Of A.P.,

Andhra Pradesh High court,

Date of the order : 1st April 2011

Issues dealt : 1) DV is quasi criminal proceeding

2) No jural relationship; the case under DV not maintainable.

Relevant excerpt :

1) DV is a quasi criminal proceeding

“It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings

under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of

the Indian Constitution or under Section 300 Cr.P.C.”

2) No Jural relationship; the case not maintainable.

“At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not

entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.”

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Labhubhai Babubhai Desaid V/s State of Gujrat

Gujrat High Court

Date of Judgment : 6th April 2011

Issues dealt : Interim custody of the children

Facts: Appeal against the order of interim custody of teh twin daughters in the favour of the wife .

Appeal was allowed on the ground that,” Normally, custody of the minor children should be kept with the mother as it is the mother who can take best care of the children. However, in the present case, this Court could see that the children do not have slightest love and affection towards their mother and hence, it will take much time for the children to get adjusted with mother and get proper care and attention. However, as the children are already with the father and have been taking much care and caution by the father to the utmost satisfaction of children and in the best interest of the children almost in all respects, this Court is of the view that if the custody of the children is left with the father, the children would be more happier.”

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Eveneet Singh vs Prashant Chaudhri And Ors.

Delhi High court

Date of the Judgment :29 April, 2011

Said : Right to reside in the shared household ceases when option of Alternate accommodation becomes available as said in the judgment

Relevant excerpt :

“This Court is conscious of the further events which took place by way of an order of the Division Bench dated 11.02.2011, when Eveneet was given yet another option to move into premises leased by Prashant. Apparently, that option is still open even though she has chosen not to exercise it. Having regard to the overall circumstances, the Court clarifies that the judgment and order necessarily implied that in the event of alternative accommodation being offered “made available” to Eveneet before the concerned Court, her right to continue in the premises would cease.

9. In the light of the above clarification, the parties are relegated to the concerned Magistrate Ms. Priya Mahindra, learned MM (Saket), who is dealing with the Complaint No. 98/1. The said Court shall consider the option furnished by Prashant to Eveneet in line with this Court’s order, and make suitable orders as to whether Eveneet accepts the same or not. In the event of the Court’s determination of any premises to be appropriate or suitable, Eveneet shall be given reasonable time of two weeks to shift to the same. In the event of her failing to do so, it is open to the Defendant No. 2 to take appropriate proceedings for the implementation of the order of Court. The parties are directed to be present before the concerned Magistrate on 02.05.2011.”

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SUPREME COURT GIVES A CLEARER MEANING TO THE TERM RESPONDENT UNDER THE PWDVA, 2005

The Supreme Court of India in a recent judgment interpreted the term ‘ respondent’ under the Protection of Women from Domestic Violence Act, 2005.

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  WIFE CAN STOP ERRANT HUSBAND FROM ENTERING HOME 

A wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house, the Bombay high court ruled on Wednesday. The court said that every woman has right to live peacefully in her matrimonial home. “The right to reside contains within itself the right to reside peaceably and to the exclusion of the violator (husband),” observed Justice Roshan Dalvi while upholding a family court ruling restraining a Lokhandwala Complex, Andheri, resident from entering his own flat.

Acting on a plea filed by his wife, the Bandra family court had earlier this year issued an interim direction to the man to move out of the family home in Beverly Hills building, and had also restrained him from creating nuisance by attempting to enter the flat.

The interim arrangement had been made to protect the woman and her children from the violent behaviour of the husband, an alcoholic, who would lose his temper and become aggressive under the influence of alcohol.

The Andheri resident had approached the high court challenging the eviction order. His counsel Uday Warunjikar primarily contended that the wife and her mother-in-law jointly owned the flat, and as the husband had ownership right over the flat, the court could not have ordered his eviction.

Justice Dalvi, however, dismissed the contention, observing that the Domestic Violence (DV) Act puts the woman’s personal rights over proprietary interest.

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DELHI HIGH COURT RULES ON RIGHT TO RESIDENCE

The recent judgment by Hon’ble  Justice R.  Bhat of the Delhi High Court, very effectively put the Batra v Batra judgment in the context of facts and circumstance of each case. The judgment  examines the Protection of Women from Domestic Violence Act 2005 and the right to residence succinctly yet very effectively thereby possibly ending any controversy that could arise due to the aforementioned Batra Judgment.

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