Prakash Vinayak Gaikwad and Ors Vs State of Maharashtra and Anr on 13 Feb 2020

Posted on October 10, 2024 by ShadesOfKnife

A single judge of Bombay High Court held that when there is No Shared household, so no domestic relationship so no DVC maintainable on family members.

From Para 7,

7 So far as original respondent nos.2 to 4 i.e. mother, sister and brother of the husband are concerned, it is averred in the application at paragraph 10 that mother and sister of the husband came to Pune for residing there for fifteen days. During that fifteen days, sister of the husband used to quarrel with the aggrieved person with a reason that the aggrieved person was not preparing chapatis in proper manner and chapatis prepared by her were not liked by mother of the husband. Some routine allegations are made in paragraph 10 and it is averred that on say of the mother and sister, the husband used to beat the aggrieved person. It is further averred that the husband, his mother and sister then took the Mangalsutra from the aggrieved person when she proceeded to her parental house on 25th January 2017. It is apparent from the pleadings in the application that subsequently, the aggrieved person returned to her matrimonial house and cohabited with her husband. It is not further pleaded that her Mangalsutra was not returned to her thereafter.
8 So far as petitioner no.4/original respondent no.4 – brother of the husband is concerned, it appears that he is suffering from some ailment and for his treatment, he had come to Pune and was admitted at the Jehangir Hospital. It is further averred that the aggrieved person was frightened of this brother of her husband. The learned counsel for petitioners/original respondents submitted that he is suffering from mental ailment and this fact is clear from pleadings made in the application that he was admitted in the Jehangir Hospital at Pune.
9 Definition of domestic violence found in Section 3 is an inclusive definition having wide scope. However, to constitute an act of domestic violence, the act must be having certain intensity as well as repetitions. Short visits of parental relatives of the husband are not sufficient to rope them in a proceeding under the Domestic Violence Act.

Prakash Vinayak Gaikwad and Ors Vs State of Maharashtra and Anr on 13 Feb 2020

Citations:

Other Sources:

Index of DV Judgments is here.

Mummireddygari Prathap Reddy and Ors Vs Mummireddygari Srivani and Ors on 17 Jul 2023

Posted on October 10, 2024 by ShadesOfKnife

A single judge of AP High Court held that when there is No Shared household, so no domestic relationship so no DVC maintainable on family members.

From Para 7,

7. A perusal of the D.V.C. application would show that the aggrieved woman’s husband and in-laws and the siblings of her husband all are natives of Adapareddypalli Village, Tirupathi Rural Mandal, Chittoor District. By the time the D.V.C. was filed the husband of the aggrieved woman has been working as a Software Engineer at Houstan, Texas, United States of America. Aggrieved woman’s in-laws are living at their native places. Siblings of the aggrieved woman’s husband are also employed and Sri M.Suresh Reddy is working at Bangalore and Sri M.Prasad Reddy working at Hyderabad or Tirupathi. The application in D.V.C. also indicates that subsequent to the marriage the spouses lived for some time at Adapareddypalli Village and thereafter they lived at Mysore of Karnataka State and thereafter they went Abroad and lived together at Houstan, Texas, United States of America. Finally the aggrieved woman and her child came back to India and they have been living with the woman’s parents at Aditya Nagar, Nellore in SPSR Nellore District. D.V.C. was filed at Nellore. All the above facts are not in dispute.

From Paras 9 and 10, (All the respondents, except husband, reside are different locations; No shared household)

9. Coming to the parents and siblings of her husband, at para No.4 of the application, the aggrieved woman states that respondent Nos.4 and 5 therein, who are siblings of her husband, used to visit Adapareddypalli Village during weekends when she was brought by her husband from Mysore to the native place. It is on those occasions, the siblings of her husband used to harass her for money and additional dowry.
10. Coming to her in-laws, the aggrieved person at pares No.5 of her application in D.V.C. mentions that all the cruelty and bad conduct of her husband used to be informed by her to her in-laws, but they used to support their son and all of them together demanded her to bring additional dowry. It is with those allegations, the D.V.C. was filed seeking various reliefs.

From Para 17,

17. The term shared household is hinged on the concept of intentional residence of the parties in one household. Mere fleeting or casual living does not make one a shared household vide Satish Chander Ahuja v. Sneha Ahujal and Rajnesh v. Neha2. In this regard, learned counsel for petitioners cited the judgment of the then composite High Court in P.Sugunamma v. State of A.P.3. Referring to a similar situation where relatives of the husband have not been living along with the spouses but living elsewhere with periodical or sporadic visits, it was held that where any person who is so related who has been not living or had not lived together at any point of time with the aggrieved person in a shared household they cannot be said to be in domestic relationship. To the similar effect is the law spelt out by the Hon’ble Bombay High Court in Prakash Vinayak Gaikwad v. State of Maharashtra4. The averments in the application in D.V.C. of the aggrieved person do indicate that since the time of marriage it is the spouses who lived together under one roof at different places at all times and the remaining respondents who are their family members have been living at different other places and in their own respective houses. It is on occasions they paid visits to the spouses. Such occasional visits were only meant for those occasions and they were never intended and could not be intended to be visits making one to think that they are holding shared household. The definition of “aggrieved person” under Section 2(a) of the Act, 2005 requires a domestic relationship and domestic relationship as defined in Section 2(f) of the Act, 2005 means a relationship between two persons who live or have, at any point of time, lived together in a shared household. The facts mentioned in the application in D.V.C. clearly show that, that domestic relationship is absent between the aggrieved woman on one hand and petitioner Nos.2 to 5 on the other hand. It is in that view of the matter, one has to agree with the contentions of the learned counsel for petitioners that without there being any case disclosed by the application in D.V.C. permitting the learned Magistrate to take up further proceedings against them would be abuse of process of Court.

Mummireddygari Prathap Reddy and Ors Vs Mummireddygari Srivani and Ors on 17 Jul 2023

Citations:

Other Sources:

Index of DV Judgments is here.

Palaparthi Shebha and Anr Vs State of AP and Anr on 16 Jul 2024

Posted on October 10, 2024 by ShadesOfKnife

A single judge of AP HC held that Interim Order for maintenance has to be effective from the date of petition and not from the date of Order.

Note: Slipper shot to those who think dragging the false cases would tire out the lying bitch. Na na… You will be looted in day light.

From Para 5 and 6,

5. Thus, the learned appellate court agreed with the decision of the learned trial court with reference to the legal need and necessity on part of the husband in maintaining his wife and minor child and also affirmed the quantum of monthly maintenance. However, the learned appellate court modified the trial court’s order only with reference to the date from which the awarded maintenance amounts were to be paid. Learned trial court granted interim maintenance from the date of application i.e., on 24.04.2019. Whereas the appellate court set aside that part of the order and directed the interim maintenance to be paid from 01.04.2022.
6. Aggrieved by that modification, the woman and the child preferred this revision.

From Para 8,

8. Learned counsel for revision petitioners submits that the learned appellate court modified the trial court’s order on facts which were never part of the record and the modification is not inconsonance with the law laid down in Rajnesh V. Neha1. The error requires immediate correction as the effect of the erroneous order would make the revision petitioners to lose Rs.9,90,000/-. Therefore, in this revision, this court may have to interfere.

From Para 11, (Importance of pleading properly)

11. Learned trial court granted interim maintenance to be paid from the date of filing of the petition i.e., on 24.04.2019 and the appellate court modified it and directed the said payments to be from 01.04.2022. Learned appellate court recorded that for a period of nearly three years, there was out spread of corona and salaries were not given to private employees and therefore directing such husband to pay maintenance from the date of petition is improper and hence it modified the said order and granted maintenance to be paid from 01.04.2022. During the course of hearing of this revision, it is undisputed on both sides that as a matter of fact, it was never pleaded by the husband that because of corona pandemic, he lost his job or that he did not receive salaries. Therefore, it is clear that the facts that influenced the reasoning of the appellate court were the facts that were never available on record. Thus, deciding a case based on material that was never part of the record amounts to impropriety requiring interference from this court in terms of Section 397 and 401 of the CrPC.

From Para 13, (This is how Judiciary interprets/trumps the Intent of Legislature)

13. The said provision indicates that the order for payment may be from the date of the order or from the date of the application. A bare reading of the provision allows the discretion of the deciding court to grant the maintenance from either of the dates and that discretion normally has to be exercised based on the specific facts and circumstances as were brought on record by the parties. However, after noticing the realities of life and litigation and taking a pragmatic view and after a great deal of deliberation, the Hon’ble Supreme Court of India in Rajnesh V. Sneha’s case (mentioned supra 1) at para 109 held that: –
”Even though a judicial discretion is conferred upon the court to grant maintenance either from the date of application or from the date of the order in Section 125(2) CrPC, it would be appropriate to grant maintenance from the date of application in all cases, including section 125 CrPC, 1973. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application”
Thus, their Lordships laid down that law stating that awarding maintenance from the date of application was in the interest of Justice and fair play. By virtue of this ruling, the revision petitioners rightly sought interference of this court to rectify the error committed by the appellate court.

Palaparthi Shebha and Anr Vs State of AP and Anr on 16 Jul 2024

Index of DV judgments is here.

Sarita Rahul Sharma Vs Rahul Udayraj Sharma on 03 Oct 2024

Posted on October 9, 2024 by ShadesOfKnife

A single judge of Bombay High Court transferred a Divorce case from Vasai to Mahim (about 60 KMs), due a minor child, who had to accompany his mother to Divorce Court, using Mumbai Local train, then a local bus, then a MSRTC bus and alternatively Auto-ricksaw… This is not a joke, the Judge actually wrote all these things in the Order. Nobody considered Cab bookings and Virtual hearings as alternative to transferring case. Karma!

From Para 6.1

6.1. Such is not the case herein. This is a matrimonial dispute between husband and wife. The wife is having one infant / minor son to provide care and support including his medical needs. The Respondent – husband has not paid / is not paying a single farthing to redress and ameliorate the difficulty faced by the Applicant – wife. That apart, to travel from Mahim to the Vasai Court would require the Applicant – wife to undertake the arduous journey in the local train from Mahim to Vasai Road Station, thereafter alight at Vasai Road Station and go to Vasai Road bus stand to take a bus to the Vasai Court which is situated in the interior at a distance of 6.7 kms. and would have to undertake the same journey while returning back from Vasai Court to her residence at Mahim. If Applicant – wife has to travel along with her infant / minor son, it would be all the more difficult for her to travel, since boarding and alighting from the local train on the western railway corridor at any given time during the day is an extremely difficult proposition considering that trains are overcrowded at all times. While undertaking the train journey, Applicant – wife would have to take care of her infant / minor son which would add to her degree of difficulty. That apart, from Vasai Road bus station to the Court and back, there are only two modes of public transport available namely the MSRTC buses which are always overcrowded and in the alternate auto-rickshaws which ply the said distance at an exorbitant cost.

From Para 8,

8. In the present case it is seen that the Respondent – husband is having three salons in Vasai and is rather earning very well. Financially, Respondent – husband is therefore well off. Merely due to that reason, Respondent – husband cannot insist that he will bear the travel cost of the Applicant – wife to attend the proceedings in Marriage Petition in Vasai. The submission made by Mr. Tripathi is without consideration of the Applicant’s case altogether. Not once has Mr. Tripathi considered the fact that the Applicant – wife is required to support and care for her 15 month old infant / minor son and if she is to attend the proceedings in Vasai Court, how and who would take care of the child in her absence.

From Para 10,

10. In view of the above averments made in the MCA and the facts and circumstances in the present case, the ratio in the case of N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha3 as enumerated in paragraph Nos.9 and 10 has to be applied to the present case in favour of the Applicant- wife. The principles laid down therein with respect tomatrimonial matters that whenever Courts are called upon to consider the plea of transfer, Courts have to take into consideration theeconomic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to themarriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance in life squarely apply to thepresent case. The said principles squarely apply in favour of allowing the present MCA. As held by the Supreme Court, given the socioeconomicparadigm in the Indian society, the inconvenience caused to the wife must be looked at whenever confronted with such anapplication for transfer.

From Paras 13-15, (Not satisfied with transferring of the Divorce case, the Judge went ahead and imposed costs of Rs.1 lakh only on husband!)

13. Considering that the Respondent – husband’s Advocate has argued the present MCA for a considerable length of time without even filing his Affidavit-in-Reply despite having been served as far back as in July 2024, I am not inclined to accept the submissions made by Mr. Tripathi that the matter was referred to mediation in the interregnum and therefore the reply could not be filed. It is seen that Applicant – wife is a single mother requiring to take care of her infant / minor son who is born pre-term and is therefore facing constant health issues. The well-being of the son should undoubtedly be at the forefront and of paramount importance for the parents. However in the present case the entire responsibility is on the Applicant – mother and the Respondent – father has completely exonerated himself of his duty as a parent to the detriment of the mother and child. I can see no remorse or sympathy in the submissions made by Mr. Tripathi in the present case.
14. Hence, in view of the above reasons, as also the fact that the Respondent – husband has vehemently contested this Application through his Advocate without even filing any Affidavit-in-Reply whatsoever, I am inclined to levy exemplary costs on the Respondent – husband of Rs.1,00,000/- to be paid to the Applicant – wife, who in my opinion has clearly endured suffering for the last 21 months from the date of birth of her son and further more from the date of filing of the Marriage Petition by the Respondent – husband in the Court of Civil Judge Senior Division, Vasai seeking a decree of divorce under Section 13(1)(i) and or Section 13(1)(ia) of the Hindu Marriage Act, 1955. In my opinion, Applicant – wife deserves the award of costs as it would go a long way in ameliorating her hardship and difficulty in the interest of justice.
15. Costs as directed shall be paid by Respondent – husband to Applicant – wife within a period of two weeks from today. If the costs are not paid, the same shall be recovered as arrears of land revenue by the Collector, Palghar and paid over to the Applicant – wife. A copy of the receipt / acknowledgment of payment of costs shall be placed before the Transferee Court by the Respondent – husband.

Sarita Rahul Sharma Vs Rahul Udayraj Sharma on 03 Oct 2024

Index of Transfer Judgments is here.

Anju and Anr Vs Rinku Dahiya on 11 Oct 2023

Posted on October 8, 2024 by ShadesOfKnife

A division bench of Delhi High Court help that, HMA 24 is not to equalize the parties. Also highlighted the importance of PPPI (Purchase Power Parity Index) published by World Bank, while computing foreign salary obtained outside India.

From Para 8,

8. The respondent/ husband has explained that as per the PPP (Purchase Power Parity) Index published by World Bank, the dollar cannot be converted into Rupees at the prevailing exchange rate. The dollar has to be multiplied with PPP conversion factor which is Rs.23.22 for India. The salary of the respondent i.e. USD 7134 when multiplied by 23.22 comes to Rs.1,65,651/- per month, which is much less than the income of the wife which is Rs.2.5 lakhs per month. It is asserted that the interim maintenance granted to the child is liable to be reduced.

From Paras 10 and 11,

10. Admittedly, the appellant/ wife as well as the husband are highly qualified and the wife is getting Rs.2.5 lakhs per month while the husband is getting USD 7134 per month which if converted to Indian rupee by applying PPP (Purchase Power Parity) Index, comes to Rs.1,65,651/- per month or if simple exchange rate is applied; it is otherwise equivalent to Rs.5,60,000/-. Though the husband may be earning in dollars, but it cannot be overlooked that his expenditure is also in dollars. He has explained that he has a monthly expense of about USD 7000 and is left with little money for saving. His calculations are duly supported by the documents.
11. We observe that in the present case, where both the spouses are equally qualified and are earning equally, interim maintenance cannot be granted to the wife under Section 24 of the Act. The object of Section 24 of the Act is to ensure that during the matrimonial proceedings under HMA either party should not be handicapped and suffer any financial disability to litigate only because of paucity of source of income. The provision for interim/ pendent lite maintenance has been made only to help either spouse to sail through the litigation expenses and also to ensure that they are able to live comfortably. The proceedings under Section 24 of the Act are not intended to equalize the income of both the spouses or to give an interim maintenance which is commensurate to maintain a similar life style as the other spouse as has been observed by this Court in the case of K.N. vs. R.G MAT. APP.(FC) 93/2018 decided on 12.02.2019.

Finally, from Para 14, (Joint Parental Maintenance…?)

14. Considering the income of the wife and the husband and also appreciating that the responsibility of maintaining the child has to be shared jointly by both the husband and the wife, we find that the interim maintenance in the sum of Rs.40,000/- for the child is liable to be reduced to Rs.25,000/- per month.

Anju and Anr Vs Rinku Dahiya on 11 Oct 2023

Index of Section 24 HMA judgments is here.

Yerramilli Srinivas Vs State of Telangana and 2 Ors on 09 Jan 2023

Posted on October 8, 2024 by ShadesOfKnife

A single judge bench of Telangana High Court deprecated the practice of Telangana Police in not sending delete LOC requests to BoI, after a competent Criminal Court grants bail to an accused.

From Paras 7 and 8,

7. This Court has gone through the Circular that was issued by the respondents pursuant to the order passed by this Court. By and large, in criminal matters, particularly under Section 498-A IPC., where a complaint is given by wife and husband is residing abroad, without making even an effort to reach the person by way of e-mail or whatever communication, and without even coming to a conclusion that the said person is trying to avoid the investigation, police are straight away issuing the Look Out Circular, by that time, accused would not even be knowing that a case is registered against him by the respondents. In respect of accused persons who are outside the country, the police shall make an endeavour to communicate about the pending case to the said person. Recourse to LOC shall not be resorted to by the respondents in non-cognizable offences under IPC. or in any other laws if accused is not evading arrest or has not failed to appear before the Court. Necessarily issuing the Look Out Circular will affect the person’s right to movement and the respondents shall be very careful while opening the LOC and resort to it in compelling and extraordinary circumstances. Secondly, in the report that is filed by the Director General of Police, it is stated that LOC will be continued basing on their satisfaction whether the person is going to cooperate with the investigation or not. When once an accused is granted bail by the Court or a notice under Section 41-A Cr.P.C. is issued by the police, if the police have apprehensions about his non-cooperation with the investigation or trial, it is always open to the police to make an appropriate Application before the Court concerned for imposing a condition that the person be directed not to leave the country. Once the bail is granted, the respondent police cannot continue the LOC without further recourse to the Court. In every case, the police are opening the LOCs. and keeping it pending forever and causing irreparable loss and hardship to the accused who in some cases has no intention to evade the investigation. The other difficulty that has been expressed in several cases is that the respondents are not leaving a toll-free or a specific number with BOI. They are generally giving the number of the concerned Station House Officers and sometimes, if they do not pick up the calls, the person is made to wait for hours together in the Airport. The respondent police shall take appropriate steps to evolve procedure or they shall see that some mechanism is in place such as centralised 24 x 7 service to attend the calls in respect of LOC from Bureau of Investigation so that if the immigration has to contact the concerned they will be able to reach out and the inconvenience caused to the concerned may be minimised. Wherever LOCs. are opened, the respondent police shall review the same once in three months and in cases where bail is granted, they shall immediately close the LOCs. The officer concerned who fails to inform the BOI is responsible and if he fails to address the letter to BOI, appropriate action shall be initiated against him for the said lapses. The Courts have to always balance the interest of the accused as well as the societal interest.
8. Fundamental right of the citizen in the democratic setup plays a pivotal role. The Hon’ble Apex Court in Maneka Gandhi v. Union of India1 interpreted the scope of Article 21 in the widest possible manner. The fundamental rights of a citizen can only be curtailed by a procedure known to law. The police while issuing the look out circular has to be very cautious. The circular directions issued by the Director General of Police shall be scrupulously followed. The Director General of Police apart from issuing the circular shall also see that it is implemented and fix the accountability.

Yerramilli Srinivas Vs State of Telangana and 2 Ors on 09 Jan 2023

Citations:

Other Sources:

https://indiankanoon.org/doc/162671944/

https://www.casemine.com/judgement/in/659eb9c767795103e653e2bd

https://www.the-laws.com/Encyclopedia/browse/Case?CaseId=823202811000&Title=YERRAMILLI-SRINIVAS-Vs.-STATE-OF-TELANGANA

https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX19hrqxZBmhqLvP3mplo2JtpfyJa3CjqW3EDUUMgs5

Index of judgments about Look Out Circular Notices is here.

H P Komala Vs N Ravikumar on 29 Jul 2024

Posted on October 6, 2024 by ShadesOfKnife

A single judge bench of Karnataka High Court held as follows, when a husband filed for divorce and did not pay the interim maintenance.

From Para 10,

10. This court is coming across several cases where the husband will not pay the maintenance as ordered by the court and which attains finality but he insists for proceeding with the main case. The CPC provides for execution of the orders passed by the court. No doubt there is mechanism provided for execution of the orders. In these pending matrimonial matters, when the order is passed for maintenance pendent-lite, the party who is contesting the matter cannot tell the opposite party that I will proceed with the case and you can go before the executing court for recovery of money. In matrimonial cases thousands of execution petitions are pending. In some cases the parties are not in a position to meet their basic necessities and the opposite parties inspite of not obeying the orders of the court are enjoying the further orders passed by the court. In these matrimonial proceedings, the court while exercising the jurisdiction under Section 151 of CPC and under Order 6 Rule 16 of CPC should either stay the proceedings or strike off the pleadings. This to some extent will subserve the ends of justice. It will also send a message to the concerned that they cannot get away with non-compliance of the orders of the court and deprive other party from the fruits of the order.

Tip: Pay the money and get the divorce (your freedom!)

H P Komala Vs N Ravikumar on 29 Jul 2024

Index of Divorce Judgments is here and Maintenance Judgments is here.

Kavitha M Vs Raghu on 16 Mar 2023

Posted on October 4, 2024 by ShadesOfKnife

A single judge of Karnataka HC held that there is no need to conduct Inquiry in the nature of summary trial before passing Interim reliefs, relying on the Magistrate’s inherent power u/s 28(2) of the PWDV Act, while overruling earlier 2009 judgment here. (Comment to myself: someone has to challenge the Sec 28(2) of the DV Act as unconstitutional and get rid of it!)

From Para 14,

14. In the aforesaid circumstances, reference being made to the judgment of the Apex Court in the case of KUNAPAREDDY v. KUNAPAREDDY SWARNA KUMARI1 is apposite.
The Apex Court, in the aforesaid judgment, while considering the purport of promulgation of the Act and its provisions clearly holds that sub-section (2) of Section 28 is significant. The concerned Court is well within its powers to lay down its procedure for disposal of the application under Section 12 or Section 23(2) of the Act. The Apex Court also recognizes that this provision is incorporated by the Legislature keeping a definite purpose for which it is enacted. This Court also recognizes the power of the Magistrate under Section 23 to grant an interim order ex-parte owing to the specific power under sub-section (2) of Section 23 of the Act which is carved out in that behalf. In the light of the judgment of the Apex Court, any other law that is laid down by the co-ordinate Benches of this Court will have to be placed into the oblivion on two counts, as the heart and soul of the Act is found in Section 12 and its beat in Section 23.The reliance placed by the respondent/State upon the judgment of the co-ordinate Bench in the case of KRISHNA MURTHYNOOKULA v. Y SAVITHA2 is in clear contradiction with what the Apex Court has held. The said judgment has also been distinguished in the case of one K.MANJUNATH REDDY v. SMT.A.C. LATHA3.
The co-ordinate Bench recognizes that the section itself provided that the Court can form its own procedure and it would override sub-section (1) of Section 28 and any Rules framed thereunder. The co-ordinate Bench then holds that there was no illegality committed by the Court in exercise of its inherent power for disposal of the application without an inquiry and by way of an affidavit filed by the parties before the concerned Court.

From Para 15-18, [Happy that Section 12(5) is emphasized and directions issued]

15. On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs. Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21
or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon. Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.
16. It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.
17. The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it. A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act. The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.
18. In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purport of the promulgation of the Act.

Kavitha M Vs Raghu on 16 Mar 2023

Citations: [2023 SCC OnLine Kar 11],

Other Sources:

https://indiankanoon.org/doc/158022851/

https://www.casemine.com/judgement/in/6423e02cd66f1c555c648b74

https://www.livelaw.in/news-updates/karnataka-high-court-disposal-of-application-dometic-violence-act-accommodation-monetary-relief-interim-maintenance-224447

Domestic Violence Victims Must Be Addressed With Immediacy: Karnataka High Court Issues Directions to Magistrate Courts

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=013202793200&title=kavitha-m-vs-raghu

https://www.scconline.com/blog/post/2023/03/23/magistrates-decide-applications-domestic-violence-act-within-60-day-time-frame-written-reasons-recorded-karnataka-high-court-legal-news-updates/

Index of Domestic Violence judgments is here.

Krishnanand Mishra and Anr Vs State of Jharkhand on 09 Aug 2023

Posted on September 27, 2024 by ShadesOfKnife

A single bench judge of Jharkhand High Court quashed the false 498A IPC case against brother-in-law (Nandoi) and sister-in-law (Nanad).

From Paras 11 and 12,

11. Section 498-A of the Indian Penal Code was inserted in the statute with pious view for punishing cruelty of the husband, however, nowadays, the said Section is being misused which has been observed by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar & another; [(2014) 8 SCC 273].
12. How the cases are lodged under Section 498-A of the Indian Penal Code at the heat of the moment, that was considered by the Hon’ble Supreme Court in Preeti Gupta & another v. State of Jharkhand & another; [(2010) 7 SCC 667].

From Para 16,

16. Coming back to the facts of the present case. The Court finds that there are general and omnibus allegations against the petitioners and in one of the earlier case, final form was submitted in favour of the petitioners and during pendency of that case, the present case has been filed, which further suggest that maliciously the case has been lodged against the petitioners, who happened to be brother-in-law (Nandoi) and sister-in-law (Nanad) of the informant and they are residing at different place.

Krishnanand Mishra and Anr Vs State of Jharkhand on 09 Aug 2023

Index of Quash judgments is here.

Dr. Pankaj Kumar Vs Prerna on 16 Dec 2020

Posted on September 27, 2024 by ShadesOfKnife

A division bench of the Jharkhand High Court granted divorce to the husband, not on the ground of cruelty by wife, but on the ground of irretrievable breakdown of marriage.

From Para 21,

21. We, therefore, proceed to answer this question as this issue has not yet been decided by this Court. We may not have to labour hard in this regard since the Full Bench of Bombay High Court has squarely dealt with the same issue concerning applicability of section 19(3) of the Family Courts’ Act, 1984 and section 28(4) of the Hindu Marriage Ac, 1955 on the period of limitation governing the filing of an appeal before the High Court from the suit s instituted under Hindu Marriage Act concerning the rights of the parties such as, dissolution of marriage, restitution of conjugal right, declaration of a marriage as null and void, judicial separation, etc.
This view has been further followed by the Allahabad High Court in the case of Smt. Gunjan v. Praveen ( Supra), Rajasthan High Court in the case of Kuldeep Yadav v. Anita Yadav ( and Delhi High Court in the cases of R.R.D. (Supra) and DC (Supra) cited by the learned counsel for the appellant. The
rationale behind taking such a view is that the Act of 1984 provides for a special forum relating to matrimonial dispute and for that, special procedure was devised for expeditious adjudication of the case. Provisions of section 20 thereof containing the obstante clause has to be construed in that context, whereas Parliament being conscious of the period of limitation of 30 days prescribed under section 19(3) of Family Courts’ Act, 1984 chose to make suitable amendment in section 39(4) of the Special Marriage Act, 1954 and section 28(4) of the Hindu Marriage Act, 1955 by enlarging the period of limitation from 30 days to 90 days keeping into account the observations made by the Apex Court in the case of Savitri Pandey (supra) and
the rationale behind it. It is true that in a country like us where millions of people face financial hardship for litigating a matter and considerable time, money and energy have to be spent in pursuing the appeal given the difficult geographical condition, access to justice may become illusory in approaching the Court of Appeal within a small period of 30 day and amendment to section 28(4) introduced in 2003 to the Hindu Marriage Act, 1955 being the later enactment in point of time compared to the provisions of section 19(3) under the Family Courts’ Act, 1984, the intention of the Legislature to provide a larger time period for preferring an appeal needs to be furthered in order to resolve this inconsistency by adopting the principles of harmonious construction. We are, therefore, inclined to follow the principles laid down by the Full Bench decision of Bombay High Court in this regard. The Hindu Marriage Act being a special legislation, the provisions governing the period of limitation for preferring an appeal arising out of the decisions of the Family Court under the Hindu Marriage Act, 1955 should be governed by larger period of limitation of 90 days prescribed under section 28(4) thereof. The second question posed for determination at the outset is also answered in the aforesaid manner in the affirmative. Having held so, the instant appeal does not suffer from any delay since the original petition was filed within a period of 90 days from the date of the impugned order i.e. 05.08.2015. As such, there is no delay in preferring the instant appeal. I.A. No. 539/2020 is disposed of.

Dr. Pankaj Kumar Vs Prerna on 16 Dec 2020

2023-Mar-31: The parties settled.
Learned counsel for the parties submit that since the parties have settled the matrimonial dispute in all respects and the disposal / withdrawal of two pending cases against each other is only a matter of time where both the parties are taking steps and joint compromise petition has been filed in one of them whereas in the other they would be filing the joint compromise petition, the appeal itself can be disposed of in terms of the settlement by dissolution of the marriage as they are living separately also.
Having regard to the aforesaid state of facts and that the parties have settled the matter amicably amongst themselves during course of mediation at JHALSA and have decided to live separately without any condition of permanent alimony, there is no point in keeping this appeal pending as no lis survives to be adjudicated upon. As such, the appeal is disposed of in terms of the settlement jointly signed by the parties on 7th November 2021 part of the mediation report dated 16th November 2021 bearing letter no.2513. As such, marriage between the parties is dissolved. Parties are at idem that the two pending cases shall be withdrawn or disposed of parties on the basis of the joint settlement between the parties. They have also agreed not to institute any future cases against each other. Parties should abide by the terms and conditions of the settlement. The settlement should form part of the decree. Decree accordingly.

Dr. Pankaj Kumar Vs Prerna on 31 Mar 2023

Index of judgements on Divorce Appeals is here.

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

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