Author: ShadesOfKnife
Om Prakash Sharma Vs State of MP on 25 Mar 2021
A single judge bench at Gwalior of Madhra Pradesh High Court held as follows,
From Para 5,
5. The aforesaid decisions of the Apex Court in Suresh Chand Jain & Sakiri Vasu (supra) have held the field till date which is evident from perusal of following subsequent verdict of Apex Court rendered after relying upon Sakiri Vasu with approval.
6. In the instant case, as informed by learned counsel for petitioner, no offence has yet been registered by the police. It is also informed that the concerned police station has not yet given any report to the learned Magistrate despite repeated reminders. It is also not denied that the learned Magistrate has not proceeded to record statement of the complainant u/S.200 Cr.P.C. Therefore, in sum and substance, the entire matter hangs fire and is in a state of suspended animation leaving the petitioner-complainant high and dry with no hope of justice coming his way.
From Para 9.1
9.1 Thus, it is incumbent upon the Magistrate u/S.156(3) Cr.P.C. to not only direct for registration of cognizable offence wherever it is found to be not registered by the Police but also to ensure that theinvestigation conducted by the police is fair, expeditious and without any element of prejudice towards anyone, with the sole object ofreaching the truth. The role of the Magistrate u/S.156(3) Cr.P.C. is thus of great significance. Prompt and appropriate exercise of poweru/S.156(3) Cr.P.C. can, not only bring succor to the victim but also to the society at large by bringing the delinquent to the book and in theprocess instilling enough fear in the mind of the miscreant so as to dissuade him from indulging in delinquency again.
From Paras 15-20
Law laid down:
(1) The guidelines laid down for the Magistrates for adjudication of application u/S.156(3) Cr.P.C. complaining about delayed/improper investigation filed along with complaint u/S.200 Cr.P.C.
(2) The complaint u/S.200 Cr.P.C. filed along with 156(3) application need not be kept pending owing to bar contained in Sec.210 Cr.P.C. for more than 60/90 days or any other longer period statutorily provided on expiry of which the police fails to file the final report u/S.173(1) Cr.P.C.
(3) On failure of police to file final report u/S.173(1) Cr.P.C. within 60/90 days or any other longer period statutorily provided, the Magistrate to prevent the complaint u/S.200 Cr.P.C. from suffering a state of stalemate, should proceed by invoking powers contained in Chapter XV and XVI Cr.P.C.
If during pendency of proceedings under Chapter XV and XVI Cr.P.C., invoked as above, Police files the final report then the final report and the complaint case both should proceed as if both have arisen out of police report.
Citations:
Other Sources:
https://indiankanoon.org/doc/55499395/
https://www.indianemployees.com/judgments/details/om-prakash-sharma-vs-state-of-m-p-and-another
Vipin Kumar Vs State of U.P. and Anr on 25 Feb 2022
A single Judge of Allahabad High Court held as follows,
On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.
It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.
Citations:
Other Sources:
https://indiankanoon.org/doc/139127943/
Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990
A single judge from Gauhati High Court held as follows,
From Paras 11, 12 and 13,
11. Under Chapter XXXII, Section 401 of the Code provides that. “Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.” The proviso to section 431 is not relevant here. The order for payment of maintenance was an order under the code for payment of money, for the recovery of which no method had been expressly provided. Accordingly, under section 431 of the code, I think the maintenance; money could be recovered, as if it were fine.
12. Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender in this case the present petitioner (opposite party in the maintenance proceeding) or issue of warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: The provision to Section 421 clearly stipulates that “no such warrant shall be executed by the arrest or detention in prison of the offender.”
13. On consideration of the above provisions, there should be no doubt that for recovery of money as maintenance which has to be in accordance with the procedure for recovery of fine no warrant of arrest or detention of the petitioner could have been ordered. I, therefore think that the impugned order dated 1.9.89 was clearly erroneous and has to be set aside.
Citations: [1990 GAULR 2 328], [1991 CRLJ 1843], [1990 SCC ONLINE GAU 36], [1990 GAU LR 2 328], [1991 CRI LJ 1843]
Other Sources:
https://indiankanoon.org/doc/1507653/
https://www.casemine.com/judgement/in/56eaaa49607dba3c8ce3ef96
https://legaldata.in/court/read/2541018
Afia Rasheed Khan Vs Mazharuddin Ali Khan and Anr on 10 Oct 2022
The Apex Court held that there is no cause of action arising at Mumbai for a DV case, due to casual visits and such trips do not qualify as ‘temporarily residing’.
The present petition has been filed at the instance of the petitioner/complainant assailing the order passed by the High Court affirming the view expressed by the trial Court holding that the complaint filed at the instance of the petitioner under Section 12 of the Protection of Women from Domestic Violence Act (‘DV Act’) instituted before the competent court at Mumbai lacks territorial jurisdiction.
It is an admitted fact which has come on record that from the date of their marriage which was solemnized, i.e. 26.09.1993, the petitioner was residing in Hyderabad along with the other family members including the respondent (husband) and her children. She came to Mumbai for the first time leaving her matrimonial home on27.09.2021 and complaint under Section 12 of DV Act came to be filed at her instance before the Court of learned Magistrate, Bandra on 20.10.2021 that came to be dismissed by the learned trial Judge because of lack of territorial jurisdiction.
After we have heard learned counsel for the parties and taking into consideration the facts on record, find that no error has been committed by the High Court under the impugned judgment.
The Special Leave Petition is accordingly dismissed.
The Bombay High Court Order is given below:
Index of DV cases is here.
Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023
A single judge at Aurangabad Bench of Bombay High Court held as follows,
From Para 9,
9. In the backdrop of aforesaid provisions, if the precedents are considered, then it is clear that the Hon’ble Apex Court no doubt, in the case of Kamatchi (supra) has held that the proceedings under the DV Act are essentially in the nature of civil proceedings. It is however, pertinent to note that the said judgment is passed in the context of challenge to the order passed by the Trial Court holding that the proceeding fled before it is barred by limitation. It is held in paragraph No. 20 of the judgment that :
“20. It is thus clear that the High Court wrongly equated fling of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been fled within a period of one year of the alleged acts of domestic violence.”
Thus, by implication applicability of the provision of Section 468 of Code of Criminal Procedure is excluded. In respectful view of this Court, in the said judgment, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein.
From Para 13,
13. No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified. It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceedings which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable.
From Paras 16, 17 and 18,
16. Learned counsel for the respondent opposed the said submission by stating that the said issue cannot be decided at this stage as the same would be subject matter of trial after leading evidence.
17. In order to decide this controversy, it would be relevant to take note of provisions which define “aggrieved person” and “domestic relationship”. Section 2(a) of DV Act defines “aggrieved person” which reads thus :-
2(a) “aggrieved person” means any woman who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Section 2(f) states “domestic relationship” to be “a relationship between two persons who live or have, at any point of time, lived together in a shared
household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
According to these definitions, domestic relationship between aggrieved person and respondent is sine qua non to maintain any proceeding under DV Act. In order to constitute relationship between two persons as domestic relationship, they must live or at any point of time lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Admittedly, the relationship of respondent with applicants No. 4 to 6 is as a family member. Thus, in order to constitute domestic relationship, the family members of the aggrieved person must be living together with aggrieved person as joint family. It is, therefore, essential that the applicant pleads that there is domestic relationship between her and respondent and that the other family members have lived or are living together as a joint family, to maintain any such complaint/application under the provisions of the DV Act.
18. In the instant case, applicants No. 4 to 6 have come out with a specific case that they never lived as joint family with the respondent. In order to substantiate the said contention,documentary evidence such as Aadhar Card etc. is placed on record. Genuineness thereof is not challenged. On the other hand perusal of the complaint/application to the Magistrate does not show pleadings that these applicants have lived or living with the respondent together as members of joint family. Thus, for want of specific pleadings, and in view of unimpeachable evidence placed on record by these applicants showing their separate place of residence, the application/complaint against such applicants could not have been entertained as these applicants do not come within the definition of domestic relationship with the respondent.
From Para 21,
21. Unfortunately, similar trend seems to have been adopted and proceedings under DV Act are filed at even distant place i.e. place where aggrieved person resides as per Section 2(s) of Act and not only husband and joint family members residing under one roof are made respondents but distant relatives those who have no domestic relationship are also roped in order to cause harassment and to build pressure on husband. In considered view of this Court the observations made by Hon’ble Apex Court, while dealing with offence under Section 498-A of Indian Penal Code, apply to the cases under DV Act, which are filed in clear abuse of process of Court. The present case is squarely covered by illustrations (1), (3) and (7) in case of Bhajanlal (supra) and hence such proceeding cannot be permitted to be continued.
Citations:
Other Sources:
https://www.barandbench.com/news/bombay-high-court-concern-rise-trend-women-misusing-domestic-violence-act
Bombay High Court Raises Concern Over Misuse of Domestic Violence Act by Estranged Wives
N Rajeev Vs C Deepa on 26 July 2023
A single judge from Bengaluru bench of Karnataka High Court held as follows,
From Paras 2 and 3,
2. Notice to respondent spouse is dispensed with since no order adverse to her interest is being made and further she will have full opportunity of participation in the trial of the subject case at the hands of the court below. Added, she too will have the advantage of early disposal.
3. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this Court is broadly in agreement with the proposition that the matrimonial causes should be tried & disposed off on a war footing, at least as a concession to the shortness of human life. It was Thomas Carlyle (1795-1881), a British historian of great repute who had said: “Life is too short to be little”. When a matrimonial case involves the prayer for the dissolution/nullity of marriage, courts should make all efforts to try & dispose off the same within an outer limit of one year, so that in the event of granting such a decree, the parties may restructure their lives. It hardly needs to be stated ‘life is lost in living’. Delay in disposal of such cases very badly affects the parties thereto, needs no deliberation.
In the above circumstances, learned Family Court Judge is requested to accomplish the trial & disposal of the subject seven year old case preferably within an outer limit of three months, all contentions having been kept open.
The Registrar General of this court is instructed to circulate this judgment in all the concerned circles so that other similarly circumstanced litigants may not unnecessarily knock at the doors of this court seeking a direction for the expeditious disposal of their cases.
Registry to send a copy of this judgment to the respondent-wife by Speed Post, immediately.
Citations:
Other Sources:
https://indiankanoon.org/doc/102000202/
https://www.casemine.com/judgement/in/64c14eeb843b5e67363850e6
https://www.verdictum.in/court-updates/high-courts/karnataka-hc-courts-should-make-all-efforts-to-try-dispose-of-cases-involving-dissolution-of-marriage-within-one-year-1486930
Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986
A single judge of Delhi High Court held as follows,
From Paras 18 to 26,
18. Under Section 12 (1) (a), therefore, the requisite is that ordinary and complete sexual intercourse has not taken place between the parties owing to the impotence of the respondent. The words ‘impotence of the respondent’ would, to my mind, mean incapacity of the respondent to have sexual intercourse. The Supreme Court has said in Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137, that “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility”.
19. As stated above, consummation means capacity to have ‘ordinary and complete sexual intercourse’. The above stated observation of the Supreme Court in AIR 1970 SC 137, therefore, must mean that a party is impotent if his or her mental or physical condition is such, that practically speaking, it is impossible for him or her to have ordinary and complete sexual intercourse. In the instant case it is instant case it is stated by the appellant in her deposition that the respondent was unable to have any, even a partial or incipient, sexual intercourse with the appellant.
20. Respondent has himself written in his diary Ex. PW1/2, that the is a Homosexual. The appellant has stated in her deposition that the respondent told her that he was a homosexual, that he was unable “to perform sexual intercourse with me and with females in general”. In other words, the respondent was incapable of having Hetrosexual intercourse with any woman.
21. As sexual intercourse essentially has two participants, it must be ordinary and complete for both the participants, individually, and together as a marital unit. For the man participant sexual intercourse is complete when he has an orgasm and for a woman participant sexual intercourse is complete when she has an orgasm (See Encyclopaedia Brittanica: 15th Ed: 1968; Macropaedia, Vol. 16, p. 594: Sexual Response).
22. No sexual intercourse has been taken place between the parties, there is no question is this case whether sexual intercourse was ordinary any complete.
23. In this case there is unrebutted evidence of the petitioner that no sexual intercourse has taken place between the parties. As no sexual intercourse has taken place between the parties, in this case, the requirements of Section 12(1) (a) of the Act are satisfied.
24. In the above view of the matter no purpose would be served by remitting the case back to the District Judge, as in my view, there is no reason why the statement given by the wife ought not to be accepted.
25. I am of the view that in view of her statement recorded in the court, the wife is entitled to a decree of nullity of marriage on the ground mentioned under Section 12(1)(a) of the Act and the judgment of the Additional District Judge needs to be set aside which is hereby set aside.
26. A decree of nullity of marriage is granted to the wife under section 12(1)(a) of the Hindu Marriage Act.
Indian Kanoon Version:
Casemine Version:
Supreme Today Version:
Legal Data Version:
Citations: [1986 DMC 2 65], [1986 DRJ 10 286], [1986 SCC ONLINE DEL 42], [1987 PLR DEL 91 12], [1986 AIR DELHI 399], [1986 ILR DELHI 2 659]
Other Sources:
https://indiankanoon.org/doc/913344/
https://www.casemine.com/judgement/in/560909b5e4b01497111707b8
https://legaldata.in/court/read/6288
