With a Revision challenging decision of the District Court here, the single judge bench of Bombay High Court relying on Prabha Tyagi case here, held that removal of Respondents from DV case is unsustainable for lack of shared household requirement.
From Para 16, (such a blatant misinterpretation; only breach of Sec 18 Order is a punishable crime; nothing else)
16. The Apex Court, in the case of Kunapareddy Alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari And Another5, has observed that the proceedings under D.V. Act are predominantly of civil nature. It is only when there is a breach of order passed under any of the Section from 18 to 23. Such breach is punishable offence.
From Para 22,
Ali Hamid Daruwala Vs Nahida Rishad Cooper and Anr on 28 Feb 2023
In view of the judgment of Hon’be Apex Court in case of Prabha Tyagi (supra), the contention of learned Advocate that the Applicant had never lived in a shared household or was never in domestic relationship with the complainant and, therefore, the application was not maintainable, is not sustainable in law. Moreover, such a question would only be decided on full fledged hearing of the matter, i.e. after parties adduce evidence in support of their respective case.
Index of DV Cases here.
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,
Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023
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.
A division bench of Bombay High Court held, marrying another woman while having an alive spouse is cruelty u/s 498A IPC.
From Para 5,
Atul and Ors Vs State and Anr on 30 Nov 2022
5. The cruelty prima facie handed out to non-applicant no. 2 did not stop at physically torturing non-applicant no. 2 but, it went beyond the physical state of pain in the sense that the husband i.e. applicant no. 1 with impunity performed marriage with another woman and that was done with the active aid and assistance of the rest of the applicants. When a husband performs the second marriage while his first marriage is alive, a question arises as to whether such act on the part of husband would amount to cruelty within the meaning of Section 498-A of the IPC. As per explanation to Section 498-A of the IPC, cruelty means; any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman. It also includes harassment caused with a view to coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security. Here, we are concerned with wilful conduct of such a nature which has caused or which is likely to cause danger to health of non-applicant no. 2. Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation. Useful reference in this regard may be made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr. [2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors. [(2004) 3 SCC 199]. By these parameters, we find here that the second marriage performed by applicant no. 1 while his first marriage with non-applicant no. 2 was on, prima facie amounted to cruelty. It has been further prima facie aggravated here when the applicant no. 1 made a false representation to other woman with whom he performed marriage during subsistence of the present marriage with non-applicant no. 2 that his first wife had died and the rest of the applicants i.e. both his parents, his siblings and also aunt joined in chorus with applicant no. 1. They falsely told the second woman that the first wife of applicant no. 1 had died. All these details have been graphically stated by the second woman in her statement recorded under Section 161 of the Criminal Procedure Code, 1973 (for short the “Cr.P.C.”). She has also informed the police
that she too had lodged a criminal complaint against applicant no. 1 which was registered by Police Station, Imamwada, Nagpur for certain cognizable offences. Although, it is not known as to exactly which are those offences but, the fact remains that even the second wife of applicant no. 1 has lodged a criminal report against him.
A division bench of Bombay HC held as follows,
From Para 3, 4 and 5,
Abbas Hatimbhai Kagalwala Vs The State of Maharashtra and Anr on 23 Aug 2022
3. Learned Counsel for the Union relies upon Notification dated 25.8.1993 and Section 6.2 (f) of the Passport Act, 1967, to conclude that the Petitioner has to obtain a permission of the Court where criminal case is pending against the Petitioner for the purpose of issuance of the Passport. It will be a case of issuance of the Passport and not renewal of the Passport.
4. It is the case of the Petitioner that validity of the Passport came to an end in the year 2017. The Petitioner applied for renewal and said application is pending for more than 4 years. It is also a fact that a criminal case is pending against the Petitioner u/s 420, 465, 467 r/w 120-B of the Indian Penal Code.
5. In view of the fact that petitioner is already issued a Passport earlier and the Petitioner would be seeking renewal of the Passport and the said application is pending with the Respondent, so also, considering the Order passed by the Apex Court in Criminal Appeal No.1342/2017 (supra) we pass the following order.
A Single judge of Bombay High Court held as follows,
From Para 5, (some one tried hard to help the knife just so that she can reap the benefit of interim reliefs!)
5. Section 12(5) of the D.V. Act casts the obligation on the Magistrate to make every endevour to dispose of the application within a period of 60 days from the date of first hearing. The record itself speaks that in disregard to the statutory mandate, the Magistrate has adjourned the Matter for no reason. It is informed that the Magistrate has already passed the order of interim maintenance which is prevailing till date. It is submitted that the non-applicant/wife without prosecuting her main petition, is interested in deriving benefits of interim order.
From Para 6, why not?
6. Though it is prayed that the D.V. proceeding be dismissed for want of prosecution, however, the same course is not advisable. As on date, the non-applicant/ wife’s amendment application is on record which is to be responded. At this stage, only requirement is to issue certain directions to the Magistrate to expedite the proceeding. Certainly such direction would be in the interest of non-applicant/wife. The applicant/husband undertakes to file his reply to amendment application on the next date i.e. on 12.07.2022 itself.
From Para 7,
Mrugesh Wasnik Vs Shweta Mrugesh on 22 Jun 2022
7. In view of above, learned Magistrate is directed to hear and decide the amendment application within one week from filing of reply and the non-applicant/wife shall file evidence-affidavit within one week thereafter. The Magistrate shall not grant adjournment to either of the parties barring exceptional situation. In any case, the Magistrate shall dispose of the D. V. Proceeding within three months from the date of filing of wife’s evidence-affidavit.
Connects to a PIL here.
A division bench of Bombay High Court said that, FIR cannot be quashed against relatives living in far away places just on that ground, when there are allegedly specific allegations in the Complaint/FIR.
From Paras 8-10,
8. On going through the allegations made in the First Information Report, we find that the allegations are not vague in nature. They are not general in nature either and that they specifically assign a role to each of the applicants which they had performed while subjecting the respondent No.2 to cruelty and harassment.
9. It appears to us that the entire story of woes of respondent No.2 began, going by the allegations made against applicant No.1, after the applicant No.1 established extra marital relations with applicant No.6 and even performed second marriage with her clandestinely. The respondent No.2 got married to applicant No.1 in the year 2007 and the respondent No.2 also bore three children from out of the wedlock. Out of three children, one is son and two are daughters. The eldest daughter of respondent No.2 is aged about 14 years, second daughter is aged about 7 years and the son, who is the youngest, is aged about 4 years. It is further seen that the year 2017 proved to be a disaster for respondent No.2 as it was from this year and on wards the marital discord began. From this year hence, the applicant No.1 started harassing the respondent No.2. It is alleged that he even used to subject her to severe beating. Soon thereafter, it is further seen, the respondent No.2 learnt about the extra marital affair that applicant No.1 was having with the applicant No.6 and when questioned by respondent No.2, applicant No.1 would further subject respondent No.2 to cruelty. The acts of cruelty and harassment have been specifically stated by respondent No.2 in the FIR as well as in police statement. The respondent No.2 has also alleged that when she brought all these facts to the notice of remaining applicants, they being her in-laws and probably in a position to control and regulate the conduct of applicant No.1, unexpected reaction came from the remaining applicants. The remaining applicants instead of exercising proper control over the applicant No.1, according to respondent No.2, started instigating applicant No.1 against respondent No.2. As alleged by respondent No.2, these applicants even raised illegal demand of Rs.50,000/- from respondent No.2 and upon her failure to meet that demand, the respondent No.2 was subjected by all these applicants to verbal abuses. They even instigated husband i.e. applicant to drive respondent No.2 out of his house.
10. The afore-stated allegations, we do not think, could be called as vague and general. These allegations have been made not only against the applicant-husband but also against all the in-laws i.e. remaining applicants and they are all specific in nature. They disclose sufficiently commission of cognizable offence cruelty, punishable under Section 498-A of the Indian Penal Code. It also does not appear to us that they have been made with some hidden motive to just rope in all in-laws.
From Para 12,
Rajesh Pundkar and Ors Vs State of Maharashtra and Anr on 08 Jun 2022
12. This is a case wherein specific instances of involvement of not only the husband but also his relatives have been stated and therefore, with due respect, we would say that the case of Kahkashan Kausar would not assist the applicants in any manner. In the case of Kahkashan Kausar, it is also held that when there are general omnibus allegations made in the course of matrimonial dispute and if they are not checked, it would result in misuse of the process of law. As stated earlier, in this case, there are no general omnibus allegations made against all the applicants rather, these allegations make out a prima-facie case against all the applicants and therefore, on this count also the case of Kahkashan Kausar would not help the applicants.
TIP: Don’t waste money on Quash in such circumstances. Just file a 205 CrPC application on the EXACT same grounds and sit at home relax! Let the prosecution scrabble to prove their false allegations.
A single judge bench of Bombay High Court held that if/when the wife gives up or relinquishes her right to claim maintenance at any time in the future through an agreement, such agreement is not enforceable since such an agreement is opposed to public policy.
Submissions from Paras 7-8,
7. Mr. Chavan submits that irrespective of pending Miscellaneous Application No.229 of 2012, and the so called consent decree, any agreement for waiver to receive maintenance is void, since, it is opposed to public policy. He submits that there can be no agreement in derogation of the provisions of Section 125 of Cr.P.C., since, such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.
8. Mr. Chavan relies upon several decisions to point out that even assuming that right to claim maintenance was voluntarily given up by the wife, that by itself does not bar the wife from seeking maintenance, provided the circumstances prescribed in Section 125 of Cr.P.C. stands fulfilled. For these reasons, Mr. Chavan submits that there is absolutely no error in the impugned orders and this petition may, therefore, be dismissed.
From Paras 12-13,
Ramchandra Laxman Kamble Vs Shobha Ramchandra Kamble and Anr on 21 Dec 2018
12. The consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super-added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.
13. There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable. The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties had voluntarily agreed to give up their time to claim maintenance from each other, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of an application under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference under Article 227 of the Constitution of India.
Citations : [2018 SCC ONLINE BOM 7039], [2019 HLR 1 404]
Other Sources :
A single judge bench held that Section 25 of HMA 1955 can be filed after passing of divorce decree.
From Para 14,
14. A conjoint reading of both the provisions, would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.
From Para 15,
Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022
15. The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc. The term used “at any time subsequent thereto” cannot be made redundant, by giving constricted meaning to the words “wife or husband”, applied in Section 25 of the Act of 1955 and this can be said so, in the wake of sub-sections (2) and (3) of Section 25, which empower the court to vary, modify or rescind the amount of permanent alimony and maintenance as awarded under sub-section (1) and, on existence of the circumstances set out in sub-section (3), order granting permanent alimony and maintenance can be varied and modified or rescinded as the court may deem just and proper.
Sub-sections (2) and (3) of Section 25 are thus indicative of the fact that if at the time of decree, an application is made or at any subsequent time of the passing of the decree, an application is made, claiming maintenance by either of the spouse, the court is empowered to grant the claim, which is just and proper and the payment can be secured if necessary, by creating charge on the immoveable property of the respondent. If sub-section (1) is given a restrictive meaning as attempted to be canvassed by Mr. Thombre, then the words used “at any time subsequent thereto” would become redundant, which cannot be the intention of the legislature. The legislature does not use the words in vacuum and when it specifically permits the exercise of power of granting permanent alimony and maintenance on the court exercising jurisdiction under the Act, at the time of passing of the order or at any time subsequent thereto, it is open for the court to grant such maintenance at the time of passing the decree or even subsequent to the decree being passed. The provision cannot be read to constrict it, if the relationship between the husband and the wife is severed and as per Mr. Thombre, on divorce, they no longer remain husband and wife. Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, the decree can also be for judicial separation under Section 10 or the decree can also be for divorce under Section 13 or the decree can also be for a divorce by mutual consent under Section 13B. In the contingency other than the one covered by a decree of divorce, the parties are still husband and wife, when a decree for restitution of conjugal rights or judicial separation is passed. The scope of Section 25, therefore, cannot be restricted by holding that on divorce / dissolution of marriage, the wife or the husband cannot bring such proceedings.
Other Sources :
A Bench at Goa of Bombay High Court, held that, Issues may be framed after Hearing Both Parties in a DVC.
From Para 13,
Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010
13. In civil proceedings after perusing the claim and the reply or written statement, issues are framed. Issues are framed when a material proposition of fact or law is affirmed by one party and denied by the other. The object of framing issues plays a distinguished role in a civil proceeding and the whole object is to direct the attention of the parties to the principal questions on which they are at variance and they are required to be framed for the purpose of having the material points in controversy rightly decided, and to bring a finality in the litigation. Unless proper issues are framed, a party who suffers a Judgment on the basis of findings not based on proper issues may have a legitimate grievance to contend that because of such non framing of issues he has been denied the opportunity of leading proper evidence for rebutting relevant facts. Issues can be of fact or of law and the duty is that of the Court to frame the issues. An issue can also be framed on the basis of the reliefs. Although in cases of this nature where there are no pleadings as such and the applications are filed in the prescribed form by ticking the reliefs sought, it would be desirable that the Court after hearing both the parties frames issues on the basis of the reliefs sought by the Petitioner so that each can meet the case of the other and avoid such orders of remand. If this procedure is followed there is no question of any of the reliefs going unnoticed and undecided, like the case at hand. This can also reduce the controversy between the parties, in case the columns in the application, were ticked earlier without much application of mind.
Other Sources :