Altaf Ahmad Zargar and Anr Vs Sana Alias Ruksana and Anr on 02 Sep 2022

Posted on October 3, 2022 by ShadesOfKnife

A single bench judge of the Hon’ble High Court of Jammu and Kashmir and Ladakh has passed an Order in a proceeding u/s 482 CrPC stating that,

From Para 10,

10) The petitioners, in effect, are aggrieved of the impugned petition filed by respondent No.1 against them and the order dated 25.10.2021 passed by the learned trial Magistrate on the said petition. So far as the proceedings under Section 12 of the DV Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution. So, the trial Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings. The learned Magistrate would be well within his jurisdiction to cancel the interim order of monetary compensation if he, upon going through the response of the husband and his relatives, finds that they have been unnecessarily roped in or that no case for grant of interim monetary compensation is made out. Since the proceedings under Section 12 of the DV Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings.

Altaf Ahmad Zargar and Anr Vs Sana Alias Ruksana and Anr on 02 Sep 2022

Citations:

Other Sources:

https://lawtrend.in/sec-12-of-dv-act-magistrate-can-recall-the-order-of-interim-monetary-compensation-if-he-finds-husband-is-unnecessarily-roped-in-the-case-jkl-hc/

https://www.lawyersclubindia.com/judiciary/proceedings-under-section-12-of-domestic-violence-act-cannot-be-equated-with-lodging-a-criminal-complaint-jammu-kashmir-ladakh-high-court-6176.asp

https://www.livelaw.in/news-updates/jkl-high-court-dv-act-section-12-proceedings-criminal-complaint-208360

Nahida Rishad Cooper Vs Ali Daruwala and Ors on 25 Feb 2022

Posted on September 13, 2022 by ShadesOfKnife

A single judge of a Sessions Court in Mumbai held as follows:

From Para 5,

5] Perusal of the application under Section 12 of the D. V. Act filed by the applicant has several references to the alleged domestic violence committed by the respondent No. 1. It is not in dispute that he resides separately and not with the appellant or the respondent No. 1. The learned Metropolitan Magistrate in his impugned order has observed that since the respondent No. 1 never resided with the appellant in any shared household he cannot be considered to be the respondent as defined by Section 2 (q) of the D. V. Act. He, therefore, omitted him from the array of the respondents in the main application.

From Para 6,

6] Such an observation of the learned Metropolitan Magistrate however, is wholly misplaced. It is for the simple reason that the proviso to Section 2 (q) of the D. V. Act makes it very clear that an aggrieved wife can also file a complaint against a relative of the husband. The Act nowhere mandates that an aggrieved person can seek relief only against the persons who have shared household with her. Had that been so, it would have been very convenient to cause violence or any other trouble to the aggrieved person through the relatives not sharing the same household and yet remained out of the clutches of the D. V. Act. Rather, holding that any relative of the husband if not sharing or shared the same household cannot be a respondent would amount to giving licence to those relatives to commit violence to the aggrieved person and thereby rendering the very Act meaningless. That just cannot be and certainly was not the intention while enacting the said statute. As observed earlier, there are sufficient references to show that the respondent No. 1 was also a party to the domestic violence committed to the appellant. As such, the proceedings against him was certainly tenable. The learned Metropolitan Magistrate was obviously wrong in holding that the respondent No. 1 since not shared the household with the appellant could not be a respondent as defined by Section 2 (q) of the D. V. Act. Consequently, the impugned order cannot sustain.

Nahida Rishad Cooper Vs Ali Daruwala and Ors on 25 Feb 2022

A Revision was dismissed by the Bombay High Court here.

Index of DV Cases here.

Maya and Ors Vs State of U.P. and Ors on 19 Mar 2021

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Allahabad High Court held as follows,

Learned counsel for the petitioners submits that the petition under Section 12 of the Domestic Violence Act was filed by the petitioners way back on
16.07.2016 and despite the opposite party nos.2 to 8 have been served, the petition is still pending before the court below and the same has not been
decided as provided under Section 12(5) of the Domestic Violence Act. While drawing the attention of this Court towards the order-sheet of the case, it has been submitted that now the case is pending for cross examination of the prosecution witness no.3.
Learned A.G.A. would have no objection to the prayer of the petitioners as it is otherwise the mandate of law to dispose of the cases pertaining to the Domestic Violence Act at the earliest.
Having heard learned counsel for the parties, perused the record and having regard the nature of order proposed to be passed, issuance of notice to the opposite party nos.2 to 8 is dispensed with.
Having regard to the provisions under Section 12(5) of the Domestic Violence Act, the petition is disposed of with the direction to the learned Judicial Magistrate-I, Lucknow to make all endeavors to decide the above-mentioned complaint case within two months from the date of production of a certified copy of this order, without granting soft adjournments to either of the parties, in accordance with law.

Maya and Ors Vs State of U.P. and Ors on 19 Mar 2021

Other Sources:

https://indiankanoon.org/doc/51997103/

Connects to a PIL here.

Suyalaly and Anr Vs Alphin Jeyasingh and Ors on 29 Nov 2021

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Madras High Court held as follows,

From Paras 4 and 5,

4. The complaint has been filed under the provisions of the Protection of Women from Domestic Violence Act, 2005. The learned counsel appearing for the petitioners draws my attention to Section 12(5) of the Act which states that the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
5. In this case, the complaint was filed way back in the year 2019. Keeping the petition pending for more than two years is not an acceptable state of affairs. The learned trial Magistrate is directed to dispose of D.V.C.No.11 of 2019 on merits and in accordance with law within a period of two months from the date of receipt of a copy of this order.

Suyalaly and Anr Vs Alphin Jeyasingh and Ors on 29 Nov 2021

Other Sources:

Connects to a PIL here.

Tillottama Kumari Vs State of Bihar and Ors on 16 May 2019

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Patna High Court held as follows,

In my previous order dated 10.04.2019 while calling for a report from the learned Sub-Divisional Judicial Magistrate, Katihar as to why any effective order has not been passed till date despite hearing the case on behalf of the parties on several dates, I had already indicated that the Protection of Women fromDomestic Violence Act, 2005 (for short ‘the Act’) has been enacted by the Parliament to provide more effective protection of the rights of women guaranteed under the Constitution.
Section 12(5) of the Act provides that the Magistrate shall endeavour to dispose of every application made under subsection (1) within a period of sixty days from the date of its firsthearing. Under the circumstances, keeping the matter pending for over two years is wholly unjustified.
In that view of the matter, I direct the learned Sub-Divisional Judicial Magistrate, Katihar to dispose of the complaint in accordance with law as early as possible preferably within six weeks from the date of receipt/production of a copy of the order.

Tillottama Kumari Vs State of Bihar and Ors on 16 May 2019

Other Sources:

https://indiankanoon.org/doc/82362334/

Connects to a PIL here.

Mrugesh Wasnik Vs Shweta Mrugesh on 22 Jun 2022

Posted on September 12, 2022 by ShadesOfKnife

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,

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.

Mrugesh Wasnik Vs Shweta Mrugesh on 22 Jun 2022

Other Sources:

https://indiankanoon.org/doc/105650848/

Connects to a PIL here.

Vani Santhosh Babu Vs Vijaya Laxmi Vani on 3 Mar 2022

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Telangana High Court held as follows (while dismissing the petition),

From Para 6,

6. Therefore, this Court is not inclined to interfere with the impugned order. However, considering the fact that the DVC is of the year, 2018, learned IV Additional Junior Civil Judge-Cum-XII Additional Metropolitan Magistrate, Kukatpally, Cyberabad is directed to dispose of DVC.No.4 of 2018 in accordance with law, as expeditiously as possible preferably within 60 days from the date of receipt of a copy of this order.

Vani Santhosh Babu Vs Vijaya Laxmi Vani on 3 Mar 2022

Other Sources:

https://indiankanoon.org/doc/102447017/

Connects to a PIL here.

Sushila Devi Vs Vikas Kumar Singhal And Ors on 9 Feb 2018

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Rajasthan High Court held as follows,

On perusal of the certified copy of the order-sheets, it appears that the application under Section 12 of the Act was filed way-back on 08.09.2016. Counsel appeared on behalf of respondents No.1 & 4 on 05.12.2016 and the matter is still pending before the Court of Addl. Chief Judicial Magistrate No.1, Neem Ka Thana, Sikar whereas as per provisions of Section 12(5) of the Act mandates that the Magistrate shall endeavour to dispose of every application made under sub-section 12(1) within a period of sixty days from the date of its first hearing. In the present case, five months have been passed, but no effective proceedings have taken place in the present matter. It appears to be an abuse of process of law, looking to the way in which proceedings are taking place in the court concerned.
In view of above, direction is issued to the Court of Addl. Chief Judicial Magistrate No.1, Neem Ka Thana, Sikar to make every endeavour to conclude the proceedings within two months from the date of receipt of certified copy of this order.

Sushila Devi Vs Vikas Kumar Singhal And Ors on 9 Feb 2018

Other Sources:

https://indiankanoon.org/doc/92995617/

Connects to a PIL here.

Mewa Singh and others Vs Sukhjeet Kaur on 29 April 2013

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Punjab and Haryana High Court held as follows,

The petitioners are permitted to be represented through a counsel and are not required to be personally present on each and every date of hearing unless until a special order is passed, warranting the appearance of the petitioners ( respondents in the complaint before the Magistrate). Relegating the petitioners to avail the alternative remedy, this petition is held to be not maintainable.
Disposed of with liberty to the petitioners to raise all the pleas before the court of competent jurisdiction. It is expected that the said court will expeditiously dispose of the matter taking into consideration the provisions of Section 12(5) of the Act.

Mewa Singh and others Vs Sukhjeet Kaur on 29 Apr 2013

Other Sources:

https://indiankanoon.org/doc/197445836/

Connects to a PIL here.

B.Parvathi Vs State of AP on 7 May, 2020

Posted on September 6, 2022 by ShadesOfKnife

A reasoned judgment on maintainability of IPC 494 upon the Accused No.2 and the merits of discharge petition filed before Trial Court u/s 227 CrPC. It relies on AP State Amendment of 1992. But unfortunately, this judgment is Partly perverse as it goes against A.Subash Babu Vs State of A.P. and Anr on 21 July, 2011 hence NOT to be relied up on.]

In Page 35,

Earlier the offence punishable under Section 494 IPC is a non-cognizable offence. The Legislative Assembly of the State of Andhra Pradesh by way of Andhra Pradesh Second Amendment Act 3 of 1992, amended the first schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 and made the offence under Section 494 IPC a ‘cognizable’ offence and a ‘non-bailable’ offence. The said Andhra Pradesh Second Amendment Act 3 of 1992 was reserved by the Governor of Andhra Pradesh on the 21.10.1991 for consideration and assent of the President. The Presidential assent was received on 10.02.1992 and the amendment was published on 15.02.1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Therefore, with effect from 15.02.1992 undoubtedly the offences punishable under Sections 494 and 495 IPC are cognizable offences in the State of Andhra Pradesh. So, the police officer can now register the case under Section 154 Cr.P.C. and can investigate the same under Section 156 Cr.P.C. The bar engrafted under Section 198(1) Cr.P.C. to take cognizance of the case under Section 494 IPC is on the Court and not on the police. So, in view of the fact that it is a cognizable offence, police can register the case on a report lodged with them to that effect and also investigate the case and file final report under Section 173(2) Cr.P.C. Now, the crucial question that arises for consideration is, whether Court can take cognizance of the case on such police report/ charge-sheet filed by the police or not in view of the express bar engrafted under Section 198(1) Cr.P.C. on the Court to take cognizance of the case except upon a complaint filed by the aggrieved party before it.

Perverse portion of the judgment, that goes against A.Subash Babu Vs State of A.P. and Anr on 21 July, 2011

So, only when an allegation relating to the offence under Section 494 IPC is made by the aggrieved person to the Magistrate, then only the Court can take cognizance of the case. Certainly the Court cannot take cognizance of the case for the offence punishable under Section 494 IPC on a police report/charge-sheet filed by the police. Even though offence under Section 494 IPC is made “cognizable” offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists. The legal position in this regard is not res nova and it has been clearly well settled.

B.Parvathi Vs State of AP on 7 May, 2020

Citations:

Other Sources:

https://indiankanoon.org/doc/194056755/

Index to Bigamy Judgments under Sections 494 and 495 of IPC is here.

Shades of Knife

True Colors of a Vile Wife

Tag: 1-Judge Bench Decision

Altaf Ahmad Zargar and Anr Vs Sana Alias Ruksana and Anr on 02 Sep 2022

Nahida Rishad Cooper Vs Ali Daruwala and Ors on 25 Feb 2022

Maya and Ors Vs State of U.P. and Ors on 19 Mar 2021

Suyalaly and Anr Vs Alphin Jeyasingh and Ors on 29 Nov 2021

Tillottama Kumari Vs State of Bihar and Ors on 16 May 2019

Mrugesh Wasnik Vs Shweta Mrugesh on 22 Jun 2022

Vani Santhosh Babu Vs Vijaya Laxmi Vani on 3 Mar 2022

Sushila Devi Vs Vikas Kumar Singhal And Ors on 9 Feb 2018

Mewa Singh and others Vs Sukhjeet Kaur on 29 April 2013

B.Parvathi Vs State of AP on 7 May, 2020