Robarto Nieddu Vs State of Rajasthan and Anr on 20 Nov 2021

Posted on April 29, 2022 by ShadesOfKnife

Relying on Supreme Court judgment here, Single bench of Rajasthan High Court at Jodhpur held that non-citizen women residing in India temporarily also are classified as ‘aggrieved person’.

It is noted that as per section 2(a) of the Act of 2005, the definition of ‘aggrieved person’ is given and as per the definition itself, any woman including a foreign citizen who is subjected to domestic violence can maintain an application before the trial court under the Act of 2005.
Not only this, section 12 of the Act of 2005 provides that even an aggrieved person can prefer an application through protection officer seeking the relief under the Act of 2005.
The fact that the respondent No.2 is resident of Jodhpur for last about 25 years and after having solemnized marriage with the petitioner, the incident which is reported in the complaint also took place at Jodhpur and therefore, in view of definitions enumerated under sections 2 (a) and 12 of the Act of 2005, it is held that the application preferred by the respondent No.2 before the trial court is maintainable. The observations of the Supreme Court in the case of Shyamlal Devda & Ors. V/s Parimala reported in AIR 2020 SC 762 also fortifies the fact of maintainability of the application under section 12 of the Act of 2005 in the present case. Para 10 of the judgment rendered in the case of Shyamlal Devda.
A plain reading of Act of 2005 also reveals that protection under this Act is also extended to the persons who are temporarily resident of India being covered under the definition of aggrieved person as per section 2 (a) of the Act of 2005.
Even Article 21 of the Constitution of India extends the benefit of protection not only to every citizen of this country, but also to a “person” who may not be a citizen of the Country. Article 21 states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Therefore, looked at from that angle, a person aggrieved i.e. respondent No.2 is very much entitled to get protection of section 12 of the Act of 2005.

Citations:

Other sources:

https://indiankanoon.org/doc/80330536/

Index of DV cases here.

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Posted on April 27, 2022 by ShadesOfKnife

A single judge bench of AP High Court held as follows:

Time and again this Court is coming across many cases, wherein the deposit of passport is being ordered by the Courts at the time of granting bail etc. The Hon’ble SupremeCourt of India in Suresh Nanda’s case (1 supra) has very clearly laid down that impounding of passport is not power that is available to the police. The police have a right tomerely seize the passport under Section 102 Cr.P.C., but they do not have the power to retain the passport. The Hon’ble Supreme Court of India has already clearly held that the retention of a passport for a long time also amounts to impounding of the passport. This is very clearly laid down in the judgment of Suresh Nanda’s case (1 supra). Apart from that the Hon’ble Supreme Court of India also clearly held thatafter the passport is seized and if the State was of the opinion that the petitioner was likely to flee the country or that he is at a flight risk, the only option available to the State or theprosecution is to file an appropriate application before the Passport Authorities to impound the passport for the reasonsmentioned in Section 10(3) of the Act. The Passport Authorities shall give a notice to the accused and after hearing the accused, they will have to pass an order. Sincethe cancellation of the passport is an order having severe civilconsequences, the accused also has a right of being heardbefore the passport is impounded. The Passport Act, being a special law will prevail over the general law.

Next Para,

In that view of the matter, irrespective of the fact that whether in the present case the issue relates to the voluntary deposit of the passport or deposit pursuant to an order of the Court, the fact remains that neither case is supported by the law. If the counsel made a wrong concession, the same cannot be enure to the benefit of the prosecution. A party should not suffer for any mistake committed by the counsel. If the same is a part and parcel of the lower Courts order, then it is clearly opposed by the law as interpreted by the Hon’ble Supreme Court of India in Suresh Nanda’s case (1 supra). Therefore, for both these reasons, this Court holds that the condition about the deposit of the passport cannot be imposed by a Court while granting bail or for any other reason. The only option left in such cases, when the passport is seized is to take steps under the Act for cancellation/impounding. Learned Public Prosecutor has stated that the original passport is lost and the accused has applied for a duplicate passport and has flouted the Court
order. Basing on the written instructions received by him, he states that petitioner/A.1 is also liable for contempt of Court. This is also not correct and the order of the Court does not seem to suggest this. As mentioned earlier, neither the Court can impose such a condition nor can the counsel give a
concession and deposit the passport. Even if the passport is deposited pursuant to the concession made by a counsel, the same cannot be retained indefinitely by the Court or the Police till the trial is concluded.
In fact, in the decision of Suresh Nanda (1supra), the Hon’ble Supreme Court of India noticed that under Section 10(a) of the Act, even the Central Government can only retain the passport for four weeks. Thereafter, a further order from Passport Authorities is necessary for retention of the passport.
After clarifying the law on the subject and holding that the impugned order passed by the I Additional Chief Metropolitan Magistrate is contrary to law, this Court leaves it open to the prosecution to take such steps as are warranted by law, if they are so advised to cancel the passport of the accused.

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/130750295/

Vipin Rajput Vs State of MP on 13 Apr 2022

Posted on April 23, 2022 by ShadesOfKnife

High Court of MP said that, the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call..

From Para 6,

6. From the impugned order, it is clear that on 28.12.2021 Ranjana Chauhan (PW-18) had appeared and her examination-in-chief was recorded and in spite of various judgments passed by the Supreme Court as well as High Court, by which strike by the lawyers has been declared to be illegal, the lawyers were abstaining from work. Thereafter, at the request of the applicant, cross-examination of Ranjana Chauhan (PW-18) was deferred for the next date and on the next date, i.e., 29.12.2021 counsel for the applicant did not cross-examine her. The case was then adjourned to 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thus, it is clear that not only, the lawyers were abstaining from work contrary to the judgment passed by the Supreme Court in the case of Ex-Capt. Harish Uppal Vs. Union of India and another reported in (2003) 2 SCC 45, but the counsel for the applicant was out and out to harass the prosecution witness Ranjana Chauhan (PW-18) as he did not cross-examine her in spite of an opportunity given by the Trial Court on 29.12.2021 and 11.01.2022.

From Para 10,

10. Thus, it is clear that the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call. On 28.12.2021 the prosecution witness was not cross-examined because the lawyers were abstaining from work. The Bar cannot justify its strike merely by saying that they are not on strike, but they are abstaining from work. Strike and abstaining from work is one and the same thing. In spite of the fact that the lawyers were on illegal strike by calling it as abstaining from work, the Trial Court fixed the case for the next date, i.e., 29.12.2021 for cross-examination of prosecution witness Ranjana Chauhan (PW-18). However, in spite of that, the counsel for the applicant did not cross-examine her. Thereafter, the case was again fixed for 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine her.

From Para 11 and 12,

11. It is submitted by the counsel for the applicant that since the trial involves serious disputed questions of facts and law, therefore, counsel for the applicant was required to make preparation for cross-examining the prosecution witness and, therefore, he could not cross-examine her on 11.01.2022 and further it was already 5:15 PM.
12. The submission made by the counsel for the applicant is not acceptable. The Trial is pending since 08.02.2017, i.e., the date on which the charges were framed. Even after a long five years of pendency of trial, if the counsel for the applicant has not prepared the case, then only he is to be blamed.
13. So far as the contention of the counsel for the applicant that since it was already 5:15 PM, therefore, he did not cross-examine her is concerned, it is clear from the order sheet of the Trial Court that the witness had appeared at 3:00 PM but pass over was sought by the counsel for the applicant. If the Court had accommodated the counsel by passing over the matter, then the counsel cannot make a complaint that since working hours were over, therefore, he had a right to refuse to cross-examine the witness.

From Para 14,

14. Under these circumstances, this Court is unable to accept the contention of the counsel for the applicant that the counsel is ready to pay the compensation as well as expenses to the witness out of his own pocket. If the applicant has engaged a lawyer who is not serious towards his profession, then the applicant has a remedy to approach the Bar Council and if the counsel for the applicant was working as per the instructions of the applicant, then the applicant cannot run away from his liability of not cross-examining the prosecution witness Ranjana Chauhan on 28.12.2021, 29.12.2021 and 11.01.2022.

From Para 16,

16. However, liberty is granted to the applicant that in case, if his counsel had acted contrary to his instructions and did not cross-examine the witness in spite of his clear instructions, then he shall have a remedy of filing a civil suit for claiming compensation. He shall also have a remedy to approach the Bar Council against his local counsel for abstaining from work in spite of the law laid down by the Supreme Court in the case of Ex-Capt. Harish Uppal (supra).

Vipin Rajput Vs State of MP on 13 Apr 2022

Citations :

Other Sources :

Saraswathi Vs Thirupathi and Anr on 24 Sep 2014

Posted on April 10, 2022 by ShadesOfKnife

Madras High Court bench at Madurai spelt out this judgment, only applicable to marriage performed in Tamil Nadu and Pondicherry, regards to Bigamy in Hindus.

From Para 22,

22.A reading of the said Section will make it clear that for the validity of a marriage between two Hindus, no specific form is necessary. Either by acknowledging in the language known to eachparties that each of them takes the other as husband or wife, as the case may be, in the presence of elders and relatives or friends orother persons, or by symbolic representation of such declaration by exchanging rings, exchanging garlands or tying thali will be sufficientobservance of the formality to make a Hindu Marriage among the two Hindus in Tamil Nadu to be valid. The very fact that the sectionemployees the conjunction ‘or’ and not ‘and’ while describing formalities to be observed is very significant. It is brought to the notice of the Court by the Bar that at the time of drafting of the Bill, the conjunction ‘and’ was used and when it was placed before the reformer in Dravidar Movement namely, E.Vera.Ramasamy Periyar, for his opinion, he alone suggested the correction of the conjunction ‘and’ into ‘or’ to make it clear that the symbolic representation ‘in any one of the forms’ shall be sufficient. The section also provides for validation of marriages performed prior to the introduction of Section 7-A of the Hindu Marriage Act, 1955 and several such marriages were saved from being held void for non observance of any of the customary rituals provided the conditions found in Section 7-A were present. After the amendment in Tamil Nadu, for convicting a person professing Hindu religion for bigamy, it shall be enough to show that the underwent a form of marriage which complies with the above condition namely, acknowledgment by words or symbolic representation of acknowledgement by exchanging garlands or exchanging of rings or tying of thali provided the marriage is with a woman professing Hindu religion. What the appellant/complainant has to prove is that but for the subsistence of the first marriage, the second marriage would have been valid.

From Para 26, Crucial Piece of Law:

26. A perusal of the said provision will make it clear that thesaid Section can be pressed into service against the first respondent alone, who contracted the second marriage during the subsistence of his marriage with the appellant/complainant. It is not the case of the appellant/complainant that the second respondent was having a husband and she married the first respondent as her second husband during the subsistence of her marriage with her first husband, in which event alone she can be roped in as an accused under Section 494 IPC. But, if it is established that she married the first respondent with the knowledge that the first respondent was already married and his first wife namely, the appellant/complainant was living and that their marriage was subsisting, she shall not be liable for the substantive offence punishable under Section 494 IPC, but shall be liable to be punished under Section 494 IPC read with Section 109 IPC for having abetted the commission of the said offence. Of course, as per Section 109 IPC when no express provision is made in the Code for the punishment of abetment of a particular offence, if the act abetted is committed in consequence of the abetment, then such abettor shall be punishable with the punishment provided for the offence. Here is a case in which the marriage has taken place and hence, if the second respondent is proved to have got the knowledge of the first marriage of the first respondent with the appellant/ complainant, then she shall be liable to be punished with the punishment prescribed under Section 494 IPC. However, when a person is to be punished for abetment of an offence, separate charge stating that she is prosecuted for abetting such an offence and that the act abetted has been committed should have been framed. The charge against the second respondent ought to have been framed as one for an offence punishable under Section 494 IPC read with Section 109 IPC. The learned trial Judge committed an error in not framing such a specific charge against the second respondent and convicting the second respondent under the substantive provision alone namely under Section 494 IPC. Even forargument sake if it is assumed that the absence of framing of such a specific charge is only an irregularity not vitiating the proceedings,unless she is proved to have agreed for the marriage with the knowledge of the subsistence of the marriage between the appellant/complainant and the first respondent, she cannot beconvicted for the offence punishable under Section 494 IPC read with Section 109 IPC. In this regard, there is absence of clear evidence,imputing direct knowledge to the second respondent regarding the subsistence of first marriage of the first respondent with theappellant/complainant.

From Para 28, Sentencing:

28. Regarding the sentence, the submissions made on both sides are also taken into consideration. The maximum punishment prescribed under the said penal provision, namely 494 IPC is imprisonment of either description for 7 years and also fine. The trial Judge seems to have imposed a sentence of rigorous imprisonment for three years and a fine of Rs.100/- with a default sentence of rigorous imprisonment for one week. So far as the fine amount is concerned, the trial Court seems to have shown leniency. Substantive sentence awarded by the trial Court, as contended by the learned counsel for the first respondent, is some what harsh and the same needs reduction. This Court is of the view that reducing the substantive sentence to two years rigorous imprisonment and increasing fine to Rs.1000/- from Rs.100/- with a default sentence of one month simple imprisonment shall meet the ends of justice.

Saraswathi Vs Thirupathi and Anr on 24 Sep 2014

Citations :

Other Sources :

https://indiankanoon.org/doc/83802447/

https://www.lawyerservices.in/Saraswathi-Versus-Thirupathi-and-Another-2014-09-24

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Posted on April 9, 2022 by ShadesOfKnife

A Single judge bench at Uttarakhand High Court held that non-filing of supporting affidavit in a 156(3) CrPC application, seeking registration of a FIR, is a curable defect and Magistrate may ask the petitioner to file the affidavit before initiating proceedings in the said application.

From Para 10,

10. The main controversy, which is being raised by the learned counsel for the revisionist, was the necessity to file an application under Section 156(3), which has had to be supported by an affidavit as it has been provided by the judgment of the Hon’ble Apex Court in Priyanka Srivastava’s matter (supra). The said judgment had a very laudable purpose and object to be achieved that the invocation of Section 156(3), should not be made by the applicant to adopt it as a matter of drawing a farce proceeding against the accused person or for vengeance of personal grievances. The intention and purpose which the judgment wanted to postulate to be adhere to by the Magistrates before whom the applications are filed for taking cognizance of the offence complained of invoking Section 156(3) has had to have an assurance that the factual narration of fact given in the application attaches a sanctity to it and is not based on a frivolous set of allegations. That is why the Hon’ble Apex Court has held that when the application under Section 156(3) is considered by the Court that its the Magistrate concerned, it also castes a duty on the Magistrate himself to ensure that the application preferred under Section 156(3) is authentic and genuine and in order to attach that authenticity, it has been laid down that the application has to be supported with an affidavit.

From Para 12,

12. The very observation made in paragraph 30 (as quoted above) of the judgment of the Priyanka Srivastava’s case (supra) where a responsibility has been shouldered on the Magistrate with regards to the propriety of the application to be supported by an affidavit, i.e. the stage when the proceedings are initiated that in itself makes the defect of the application being supported by an affidavit as to be curable in nature because if an application is not supported by an affidavit and is rejected, it may in a particular circumstance result into depriving of a right of a citizen to invoke the proceedings of Section 156(3) and in these circumstances the Court or the Magistrate can always direct the applicant to file an affidavit in support of his application under Section 156(3) so as to make it maintainable before the Court. If that defect of application under Section 156(3) not being supported with affidavit, is made as an uncurable, it may at times in some cases be giving superior hard to the Magistrate to deprive the applicant of filing application under Section 156(3) by rejecting the same on this procedural ground itself.

From Para 13,

13. In the present case a very peculiar circumstance has emerged the peculiarity is that the revisional court has remitted the matter back to the Trial Court to decide the application afresh. Deciding afresh would mean its at an stage of inception and consideration of the proceedings right from its initial stage, as if it is being entertained for the first time. On revival of the proceedings the Court can always in the light and the spirit enunciated in paragraph 30 of the judgment can direct the applicant (revisionist herein) to support his application along with an affidavit to make it entertainable before the Magistrate concerned. Hence, this Court is of the view that filing of an affidavit in support of Section 156(3) application is curable, in the light and spirit of the observation made in paragraph 30 of the Judgment of Priyanka Srivastava’s case (supra).

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Citations: [2019 SCC ONLINE UTT 749]

Other Sources :

https://www.casemine.com/judgement/in/5d919982714d587fe94d9e28

Utt HC | Non-filing of affidavit along with the application under S. 156(3) of CrPC held to be a curable defect

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Posted on April 6, 2022 by ShadesOfKnife

Justice G.R. Swaminathan held that Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers (u/s 482 CrPC) to make such orders as to secure the ends of justice.

From Para 5,

5.The Union of India not wanting to take chances also filed Review Petition (Crl) No.228 of 2018. The same was disposed of vide judgment dated 01.10.2019 by a three Judges Bench. On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr.Subhash Kashinath Mahajan judgment has not only survived but remains intact.

From Para 11,

11.The outcome of the challenge can be one way or the other. Section 18 A of the Act can be upheld. Or it can be struck down. Even if its validity is upheld, the High Courts would still be entitled to grant anticipatory bail. The statute only excludes the applicability of Section 438 of Cr.PC. In the State of Uttar Pradesh, Section 438 of the Code has been deleted by the State amendment and the said deletion has been upheld in (1994) 3 SCC 569 (Kartar Singh vs. State of Punjab). But, that has not curtailed the extraordinary power of the High Court to entertain a plea of anticipatory bail and this power was held to be available in Hema Mishra vs. State of U.P. and Ors, (2014) 4 SCC 453).

From Para 12,

12. Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers to make such orders as to secure the ends of justice. I hope I am not indulging in quibbling or hair-splitting when I say that neither Section 18 nor Section 18 A engraft a bar against grant of anticipatory bail. They are to the effect that the provision of Section 438 of the Code shall not apply to a case under the Atrocities Act. Even if Section 438 of Cr.PC is not available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that this Court is very much possessed of the power to grant anticipatory bail even in cases arising under the Schedules Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitions can be filed under Article 226 of the Constitution of India or under Section 482 of Cr.PC.

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/186580740/

https://www.lawyerservices.in/Dr-S-Ariharan-and-Another-Versus-The-Inspector-of-Police-Thirumangalam-Madurai-District-Crime-No-of-2019-and-Another-2019-11-26

Harpreet Kaur and Anr Vs State of Punjab and Ors on 01 Nov 2021

Posted on April 4, 2022 by ShadesOfKnife

A short judgment from a single judge says as follows (Picking exact same works from here):

Prayer in this petition, filed under Article 226 of the Constitution of India, is for issuance of directions to respondents No.1 to 3 to protect the life and liberty of the petitioners at the hands of private respondents as the petitioners are in live-in-relationship against the wishes of the private respondents.
Perusal of file shows that petitioner No.1 Harpreet Kaur aged about 23 years is legally wedded wife of respondent No.4 Gurjant Singh, and without seeking divorce from her spouse she is living a lustful and adulterous life with petitioner No.2. Once petitioner No.1 is a married woman being wife of respondent No.4-Gurjant Singh, the act of petitioners particularly petitioner No.2 may constitute an offence under Sections 494/495 IPC. Such a relationship does not fall within the phrase “live-in-relationship” or “relationship” in the nature of marriage.
Petitioners have no legal right for protection on the facts of the present case inasmuch as the protection as being asked may amount to protection against commission of offence under Section 494/495 IPC. This petition has been filed just to obtain a seal of this Court on their so called live-in-relationship. On the face of it, the representation (Annexure P-3) appears to be a fake document as no receipt or diary number of the office of Senior Superintendent of Police, Barnala is given or attached.
In view of the above, the present petition is dismissed.

Harpreet Kaur and Anr Vs State of Punjab and Ors on 01 Nov 2021

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Posted on April 1, 2022 by ShadesOfKnife

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,

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.

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Citations :

Other Sources :

S Vs J on 17 Apr 2018

Posted on April 1, 2022 by ShadesOfKnife

The Erudite Judge, Justice JR Midha has passed this decision on framing of issues in a DV Case.

2. The petitioner has challenged the order dated 28th March, 2017 whereby the Family Court dismissed the petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) for framing of additional issues.

From Para 9,

9. Summary of principles
9.1. D.V. Act provides a remedy in civil law for the protection of victims of the domestic violence as noted in the Statement of Object and Reasons.
9.2. The aggrieved person can file the application for the reliefs under the D.V. Act to the Magistrate under Section 12 of the D.V. Act.
9.3. If any suit or other legal proceedings affecting the aggrieved person are pending before a Civil Court, Family Court or Criminal Court, Section 26 gives an option to the aggrieved person to approach such Court for reliefs under the D.V. Act. However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
9.4. The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
9.5. The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act.
9.6. After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.

From Para 10,

10. Findings
10.1. In the present case, the Family Court is dealing with the petition for dissolution of marriage filed by the petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and therefore, the petitioner’s application under Section 26 of the D.V. Act seeking reliefs under Section 18, 19, 20, 21 and 22 of the D.V. Act is maintainable before the Family Court.
10.2. The Family Court is empowered to formulate its own procedure for disposal of the petitioner’s application under D.V. Act. In that view of the matter, it is not mandatory for the Family Court to follow Cr.P.C.
10.3. The proper procedure for disposal of the petitioner’s application under Section 26 of the D.V. Act after completion of pleadings is to consider whether evidence is necessary to adjudicate the petitioner’s application under Section 26 of the D.V. Act.
10.4. If the Court finds that the evidence is not necessary, the Court shall list the application for hearing. However, if the evidence is considered necessary, the Court shall frame the issues and record the evidence along with the evidence in the divorce petition.
10.5. The respondent’s defence before the Family Court as well as this Court that the Family Court has no jurisdiction to entertain the petitioner’s application under Section 26 of the D.V. Act, is frivolous and is rejected.
10.6. The respondent attempted to mislead this Court by raising a frivolous defence with respect to the nature of proceedings under Section 26 of the D.V. Act whereas the law is clear and well settled that the Civil Court, Family Court and Criminal Court have jurisdiction to entertain and try an application under Section 26 in pending proceedings affecting the parties and the Court can formulate its own procedure to conduct the proceedings.
10.7. xxxxx

S Vs J on 17 Apr 2018

Citations : [2018 SCC ONLINE DEL 8421], [2018 DLT 248 511], [2018 HLR 2 238], [2019 HLR 1 784]

Other Sources :

https://indiankanoon.org/doc/72057276/

https://www.casemine.com/judgement/in/5ad842949eff430def4a5a08

https://vlex.in/vid/s-vs-j-709886493

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Posted on April 1, 2022 by ShadesOfKnife

A Bench at Goa of Bombay High Court, held that, Issues may be framed after Hearing Both Parties in a DVC.

From Para 13,

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.

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5b683c3b4a932645d86ec147

Shades of Knife

True Colors of a Vile Wife

Tag: 1-Judge Bench Decision

Robarto Nieddu Vs State of Rajasthan and Anr on 20 Nov 2021

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Vipin Rajput Vs State of MP on 13 Apr 2022

Saraswathi Vs Thirupathi and Anr on 24 Sep 2014

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Harpreet Kaur and Anr Vs State of Punjab and Ors on 01 Nov 2021

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

S Vs J on 17 Apr 2018

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010