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 arepredominantly 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,
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 indomestic 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.
A single judge bench of MP High Court held as follows, relying on Reema Aggarwal decision here
From Para 9,
9. Though it is an admitted position that complainant/respondent No.4 was already married and had a living spouse, when she contracted the second marriage withpetitioner, however, there is no indication of word ‘valid marriage’ in Section 498-A of I.P.C. The language used therein is ‘husband or relative of husband’. These words not only rope in those whoare validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband.
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 heresides separately and not with the appellant or the respondent No. 1. The learned Metropolitan Magistrate in his impugned order hasobserved that since the respondent No. 1 never resided with the appellant in any shared household he cannot be considered to be therespondent 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 anaggrieved wife can also file a complaint against a relative of the husband. The Act nowhere mandates that an aggrieved person can seekrelief only against the persons who have shared household with her. Had that been so, it would have been very convenient to cause violenceor 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 togiving licence to those relatives to commit violence to the aggrieved person and thereby rendering the very Act meaningless. That justcannot 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 violencecommitted to the appellant. As such, the proceedings against him was certainly tenable. The learned Metropolitan Magistrate was obviouslywrong in holding that the respondent No. 1 since not shared the household with the appellant could not be a respondent as defined bySection 2 (q) of the D. V. Act. Consequently, the impugned order cannot sustain.
A Single judge of Karnataka High Court (Dharwad bench) held as thus…
(If it feels like biased/pre-judged, I too felt the same)
20. Having heard the learned counsel for the parties, the following issue arises for consideration in this writ petition. Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?
Illogical Reasoning of the Court:
22. Regulation 7.14 of the Regulation, 2002, upon which, reliance was placed is a reflection of this declaration. The said regulation reads as follows : 7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except
i) in a court of law under orders of the Presiding Judge; ii) in circumstances where there is a serious and identified risk to a specific person and / or community ; and iii) notifiable diseases. In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.
23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient that comes within the knowledge of the medical practitioner during the discharge of his professional duties.
24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during the discharge of his professional duties.
25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely. The power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong and compelling reasons and would be more or less be exercised only when an element of public interest was involved.
26. The Courts, therefore, cannot direct medical practitioners to disclose the secrets that they are privy to Divorce proceeding, by their very nature, is adversarial and more often than not a bitter and acrimonious battle, at times initiated to tarnish the reputation of the warring spouse. Thus, the power of the Court to direct the medical practitioners to divulge secrets that are confided to them should be exercised very sparingly and only for exceptional reasons.
27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other.
28. It is to be kept in mind that the medical records of an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it would essentially amount to infringing the fundamental right of privacy guaranteed to an individual, which emanates from the Right to Life granted under Article 21 of Constitution of India.
Conclusions:
40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding as to whether the wife had voluntary sexual intercourse with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act.
41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute.
Jan 3, 2022, 05:05 IST
https://timesofindia.indiatimes.com/india/medical-records-private-cant-be-used-to-prove-adultery-karnataka-hc/articleshow/88655481.cms
Jan 3, 2022, 05:36 IST
https://timesofindia.indiatimes.com/city/bengaluru/cant-use-medical-records-to-prove-spouses-relationship-dharwad-bench-of-karnataka-hc/articleshow/88655662.cms
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,
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 ofKahkashan Kausar would not assist the applicants in any manner. In the case of Kahkashan Kausar, it is also held that when there aregeneral omnibus allegations made in the course of matrimonial dispute and if they are not checked, it would result in misuse of theprocess 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 applicantsand 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 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 privaterespondents 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 agedabout 23 years is legally wedded wife of respondent No.4 Gurjant Singh, and without seeking divorce from her spouse she is living a lustful andadulterous life with petitioner No.2. Once petitioner No.1 is a married woman being wife of respondent No.4-Gurjant Singh, the act of petitionersparticularly 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 thepresent case inasmuch as the protection as being asked may amount to protection against commission of offence under Section 494/495 IPC. Thispetition 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.
A division bench at Allahabad High Court held as follows:
From Para 16,
16. According to own case of the petitioners, the petitioner no.1 is still a legally wedded wife of one Mahesh Chandra. As per own alleged application dated 17.09.2020 (as reproduced in para 6above), the petitioners are living as husband and wife and they have sought protection from interference in their living together ashusband and wife. Once the petitioner No.1 is a married woman being wife of one Mahesh Chandra, the act of petitioners particularly the petitioner No.2, may constitute an offence under Sections 494/495 I.P.C. Such a relationship does not fall within the phrase “live-in-relationship” or “relationship in the nature ofmarriage”. The writ petition has been filed by the petitioners for protection from interference by others in their living as husbandand wife. If the protection as prayed is granted, it may amount to grant protection against commission of offences under Sections494/495 I.P.C.
From Para 18,
18. It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such rightmust be subsisting on the date of the petition. Similar view has also been taken by Hon’ble Supreme Court in Kalyan Singh vs.State of U.P. 13. Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on thefacts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C.It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutoryprovision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus.
