Friday, September 6, 2013

NO maint enhance u/s 12 DV act! DelhiHC GEM. Wife separate since 1972 (40+ years) tries enhance undr DV act. Looses!! However court says wife and co can seek ALTERNATE / PROPER REMEDY FOR ENHANCEMENT !! :-(

 
 
NO maint enhance u/s 12 DV act! DelhiHC GEM. Wife separate since 1972 (40+ years) tries enhance undr DV act. Looses!! However court says wife and co can seek ALTERNATE / PROPER REMEDY FOR ENHANCEMENT !! :-( 
 
  
Notes
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* couple sepeate since 1972 ... year 40+ years 
* allegations and counter allegations
* husband paying enhanced maintenace and fixed deposit
* husband is 65 years old  !!!
* two questions arise, is there a possibility of enhancement under DV act and is there a DV case or case of domestic violence per say 
  
Honourable Court states NO Enhancement  and NO case of domestic violence 
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* ".....The core question still would be whether in the facts and circumstances of the case, the petitioners could invoke the provisions of protection provided under this Act which was enacted only in the year 2005 and was enforced w.e.f. 26.10.2006. This court in Smt.Gita's case (supra) has held that when certain act is not an offence according to law in force at the time when the Act is done, the person who does that act must not be held guilty of an offence merely because subsequently a law is made making such act and offence. ...."
* ........Under the provisions of Domestic Violence Act, Court can grant monetary relief, but apparently cannot enhance maintenance. ........
* .............If the petitioners are in need of some enhanced maintenance, they have to invoke a proper remedy. ............
* Prima-facie, the application under Section 12 for seeking enhanced maintenance is not maintainable and as such no case for interference in the impugned order is made out. 
 
 
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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PUNJAB-HARYANA HIGH COURT
Krishna Devi & Another vs Malkhan Singh on 14 January, 2013
Criminal Revision No.2554 of 2011 (O&M) 
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: January 14, 2013
 
Krishna Devi & another ...Petitioners
Versus
Malkhan Singh ...Respondent
 
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
 
 
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? 
 
Present: 
Mr.Sushil Gautam, Advocate, for the petitioners.
Mr.Yogesh Chaudhary, Advocate, for the respondent.
 
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RANJIT SINGH, J.
 
The petitioners had approached the court under Sections 12 and 25 of the Protection of Women from Domestic Violence Act, 2005 (for short "the Act") seeking enhancement of a compensation, which had earlier been awarded to them. The said prayer of the petitioners was declined by the trial court, against which they filed an appeal before Addl.Sessions Judge, Kurukshetra, who has also dismissed the said appeal. The petitioners accordingly have filed this revision petition to impugn the said orders.
 
Krishna Devi petitioner filed this private complaint under Sections 12 and 25 of the Act against Malkhan Singh, who is husband of petitioner No.1 and father of petitioner No.2. Earlier, Civil Judge Junior Division, Kurukshetra has allowed maintenance of `1,000/- each to both the petitioners under Sections 18 and 20 of the Hindu Marriage and Guardianship and Maintenance Act on 25.8.2012. As per the allegations, respondent is a retired employee and earning a pension of `9,153/-. The petitioners had accordingly filed this petition for enhancement of this maintenance of `1,000/- which according to them was not sufficient. It is stated that petitioners are in dire need and respondent after retirement is dealing with property from which he is earning a handsome income. Accordingly, the petitioners had prayed for maintenance allowance of `4,000/- per month each and had also demanded a sum of `50,000/-, which is needed for conducting certain medical tests of petitioner No.1.
 
Respondent appeared in response to notice. As per the reply, the petitioners initially were getting `300/- per month and had twice sought enhancement of the maintenance allowance, firstly on 24.12.1997. The same, however, was got dismissed for non- prosecution on 11.12.2000. The petitioners again filed a petition on 16.5.2003, but withdrew the same on 25.7.2007 without any reason. Thereafter the petitioners have filed the present petition, which is, thus, stated to be an abuse of process of court. It is disclosed that petitioner No.1 owns a shop and is having a fixed deposit of `10.00-`12.00 lacs in her name. Respondent states that he is 65 years old and is suffering from heart attack. He is having a meager pension, out of which he is already paying sum of `2,000/- per month as maintenance. The respondent accordingly has opposed the prayer of the petitioners. The perusal of the material on record would show that this marriage was performed in the year 1970 and the couple has separated since 1972. The respondent has opposed the prayer on a purely legal ground. He would urge that domestic violence, if any, would relate to a period must before the time even the Domestic Violence Act was legislated. The respondent accordingly would contend that no proceedings can be initiated under the Act against him. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
 
The plea of the respondent appears justified and reasonable. The couple is living separately since 1972. The Domestic Violence Act has been legislated in the year 2005. There may be certain provisions under this Act on the basis of which the claim for grant of maintenance may be maintainable, but the issue in the present case is whether the petitioners can invoke the provisions of Domestic Women Violence Act having regard to the factual position in this case. As per the respondent, there is no provision in the Domestic Violence Act, under which the maintenance granted under Hindu Adoption and Maintenance Act or under Section 125 of the Cr.P.C. could be enhanced by invoking the provisions of Domestic Violence Act. In this regard, reference is made to Smt.Gita Versus Smt.Raj Bala etc., 2010(2) R.C.R. (Criminal) 84. During the course of arguments, counsel for the respondent has also pointed out that sum of `3.00 lacs has been deposited in a fixed deposit in the name of the petitioners by the respondent and, thus, it is not only a sum of `2,000/- which he is paying monthly as a maintenance.
 
Section 20 of the Domestic Violence Act makes a provision for grant of monetary reliefs. This section provides that while disposing of application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and the losses suffered by the aggrieved person and by any child of the aggrieved person as a result of domestic violence and such relief may include, but is not limited to the loss of earnings, medical expenses, the loss caused due to destruction, damage or removal of any property from the control of aggrieved person; and the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure or any other law for the time being in force. No doubt, this section makes a provision for grant of monetary relief, but that relief cannot be made available in isolation and has to be when an application under sub-section (1) of section 12 is filed by an aggrieved person. As per Section 12, an application can be filed before a Magistrate by an aggrieved person or a Protection Officer or by any other person on behalf of aggrieved person seeking one or more of the reliefs under the Act. As per the proviso, before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. The relief sought under this section may include a relief for issuance of an order for payment of compensation or damages etc. Though the petitioners in this case have filed an application, but it is not relating to any domestic incident, which was the cause for approaching the Magistrate under the provisions of this Act. The domestic violence is defined in Section 3 of the Act which only relates to causing of harm, injuries or endangering the health, safety, life, limb or where it tends to do so or when any mental or physical etc. is caused. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
 
In the present case, the couple is living separately since 1972. There cannot be and there is no occasion for the respondent to harm or injure or endanger the health, safety, life or limb or well being of the petitioners whether mentally or physically for which any proceedings could be initiated under the protection of Domestic Violence Act.
 
The core question still would be whether in the facts and circumstances of the case, the petitioners could invoke the provisions of protection provided under this Act which was enacted only in the year 2005 and was enforced w.e.f. 26.10.2006. This court in Smt.Gita's case (supra) has held that when certain act is not an offence according to law in force at the time when the Act is done, the person who does that act must not be held guilty of an offence merely because subsequently a law is made making such act and offence. This would also be in violation of Article 20(1) of the Constitution. This is what has precisely weighed with the courts. The very approach of the petitioners to file this application appears to be misplaced. Under the provisions of Domestic Violence Act, Court can grant monetary relief, but apparently cannot enhance maintenance. If the petitioners are in need of some enhanced maintenance, they have to invoke a proper remedy. Indeed the petitioners had filed a petition for enhancing the maintenance on two occasions, but for some undisclosed reasons, applications either were not pressed/withdrawn or was dismissed for non-prosecution. Prima-facie, the application under Section 12 for seeking enhanced maintenance is not maintainable and as such no case for interference in the impugned order is made out. This order, however, shall not be a bar for the petitioners to invoke any proper remedy to seek enhancement of maintenance. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
 
The present petition is accordingly dismissed. January 14, 2013 
 
( RANJIT SINGH ) 
 
JUDGE
 
ramesh 
 
 
  
  
 
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