Thursday, July 31, 2014

Raj HC: Wife can file DV even IF she left house B4 DV passed! NOT divorced wife, can file DV !


Raj HC: Wife can file DV even IF she left her matrimonial house before the DV was notified by the Government !! As long as the couple are NOT divorced, the wife can file DV on husband !!

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Brief facts :
·         Marriage in 1996
·         Wife leaves matri home in 2005 (before DV act promulgated)
·         Wife files DV case on 1  Nov 2007, i.e. more than 1 year after leaving matri home !!
·         Parties are also litigating in court for divorce
·         Magistrate and Sessions courts order main & residence order in the DV case by wife
·         Husband appeals to HC
·         HC also confirms lower court order and says married woman CAN file DV !!!
          This is even though she left her matri household many years ago
 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Rajasthan High Court

Rakesh vs Rajnesh Urjf Manto on 10 May, 2011

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Rakesh Vs. Rajnesh @ Manto

(S.B. Criminal Revision Petition No.359/2010)

S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C.

Date of Order :- May 10, 2011

PRESENT : HON'BLE MR. JUSTICE R.S. CHAUHAN

Mr.D.K. Garg, for the petitioner.
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REPORTABLE

BY THE COURT:

The petitioner is aggrieved by the order dated 24.01.2009, passed by the learned Additional Chief Judicial Magistrate, Dholpur, whereby the learned Magistrate has not only directed the petitioner to pay a maintenance of Rs.1,000/- per month to the respondent-wife, but has also directed him to provide an accommodation to the respondent-wife in the shared household. The petitioner is also aggrieved by the order dated 06.03.2010, passed by the learned Sessions Judge, Dholpur, whereby the learned Judge has upheld the order dated 24.01.2009.

The brief facts of the case are that on 01.11.2007, the respondent-wife, Smt. Rajnesh @ Manto, filed an application under Sections 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005 ('the Act', for short) against the petitioner-husband and his family members wherein she claimed that she got married with the petitioner in the year 1996. But ever since her marriage, her in-laws' and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since 2005. Thus, she prayed for maintenance. The petitioner-husband filed reply to the application and denied the contents therein. After hearing both the parties, vide order dated 24.01.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.1,000/- per month as maintenance to the respondent-wife and to provide her an accommodation in the shared household. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 06.03.2010, the learned appellate court upheld the order dated 24.01.2009 and dismissed the appeal. Hence, this petition before this Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Mr. D.K. Garg, the learned counsel for the petitioner, has vehemently contended that Section 19 of the Act does not empower the court to restore the possession of portion of the shared household, once the respondent-wife has left the matrimonial home. Considering the fact that the respondent-wife had left the matrimonial home in the year 2005, the petitioner-husband cannot be directed to give her accommodation in the shared household by the learned Magistrate. Secondly, neither of the learned courts below have noticed the fact that the respondent-wife had left the matrimonial home in 2005, where as the Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006. Relying on the case of Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291], the learned counsel has contended that the Act cannot be given a retrospective application. Thirdly, the petitioner has already filed a divorce petition on the ground of desertion. Therefore, the impugned order should not be passed during the pendency of the divorce petition. Lastly, in accordance with Section 19(1)(f) of the Act, the petitioner is willing to provide an alternate accommodation or to pay rent for the same. Therefore, the learned Magistrate and the learned Judge should have directed the petitioner either to arrange for an alternate accommodation, or to pay rental amount for the same. However, the same has not been done by the learned courts below. Therefore, the impugned orders deserve to be quashed and set aside.

Heard the learned counsel for the petitioner and perused the impugned orders.

Section 19 of the Act reads as under :

19. Residence orders.-

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

A bare perusal of the said provision clearly reveals that while sub-clause (1) lays down the different orders which may be passed, sub-clause (2) bestows a residuary power on the court to pass any other direction which it may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. The said sub-clause would naturally take its colours from Sub-clause (1). This is more so, as Section 18 of the Act already deals with “protection orders”, yet Sub-clause (2) also deals with the order which are reasonably, necessarily “to protect or to provide for the safety of the aggrieved person”. Obviously, Section 18 of the Act and Section 19(2) of the Act could not cover the same area. In case it is interpreted that Section 18 of the Act and Section 19(2) of the Act do cover the same area, it will produce redundancy in the Act. It is, indeed, a settled principle of rule of interpretation that an interpretation which will make a provision either otiose or redundant should be avoid. Therefore, the words “to protect or to provide for safety” would necessarily have to be interpreted as to protect and to provide safety to the aggrieved person vis–a–vis residential accommodation. Hence, the learned Magistrate has ample power to direct that the aggrieved person be given accommodation in the shared household, although the aggrieved person may have left the matrimonial home or the shared household many years ago. The intention of the laws, which are in favour of women, is to protect the socio–economic rights of women. After all, the condition of women in this country is not only precarious, but is also pitiable. In order to protect a woman, who has been deprived of her matrimonial home and who may face certain difficulty in her material home, Sub-clause (2) gives ample power to the Magistrate to restore and to ensure that the aggrieved person has a sufficient and reasonable accommodation provided for in the shared household. Therefore, the first contention raised by the learned counsel for the petitioner is clearly unacceptable. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

As far as the question of a retrospective application of the Act is concerned, the case of Hema @ Hemlata (Smt.) (Supra) is distinguishable from the present case on the basis of the factual matrix. In the case of Hema @ Hemlata (Smt.) (Supra), the parties were divorced in the year 2003. Therefore, the marriage had come to an end. Moreover, neither of them resided together from 2003 till 26.10.2006, the date when the Act came into force. Thus, in these peculiar facts and circumstances, this Court had observed that the Act cannot be given a retrospective effect as domestic violence could not have been committed by the husband upon the wife during the period of 2003 to 2006. However, in the present case, admittedly the marriage is subsisting. During the subsistence of marriage, the Act recognizes that the aggrieved person, the wife, has certain socio–economic rights and has certain rights of protection since 2005. Prima facie the wife has been deprived of these socio–economic rights – the right of protection and the right to accommodation. Therefore, a civil wrong is being committed continuously against her, from 2005 till present. Hence, the said Act will certainly be applicable to the act and omission committed by the petitioner. Therefore, the question of retrospective applicability of the Act does not even arise in the present case.

The pendency of the divorce petition on the ground of desertion would not disable the court from passing its order under the Act as both the proceedings are independent of each other. In fact, in case the argument of the learned counsel were to be accepted, by his filing the present petition and requesting that the wife be restrained from sharing the household, this by itself would amount to constructive desertion by the husband. Therefore, the said argument is self–defeating. Lastly, the discretion of the Magistrate cannot be cribbed, cabined and confined. It cannot be argued that merely because Section 19(1)(f) of the Act empowers the Magistrate to direct the respondent to provide alternate accommodation or to pay rent for the same to the aggrieved person, the powers of the Magistrate are confined only to Section 19(1)(f) of the Act. Such as contention, if accepted, would make other sub-clauses of section 19(1) of the Act redundant.

Since the impugned orders have been passed after meticulously examining the evidence and after application of a judicious mind, this Court does not find any illegality or perversity in the impugned order.

This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed.

(R.S. CHAUHAN) J.

Manoj Solanki

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