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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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/
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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/
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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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