Parties to the Proceedings

Divorced women/ Women in past relationships are entitled to reliefs

Sherokh Rashid Hazarika v. Jafrina Hazarika and Ors

Citation: MANU/GH/0026/2017MANU/GH/0026/2017, Gujarat High Court

The wife in this case filed a DV case post the filing and completion of divorce proceedings which was allowed by both the lower courts. On appeal by the husband,the question before the High Court was whether a woman who had been divorced would still be able to file under the PWDVA. The Court relied on the most recent judgment by the Apex Court,Juveria Abdul Mozid Patni v. Atif Iqbal Mansoori ((2014) 10 SCC 736) to hold that a divorced woman would be covered under the PWDVA. Hence, the divorced woman was allowed to file a case under the PWDVA. Additionally, the Court held that even though the woman was Muslim, she would still have a remedy under the PWDVA as it was a secular legislation intended to apply to all women that needed protection from violence in their homes.

 

Giridhari Nath v. Mamitarani Sutar

Citation: MANU/OR/0677/2016, Orissa High Court

 A wife filed a case against her husband under the PWDVA even though they were living apart at the time of the filing of the complaint. The lower courts stated that the PWDVA would still apply and the wife was entitled to protection under the Act. The husband appealed to the High Court wherein it was held as per section 2(a) of the Act, an 'aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. 'Domestic relationship' as per section 2(f) of the Act means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. In this case, the relationship between the husband and wife clearly constituted a domestic relationship and hence, the wife was entitled to reliefs under the Act.

 

Priti Dey (Chandra) v. Subhasish Dey 

Citation: MANU/WB/0209/2016, West Bengal High Court

A wife filed a case against her husband and in-laws for monetary relief under the PWDVA, which was allowed by the magistrate but overturned by the sessions court on the ground that the fact of a legal marriage subsisting between the parties when the proceeding had started. On appeal by the wife, the High Court relied on V.D. Bhanot vs. Savita Bhanot (MANU/SC/0115/2012), wherein the Apex Court had held that even if a woman was no longer the wife, had at some point, shared a household with a man even if she was not in a shared household when the PWDVA was enacted, she would still be entitled to remedies under the Act. The court held that the aim of the Act was to provide benefits and justice to women and hence, it must always be interpreted keeping mind this legislative goal.

Certain Category of Women to be added as Respondents

Yatish Kumar Malviya and Ors. v.  State of U.P. and Ors.

Citation: MANU/UP/2853/2016, Uttar Pradesh High Court

 

The Magistrate and sessions Court held in favour of a wife seeking remedies against her husband and her in-laws under the PWDVA. At the appellate stage, the husband argued that the term “respondent” under the Act did not include female relatives of the husband and hence, they must not be proceeded against under the Act. The Court held that the Legislature never intended to exclude female relatives of the husband or male partner from the ambit of the term 'respondent' as the object of the Act can very easily be defeated by an adult male person not standing in the forefront but putting forward female persons. Hence, the court held that the wife was entitled to proceed against her female relatives as well under the PWDVA. The other infirmities that the husband claimed existed in the application by the wife were also dismissed by the High Court as it emphasized the importance of flexibility in interpreting the PWDVA to do maximum justice.

Even if divorce proceedings have been initiated by the husband, the wife would still be entitled to remedies under the Act

Prakash Nagardas Dubal-Shaha v. Sou. Meena Prakash Dubal Shah

Citation: MANU/SC/0447/2016, Supreme Court

 

The husband had filed a petition for divorce in the family court and simultaneously the wife filed an application for monetary relief in the magistrate which awarded her and the daughter Rs.5000/- p.m. and Rs.4000/-p.m. for their minor son.  The husband’s petition for divorce was dismissed.

 

Aggrieved by the order of the magistrate’s court, the husband approached the sessions court which held that as the husband had initiated divorce proceedings before the enactment of the PWDVA, the said Act could not be invoked by her to claim remedies. The wife appealed against this judgement to the High Court which set aside the order of the sessions court and held that since the divorce was unsuccessful, there was no reason to deny her the remedies under the Act. On appeal before the Supreme Court, the Court dismissed the husband’s claims and upheld the order granting her maintenance. Further the court commented that even if the divorce was granted, the wife’s rights were not affected because women in past domestic relationships were clearly entitled to relief under the Act.

Jurisdiction

Transfer of cases of divorce to the same court where PWDVA case is being heard

Bhartiben Rav v. Ravibhai Rav

Citation: MANU/SC/0576/2017, Supreme Court

 

The wife filed a transfer petition in the Supreme Court to transfer the divorce case filed by her husband in the Family Court at Ahmedabad, to Dungarpur, Rajasthan where she was residing. She had already filed a case in Dungarpurunder PWDVA for maintenance which was opposed by the husband on the ground that he was taking care of his children and old parents and hence, and found it difficult to travel to Rajasthan. She pleaded that she was not fluent in Gujarati and the travel to Gujarat was causing great inconvenience to her. The Supreme Court held that when a PWDVA case or other such cases are being heard in one court, it would be more convenient to transfer the divorce case to the same court.

Procedure must be flexible in order to ensure complete justice for woman

Sunitha Motwai v. Amitabh Saha

Citation: MANU/KA/0990/2017, Karnataka High Court

 

The husband had deserted the wife and minor son and was now residing in the United States of America. The wife filed a case under PWDVA before the Additional Chief Judicial Magistrate, Bangalore Rural and sought ex parte orders. Due to the various difficulties she was facing with the language of the court and the procedures that were adopted, she filed a transfer petition in the Karnataka High Court to transfer the case to a court which uses English as the language of the court and where the procedure is less cumbersome. Though the husband contested this, the High Court directed that the case must be transferred to the court of the Chief Metropolitan Magistrate, Bangalore and further directed that the trial should be held in-camera and to expedite the matter. The Court held that the primary aim of the PWDVA was to ensure justice to women, and in order to achieve this, the Act gives scope for flexible procedure. Hence, such transfers should be allowed when justice it hampers the process of justice.

 

Sreedevi M.A. v. Sreelal

Citation: MANU/KE/2206/2016, Kerala High Court

 

The wife filed a divorce case at her residence, Muvattupuzha and a case under the PWDVA before the Magistrate’ Court in the same region. However, simultaneously, the husband filed a case for custody in a court in another region- Alappuzha. The wife requested the transfer of this custody case to Muvattupuzha as it was inconvenient for her to travel elsewhere for a smaller issue while the entire case was being decided by the matrimonial court. The court held that the transfer was permissible as it is settled law that while considering the question of transfer of cases in matrimonial disputes, the place of convenience of the wife will have to be considered and transferred the case.

Jurisdiction can be awarded to a place of temporary residence

 

Rabindra Nath Sahu v. Sushila Sahu

Citation: MANU/OR0508/2016, Orissa High Court

 

Due to the violence and abuse from her son and daughter-in-law the woman shifted temporarily to her daughter in her house and filed a case against her son and daughter-in-law who approached he High Court on the ground that the magistrate had no jurisdiction to hear the matter. However, the Orissa High Court clarified that under Section 27, jurisdiction can be invoked by an 'aggrieved person' before the competent court where she is temporarily residing and explained that "temporarily" that which is  existing for a time but not permanent.

Proceedings in other courts

Scope of Section 26

 

Narayan Babi Salgaonkar v. Jayshree

Citation: MANU/MH/0886/2017, Bombay High Court

This is a landmark recent judgment of the Bombay High Court that clarified several procedural issues regarding the PWDVA. In this case, on 5th May, 2017, the Bombay High Court clarified issues relating to:

(a)   The Scope of S.26 of the PWDVA and proceedings in other courts;

(b)  The Scope of S. 29 of the PWDVA regarding appeals from decisions made through Section 26;

Hence, this judgment is relevant in both these aspects.

In the proceedings filed by the husband for divorce in the Family Court in Mumbai, the wife filed an application under Section 26 of PWDVA and sought maintenance for herself and her son and for a residence order.

Though the court awarded interim maintenance to the son, and held the court held that since the wife had not been subjected to domestic violence, she was not entitled to maintenance and residence.

In an appeal filed by the wife, the sessions court partially allowed the wife’s claim for interim maintenance. Aggrieved by this order, the husband filed an appeal in the High Court and obtained a stay of the order of sessions court. The three-pronged argument advanced on behalf of the husband was:

(a)   Section 26 does not permit an application under the PWDVA, hence the family court exceeded its jurisdiction.

(b)  Section 26 only relates to suits filed by an “aggrieved person” as defined under Section 2(a) against the respondent. In this case, the wife was not the aggrieved person as the divorce case was filed by the husband.

(c)   The existence of domestic violence as defined under Section 3 of the Act had to be proved through material evidence before an order of Section 26 couldbe passed by the court.  No such evidence was recorded by the family court.

After examining the relevant issues, the High Court held as follows: 

It is clear in the wording of Section 26 that the aggrieved person is entitled to seek reliefs available under the PWDVA before a Civil Court, Family Court or a Criminal Court in addition to and along with other reliefs that may have been applied for in such a suit or legal proceedings. Furthermore, the court noted that just because Section 28 of the PWDVA mandates that the trial would be governed by criminal procedure it does not mean that Section 26 would not apply before a civil court adjudicating over divorce. In fact, the Court relied on the following cases from the Supreme Court to hold that the PWDVA is a quasi-civil statute and Section 26 allows for PWDVA cases to be filed before a Civil Court. It held further that the term “aggrieved person” should not be read restrictively so as to defeat the purpose of the PWDVA in itself.  If Section 26 was interpreted to mean that remedies would only be given to the wife if she, herself had filed the civil suit under Section 26 it would defeat the purpose of the Act. However the court agreed with the husband’s plea that it was a pre-requisite to prove violence before granting any reliefs under PWDVA.

 

Raju Narayana Swamy v. Beena M .D

Citation: MANU/KE/0103/2017MANU/KE/0103/2017, High Court of Kerala (At Ernakulam)

 

This case was not entirely in the wife’s favor as the order was eventually against her, but the case laid down important points of clarification that could benefit women under the PWDVA in the future. In this case, the wife filed an application for remedies before a Family Court and the Court awarded her these remedies. On appeal, the husband argued that the family court did not have jurisdiction to take cognizance of an independent and original proceeding under the PWDVA. The Court, in agreeing with the husband stated that under Section 26 of the PWDVA, the family court would be entitled to pass reliefs as stipulated under the PWDVA only if there was already an existing civil case. The Family Court could not take independent cognizance of a matter, in the absence of an ongoing civil case.

Appeals under the Act

Appeals cannot lie against orders passed by courts other than the magistrate’s court

Narayan Babi Salgaonkar v. Jayshree

Citation: MANU/MH/0886/2017, Bombay High Court

 

In this case, the husband argued that the wife would not be allowed to appeal against the order of the Family Court, which was a civil court, before the session’s court. The husband argued that Section 29 only allowed for an appeal at the sessions court against an order made by the Magistrate. In this case, the order was passed by the Family Court, and not the magistrate’s court. The Court upheld this argument of the husband. It relied on a 2008 Bombay High Court case- Abhijit Bhikaseth Auti vs. State of Maharashtra (MANU/MH/1432/2008) as per Section 29 of PWDVA, an appeal would lie only against orders issued by the Magistrate’s Court. Hence, if another court, such as the Family court, passed an order under Section 26, an appeal would not lie with the Session’s Court under Section 29.

Appellate Court not to interfere with orders unless illegality has been shown

Niraj Kumar Nawal Kishore Sharma vs. Madhulika Rai

Citation: MANU/GJ/1153/2016, Gujarat High Court

 

The wife filed a case against her husband and in-laws for reliefs under the PWDVA and was granted favourable orders by both, the Magistrate’s Court and the Session’s Court. On appeal by the husband to the High Court, the husband argued that the application had been filed two years after the alleged incidents of domestic violence and is barred by limitation. Further, he argued that the mother-in-law could not be a respondent under the PWDVA as only males could be respondents under the Act. Rejecting both these contentions, the High Court held that there was no prescribed limitation period, further held that it was established that women could also be respondents under the Act. Since there was no infirmity or illegality in the decision of the lower courts, the High Court held there was no reason to intervene and confirmed the orders in favour of the wife.

Procedure- Quasi-Civil and Quasi-Criminal

Amendment to Pleadings can be allowed

 

Radha K. v. Sivasankaran K .K

Citation: MANU/KE/0232/2017MANU/KE/0232/2017, High Court of Kerala

(At Ernakulam)

 

The wife filed a case for protection, residence and monetary orders under the PWDVA. Later however, she made an application for amendment to her original application. According to the husband, the amendment would alter the nature of the proceedings and hence, should not be allowed as the procedure to be followed for adjudication under PWDVA is the Code of Criminal Procedure and there is no provision for amendment of the petition in the Code. On appeal by the wife, the High Court held that the amendment would not substantially alter the petition as it was a mere clarification of the survey number and other details of the shared household. Relying on Nookala Shanka Balaji v. Kunapareddy Swarna Kumari, (MANU/SC/0628/2016) the Court held that under Sub-section (2) of Section 28 of the Domestic Violence Act, a Magistrate can lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. Hence, amendments would be permissible under the PWDVA if subsequent developments caused a change in the original conditions as the Act was quasi-civil in nature.

 

Kunapareddy v. Kunapareddy Swarna Kumari

Citation: MANU/SC/0628/2016, Supreme Court

 

In a case filed by the wife for protection, maintenance and compensation orders, the trial court and the sessions court allowed the amendment to the original application by the wife wherein she had modified the reliefs sought in the application. The husband challenged the order before the High Court and pleaded that the PWDVA was governed by the CrPC which contained criminal procedure which did not permit amendments to the application. The High Court noted that although Section 28 (1) stated that the PWDVA must be governed by the procedure under the CrPC, sub--section (2) empowers the Court to lay down its own procedure for disposal of the application the Act. This provision has been incorporated by the Legislature keeping in mind the object and purpose of the PWDVA which was to provide speedy justice and avoid multiple complaints by the wife. In light of this, it has become an established principle of law, that amendments to an original application are permissible in cases where the lower courts deem fit. Hence, the High Court affirmed the decision of the lower courts.

No mandatory investigation under Section 202, CrPC

 

Ram Singh v. Madhuri Singh

Citation: MANU/DE/0206/2017MANU/DE/0206/2017, Delhi High Court

The wife filed under the PWDVA in a magistrate’s court in Delhi. The husband argued that as he was residing in Patna, outside the jurisdiction of the magistrate and hence, Section 202 of the CrPC as under Section 202 in cases wherein the accused was residing at a place beyond the area in which the Magistrate exercised its jurisdiction, he would postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to decide whether or not there is sufficient ground for proceeding with case. The husband argued that the provision essentially stated that an investigation under Section 202 would have to mandatorily be conducted. The Court rejected this contention and held that even though the word 'shall' has been used in Section 202, the section does not mean that the magistrate is bound to examine and conduct an inquiry where the facts of the case do not warrant any inquiry. Thus, the court had jurisdiction to hear this case.

Interim Reliefs to be Awarded Urgently

Interim Reliefs to be awarded Urgently

 

Lalit Wadhwa v. State of U.P

Citation: MANU/UP/0031/2017, Uttar Pradesh High Court

The wife filed an application under the PWDVA and on the day of filing the application itself, the magistrate granted the wife interim maintenance of a certain amount. The main question in this case was whether interim maintenance under Section 23 of the Act can be passed on the day of filing of the application under the PWDVA. The Court held that as under Section 23 the same was not explicitly prohibited, if the Magistrate concerned was satisfied from the contents of the application that the husband is committing or has committed domestic violence or may commit an act of domestic violence, such order can be passed. In other words, Section 23 of the Act enables the Judicial Magistrate to grant interim and ex-parte orders as it deems just and proper.

(2)  Parties: Vinay Gupta v. Saveri Nayak 

Citation: MANU/OR/0714/2016, Orissa High Court

The High Court quashed the revision petition filed by the husband against the orders of the lower courts that granted custody of the child to the wife. The husband argued that the nature of the custody order passed by the magistrate under Section 23(2) of the PWDVA was of a final nature rather than merely interim. The High Court rejected this submission of the husband and held that the lower courts had granted an interim custody order that they were entitled to under Section 23(2), if the situation demanded the same. These orders were also allowed to be granted ex parte or even in the absence of the husband.

Execution of Orders

Execution of Orders - Scope of S.31

Ganesh Moharana and Ors v. Sabitri Moharana

Citation: MANU/OR 0097/2017, Orissa High Court

In a case filed by the wife, the magistrate granted her interim monetary relief, residence as well as protection orders that were intended to prevent violence from occurring again. However, the husband had failed to comply with the orders. The Court held that this was a clear case of violation of the order and hence, the wife would have to resort under Section 498-A, IPC. This was prescribed under Section 31 of the Act. Hence, the wife was encouraged to adopt this remedy.

Format for Applying under the Act

Format for Applying under the Act

 

Rajesh Kumar Chaudhari v. State of U.P. 

Citation: MANU/UP/3218/2016, High Court of Allahabad

 

In a case where the wife filed for interim maintenance, the magistrate granted her a sum of Rs.4000/-p.m. Dissatisfied with this meager amount considering the husband’s economic status, the wife appealed to the session’s court. Her application was dismissed and the court stated that the maintenance amount as decided by the magistrate was adequate. On appeal, the High Court noted that the husband had recently received his share in the ancestral property and his economic status had thereby gone up and hence, the High Court ordered that the amount of interim maintenance should be changed from Rs.4000 p.m to Rs.6000 pm.

 

The Magistrate passed an order in favor of the wife that was challenged by the husband before the Session’s Court on the ground that the incidence was beyond the limitation period of one for taking cognizance of the offence under Section 468 of the Code of Criminal Procedure. Hence the order post this period of one year was invalid and required revision. The Session’s Court rejected this claim and hence, the husband approached the High Court. The High Court upheld the Magistrate’s order and held that Section 468 Cr.P.C. comes into picture only when any breach is committed by the "respondent" of orders passed under the proceedings of section 12 of the Act. In this case, the application under Section 12 was still pending and seeing as no breach of any order had been committed the husband could not rely on Section 468 in this instant case.

Incidental Issues

On False Cases under the PWDVA

Jayashri v. Umesh

Citation: MANU/MH/2043/2016, Bombay High Court

The husband had obtained a decree of divorce against his wife on the grounds that she had subjected him to cruelty by an order passed by the Family Court. Aggrieved with this order, the wife appealed to the High Court. The husband alleged that the wife would pick up fights with his mother and family, refused to initiate physical relations with him and did not fulfil the role of a wife or a daughter-in-law in her matrimonial home. The husband also argued that the wife had filed false cases against him under Section 498-A of the IPC and the PWDVA which also amounted to mental cruelty. The wife argued that the husband in fact, used to beat her up regularly and harassed her with demands for dowry. The High Court reversed the judgement of the Family Court and held that there was no proof of cruelty against the husband. Additionally, the High Court clarified that there was not even an iota of evidence to show that any of the cases filed by the wife under Section 498-A of the PWDVA were false cases. For an allegation of false cases to be proven, there needs to be positive evidence to show that the wife falsely framed the husband with the intent to mentally harass him. In the absence of such evidence, the court rejected the husband’s claim of mental cruelty and harassment.

Even a non-consummated marriage would fall under the ambit of the Act

Ramachandrachar v. Devakumari

Citation: MANU/KA/0092/2016, Karnataka High Court

 

In a case filed by the wife for monetary relief under the Act, the magistrate held that the wife was not entitled to remedies as her marriage had not been consummated and hence, was not a valid marriage. The sessions court reversed this order and awarded compensation to the wife under the Act. On appeal before the High Court, the husband argued that as the marriage had not been consummated, it did not qualify as a “domestic relationship” under the Act. Rejecting this argument, the High Court held that merely because marriage was not consummated, it could not be said that there was no marriage at all. Unless marriage was annulled on ground of non-consummation by a court, the marital relationship continues to exist for all practical purposes, in spite of there being no sexual contact. The Court noted that the PWDVA was a welfare legislation to protect of rights of women, and hence, a broad meaning must be given to the term “domestic relationship” under the Act.

Scope of “domestic relationship” under the Act

 

Tej Ram v. Prem Lata

Citation: MANU/HP/0932/2016, Shimla High Court

The wife filed a case for monetary reliefs under the PWDVA. The Magistrate’s Court awarded maintenance of Rs.1200/- p.m. and Rs. 700/- p.m. as rent towards the residence to the wife, which was later affirmed by the sessions court. Claiming that the woman initiating the complaint was not his legally wedded wife, the husband appealed to the High Court. The High Court examined the evidence provided by the husband regarding the non-existence of their marriage and that of the wife showing proof of their marriage, their shared household, their daughter and their domestic relationship and was persuaded by the evidence provided produced by the wife. The Court emphasised that while disputing a domestic relationship the husband would have to prove that the wife never lived with him in a domestic relationship. Further, the existence of a marriage was not even needed under the PWDVA’s definition of “domestic relationship”. Hence, confirmed the amounts of maintenance ordered by the lower courts.