1) your sister has to lead evidence to state on oath that marriage was solemnised with Mr X that she is not working and that her husband is earning X amount of money and not maintaining his wife and 2 children

2) your sister can file DV case if she so desires and seek right to stay in matrimonial home or alternative accommodation , maintenance and other reliefs

3) DV is continuing offence court wont dismiss your Dv case

1) your lawyer is absolutely wrong . DV is a continuing offence

2) there is no delay in filing DV case . it should be your case that husband forced her to leave matrimonial home

3) if your sister is working she wont get maintenance . what is her income on contract basis and what is husband income please clarify

Bombay High Court

Shri. Maroti vs Sau. Gangubai on 9 August, 2011

Bench: A.P. Bhangale

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

Criminal Writ Petition No. 542/2010

Shri. Maroti s/o. Dewaji Lande,

Age 47 years, Occupation : Service,

R/o. Peth Ward No. 2, Near Old Bus Stand,

Rajura, Tahsil - Rajura, District : Chandrapur. ....Petitioner

Versus

1) Sau. Gangubai w/o. Maroti Lande,

Age 40 years, Occupation : Nil,

2) Shri. Prashant s/o. Maroti Lande,

Age 18 years, Occupation : Student,

District : Chandrapur.

Both R/o. Sonapur, Tahsil : Pombhurna,

...RESPONDENTS

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Mr. Rajnish Vyas, Counsel for Petitioner Mr. S. V. Sirpurkar with Mr. Nazbile, Counsel for Respondent No.1

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Coram: A.P. Bhangale, J

Dated : 9th August 2011

ORAL JUDGMENT:

1. Heard Mr. Rajnish Vyas, learned Advocate for the Petitioner and Mr. S. V. Sirpurkar, learned Advocate for the Respondent No.1.

2. Rule, made returnable forthwith. Heard by consent of the parties.

3. The petitioner questioned the order dated 07/10/2009 passed by learned Judicial Magistrate, First Class, Pombhurna in Misc.

Criminal Application No. 17/2008, as also order dated 09/08/2010 passed by the learned Additional Sessions Judge, Chandrapur in Criminal Appeal No. 132/2009.

4. It is the case of the petitioner that he had married with respondent no. 1 namely Gangubai about 19 years back, she resided with him for 3 years at Rajura, District Chandrapur and, then left matrimonial home and started residing with her parents. Respondent No. 2 is son of the petitioner, who according to the petitioner, has already attained the age of majority i.e. 18 years and is not entitled for the maintenance. The petitioner is facing proceedings initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), which was registered as Criminal Application No. 17/2008, in the Court of Judicial Magistrate, First Class, Pombhurna, District Chandrapur. Sau. Gangubai and her son Prashant, had claimed maintenance at the rate of Rs. 5,000/- per month to the applicant no. 1 - Gangubai and Rs. 5,000/- per month to the applicant no. 2 - Prashant i.e. son of the petitioner, who was aged about 16 years when the application was filed. It is further prayed that petitioner shall provide rented house to his wife and son and, to pay costs of litigation.

5. The petitioner had objected grant of relief by filing a reply to the application disputing the allegations made against him regarding the alleged addiction of liquor, cruel treatment, late night coming, assault etc. He also denied that he drove her out of the matrimonial home as alleged in the year 1994 or about.

6. It appears case of the respondent Gangubai that she had sent notice dated 11/07/2008, by R.P.A.D., demanding amount of maintenance to which reply dated 29/07/2008 was sent by the petitioner (as claimed by him). Under these circumstances, the respondent had claimed maintenance by alleging that they were ill-

treated, petitioner had assaulted his wife under the influence of the liquor and driven her out of the house with warning not to return. It is also contention of the respondent that the applicant had married with one Shobha 26-27 years ago, out of that wedlock, he had two daughters namely Vaishali and Vanmala. According to the petitioner, respondent no. 1 is also married with one Shamrao Tajne.

7. Considering all these contentions and counter contentions, the application preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was allowed partly with direction against the petitioner requiring him to pay maintenance in the sum of Rs. 1,000/- to Gangubai and sum of Rs. 500/- to his son namely Prashant, with further direction to arrange for rental accommodation for residence of Gangubai and her son Prashant and, Rs. 500/- towards cost of litigation. The aforesaid order dated 07/10/2009, by learned Judicial Magistrate, First Class, Pombhurna was carried in Appeal before the learned Sessions Judge, Chandrapur, which came to be dismissed by reasoned Judgment and Order, which petitioner has impugned herein.

8. The main contention of the petitioner is that the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was inordinately delayed and there was no reasonable explanation for the delay and, secondly, that petitioner is not liable to pay maintenance particularly to the son who is already attained age of majority. According to the learned Advocate for the petitioner, since the alleged desertion by the petitioner, Gangubai and her son have resided separately for more than 12 years and, therefore, they are not entitled to claim amount of maintenance. It is further submitted that the impugned Judgment and Order by the Court be quashed.

9. Learned Advocate for the respondent submitted that there is no question of limitation as submitted by the learned Advocate for the petitioner as there is continuous cause of action for a wife to claim maintenance and avail of residence and protection orders under the Domestic Violence Act. He submitted that the respondent no. 2 was aged about 16 years when application was filed and he being unable to maintain himself, is entitled to maintenance.

10. The contention as to whether the Protection of Women from Domestic Violence Act, 2005 is retrospective needs to be considered in the light of settled legal position in this regard. It is true that Penal Statute which creates new offence or introduce an increased penalty will be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution of India. The question as to whether the provisions of Domestic Violence Act has a retrospective effect or not is already answered by reasoned Judgment of this Court, in Criminal Writ Petition No. 252/2011.

11. The Apex Court in the case of Vanka Radhamanohari vs. Vanka Venkata Reddy [1993 (3) SCC 4], while considering bar of limitation for taking cognizance of offence as also prayer for condonation of delay, considered matrimonial offences as exceptional causes wherein the Court would not throw out the complaint solely on the ground of delay. In view of the Section 473 of the Code of Criminal Procedure, the Court can take cognizance of an offence not only when it is satisfied on the facts and circumstances of the case that the delay has been properly explained or but also when that is necessary so to do in the interests of justice. Section 473 has non obstante clause which means that the said section has overriding effect over Section 468 if the Court is satisfied in the facts and circumstances of the particular case that either the delay has been properly explained or that it is necessary so to condone it in the interest of justice. Thus, in respect of matrimonial offences when allegations are of cruelty, torture, assault by the husband or members of the family to the complainant, a Court will consider that it is a matter of common experience that the victim who is subjected to a such acts of cruelty repeatedly is more or less suffering from continuing offence it is only as a last resort that wife would approach the Court to unfold the day-

to-day torture and cruelty forced upon her inside the house, as most of the victims are reluctant to make their grievances public.

12. The protection of Women from Domestic Violence Act, 2005 came into force on 26/10/2006 vide S.O. 1776(E), dated 17/10/2006.

The Act was brought into force to provide for more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Thus, any women who or has been in a Domestic relationship who is subjected to Domestic Violence by the respondent i.e. her husband, she can apply under Section 12 of the Act as an "aggrieved person" complainant of Domestic Violence and seek orders under the Act i.e. maintenance, protection orders etc. Thus, the respondent in such application pursuant to the complaint under the Domestic Violence Act, cannot be allowed to defeat the provisions of Act by continuously depriving his wife or applicant with whom he was in the Domestic relationship from the benefits under the Act i.e. shared household, maintenance, monetary benefits in this regard. There shall be continuing causes of action, therefore, there is no question of putting a stop to the relief sought for on the ground of continuous breach of legal right, since the continued deprivation of economic or Financial resources and continued prohibition or denial of access for the shared household, maintenance etc. to the aggrieved person can come within definition of "Domestic Violence" explained in Chapter II of the Act. Protection under the Act becomes available to the wife/applicant, who was driven out from her husband's shared household prior to coming into effect of the Act of 2005, but if the deprivation continued even after the Act came into force. Thus, as held by this Court in Smt Bharati Naik Vs. Shri Ravi Ramnath Halnarkar reported in 2011 ALL MR (Cri) 224, with reference to the Act of 2005, an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Thus, even if the Woman was in the past in relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action.

13. Perusal of Section 26 of the Domestic Violence Act, indicate that relief under the Act is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the respondent.

Section 12 which require application before the Magistrate for obtaining order or reliefs under the Act contains proviso to the effect that 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 word 'any' in the proviso would indicate that if such report is received, if any, because before receiving such report it is essential that for the area concerned State Government must have appointed Protection Officer.

In view of the Section 7 of the act and such appointment must be notified in the area for which such Protection Officer shall exercise powers and perform the duties in accordance with the Act, while service provider is required to register himself under Section 10 of the Act. In the absence of notification of a Protection Officer or registered Service Provider, it may not be possible for Magistrate to receive Domestic Incident Report before disposing of application made by the aggrieved person under Section 12 of the Act. This question was dealt with by Karnataka High Court in the ruling of Narayankumar Vs. State of Karnataka & Anr reported in 2010 ALL MR (Cri) Journal 158 wherein it is observed that thus;

"In other words if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. Therefore, the Section does not say that in every case an aggrieved person is bound to go before either the Protection Officer or the Provider. On the other hand, the scheme of the act make it clear that it is left to the choice of the aggrieved person to go before the Service Provider or the Protection Officer or to approach to the Magistrate under Section 12 of the Act."

Under these circumstances, it appears that an aggrieved person is not necessarily required to approach the Service Provider or the Protection Officer. It is left to the choice of the aggrieved person to approach the Magistrate with an application under Section 12 of the Act. Therefore, one cannot say the Magistrate must wait for notification for appointment of the Protection Officer for the area or registration of Service Provider before disposing of the application under Section 12 of the Act filed by an aggrieved person. When aggrieved person has chosen to approach the Magistrate directly as observed by the Karnataka High Court that the proviso Section 12 makes it clear that the Magistrate shall have to take in to account any incident report received by him before passing any order of the application filed by the aggrieved person. In other words, if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Service Provider then only it is obligatory for the Magistrate to take note of the same before passing final order of the application made by the aggrieved person.

14. For all these reasons, the orders passed by the Courts below do not require any interference and hence petition is dismissed.

JUDGE Punde

1) in th e judgement cited by me they were staying separate for more than 12 years and, therefore, it was husband case that they are not entitled to claim amount of maintenance.

2) wife case was that there is no question of limitation as submitted by the learned Advocate for the petitioner as there is continuous cause of action for a wife to claim maintenance and avail of residence and protection orders under the Domestic Violence Act

3) court cited section 473 of Cr pC that in interests of justice reliefs should be granted

4) further court held that husband cannot deny shared household, maintenance, monetary benefits in this regard to wife . HC held it is continuing cause of action

1. Now the statement of your sister will be recorded in the court. Thereafter, the court will pronounce the judgment. Your lawyer is right.

2. On what basis you say the court has not supported your sister? The court was bound to give an opportunity of defence to her husband, which it did but was not availed by him. So the court will now order maintenance for her. DV case cannot be filed now.

3. Yes the court can.

1. You should have filed DV earlier. At this belated stage DV case is unlikely to stand.

2. Which jury? We do not have jury system in India.

3. Since your sister is earning on her own she cannot get maintenance.

The domestic violence case at this stage can succeed but the chances are quite less. Though there is no delay as such since the domestic violence is a continuing offence however the husband and wife are living separately. In that case, the wife needs to prove that the husband is giving her threats etc. but again, the chances are bleak.

Regarding the evidence, your sister needs to state on oath as regards the allegations made by her in her petition for maintenance etc. the court will not grant maintenance if the wife is working and is able to sustain herself.

1. You shall have to submit evidence of whatever allegations your sister had levelled against her husband and also her claim about his earnings/salary,

2. It is also a practice followed by smart lawyers to file a petition now to review the Ex-Parete order and allow the husband to submit written statement/objection,

3. If the Court alloqws that petition then the whole matter will be delayed till objections are filed and you submit reply to the said objection,

4. Maintenance and DV are two different subjects. Your sister can file DV case if there was any Domestic Violence faced by her,

5. There should be ingredients to file DV case and not getting maintenance is no ground for filing DV case,

6. You can file the DV case now also with adequate ground and evidence,

7. There is no much delay at all for filing DV case.in your case.

1. I strongly disagree with your lawyer who is discouraging you to file the DV case,

2. File it immediately if you have enough evidence in support of your allegation of domestic violence,

3. There will be no negetive impact on any case if you file DV case,

4. There is no delay in your case since DV case is not generally filed immediately after leaving inlaws house,

5. Instruct your lawyer to file the DV case immediately.