91 CrPC rejected by magistrate
I am facing a DV case after break up in Live In Relation.
I came to know that the lady who was in living relation with me was already married and still married.
As I understand, an already married lady is not entitled for any benefit from other than her husband under DV Act.
Somehow, I came to know the details of her husband and started to gather some proofs for their relationship as husband and wife.
I able to get a few of their photographs of marriage and a joint home loan account with SBI.
I even got the number of their home loan account and knew the fact that the they both have jointly applied for the home loan and also submitted their various ID proofs and relationship proof to the Bank. SBI bank denied to provide me any documents as third party and even denied RTI.
Finally, I filed application under 91 crpc requesting magistrate to summon the Joint Home Loan File as it will reveal an important aspect which is relevant to this DV case.
But Magistrate dismissed my application stating that "the court cannot help parties to collect evidence for the case".
Kindly advice the next step....
Asked 12 months ago in Family Law from Delhi, Delhi
The court cannot dismiss the petition filed under section 91 cr.p.c. by you.
However please tell us that whether you have already cross examined her or not?
If not first cross examine her and put all these question about her marriage with another person and let she deny it after which you can file a petition before the magistrate court stating she has obtained a joint home loan under the said loan number and her husband name is ..., and to prove that she is married to that man, this document which she has submitted to the bank will establish her marital status after which the maintainability of the case can be decided, hence the petition may be allowed.
If the court still dismisses the application then you may take up a revision of the same before the higher court.
The scope of 91 CrPC is very narrow as it for the parties to collect evidence on their own accord with their own efforts and present it before the court in accordance with the law. However, in certain circumstances the court can issue necessary directions. Whether the order of the court is sustainable or not is a question that has to be decided in the light of your application filed under 91 CRPC. So consult a lawyer with a copy of the application and the court order.
Well, I am not sure at what stage you have filed this petition.
At the initial state where the case is fixed for hearing of interim petition such petition u/s 91 crpc can not be entertained.
You have to wait till the trial by recording of evidnece starts.
When your tun for evidence comes, you can summon all the relevant witnesses to depose in court.
contact detective agency and gather evidence of wife subsisting marriage .
contact her first husband obtain his affidavit that marriage is till subsisting and file it in court
I filed this application under two files, DV case and 340 crpc. Both were rejected with same reasons.
Stage: In DV case the party has submitted her Affidavit, but cross examine not started yet..
So, Now can i go for revision for rejection under 340crpc case.
1.Revision is session court OR 482 in high court, which is better option.
2.Revision under DV case or 340, what will be better.
3. Or should i wait and file the same application at the stage of evidence after cross.
Asked 12 months ago
Section 29 of the Protection of Women from Domestic Violence Act 2005 provides as under:
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
2) since there is provision for appeal Petitioners cannot invoke the Revisional Jurisdiction of this Court under Section 397 read with 401 of Cr. PC."
First of all it will be too early to seek permission of court to direct the bank to produce the documents because it has not been brought to the notice of court through cross examination, i.e., even the cross examination has not been done wherein this question was put before her and she denied the fact. Thus in my opinion you have made a hasty decision to file this petition.
Anyway you may file revision before sessions court itself.
The revision can be filed for DV refusal
If you file another application at a later stage, it may also be dismissed by court stating that a similar application was already dismissed for non-maintainability.
1. Revision has a very narrow scope, albeit in revision the Sessions court can set aside the order of the lower court.
2. Without perusal of the order which you wish to challenge and the documents that you are banking on no opinion can be formed on which remedy you may adopt. So consult a lawyer with the documents.