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R.R. KRISHNAA (Legal Manager)     02 April 2010

HC quashes '15-yr-old' domestic violence case

HC quashes '15-yr-old' domestic violence case

MUMBAI: A 44-year-old woman who approached the court with a complaint under the Domestic Violence Act against her husband, a junior college lecturer, who had “deserted” her 15 years ago was shown the door by the Bombay high court. Justice A B Chaudhari quashed Amravati resident Shalini Kale’s complaint against her estranged husband Kishore Kale (52) and ruled that she was not entitled to any benefits of the 2005 law enacted to protect woman from violence at home.

“According to me, domestic violence having been alleged only after 15 years by the wife would constitute an abuse of the process of law,” said Justice Chaudhari. “It is true that the Act of 2005 is a beneficial piece of legislation, but (the provisions of the law) clearly show that domestic violence cannot readily be inferred, but will have to be found out on the facts and circumstances of each case.”

Kale had married Shalini in 1990, but their marital life lasted barely two years. According to Shalini, Kale deserted her and their son in 1992. Shalini and her son filed a domestic violence complaint in 2007 on the ground that they were deserted and neglected. The complaint further said Kale had reportedly shown Shalini as dead in the service records. She claimed maintenance of Rs 7,000 per month for herself and her college-going son and suitable accommodation.

When an Amravati court allowed her complaint, Kale moved the HC. His lawyers claimed that no incidents of violence had been alleged in the near or recent past.

Shalini’s lawyers contended that economic abuse, refusal to provide maintenance, house accommodation or financial resources or such other facilities as the wife is entitled to from the husband without there being any actual violence amounts to domestic violence under the law.

The HC, however, pointed out that Shalini and her son were receiving maintenance according to a 1996 court order. The court held that the allegations too were vague.

“Suddenly, after a big gap of 15 years the Act of 2005 having been brought into force, they approached the Court with the grievance that they want higher amount of maintenance and rental in lieu of accommodation as there is domestic violence on the part of the petitioner,” the court said and held that no such offence could be inferred. “(Shalini and her son) could have adopted their remedy available under the other laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly they were not entitled.

 

Source: TOI

Date: 02.04.2010

 



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 4 Replies


(Guest)

1. Good "Public Policy"  based "reasoning" Hon'ble Justice has given in quoted news item.
Rgds

Adv.Aiyer VLV (Proprietor)     02 April 2010

This action clearly shows who was perpetrating violence at home.

Article 14 is of no avail to such one sided enactments which is used mostly to harass 

whoever thought only husbands do domestic violence, i do not know how logical they are.

is there not any way out to make laws which do justice to both gender?

Even while amending Hindu Succession Act they gave priority to mother and father comes in next category - is this not unconstitutional?

regards

VLV


(Guest)

Sh. Prof. VLV<

1. Yes, there is a way
2. Sh. Mahesh Tiwari, Jt. Director, Rajya Sabha Secretariat, Room No. 528 - A, Parliament House Annexe, New Delhi - 110 001 is asking from "general public" comments / suggestions to suitably Amend  PWDVA The Act 2005 and Rules 2006.

Could you be kind enough to tell parliament committee your views on Constitution of India violation as stated by you in above post please which has limited readership of say 60 K but far reachign effect if respected members form legal fraternity themself raise up and question such gender biased laws other than remorse attitude shown to poor and pennyless accused inmates languishing in several jails just because they can't afford a money surity !

3. For reference to Parliament Committee call for comments / suggestions on DVA refer to weblink of Parliament of India.

4. However, if DV is based on Article 15(3) "special provision for women",

Article 15(3) of The Constitution of India allows the State to give provisions for women and children. But if we look at the Constitution little bit further down. 15(5), 16(2), 19(2), 19(3), 19(4), 19(5), 19(6), 25(2), 33, 34, 35(a), you will find the key difference between PROVISION and PROVISION BY LAW. Where ever The Constitution gives the provision to make Law it clearly says so, but in the case of 15(3) it’s just Provision.

5. If DV is based on Article 15(5) "special provision for a CLASS",

2[(5) Nothing in this article or in sub-clause (g) of
clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of
any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their
admission to educational institutions including private
educational institutions, whether aided or unaided by
the State, other than the minority educational institutions
referred to in clause (1) of article 30.]

The laws that are made for such a "class" is limited to admission in educational institutions. May be I'm wrong. reason why I'm not confident is because I am still student made to brush Law and not belonging to Legal Profession neither in the capacity of a current Law Student as in Law Institution Admission wise nor could like to be a Member of the Bar ever in life except to the point to make awareness and plead in person the same in various Hon'ble Courts of Delhii in self as well as 'common cause" cases ! 

Rgds.


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