Reformist !!! (Other) 26 December 2015

Restoration of dismissed in default dv case

Hi Friends,

DV Case filed against me and my mother was Dismissed in default by the Hon'ble court by Court X.

After that, my wife changed her lawyer and new lawyer filed for restoration of the case and the same was assigned to Court Y, which was also eventually dismissed by the Court Y after 10 months of filing and court quoted that restoration application is not maintainable. No reasons were recorded by the Hon'ble judge other than just writing "that restoration application is not maintainable". In restoration application she took the ground that judge of court X did not noticed them in the court and case was wrongly dismissed in default. Her lawyer's junior filed an affidavit also that he was present in the court building and whenever he came for case in court X, then other party i.e. we were not present. So he waited for us and finally at 4:00pm case was dismissed without his knowledge.

Anyways, after Court Y dismissed her restoration application, she filed a Combined appeal in Sessions court along with the application for Condonation of Delay if any under section of Indian Limitation act. Here Combined appeal means--> Appeal for Restoration application dismissed by the Trial court Y and appeal for dismissing the DV complaint in default of appearance by the court X earlier.

Sessions court has condoned her application after imposing Rs 1500/- fine which she has already submitted.

Now i have a date where the COMBINED appeal is listed for arguments. My queries are:-

1. Can i file a reply in sessions court under any procedure? I want to file reply but my lawyer says that reply cannot be filed in sessions court. Can someone share any judgment which states that reply can be filed in sessions court.

2. Can a combined appeal be filed for two different orders passed by two different courts. If anyone can send me supporting judgments where it is mentioned that combined appeal cannot be filed. Every order has to be challenged in different manner.

3. Can a Domestic violence case which has been Dismissed in default by the court reopened with its original Number. Pls share the relevant judgments if anyone can share that DV cannot be reopened if once dismissed in default.

Experts, please suggest if anything comes up in your mind regarding my queries.

Regards,

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10 Replies

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com ) 26 December 2015

It is not clear which of the two orders you are referring.

Comong to main issue the sessions court has no power to decide on case dismissed on defalt.So raise this as a prelimanry issue.

(Guest)

Dismiss in default cases are normally restored by superiro courts in interestof justice after imposing fine. One chance is always given

Please note DVactcomplaint is seriosu law and you cant wish it away so easily. Please sort out issues with your wife in interest of every one. No point wasting money on prolonged litigations on both sides.Any way thatwas a social advise.

What relief your wife sought in DVacappciaiton and whatwere contents of DIR filed by Protection offcier?

(Guest)

Also note that DVactis a additional remedy to other family laws. Your wife can seek same reliefs from family court. A family courtis superior to magistrate court anyway.

Reformist !!! (Other) 26 December 2015

@Advocate Trilok --> Appeal has been filed against both the orders i.e. Dismissal of DV case in default of her appearance as well as against the dismissal of restoration application which was filed in trial court.

@Mr. Rajendra --> I am not going to wash it away so easily. Thats why i am here to fight it hard till the last nail in coffin. No one go away easily after filing fake cases and concoting stories as per their whims and wishes. The case is not filed by me, it has been filed by her. The litigations were not started by me, it was by her. So there is no point of discussion left with her. Discussion can only happen in court and not out of court. Issues will now only be sorted out in court with evidence.

DIR and DIR report has no contents whatsoever. CDPO has just mentioned that both the parties came and gave their statements which are enclosed herewith. CDPO has not conducted any enquiry whatsoever. So, I am not sure how court will consider it if the case is re-opened.

Asking relief is whatsoever different than receiving the relief. She is a working lady and has an income of 70k per month and has written in petition that she is not working. Not to worry, if court is not biased i hope she does not get any relief.

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com ) 29 December 2015

Dr Rajendra Gupa is not advocate so he is giving general advice .

As I have told you for DV case the procedure is CRPC and hence dismissal of default case amounts to aquittal.

The remedy for other side is only to go to HIGH COURT and sessions court has no power to deal such cases under CRPC. So raise prliminary objection that the revision is not maintainable.

Reformist !!! (Other) 29 December 2015

Thanks Advocate Trilok Ji.

I understood your point now. Thanks for clearing it.

1 last query is that she has actually filed APPEAL in Sessions court rather than filing "revision". My query is whether COMBINED APPEAL is maintainable for both (the dimissal orders of restoration application and Dismissed In Default order) in Sessions court or she should have approached High court with APPEAL for the same or her appeal is maintainable here in Sessions court?

As per me, she should have filed revision in sessions or appeal in high court , but appeal is not maintainable in sessions court. please comment.

Thanks in advance.

Sathyan A.R. ( Advocate practising tax advisor) 31 August 2018

though there is no specific provision under crpc to entertain restorstionapplication ,the HC and Sc havebinherent power to restore an oder of dismissal if default if the aggrieved person is able to prove to the satusfaction of the court the extraneous circumstances which prevented him from attending and also a communication gap. justice is primary concern

Sathyan A.R. ( Advocate practising tax advisor) 31 August 2018

(Guest)

DV case you know is for addressing any or all of the circumstances and was enacted to bring a faster act to minimize torture to women but DV cases also are dragged for years when limit is 4 months

1. Financial help if lady has no survival means of her own

2.Taking care of children

While determining financial relif magistrate has to see resources of both (filed by affidavit by both parties ) living standard of husband and award is made accordingly.

3. Right to redience mother wife or daughter thrown out of home by usband /son or other relatives .very common in india .This is most superior right

4.seeking protection form physical or mental attack

5.Feeling insecure

6.Actual injury received or more serious cases in rferemnce to matrminaial house

7.To get injucntion orders against husbad/relatives

There is nothing worng in this. But courts are themselevs making fun

It is very difficult to prove malafied action of wife or mother

women can only be made coaccused if such prima facie appears

8. protection officers ( normally a lady form some NGO or woman govt officer) report is must unless physcial threat is imminent

Unfortunately in India lower courts are like post box.Any one can start a case . Unlike huigher courts they cant dismis any complaint or petition in limine what we call kachhi paisi

If we want to redcue false cases we should ask counsels to veruify and enclose affifavit that heor she has gone through facts of case and circumstances and fully satisfied it is fit case to be filed in a trial court or high court. Huge penalties have to be placed on erring greedy lawyers

lawyers pwerfromnace has to be reviewd like cases disposed off , cases won and court be also given powered to pass strciture at time of dimissal that it was fake case made out

Law of torts is missing in IPC crimes though in some cases now courts levy high penalities and fines

India system is british still and deliberately not refomed by politcian as a large number of politcians are them,selesv crminals