Is retrospective effect for dv act applicable ?
Querist :
Anonymous
(Querist) 10 December 2011
This query is : Resolved
Sir,
Is restrospective effect is applicable for Domestic viloence act ?
If husband and wife are living separately for more then 10 years ,shall the wife can file case under domestic violence act now.(They livied together from the date of marriage (Aug'1998) to APR'2001 (wife left the matrimonial home volenterly due high level of differnce of openion with husband).
But after she went from home, husband file divorce case on the grounds of desertion during 2003, and immediately wife also filed RCR and she got favourable order. Againt husband gone for appeal in district court, and thereself,she got order in her favour during 2007. Further,husband gone for appeal to high court during 2009, and it was kept pending till date.
In mean time, during 2005, she file maintanance case under 125 crpc and got the order in her favour and accordingly,she got the maintance amount till 2007. After that, he has not collected the amount by way of collection petition.
This is the situation, how to come out from the above issued.
How to face the DV ACT Case.
How to wind divorce case.
I am ready to pay the maintanace,as per 125crpc order for last 1 year only.
Seeking for valuable suggetion in this regard.
Raj Kumar Makkad
(Expert) 10 December 2011
In the given facts, wife cannot file DV case against her husband. If RCR has not been established within one year of passing of decree then either of the parties can file petition seeking divorce on that ground so this is good case wherein you can change the ground of the petition and can seek divorce on that ground before high court. You should move a petition before high court for early disposal of your case as marriage has become dead and it is high time to get settle remaining life.
You have to pay arrears of maintenance for one year only as per law.
Devajyoti Barman
(Expert) 11 December 2011
The wife can very much file complaint under DV Act even if she has been residing separately prior to the enactment of law.
Most of the High Courts hold that the DV Act has indeed retrospective effect.
So if you are contemplating to take defence on that account then it would be wise to take another line of action.
However the final verdict on this aspect is still awaiting from the supreme court.
All the cases you have mentioned is needed to fought on merit only and unless we know more of no further advice could be given on this account.
Raj Kumar Makkad
(Expert) 11 December 2011
As separation is of more than 10 years prior to enactment so reasonablesness is also to be considered.
Legal Fighter
(Expert) 11 December 2011
WHETHER PWDVA, 2005 IS APPLICABLE WITH RETROSPECTIVE EFFECT :
No.
The Hon’ble Andhra Pradesh High Court, in the matter of U. U. Thimmanna & Ors. Vs Smt. U. U. Sandhya & Anr., has held
“There is no dispute that the Act came into effect when the Central Government appoints 26-10-2006 as the date on which the Act was came into force. For acts of violence, certain penal provisions are incorporated. Therefore, it is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26-10-2006. Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court. Accordingly, the Criminal Petition is allowed quashing the proceedings in DVC No.1 of 2007 on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District.”
The Hon’ble Madras High Court, in the matter of Dennison Paul Raj & Ors Vs Mrs. Mayawinola, considered the PWDVA, 2005 only from one perspective (i.e. no penal provisions) whereas it is cardinal principle of construction that every statute (irrespective of whether it has penal consequences or not) is prima facie prospective, unless it is expressly or by necessary implication, made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.
In Govinddas and Ors. Vs Income Tax Officer and Anr. Manu/SC/0248/ 1975, the Hon’ble Supreme Court has laid down that:
“Now it is well settled rule of interpretation hallowed by time an sanctified by judicial decisions that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general-rule as stated by HALSBURY in Vol. 36 of the LAWS OF ENGLAND (3rd Edn,) and reiterated in several decisions of this Court as well as English Courts is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect and that intent has to be expressed in unambiguous language. The PWDVA, 2005 by its enactment has come into force w.e.f. 26.10.2006 through Official Gazette publication and doesn’t contain any express provision to make it applicable with retrospective effect.
Devajyoti Barman
(Expert) 11 December 2011
Daer Mr Legal Fighter,
What you have stated is a very old decision as passed in Crl. P. No. 3741 of 2007.
Thereafter host of other decisions decisions have been passed like Balwinder Kaur vs. Mohan Singh oF P & H HIgh Court where also it did not give this Act retrospective effect. ly
However after passing the very recent and contrary decision of the Delhi High Court in Kabita Bhanot vs, Col. V.D.Bhanot in the year 2010 ,it is mostly and widely accepted that the Act has indeed retrospective effect.
However since there is conflicting decisions of the different high court we are eagerly waiting fir the decision of the supreme court which is now in seisin of the same subjec matter.
Guest
(Expert) 11 December 2011
Normally, provisions of any law do not apply with retrospective effect, unless specifically provided in the concerned Act, itself.
Advocate. Arunagiri
(Expert) 11 December 2011
I am also of the same opinion that the DV act is having retrospective effect. You can make the complaint of the 2000 incidents also.
prabhakar singh
(Expert) 11 December 2011
The point an Act is retrospective or prospective becomes too much debatable when the Act itself remains silent and by the time it gets settled after several conflicting view of the courts,the Act itself looses its relevance is my experience.One latest illustration in my mind is The Benami Transaction (Prohibition) Act, 1988,where even supreme court consistently changed its view and now the Act it self has gone changed,though yet to be implemented.
Shonee Kapoor
(Expert) 11 December 2011
I think she can not file DV.
try Inderjit Singh Grewal Judgement on similar facts by SC.
You can get the said judgement by writing to me on my email
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
K S GOSWAMI, Advocate
(Expert) 12 December 2011
According to the judgment passed in the case of Inderjit Singh Grewal vs State Of Punjab & Another Decided on 28.08.2011 by the Hon'ble Supreme Court of India, the PDWDV Act is not retrospective and the complaint was quashed. So the current legal position is that it is not retrospective in nature but is prospective in nature.
Advocate. Arunagiri
(Expert) 13 December 2011
Mr.Shonee, Mr.Goswami,
The verdict of the SC is not on the retrospective effect of the DV act.
the verdict is based on the delayed complaint after one year. In that case the wife got divorce by mutual consent, after few years she gave a complaint on the husband under the DV Act, stating that she is living in relationship with her husband even after the divorce.
the wife also prayed for a order of null and void of her divorce. SC had held that a divorce granted by a competent civil court can not be set aside by a criminal court.
In that case the wife got divorce in 2008 and filed a complaint under DV Act in 2009 claiming the harassment done after the divorce while they live together. This was not accepted by the SC.
Still the S.472 of the CRPC stands good.
If the offense is continuing, wife / affected woman can give the complaint under the DV act, on the offenses held before 2005, say in 2000 also.
prabhakar singh
(Expert) 13 December 2011
Right is expression of Mr.Arunagiri about the judgment passed Inderjit Singh Grewal.
Advocate. Arunagiri
(Expert) 13 December 2011
Mr.Singh,
Shall I read your post as
"Expression is the Right of Mr.Arunagiri."
(please take it in the lighter sense)
