'set aside ex parte divorce' status

Yeah Dv act is for Fast relief and within  60 days reliefs has to be provided from the day of first hearing. Now my question to you is is it really feasible within this period with the no of false cases being filed and the load on courts due to these false cases . What is your lawyer doing by the way as i presume you are paying him for your services . Tell your lawyer to go through this judgement as i have to presume that he is the one who convinced you to file this DV case . 

Crl.P 3714 of 2007 delivered by the Hon’ble High Court of Andhra Pradesh where in it was held

“It is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. .Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court”.

When an exparte order is set aside a person has a right to challenge the same set it aside and contest the divorce case. Divorce cases take years and years and there are particular grounds where divorce can be obtained and which has to be proved . 

Thanks Stanely for your response. Am not particular about relief within 60 days. its about relief faster than family court comparatively. but in this case it is dismissed stating that I have an ex parte order at family court. That order of 2009 is still executed by family court. and now comes set aside petition draggin , dragging and dragging for a year to allow or dismiss it. in this condition when am i to get relief? and my status stands in between, neither divorcee nor wife.. and no relief on either status.. instead of dismissing the case, the Dv act can provide some relief until the family court disposes of the set aside petition and execution of ex parte order for interim alimony.. 

Also i need to know if i can proceed with arrest warrent procees against the ex parte interim alimony order when the set aside petition is  pending not disposed by the judge for a year? 

thanks again

I think,you cannot press arrest warrant as his set-aside application is pending in court. Basically set-aside itself to nullify the divorce decree, when that was accepted by court, the maintenance order passed through it will have little effect unless you got IA ordered.

Thanks Mani.. I do agree set aside is to nullify the divorce decree but the set aside is not disposed for a year and is simply at the pettion and counter filed level. It is not progressing further. both the side arguement also over but Judge is not disposing and is simply adjourning everytime. Under these circumstances only , (pls go thruogh my fist posting carefully,) the Magistrate court for DV act, dismissed my complaint that I am a divorcee and i cannot invoke Dv act.  ( based on the grounds of that ex parte order) Which means the set aside petition is not effective yet? it is hanging there undisposed and meaninglessly? which means, let them keep the set aside pending for one more year but  my EP on exparte order in interim maintenance can be proceeded, right? so arrest warrent can be initiated? 

there can be only two status for the set aside petition. either to nullify the divorce decree or other wise. if it nullifies then the Dv act cannot deny my rights stating that am a divorcee, knowing that his set aside petition is still pending undisposed.when i am a divorcee and set aside has no effect yet, i can very well be allowed to proceed with arrest warrent... this way or that way.. how can be a no way here?. if the court denies that set aside petiton is given and no more EP process can be furthered, then i can very well challenge the Dv act dismissal order?.. does this sound simple and clear? all i need to know is if there is any neutral situation like no divorce  nor married status... ? funnnnnny.. 

it was intentionally kept pending undisposed to get the Dv case dismissed on the grounds of divorcee,. it is as simple and clean as that.? to break this nut one should initiate arrest warrent. let the court state why I cannot..If the court states as soon as the set aside petition comes in the ex parte decree gets nullified, then comes the tough time for the Dv case dismissal order.  can you pls clear me sir? 

Dear all, 

Can i have discreption of private Criminal complaint and what are all grounds that can be complained under this provision?

Thanks

DV act is enacted from 2005 not before that.

You are not elligible to DV.

Marital status will be called Separated dont be confused.

Dear Ms. Serene,

You are absolutely correct on all issues.  This is one of the finest enquiries I came across in the recent times.  You raised the very pertinent questions and you answered them just like a deft advocate with aplomb.  I look upon you not just a enquirer with a housewife status but a very knowledgeable legal expert.  Even though you clarified yourself the questions raised by you, let me clarify myself in my humble way:

1.  Whether DV act is not applicable to a divorcee?

Absolutely wrong.  There are certain reliefs which a divorcee can seek under DV Act. and certain reliefs she is not entitled to.  The reliefs she is entitled are maintenance, compensation, return of stri-dhan, protection, children custody, children educational allowance and medical compensation for the expenses she incurred due to the maltreatment she received durig the matrimonial life and importantly protection order to protect the aggrieved divorcee woman from the ex-husband from stalking near her residence or place of work, verbal threats on telephone and SMS etc.  .  So, I strongly agree that the order dismissing your DV case on the ground that you are divorcee is a wrong order and you should challenge it in Sessions Court in appeal.

2.  Just by filing an application to set-aside the ex-parte divorce decree along with condonation of delay application (I suppose he might have filed the latter also) will automatically stay the ex-parte divorce decree and also stay the interim maintenance order?

No.  Just taking the above said application from husband does not stop your status as divorcee and also does not stop your right to get maintenance as awarded by the court.  The court must expressly record in the proceedings for the stayal of divorce decree and stayal of maintenance amount.  In the absence of this, you are entitled to file Execution Petition.  But your filing of execution petition does not result to issuance of arrest warrant instantly.  The first step is attachment of property.  So, once you file the E.P., he will file the reply and the judge will be forced to take some decision either way on pending setting aside of ex-parte application along with Execution Petition.  But once this stage comes, the judge will most probably (perhaps certainly) set aside the ex-parte decree but he will, after hearing afresh the interim maintenance application, award the interim maintenance to you from the date of your application.  So, you will get relief of interim maintenance from the date of your application.  Here what I suggest to you is,  that once the judge decides to set aside the ex-parte decree, you shall put the request that a pre-condition be imposed on husband to pay the interim maintenance till date, before allowing his set aside ex-parte application.  If you get any adverse order in respect of interim maintenance, I suggest you to approach the High Court.

All the maintenance provisions either in S.125 Cr.P.C. S.18 of HAMA or S.24 of HMA or para-materia provisions of other Acts or maintenance under DV Act are intended to provide sustenance to indigent wife for survival.  The courts in your case missed the vital object of these provisions and caused irreparable harm to you.  I hope justice will not become just mirage for you.

warm regards. 

@ Author 

Go through the below post and you will have your answer as to why your DV complaint was not accepted and as a matter of fact maintanence was granted by the family court . Multiple maintanence cannot be granted under different acts or section . This is my view and opinion after reading several posts on this and read espically the red highlighted one .

@ Chandu please note my posts are not directed at you in retalitation to your posts. 

It is very clearly established that a criminal law cannot be retrospective, but a civil law can be applied retrospectively, if it is unambiguously provided in the Act itself with a properly justified reason & with a clearly defined effective date in the past. Neither the entire Bharat RatnaPWDV Act, 2005 nor the Rules mentions this unambiguously anywhere in the whole Act or in the Rules published in Gazette of India or even it has any mention as Legislative intent anywhere if one carefully reads 60 off debates of Lok Sabha and Rajya Sabha combined together till this Bharat Ratna DV Act was passed by Legislature. The language of the Act does not even give any hint that it can be applied retrospectively. Legislature has the power to issue a GO to that effect even before an Act comes into force, if it is so intended. There is nothing to that effect in the Act or in the rules and there is no GO as well. With the power under S. 37 of the Bharat Ratna DV Act, the legislature could have made the Rules applicable retrospectively, but the Government has not done it so. Hence the Act cannot be applied retrospectively. If it is allowed to Act retrospectively, then it will be a clear violation of Article 20 (1) of Constitution of India.

For the retrospective operation of civil laws, to get more clarity, let us refer to the following rulings of the Hon'ble Supreme Court of India.

In Re.: 1976 (1) SCC 906 - Govind Das & Others ETC. ETC Vs. Income Tax Officer & Another on 18/12/1975

In Re.: 1981 (4) SCC 93 - Accountant General & Anr ETC. ETC Vs. S Doraiswamy & ORS. ETC. ETC on 13/11/1980

In Re.: 1994 (5) SCC 450 - Union of India Vs Tushar Ranjan Mohanty on14/07/1994

In Re.: 2006 (2) SCC 740 - S.L. Srinivasa Jute Twine Mills P. Ltd Vs.Union of India & Anr on 15/02/2006

Now coming to the question as why S. 26 is included in Bharat Ratna DV Act, 2005, allowing a lady to claim the any / all reliefs u/S. 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act 2005.

The presumption here is that a lady, who is subjected to violence, cruelty etc., or her spouse would have initiated some proceeding either under any marriage Act or S. 125 Cr.P.C or under other criminal or civil provisions prior to commencement of the Bharat Ratna DV Act on 26-10-2006, and as there are some short comings in previous provisions such as:

1. neither the marriage Acts nor the Cr.P.C 125 nor IPC S. 498a provides for Protection / restraint orders to be passed.

2. while the marriage Acts provide for residence & child custody orders, Cr.P.C. 125 & other criminal provisions does not explicitly provide for such reliefs.

Hence in order to enable a lady to get the protection orders & other reliefs as defined in S(s) 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act, S. 26 must have been included. This explanation also means that Bharat Ratna DV Act 2005, by the virtue of it is not retrospective in nature, but only certain Sections – viz. S(s) 18,19,20,21 & 22 - of the Act can be read along with the other applicable law in force under which the Application / complaint has already been filed. That means that apart from passing the order for reliefs as defined in specific Acts, the magistrate or the family court judge can also pass protection / restraint order subsequent to the whole Act coming into force, provided that such cases / disputes between the parties are pending before the courts.

Now, it becomes very clear that as the Bharat Ratna DV Act, 2005 is fundamentally a criminal law, retrospective operation is barred under article 20 (1) of the Constitution of India. It is like saying"they were unequal some 20 years ago and by making this Act operational retrospectively, legislature is removing that inequality that existed in the past" and such a bald reasoning is not allowed under Constitution of India.

The real issue here is the order for interim reliefs under S. 23 of the DV Act. Interim reliefs are provided upon receiving a mere affidavit by the Applicant / aggrieved person overlooking the applicable laws at the time when the cause of Action has arisen, and the violation of the same leads to cases under S. 31 & also under S. 125 (3) of Cr.P.C.

Now how does one question that the ld. Court cannot hold the person guilty for violation of interim Order as interim Order would have been made subsequent to commencement of the Act and it's violation would definitely become contempt of Court?

About inclusion of S. 26 in the Bharat Ratna DV Act:

1. All or any reliefs under S(s). 18,19,20,21 & 22 of the Act can only be claimed along with the application / petition filed u/s 12 (1) of the Act or under any other provisions under which the cases may be pending before a criminal Court or a family Court or a civil Court but not independently.

2. If the reliefs under those Sections are claimed along with petition filed u/s 12 of the DV Act, one need to see, when the cause of Action has arisen, whether the Act was in force at that time or not?. If the cause of Action dates prior to commencement of the Act, then the very petition filed u/s 12 (1) becomes null & void and no reliefs can be granted.

Madras HC decision can be considered as right in holding the violation of protection order is punishable under DV Act S. 31 is also my view.

Let us look at it from this perspective.

According to S. 26, S(s). 18,19,20,21,22 of Bharat Ratna DV Act can be read with along with either HMA, or Cr.P.C 125 and protection & orders for other reliefs can be passed either by a magistrate or by a family judge. DV Act is retrospective only to within the scope of S. 26 is my view. But filing fresh petition under Section 12 (1) of the Act is barred if, the cause of Action dates back prior to 26-10-2006. It is clearly held by Hon'ble Supreme Court in 2006 (2) SCC 740 - S.L. Srinivasa Jute Twine Mills P. Ltd Vs. Union of India & Anr on15/02/2006 : Case no. : Appeal (civil) 6777 of 2003:- "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 ’nova constitutio futuris formam imponere debet non praeteritis’. In the words of LORD LANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enActment or necessary intendment." (SeeDelhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PC 242)."Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of trans actions already past, must be presumed to be intended not to have a retrospective effect. "(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a Section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (SeeReid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union ofIndia v. Raghubir Singh (AIR 1989 SC 1933). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh. (Tenth Edition, 2006) at PP. 474 and 475)"

Now, if the protection order U/s 18, residence orders U/s 19, monetary reliefs U/s 20 (not applicable if pending case is under HMA or Hindu Maintenance & Adoptions Act or under other matrimonial laws), custody orders U/s 21 (again not applicable if the pending case is under HMA or order matrimonial laws), compensation orders U/s 22 are passed under any other case already pending before magistrate or a family judge, under the scope of S. 26 of DV Act, violation of any of the orders are chargeable under penal Section i.e. U/s 31. In this case question of retrospective operation of the Act does not arise at all as these orders under the scope of S. 26 would have got passed in already pending cases subsequent to commencement of the Act. If such orders under already pending cases are passed even before commencement of the Act, they are still rendered null & void. In the former case, the Article 20 (1) of constitution of India is not violated, where in the later case, it will any way be violated.

The doctrine of Casus Omissus does not apply to Bharat Ratna DV Act and retrospective effect to the DV Act cannot be taken as an obvious interpretation of the intent of the statute. There is a limited retrospective effect that is only to the extent and scope as defined inSection 26. Even if one argues that it is a case of omission, then the fundamental question that arises is, whether the fine print like "E&OE (Errors & Omissions are Expected") are allowed to be a part of a statute that is bound to govern the country and the society? If yes, what is legislature's proposal to handle the chaos & the disorder in the society that may the result of such omissions? Who proposes to compensate the adversary who may end up as the looser because of such omissions?

Even in case of casus omissus is assumed to apply to Bharat Ratna DV Act, the resulting situation is governed by the general law, in this case the retrospective effect cannot be taken beyond the scope defined in Section 26.

No law which impairs or takes away the fundamental rights of any citizen guaranteed by the Constitution of India or impairs or takes away the protection enjoyed till passing of such laws cannot be made to operate retrospectively and that is the governing law. If one attempts to employ casus omissus rule to Bharat Ratna DV Act.