Court can direct restoration of possession to woman under dv

Court can direct restoration of possession to woman under DV act

Protection of Women from Domestic Violence Act, 2005 - Section 19 (1) & (2) - The words “to protect or to provide for safety” would necessarily have to be interpreted as to protect and to provide safety to the aggrieved person vis–a–vis residential accommodation. Hence, the Magistrate has ample power to direct that the aggrieved person be given accommodation in the shared household, although the aggrieved person may have left the matrimonial home or the shared household many years ago.

Protection of Women from Domestic Violence Act, 2005 - Section 19 - The pendency of the divorce petition on the ground of desertion would not disable the court from passing its order under the Act as both the proceedings are independent of each other.

https://www.lawweb.in/2012/06/court-can-direct-restoration-of.html

Rakesh Vs. Rajnesh @ Manto

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5 Replies

Tajobsindia (Senior Partner ) 26 June 2012

@ Generic

I feel the quoted Judgment from Raj. HC is bad in eyes of Hon'blde SC if put under challenge on three merit paras which was discussed in Judgment -

One - re-instating lady in same shared household
Two – retrospective challenge of The Act
Three – alternate residence

Here are my views though on above three merit paras as discussed by Jstc. of Raj. . HC-

1. The lady was not residing in shared household since 2005. If you re-instate the lady with her perpretors then what will be her standing now among her alleged villains! Will no act of DV be committed as in humility and or mental cruelties and or if the acts of DV will stop if “continuance of offence” was the thought process to re-instate by Raj. HC Jstc. giving the Order !

However I do agree there are cases where re-instating residence Orders could have been given where a lady was forced to leave her shared household and or in situations were such that she left “quite recently – as in time period wise” and not some 8-10 years ago in instance case where she got re-instatement.

Now here is a very crude parallel I am drawing – Suppose a lady claims that mental cruelties were done and grant her divorce. Court after suffling material records comes to an conclusion that she is not eligiable so what happens in that case? Her divorce suit is obviously dismissed but then what happens in reality of such cases? Does she goes back to her husbands home and forces herself to stay with a person who inflected upon her mental cruelties ???/ Show me one case where such thing happened till date. Naturally such ladies due to fate of the suit somehow agrees to live by herself either in her natal home or otherwise BUT never goes to her husband’s home – right or wrong readers?

2. Retrospective aspect of DV Act is still under challenge as the SLP is still not dismissed at Hon’ble SC been admitted since 2009 there and quoted earlier Raj. HC judgment as in this citation was drawn attention of triple Bench of Lordships at Hon’ble SC among other HC’s views on retrospective / prospective challenge facing this Act and having known that DV Act retrospective and or prospective operation is still under challenge the Jstc. at Raj. HC should not have commented as lordship did summarily in cite Judgment is my view.

See one side Lord Chandu, Advocate here vehemently says that DV is civil nature Act and “violence perpetrated therein” are civil in nature but can anyone ask Lord Chandu (as I have given up upon him) how in same breadth almost all HC’s have stated in their Orders that “there is continuation of offence”. Mind it when we use word “offence” criminality comes into play and tell us how “offence / violence” could be stated to be civil in nature?. Having said so when Hon’ble SC is still studying if to give DV Act retrospective or prospective effect how there can be “continuation of offence” vis-à-vis The Act !!

3. As stated my short observations in para 1 above alternate residence and or rent in lieu of could have been granted to such old cases instead of re-instating as “domestic violence should as far as possible should always be curtailed in such old cases and not Judicially encouraged” it is like placing tiger and a lamb now in same cage!

I mean if somehow I agree to Lord Chandu and agree to call The Act, 2005 incidences “civil” then in same breadth cannot I say that marriages should never be dissolved as it is “offence” to dissolve a marriage due to marriage “continuation” happens for and by the couple – so where we are going wrong in interpreting newer and newer clumsily drafted Laws!!!!!!!!!

Call for (?) -

Any ld. takers mind placing h/er views on this Raj. HC citation by omitting my observations?

Ranee....... (NA) 27 June 2012

It is a good judgement who are real victim and need a shelter in real sense with protection order.

(Guest)

It is a good judgment for abla naris who can not even take care of themselves and want to live a luxurious life which she could not get at parntal home at the cost of torture and injustice to in-laws.