The thing to know about fighting DV cases is to do your own homeworks because most advocates are IDIOTS. That comes with the profession. The few good ones practice only in High Court and the top notch ones are prohibitively expensive. That said... I fully agree with the opinion given that the Roshan Dalvi case is your best defense since your case comes under the Bombay High Court. Get the petition thrown out. No need to address the merits.
When you file an application to dismiss do so under Section 468 of Cr. P.C. and possibly other sections too (check with your advocate about the section. Hopefully he will know if any other section is also applicable for dismissal on limitations or other ground).
First, cite the Supreme Court judgment found here: https://legalpoint-india.blogspot.in/2011/12/legal-alert-domestic-violence-complaint.html.
Then cite the following Roshan Dalvi judgment and finally the Delhi High Court judgment, snippets of which are also given at the end.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Amk
CRIMINAL APPLICATION NO. 160 OF 2011
Sejal Dharmesh Ved .. Applicant
Vs.
The State of Maharashtra & Ors. .. Respondents
Mr. Amit S. Dhutia i/b Niranjan Mundargi for the Applicant.
Mrs. A. A. Mane, APP for Respondent No.1State.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 7 th MARCH, 2013 .
P.C.
1. The applicantwife
has challenged the order of the Court of
Sessions at Greater Bombay dated 27.10.2010 holding that her application
under the Prevention of Women from Domestic Violence Act, 2005 (D.V Act) is
not maintainable because she was not in any domestic relationship.
2. The applicant married on 04.05.1999. She lived with her
husband in the US. There are two issues from the marriage. She returned to
India on 11.02.2009.
3. She filed her application under the D.V Act on 18.01.2010.
4. The learned Judge has considered that under these circumstances,
she having come to India in February, 2009 and having filed this application in
January, 2010, there was no domestic relationship between the parties. The
learned Judge has considered the definition of domestic relationship. Of
course, that relationship is defined to be one of which the party then lived and
had earlier lived. That would be during the subsistence of the union between
them. The application under the D. V. Act could be filed, when the marriage
union subsisted. That having came to an an end and long after the physical
relationship came to be an end, she having returned to India, she cannot be
taken to be living in any domestic relationship in India.
5. A wife who lived in a domestic relationship earlier, but which
ceases only because of any domestic violence can certainly file an application
for such domestic violence that took place whilst she lived in that relationship.
Such application is required to be filed within a reasonable time to show that
relationship would give her the cause of action to sue under the D.V. Act for
the reliefs under the Act.
6. A wife who has returned from the USA and consequently from the
domestic relationship and lived in India for one year cannot file an application
with regard to that relationship after such time. Such wife cannot be taken to
be in any domestic relationship. The order of the learned Judge is, therefore,
correct. The writ petition is completely devoid of merits and accordingly
dismissed.
(ROSHAN DALVI, J.)
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DELHI HIGH COURT JUDGMENT FOLLOWS. GET THE FULL CITATION FROM indiankanoon.org or some such site.
Also Vijay Verma vs State Nct Of Delhi & Anr, Delhi High Court, 2010:
“This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or s*xual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.”
“The problem arises with the meaning of phrase ‘at any point of time.’ Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that ‘at any point of time’ under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, ‘at any point of time’ cannot be defined as ‘at any point of time in the past’ whether the right to live survives or not.”
