Sushil Kumar Bhatia (Advocate) 05 January 2009

Plea of domestice violence and Restituion of Conjugal rights

Marriage solemnized in year 1996 the couple have three children in Jan,2008 wife left husband's house brought her children with her FIR lodged by husband against wife about her act and she is staying with her parents since then in march 2008 husband filed petition u/s 9 of HMAct for restitution of conjugal rights The wife has also filed petition u/s 9 of HMAct for conjugal rights husband appeared but the wife not appeared before family courts thereafter wife filed a complaint under domestic violence act before CJM court in Oct,2008 stated that she was returned on oral compromise in sept 2008 and next day husband beaten her and she compelled by circumtances to left husband's house and made allegation of physical mental torture cruelty and demand of dowry etc Can the plea to stay the proceeding before CJM be taken till the decision of Family court U/s 9 of HMAct or please give other advice

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5 Replies

Ravi Arora (Advocate) 05 January 2009

No sir, for that you have to approach High Court.

but i think you have sufficient means to proov that wife left her matromonial home without sufficient reason. and she is not eligible for this.

Rest if you give full information regarding notice, F.I.R, or any thing u ve done

i can suggest more

siddu (Advocate) 05 January 2009

It is the default of the wife that she didnt appeared before the family court inspite she too filed an application for restitution of conjugal rights. You may take contention that only to give harrashment to the husband by virtue of the Protection of women from Domestic Violence Act, 2005 as it has become the weapon for her to stand falsely before the Court against the husband only to give harrashment. you may succeed by producing the certified copy of petition filed u/sec.9, HM Act by his wife along with order sheet to show that she didnt appeared..

AEJAZ AHMED (Legal Consultant/Lawyer) 06 January 2009

Dear Bhatia,

Go through the following Judgment, may be helpful to You:

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH

AT : HYDERABAD

( THURSDAY 2^nd DAY OF AUGUST, 2007 )

PRESENT

THE HON'BLE SRI JUSTICE K.C. BHANU

CRL. P. NO : 3714 of 2007

BETWEEN :

1. U.U. Thimmanna, Slo U. U. Ayyanna

2. U.U. Sankaramma, W/o U. U. Thimmanna

3. U.U. Sreenivasulu, Slo U. U. Thimmanna

4. U.U. Paramesh, Slo U. U. Thimmanna

5. U.U.Ramesh, Slo U. U. Thimmanna                                      ..... PETITIONERS

AND

1.                 Smt. U.U. Sandhya, Dlo U.M. Venkateswarlu

2.                 The State of Andhra Pradesh, rep. by its Public Prosecutor,

High Court of A.P., at Hyderabad.                                          ..... RESPONDENTS

Petition under Section 482 of the Cr1.P.C praying that in the circumstances stated in the quash proceedings filed therewith, the High Court will be pleased to quash the proceedings in D.V.C.No. 1 of 2007 on the file of the Judicial Magistrate of First Class, Yemmiganur, Kurnool District. The Petition coming on for hearing, upon perusing the Petition and the quash proceedings filed in support thereof and upon hearing the arguments of Sri. C.PRAVEEN KUMAR, Advocate for the Petitioner and of Smt. P. Rajeswari, Advocate for the Respondent No.1 and of the Public Prosecutor, on behalf of State.

The Court made the following :        ORDER

THE HONt BLE SRI JUSTICE ' K . C . BEANU

CRIMINAL PETITION N0.3714 OF 2007.

ORDER

This Criminal Petition is filed by the petitioners under Section 482 Cr.P.C. to quash the proceedings in DVC No.1 of 2007 on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District.

Heard both the counsels.

Admittedly, husband of the complainant died on 14-06-2004 and since then the de facto complainant is not residing with the petitioners. The shared household is defined under Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act'), which reads as follows:

“ shared household' means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. "

Domestic relationship is defined under Section 2 ( E ) of the Act, which reads as follows:

" 'domestic relationship' means a relationship between two persons who live or have, at any point of time, lived together in a shared , household, when they are related by

consanguinity, marriage, or through a relationship in the nature of marriage, adoption

or are family members living together a3 a joint family."

On the face of the allegations in the complaint, the de facto complainant is not residing with the petitioners. She is ' residing in House No.2361, Near M.G. Petrol, Yemmiganur, whereas petitioners 1 and 2 have been residing in House No. 3/31, Uppara street, Yemmiganur, 3 rd petitioner is residing in Mahaboobnagar, 4th petitioner is residing at H.No.S/2267,Laxmipeta, Yemmiganur and 5th petitioner is residing at: H. N o: 3/31, tippata Street, Yemmiganur.

Admittedly, the de facto complainant filed a suit in O.S. No.111 of 2005, which is pending, She also filed a case in C.C.No.94 of 2005 under Section 498-A IPC, which is pending trial before the Judl. Magistrate of 1^st Class, Yemmiganur. The domestic incident report does not disclose any of the acts of violence that were

call reported by the cornplainant after 26-10-2006. 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.

Sd/-N.MURALIDHAR RAO

ASSISTANT REGISTRAR

I/ TRUE COPY N

SECTION OFFICER

Sushil Kumar Bhatia (Advocate) 06 January 2009

Thanx to all specially Mr.Aejaz for help ,but my case after the enforcement of DVA which has prospective effect .

AEJAZ AHMED (Legal Consultant/Lawyer) 07 January 2009

DEAR BHATIA,

It's my Pleasure that, I am trying to respond to the Hon'ble Members for their querries immediately.

Actually, I wanted to divert to your attention at following Para:

" Admittedly, the de facto complainant filed a suit in O.S. No.111 of 2005, which is pending, She also filed a case in C.C.No.94 of 2005 under Section 498-A IPC, which is pending trial before the Judl. Magistrate of 1^st Class, Yemmiganur. The domestic incident report does not disclose any of the acts of violence that were ( I think here some words are either missing or sentence is wrong) call reported by the cornplainant after 26-10-2006. 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."

So, in your case also, there is no act of voilence from your side towards the wife, till Jan, 2008, and afterwards, as FIRST she was with Husband till Jan, 2008, then;

** Husband himself lodged FIR;

**Husband himself FIRST filed Petition for Restitution of Congugal Rights;

Then, afterwards,

** Wife Filed Petiton Filed For Restitution of Congugal Rights;

** You recorded there your presence;

AND NOW, IN OCTOBER, 2008 SHE FILED THE PETITION UNDER D.V. ACT., with the allegation that " she was returned on oral compromise in sept 2008 and next day husband beaten her and she compelled by circumtances to left husband's house and made allegation of physical mental torture cruelty and demand of dowry etc " .

But your question is silent about this allegation, no explation from you;

** Whther the said allegation about joining of her on Oral Compromise is Correct or False one?

Whatever it may be, the said allegation is true or false, but you can " either move a Quash Petition/ Revision to Seek Stay of D.V. Act Proceedings, before your state High Court in the light of the above said judgement"

As per me you can get favourable Order from Hon'ble High Court.

Further, go through the following site:

https://mynation.wordpress.com/2007/06/10/general-suggestions-for-victims-of-dv-act/?referer=sphere_related_content/