Showing posts with label domestic violence. Show all posts
Showing posts with label domestic violence. Show all posts

07 February 2021

Falsely implicating husband and his family in domestic violence case with intention to ensure that the parties were sent to counselling in order to settle their disputes amounts to mental cruelty entitling husband to seek divorce

Allegations of cruelty in divorce case should be specifically challenged in cross examination

    Now, given that matrimonial disputes rarely involve production of concrete evidence in documentary or audio-visual form, and mostly proceed on the relative strength of the opposing allegations made by the parties, the entire process of leading and recording evidence has a significant role to play in establishing one's case. Thus, notwithstanding her denials in the written statement, the appellant was expected to properly and specifically cross-examine the respondent to prove her allegations of cruelty against him and disprove those he had levelled against her. The importance of properly discharging this function of cross-examination was discussed by the Supreme Court in the following paragraphs of its decision in Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69:
"4. The only point urged albeit strenuously on behalf of the appellant by Mr P.S. Mishra, the learned Senior Counsel is that as there has been no valid service of notice, so all proceedings taken on the assumption of service of notice are illegal and void. He has invited our attention to the judgment of the learned Rent Control Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986 was sent by registered post and the same was taken by the postman to the address of the tenant on 6-8-1986, 8-8-1986, 19-8-1986 and 20-8-1986 but on those days the tenant was not available; on 21-8-1986, he met the tenant who refused to receive the notice. This finding remained undisturbed by both the Tribunals as well as the High Court. Learned counsel attacks this finding on the ground that the postman was on leave on those days and submits that the records called for from the post office to prove that fact, were reported as not available. On those facts, submits the learned counsel, it follows that there was no refusal by the tenant and no service of notice. We are afraid we cannot accept these contentions of the learned counsel. In the Court of the Rent Controller, the postman was examined as AW 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied upon. There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (1998) 3 SCC, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: (SCC p. 567, para 14) "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.' (emphasis supplied)[Para No.11]

    Although the appellant, in the grounds adopted in the appeal, has assailed the reliance of the learned Family Court on the decision in State of U.P. v. Nahar Singh (1998) 3 SCC 561 to contend that the same was a criminal case and the precedent arising therefrom could not apply to cross examinations in matrimonial proceedings, which are civil proceedings by nature, there is no merit to this opposition; especially in the light of the observations of the Supreme Court in Darshana Devi's case which was a civil proceeding. In fact, the standard of proof in a matrimonial proceeding- which is also in the nature of a civil proceeding is not as strict, as in criminal proceedings. Thus, the case is required to be proved on preponderance of probabilities and not the legal standard of being beyond a reasonable doubt. Keeping in view the aforesaid, it is evident that there was a crucial responsibility placed on the shoulders of the appellant which was to ensure that she challenged the specifics of the allegations raised by the respondent and establish their lack of veracity. Paragraphs 44 to 46 of the impugned judgment clearly show that the appellant had not cross-examined the respondent/husband on these important aspects, and, thus, completely failed to draw out the facts as claimed by her. In fact, even before us, the appellant, other than contending that the onus of proving cruelty rested upon the respondent, has failed to provide any cogent reasons for failing to cross-examine the respondent in support of her own case, or to challenge his allegations of cruelty. It is a settled proposition of law that the Court would normally accept unchallenged and uncontroverted assertions of fact. The failure of the appellant to effectively cross-examine the respondent shows that she neither seriously challenged his version of the factual position, nor established her own version. Therefore, in our view, the Family Court was justified in accepting the unrebutted testimony of the respondent.[Para No.12]

    When we view this in addition to the fact that in her written statement, the appellant had admitted to having levelled false allegations against the respondent and his family under the DV Act, we find there were plenty of holes in the appellant's story. Her feeble explanation for this ill-thought out act of falsely implicating the respondent and his family was that the same was not done malevolently, but only with an intention to ensure that the parties were sent to counselling in order to settle their disputes. That explanation barely comes to the aid of the appellant considering that the Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 III AD (SC) 458 has already held that any act of making unfounded complaints to the police shall be treated as an act of mental cruelty. The relevant extracts of this decision read as under:
"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

01 November 2020

Wife can proceed simultaneously under both the provisions of Sec.125 of CrPC and Sec.12 of The Protection Of Women From Domestic Violence Act

As far as other contention raised by learned Counsel for the petitioner that the orders/judgment passed by learned Courts below is not sustainable in view of the fact that the petitioner was also receiving Rs.3,500/­ per month under Section 125 of the Criminal Procedure Code Cr.P.C., is concerned,
Wife can proceed simultaneously under both the provisions of Sec.125 of CrPC and Sec.12 of The Protection Of Women From Domestic Violence Act
the said plea of learned Counsel for the petitioner is also liable to be rejected. The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibits the wife to proceed under both of the said statutory provisions simultaneously or Otherwise.[Para No.11]

15 October 2020

Residence Order passed under The Protection of Women from Domestic Violence Act does not impose any embargo for filing or continuing civil suit seeking permanent injuction against daughter-in-law

From the above discussions, we arrive at following conclusions:-

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
Residence Order passed under The Protection of Women from Domestic Violence Act does not impose any embargo for filing or continuing civil suit seeking permanent injuction against daughter-in-law

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.[Para No.157]

25 September 2020

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law

Daughter in law threatening her in laws to dis-possess from their own property - mother in law filed suit against her alongwith an application for interim injunction u/s. 151 and Order 39 Rule 1 & 2 - plaintiff-mother in law contended that she is the owner of the suit property on the strength of registered sale deed - trial court refused to grant interim injunction observing that the house is a shared house under the Domestic Violence Act and the daughter in law cannot be forcibly evicted from the same as her belongings are still lying there - appeal by district court allowed - daughter in law prefered revision against order passed in appeal - revision dismissed.

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law
    In view of Krishan Kumar vs Navneet's case (supra) and Varinder Kaur vs Jitender Kumar's case (supra), the parents-in-law of the self-acquired property are the real owners and the daughter-in-law has no right to claim it as shared house and has no right of residence in the self-acquired property of parents-in-law. The daughter-in-law cannot be allowed to live in the house of parents-in-law against their wishes.

    While relying upon S.R. Batra and another vs Smt. Taruna Batra, 2007(1) RCR (Criminal) 403 in Suman vs Tulsi Ram 2015(1) RCR (Civil) 304, it was held that daughter-in-law does not have any right of protection under Section 17 of the Act for the purpose of living in the house belonging to parents-in-law which is exclusively owned by them.

06 August 2020

Notice under Protection of Women from Domestic Violence Act should not be issued unless the Magistrate gets convinced that the presence of the respondents is necessary for further adjudication of the matter

When admittedly, the present petitioners were not residing with the husband of the second respondent, they could not be considered are the persons belonging shared household as is defined under Section 2(s) of the Act. As such, they are not necessary parties for the adjudication of the dispute in question.[Para No.18]

    In this regard, this court gainfully relies on the judgment of the Hon'ble Apex Court in the case of Shyamlal Devda and others V/s. Parimala, reported in (2020) 3 SCC 14, wherein it is held as under :
8. Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman. Section 20 of the Act empowers the court to order for monetary relief to the "aggrieved party". When acts of domestic violence is alleged, before issuing notice, the court has to be prima facie satisfied that there have been instances of domestic violence.
9. In the present case, the respondent has made allegations of domestic violence against fourteen appellants. Appellant No.14 is the husband and appellants No.1 and 2 are the parents-in-law of the respondent. Appellants No.3, 5, 9, 11 and 12 are the brothers of father-in-law of the respondent. Appellants No.4, 6 and 10 are the wives of appellants No.3, 5 and 9 respectively. Appellants No.7 and 8 are the parents of appellant No.1. Appellants No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10 are the residents of State of Rajasthan and appellants No.11 to 13 are the residents of State of Gujarat. Admittedly, the matrimonial house of the respondent and appellant No.1 has been at Chennai. Insofar as appellant No.14-husband of the respondent and appellants No.1 and 2-Parents-in-law, there are averments of alleging domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. There are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed."[Para No.19]

    Applying the legal principles enunciated in the above decision to the case on hand, it is seen in the present case also except making bald statements without there being any specific details as to alleged domestic violence, present petitioners who are the relatives of husband of the second respondent and not residing with the husband of the second respondent, have been arraigned as party respondents only with an intention to harass them.[Para No.20]

    The learned Magistrate before issuing the notice, should have applied his mind as to the existence of prima- facie case as against the present petitioners are concerned.[Para No.21]

    In the impugned order, the learned Magistrate has not even noted that there exists a prima facie case against the present petitioners are concerned. The order dated 26.10.2016 whereby he issued notices to the present petitioners reads as under:
"Date: 26-10-2016 Register as Crl.misc. & put up.
Prl. JMFC., GVT.
Issue notices to respondents through CDPO, Gangavati returnable on 14.11 Sd/-
Prl. JMFC., GVT.
"[Para No.22]

Notice under Protection of Women from Domestic Violence Act should not be issued unless the Magistrate gets convinced that the presence of the respondents is necessary for further adjudication of the matter
    On perusal of the above order, it is crystal clear that the order is passed in a mechanical manner. Order does not indicate as to what prompted the learned Magistrate to proceed against the present petitioners also. It is needless to emphasize that issuance of process to a litigant in a matter of this nature should be only after the Magistrate gets convinced that the presence of the respondents/accused is necessary for further adjudication of the matter. The same must be indicated in the order issuing the process, if not in so many words.[Para No.23]

13 June 2020

Daughter-in-law is merely a licensee in house owned by in-laws

Necessary party to suit - Sec. 2 (s) of Protection of Women from Domestic Violence Act - Scope of definition of Shared Houshold - House property is exclusively own by father-in-law - After marriage daughter-in-law started to live in that house with her husband - Daughter-in-law started harassing her in-laws - father-in-law asked his son to vacate the house - Son alongwith wife left the house - After sometime daughter-in-law came bake and forcibly entered in that house and refused to vacate the house - Father-in-law filed a suit for eviction against his daughter in law without impleading his son as defendant.

  • Is the son necessary party to eviction suit filed against daughter-in-law?
  • Does the property owned by in-laws; in which their son was permitted to live with his wife, falls under the definition of Shared Household as defined u/s.2(s) of PWDV Act?


In-laws can evict Daughter-in-law from their house without seeking decree of eviction against their son. House exclusively owned by in-laws is not Shared Houshold under PWDV Act. Daughter-in-law is merely a licensee.

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