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

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.
Sd/-
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?

Held:

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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