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]

    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]

Debt in cash above ₹20,000 in contravention of Sec.269ss of Income Tax Act does not render the transaction unenforceable under N.I.Act

Next, he submitted that the payment of more than ₹20,000/- in cash violates the provisions of Section 269 SS of the Income Tax Act, 1961 which prohibits grant of any loan or advance over a sum of ₹20,000/- in cash. He submitted that since the said loan was in violation to the provisions of the Income Tax Act, 1961 the same was not an enforceable debt. He relied upon by the decision of the Bombay High Court in Sanjay Mishra v. Kanishka Kapoor @ Nikkin and Anr.: 2009 (4) Mah.L.J.155 in support of his contention.[Para No.11]

    The contention that the debt owed by the petitioner was rendered unenforceable by virtue of the provisions of the Income Tax Act, 1961 is also unmerited.[Para No.13]

    Section 269SS of the Income Tax Act, 1961 prohibits making of any payment in cash above a sum of ₹20,000/-. Thus, any person violating the same would attract imposition of penalties under the said Act. However, the same does not render the said debt un-enforceable or precludes the lender from recovering the same.[Para No.14]