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Domestic Violence: Protection of Women from Domestic Violence Act, 2005

Ten Landmark Judgments


Name OF THE CASE:
1. VIJAY VERMA VS STATE N.C.T. OF DELHI & ANR.
COURT:
DELHI HIGH COURT
JUDGE:
SHIV NARAYAN DHINGRA
FACTS OF THE CASE:
The petitioner herein had filed an application under Section 12 of Protection of Women
from Domestic Violence Act making her brother and his wife as respondents. She sought
an interim order from the Court of M.M. for immediate residence rights and police
protection so that she could stay at premises No. A-181, Defense Colony, Delhi,
whenever she visited India. The petitioner is a permanent resident of USA and is living
in USA since year 2000. She came to India on a visit on 15th July, 2008 and alleged that
when she went to her parental house on 16th July, 2008, she was not allowed to enter
her parental house and hence the application.
Learned MM in her order observed that in this case the petition was more in a nature of
claiming right in the property. The whole dispute seemed to be property dispute
between the parties and there was no ground to pass an interim order of residence. The
learned ASJ upheld this contention in appeal.
JUDGMENT:
SHIV NARAYAN DHINGRA, J
"I therefore consider that the application filed by the petitioner under Section 12 of
Domestic Violence Act was not at all maintainable. The petitioner had settled her
separate house in America, her Passport was issued in America, she is doing job in
America, and she was adult and able to take care of herself, take her own decisions. She
decided to live in America after leaving her parents here. If she has any right in her
fathers property, she has already filed a suit for partition. An application under Section
12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider
that she was rightly denied the interim relief of residence in the property left by her
father."
SOURCE (http://lobis.nic.in/dhc/SND/judgement/16-082010/SND13082010CRLMM38782009.pdf)

NAME OF THE CASE:


2. NAGESH MALIK VS PAYAL MALIK

COURT:
DELHI
JUDGE:
H.L. DATTU & CHANDRAMAULI KR. PRASAD
FACTS OF THE CASE:
The facts are that Ms. Payal Malik used to live with her parents before marriage at
Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at
Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001.
Nagesh Malik was already working in USA and after marriage both of them went to USA
on 20th September, 2001 where they settled their matrimonial home and lived together.
On 24th October, 2002 a female child was born to the couple at USA, who was named
as Vanishka. The parties continued living together in USA till 2008. It seems deep
differences arose between the parties and they could not pull on together.
There are allegations and counter allegations made by wife and husband which are not
relevant for the purpose of deciding this petition. However, husband alleged that on 6th
August, 2008 due to these differences, parties executed a post-nuptial agreement and
decided to obtain divorce from each other, sticking to the agreement. Wife refutes
having signed the agreement voluntarily and alleges that she was turned out from USA
by her husband on 22nd August, 2008. Whereas the husband contention is that she of
her own left USA without joining the husband for obtaining divorce through a Court in
USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery
Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly
served on her. The Court of New Jersey allowed the divorce petition and a decree of
divorce was granted on 4th December, 2008.
JUDGMENT:
H.L. DATTU & CHANDRAMAULI KR. PRASAD
Shri Basava Prabhul Patil, learned senior counsel appearing for the
contemnor/respondent would submit that pursuant to the directions issued by this
Court, the respondent herein has deposited a sum of Rs.2 lacs before the learned
Magistrate (Mahila Court), South East District, New Delhi. Further, today he is offering a
demand draft for a sum of Rs.50, 000/- to the learned counsel appearing for the
complainant. Both sides would agree that the aforesaid amounts would satisfy the
interim directions issued by this Court upto the end of July, 2012.
The complainant, if she so desires, is at liberty to withdraw the sum of Rs.2 lacs
deposited by the contemnor before the learned Magistrate. The learned counsel
appearing for the complainant acknowledges the draft handed over by Shri Patil,

learned senior counsel, for and on behalf of the contemnor. In view of this, nothing
survives in this Contempt Petition and the same is accordingly, disposed.
SOURCE (http://www.legalcrystal.com/904738).

NAME OF THE CASE:


3. Diwan Singh Mehra Vs State Nct Of Delhi And Anr
COURT:
DELHI
JUDGMENT:
JUSTICE SHIV NARAYAN DHINGRA
FACTS OF THE CASE:
By the present petition, the petitioners have assailed order dated 5th November, 2009
passed by the learned Metropolitan Magistrate on an application under Section 12 of
The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence
Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder
brother of husband) of respondent. The husband in this case was working in New
Zealand and had come to India for marriage.
It seems that the marriage did not take off at all. The allegations made by the parties
against each other are not relevant for deciding these petitions. The respondent in her
application under Section 12 of Domestic Violence Act made husband, father-in-law and
brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a
common address. On making of this application, the learned Metropolitan Magistrate, on
the very first day, passed the impugned order directing that the complaint be checked
and registered as per rules and issued notice to the Protection Officer for filing DIB and
directed respondents to be served through Protection Officer with or without help of
police/Nazarat branch.
JUDGMENT:
The order dated 5th November, 2009 passed by the learned MM is therefore set aside.
The learned MM is directed to consider the domestic incident report and consider the
contents of the application and find out whether the respondents (petitioners herein)
had any domestic relationship with the applicant and could be fitted in the definition of
the "respondent" as given in Section 2(q) of the Protection of Women from Domestic
Violence Act, 2005 and then only issue notice to them.
SOURCE (http://indiankanoon.org/doc/70637199/)

NAME OF THE CASE:


4. Sirajuddin Khan @ Siraj vs Dr. Shahnaz Firdous on 22 January, 2013
JUDGMENT:
Tarun Kumar Kaushal
FACTS OF THE CASE:
Fact of the case, in short, are that on 04/4/2006 marriage of petitioner no.1 with
respondent was solemnized. After about 3 years of matrimonial relationship differences
arose. On 23/08/2009 respondent lodged FIR at Mahila Thana, Jabalpur at Crime No.
42/2009 against the petitioners under section 498A, and 506 IPC read with section 3/4
of Dowry Prohibition Act. On 18/09/2009 in the court of JMFC, Jabalpur, respondent
preferred an application under section 12 of Act of 2005. Simultaneously, on 22/09/2009
respondent preferred an application for grant of maintenance against the
petitioner/husband in the Court of JMFC, Jabalpur under section 125 Cr.P.C. During the
pendency of these aforesaid cases and also during pendency, of this petition in the year
2011, respondent preferred an application seeking divorce under section 2 of
Dissolution of Muslim Act, which is pending in the Family Court Jabalpur.
JUDGMENT:
Taking over all facts and circumstances of the case into consideration, it is revealed that
application of Domestic Violence Act was filed subsequent to the lodging of FIR under
section 498A IPC against the petitioners. Domestic Violence Act provides an alternative
remedy for seeking compensation etc in addition to the existing provision. Chance of
abuse of process is also negligible because aggrieved party is bound to inform fact of
pendency of all previous cases of such nature and order is passed after hearing both the
parties taking into account all such cases. It is not a case of Double Jeopardy and is not
a case of abuse of process of court. Court will proceed according to merits of the case
and according to law applicable on them. No case of abuse of process and quashment of
proceedings is made out. Accordingly petition is dismissed.
SOURCE (http://indiankanoon.org/doc/110861200/?type=print)

NAME OF THE CASE:


5. Satish Sharma vs State & Anr. on 19 August, 2011
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
COURT:
IN THE HIGH COURT OF DELHI
FACTS OF THE CASE:
The facts relevant for the disposal of this petition are that the petitioner is husband of
Late maternal aunt of Gaurav Sharma. Respondent No.2 Shipali Sharma was married to
Gaurav Sharma on 29.04.2005. The marriage between them was not a success, which
led to filing of a divorce petition by Gaurav Sharma. When respondent No.2 was served
with the notice of divorce petition, she filed a complaint under Section 12 of the
Protection of Women from Domestic Violence Act, 2005(for short "the Act") against
Gaurav Sharma and five others, including the petitioner. Learned Metropolitan
Magistrate, on consideration of the complaint under the Act found prima facie case
against four out of six respondents named in the complaint and issued process for
appearance against them. Petitioner is one of those named accused persons. Feeling
aggrieved by the above, petitioner Satish Sharma has preferred this petition under
Section 482 Cr.P.C. seeking quashing of the complaint against him.
JUDGMENT:
AJIT BHARIHOKE
On reading of the above, it is apparent that allegations made in the complaint qua the
petitioner are vague and general in nature. The allegations relate to the alleged
incidents of the year 2005 and 2006. Admittedly, prior to filing of complaint under
Section 12 of the Act, respondent No.2 did not file any complaint with the Police or any
authority regarding harassment or cruel treatment meted out to her by her in-laws or
the petitioner. It is not disputed that husband of respondent No.2 had filed a divorce
petition against her and she was served with the notice of divorce petition on
21.01.2008. The complaint under Section 12 of the Act has been filed after the receipt
of the notice of the divorce petition. From this, it can be safely inferred that the

complaint filed by respondent No.2 is a counterblast to the divorce petition. Otherwise


also, undisputedly the petitioner is residing separately in his house at B-336 Hari Nagar
which is at a fair distance from the matrimonial home of respondent No.2 i.e. H-1/125,
Ground Floor, Vikas Puri. Therefore, I find it difficult to believe that the allegations of
domestic violence made in the complaint against the petitioner are correct. On overall
consideration of facts of this case, it appears that the complaint so far as the petitioner
is concerned, appears to be motivated and it Crl.M.C.2305/2008 Page 9 of 10 appears to
have been filed by respondent No.2 with a view to exert pressure upon her in-laws,
particularly the husband who has filed divorce petition against her. Thus, in my view,
the complaint qua the petitioner is nothing but an abuse of process of law, as such the
complaint as well as the summoning order dated 31.05.2008 qua the petitioner are
liable to be set aside. In view of the discussion above, petition is allowed and the
complaint under Section 12 of the Protection of Women from Domestic Violence Act,
2005 as also the summoning order dated 31.05.2008 qua the petitioner are hereby set
aside.
SOURCE (http://indiankanoon.org/doc/125692481/)

NAME OF THE CASE:


6. Om Prakash Vs. State of Rajasthan & Anr
COURT: JAIPUR
JUDGMENT: R.S.CHAUHAN
FACTS OF THE CASE:
Facts of the case are that the respondent-wife filed an application under Section 12 of
the Act against the petitioner-husband before the trial court wherein she claimed that
she got married with the petitioner twelve years back in Jaipur. But ever since her
marriage, her in-laws and husband have tortured her for dowry demands. She further
claimed that due to the torture committed on her, she is living separately from the
petitioner since last seven years. Thus, she prayed for maintenance. The respondenthusband filed reply to the application and denied the contents thereof.
After hearing both the parties, vide order dated 07.02.2009, the learned trial court
allowed the application and directed the petitioner to pay Rs.800/- per month as
maintenance to the respondent-wife. Being aggrieved by the said order, the petitionerhusband filed an appeal before the appellate court. However, vide order dated
23.10.2010, the learned appellate court upheld the order dated 07.02.2009 and
dismissed the appeal. Hence, this petition before this Court. Mr. Arvind Gupta, the
learned counsel for the petitioner, has vehemently contended that according to the
complainant herself, she was married with the petitioner twelve years prior to 2008.
Moreover, according to her, the petitioner and the respondent are living separately ever
since 2001. Therefore, ever since 2001, no act of domestic violence has been
committed. Yet, both the learned courts below have allowed an application under
Section 12 of the Act. Since the Act came into force on October 26, 2006, the Act cannot
be given a retrospective effect and cannot be made applicable to the alleged acts of
domestic violence, which may have taken place prior to 2001.

JUDGMENT:
Poverty is not a defense against the right of a woman. Therefore, the petitioner is both
legally and morally bound to pay maintenance of Rs.800/- per month to the respondentwife. Furthermore, the Act does not require that the aggrieved person must stay with
the offending husband. Hence, merely because the respondent-wife is not staying with
the petitioner-husband, it would not absolve the husband from his liability under the Act.
Therefore, the contention raised by the learned counsel for the petitioner is without any
foundation.
For the reasons stated above, this Court does not find any illegality or perversity in the
impugned orders. This petition, being devoid of any merit is, hereby, dismissed. The
stay petition also stands dismissed.
SOURCE (http://www.lawyerscollective.org/files/OM%20PRAKASH.pdf)

NAME OF THE CASE:


7. S.R. Batra And Anr vs Smt. Taruna Batra
BENCH: S.B. Sinha & Markandey Katju
Facts of the Case:
Smt. Taruna Batra got married to Shri Amit Batra on 14th April 2000 and they had a
male child born to them in the 27th November 2001. As per the prevailing practice,
after their marriage, Smt. Taruna Batra shifted into the home of Shri Amit Batra along
with her in-laws Shri S.R. Batra and Smt. Dhanwanti Batra. The House is though a two
floor building registered in the name of Smt. Dhanwanti Batra, but they all resided on
the ground floor of property situated at No. B-135 of Ashok Vihar in Phase I at Delhi110052.
In early 2002, few months after their son was born, relations between the Smt. Taruna
and Shri Amit Batra started deteriorating. According to Smt. Taruna, Shri Amit Batra
treated her cruelly. This made them shift to the second floor of the said property, which
became Smt. Tarunas matrimonial home. However, their shifting to the second floor did
not improve their relations, rather on the contrary, their relations deteriorated to such
an extent that Shri Amit Batra filed a divorce petition. To this Smt. Taruna registered an
FIR against Shri Amit Batra and other family members under the provisions of Sections
406/498A/506 and 34 of the Indian Penal Code (alleged to be counterblast to the
Divorce petition). On the basis of this complaint Shri Amit Batra and his parents were
arrested in January 2003. The happening of these events made it difficult for Smt.
Taruna to stay at her matrimonial home and therefore she shifted to her parents'
residence.

JUDGMENT:
Disagreeing with the view of the High Court the apex court observed that unlike in
England where the rights of spouses to the matrimonial home was governed by the
Matrimonial Homes Act, 1967, no such right exists in India. The Court held that the
house belonged to the motherin-law of the respondent and hence the respondent
cannot claim right to live in the said house. The court also held that the house could not
be said to be a 'shared household' within the meaning of Section 2(s) of the Protection
of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor
was it joint family property. Accordingly, the appeal was allowed. It laid down, that only
in three instance can the wife claim the husbands house as the matrimonial home, they
being; if the property was in the name of the husband; or if the husband was paying
rent of the property; or if the husband was a member of a joint family and the property
being undivided.
The court also went on to discuss the legal obligation of the husband to provide
residence to the wife. The fact that Amit Batra applied for a divorce from the Petitioner
(although the divorce petition is now said to have been dismissed in default) does not
take away his obligation.
Consequently, Amit Batra shifting from the second floor of the said property to
Ghaziabad would not ipso facto shift the Petitioner's matrimonial home to Ghaziabad.
Hence according to the Supreme Court in the present case there was no obligation of
the respondent to let the petitioner reside in the house that does not belong to their
son.
SOURCE (http://www.lawyersclubindia.com/articles/Case-Comment-S-R-Batra-v-TarunaBatra-1250.asp#.U7OYV5SSwcs)

NAME OF THE CASE:


8. Rajkumar Rampal Pandey Vs. Sarita Rajkumar Pandey
COURT:
BOMBAY
FACTS OF THE CASE:
The petitioner and respondent got married on 18.5.2001. The petitioner is working as
marketing executive. Sometime in the month of February, 2004, the respondent-wife
joined the petitioner and started residing with him in the shared household. The
continuous acrimony between them resulted in matrimonial discord, leading to divorce
petition by the husband on the ground of mental cruelty being Petition No. A-113/2007
and criminal complaint under Sections 498-A, 306 read with Section 34 of the Indian
Penal Code by the respondent-wife against the petitioner-husband.
The respondent-wife moved an application before the Family Court, Bandra under
Section 26 of the Protection of Women from Domestic Violence Act, 2005 ('the Domestic
Violence Act' for short) to seek declaration that she has a right to reside in the shared

house i.e. residential flat No. A-102, 'Om Adarsh Co-op. Housing Society Ltd. Deonar,'
Gowandi (hereinafter called the 'subject-flat') and decree of permanent injunction
restraining respondent-husband, his mother and relatives from evicting, dispossessing
and/or excluding the respondent-wife from the subject flat is said to be a shared
household.
The aforesaid application was opposed by the petitioner-husband, on the various
grounds, contending that the subject flat is in the name of his mother. The flat situate at
'Pamakuti, Chunna Bhatti' is in the name of his grandfather, occupied by his aunt and
other relatives. In short, he denied his interest in the subject-flat. He has also
challenged the maintainability of the subject application and prayed for rejection
thereof.
JUDGMENT:
This petition, filed by petitioner-husband under Article 227 of the Constitution of India, is
directed against the order dated 29.7.2008 passed below Exh. 10 in Petition No. A-113
of 2007 by the Principal Judge of the Family Court, Bandra, Mumbai whereby the
petitioner, his mother, sister, other relatives, servants and agents are restrained from
obstructing the respondent-wife to reside in a shared household.
Rule, returnable forthwith. Heard finally by consent of parties. Perused the petition.
SOURCE (http://www.legalcrystal.com/367832)

NAME OF THE CASE:


9. Aruna Parmod Shah vs Union Of India
BENCH:
V Sen, P.Bhasin
JUDGMENT
Vikramajit Sen, J.
FACTS OF THE CASE:
This Petition was originally listed before a Single Judge of this Court. The Petition
contains two prayers - (a) for declaring the Protection of Women from Domestic Violence
Act, 2005 (for short 'Act) as ultra vires the Constitution of India and (b) to quash the

proceedings before the Metropolitan Magistrate, New Delhi. Very briefly stated, the
Petitioner admits that a Ring Ceremony had been performed between him and
Respondent No. 2, but no marriage had been celebrated. Respondent No. 2 however
appears to have taken the stance that their marriage was duly solemnized.
Learned Counsel for the Petitioner has assailed the vires of the Act on the ground that
inasmuch as it provides protection only to women and not to men, the statute offends
Article 14 of the Constitution of India. It is beyond cavil that legislation must be
presumed to be legally sound and proper, and therefore the burden of proving that it is
unconstitutional rests heavily on the Petitioner who asserts so. It has been laid down
that if it is evident that a statute is predicated on an intelligible differentia between
persons falling within the protection of the provision viz-a-viz those falling outside, and
this classification/differentia bears a reasonable nexus to the object sought to be
achieved by the legislation, it would not infract or impinge upon the equality doctrine
articulated and enshrined in Article 14 of the Constitution.
JUDGMENT:
After hearing learned Counsel for the petitioner at great length we had suggested to
him that it would be in the interest of justice of the petitioner to address and
concentrate upon prayer (b) relating to the quashing of the proceedings before the
Metropolitan Magistrate. He has, however, insisted that the Act is ultra vires the
Constitution, thereby needlessly wasting public time on an issue in respect of which no
arguments of substance have been articulated. The challenge to the vires of the
Protection of Women from Domestic Violence Act is misconceived and devoid of merit.
The challenge is dismissed with costs of Rupees Three Thousand to be paid by the
Petitioner to Legal Aid for Women, Children, SC, ST and Poor, Delhi High Court, New
Delhi to be deposited within two weeks from today.
SOURCE (http://www.indiankanoon.org/doc/511970/)

NAME OF TH CASE:
10. Smt. Neetu Singh Vs. Sunil Singh
COURT:
Chhattisgarh
Judge:
L.C. Bhadoo and; Sunil Kumar Sinha, JJ.
FACTS OF THE CASE:

Facts necessary for the disposal of this appeal are that the appellant herein filed an
application under Section 12 of the Act, 2005 read with Section 7 of the Family Courts
Act, 1984, in the Court of Judge, Family Court, and Bilaspur on 13-6-2006 with the
averments that the appellant was married to respondent on 28-4-2003 as per the Hindu
custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and
neglect behaviour. In connection with demand of money in-laws started beating the
appellant and she was thrown out of the matrimonial house, against which reports were
lodged in the Police Station on 7-8-2003 and 16-9-2004. On 9-11-2004, the appellant
sent a notice to the respondent reminding him about his matrimonial duties, thereafter
the appellant filed an application under Section 125 of the Cr. P.C. in the Court of Chief
Judicial Magistrate, Bilaspur, from where same has been transferred to the Family Court,
Bilaspur. The Family Court vide its order dated 20th April, 2005 passed an order for
interim maintenance to the tune of Rs. 1500/- per month. Her husband is earning about
Rs. 20,000/-per month. The in-laws have refused to return her articles which were given
to her by her parents in her marriage.
On the contrary, they have levelled false allegation of character assassination against
the appellant, complaint of which was made by her in the Police Station. Ultimately, the
appellant demanded Rs. 2 lakhs which were spent by her parents on arrangement of the
marriage i.e. on tent, shamiyana & food, an amount of Rs. 1, 56,792, value of articles,
which were given to her in the dowry and Rs. 1 lakh for subjecting her to cruelty and
character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence
of the appellant, passed the impugned order.
JUDGMENT:
In view of the above scheme of the Act, especially as per the provisions of Section 26 of
the Act, the appellant herein is entitled to seek relief available to her under Sections 18,
19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family
Court, Bilaspur. But the appellant is required to move an application under Section 26
read with Section in which she is seeking relief. However, instead of doing that, the
appellant moved an independent fresh application under Section 12 of the Act, 2005
which can be entertained only by the Magistrate having jurisdiction. An application
under Section 12 cannot be filed before Family Court because proceeding under Section
12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate
competent to entertain the application.
In the circumstances, we do not find any illegality or infirmity in the order impugned
passed by the learned Judge, Family Court. The appeal is, therefore, liable to be
dismissed and it is hereby dismissed. Still the appellant is entitled to move an
application under Section 12 of the Act, 2005 before the Family Court in the
maintenance proceeding said to be pending before that Court.
SOURCE (http://www.legalcrystal.com/496843)