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SRIDHARA BABU.

N Advocate Tumkur, Karnataka, PH: 9880339764


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IN THE COURT OF THE HON’BLE DISTRICT


AND SESSIONS JUDGE AT …………………

Crl. Appeal /2013

APPELLANT VS RESPONDENTS

…………… …………….

MEMORANDUM OF WRITTEN ARGUMENTS FILED ON BEHALF


OF APPELLANT:-

A) INTRODUCTION:- This appeal is filed against exparte interim


order passed on an application under section 20 of the D.V. Act by
the Prl Civil judge and JMFC at …………….

B). LOWER COURT ALLOWED EXPARTE ORDER FOR AN


APPLICATION UNDER SECTION 20 OF THE DV ACT BASED ON
THE FOLLOWING BRIEF POINTS:-

1. Allegations of dowry demand through phone calls (no


documents produced or witness quoted).

2. Allegations of cruelty both in Thirupathi and Saudi Arabia


from 1993 to 2000 (no such complaint made in 20 years – no
documents of such complaints produced).

3. Petitioner went to Thirupati to demand share in moveables


and immoveable properties for the welfare of children. (no
documents produced).

4. Respondent is getting 40 to 50 lakhs handsome income per


month. (No documentary evidence produced)
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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5. Father of the first respondent has bequeathed one building


which is situated at tirupathi in the name of complainant no. 2 to
4. The respondent 2 not sending rentals fetched by that building.
(No documentary proof quoted or attached, no identification
of property quoted either with street or locality – Vague
claim).

6. From the passport court assumed that respondent is


working in saudi Arabia and getting sufficient income. (Such
recitals of income details and nature of work as on the date
of petition cannot be found in passport)

7. From other documents court assumed the relationship of


parties. (Mere assumption of relationship is no proof as to
domestics violence)

C). BRIEF GROUNDS PLEADED IN APPEAL:-

1. Exercise of judicial powers in such pattern is bad in law.


2. Complaint cannot be entertained - only report from proper
authority need to be considered.
3. Non examination to elicit material particulars as required
under law not made before issuing process.
4. No retrospective effect can be given in application of act to
the acts that took place before 2006.
5. Material particulars as to income not there on record to pass
interim order.
6. Appellant is jobless from October 2010.
7. Under Islamic law all child above the age of 12 years shall be
treated as major.
8. Exercise of erroneous jurisdiction.
9. Arbitrary, capricious and perverse exercise of powers by
lower court without indulgence.
10. Basic law applicable to the facts of the case ignored.
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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D). CONTRARY STATEMENT OF COMPLAINANT IN THE


COMPLAINT WHICH IS CLEAR MISREPRESENTATION OF
FACTS:-

1. In para 6 of the complaint “At no point of time since from 12


years the respondents not paid any single NP towards maintenance
of the complainant” CONTRARILY, In para 9 of the complaint
“After death of father of the first respondent in the year 2003 the
second respondent has paid Rs 4000/- per month till one year only
by sending money order to the complainants regarding the rent of
the said building” The building alleged is the self acquired property
of 2nd respondent which is fraudulently mis-represented.

2. In para 7 of the complaint “Complainants are entirely


depending upon the parents of the first complainants towards their
food, clothing and other necessities” CONTRARILY, In para 10 of
the complaint “Complainants having no source of income to
maintain themselves. It is by obtaining hand loans the complainants
are maintaining themselves”.

3. In cause title second complainant’s age is mentioned as 17


years CONTRARILY, in para 7 of the complaint 2nd complainant is
stated to be studying in 2nd year Mechanical Engineering that is
(5+10+2+2 = 19 years), suppression of material facts from
represented prima facie facts pleaded by complainant themselves.

4. In cause title third complainant’s age is mentioned as 14


years CONTRARILY, in para 6 of the complaint 3rd complainant is
stated to be born in 1996 (17 years), in para 7 of the complaint
stated to be studying in 1st year PUC that is (5+10+1 = 16 years),
suppression of material facts from represented prima facie facts
pleaded by complainant themselves.
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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5. In cause title fourth complainant’s age is mentioned as 12


years CONTRARILY, in para 6 complainant states that since from
2000 complainant is residing with her parents. Her own version
has not shown represented prima facie the fourth complainant as
being born to the 1st respondent.

If the above facts are true

1. Complainant should have filed Money order receipts or


accounts and not have taken contrary version. This shows
complainant is hiding something material fact before the court.
2. Complainant would have disclosed what amount has been
borrowed from whom. Mere vague allegations have been made.
3. 1st Complainant would have disclosed exact date of birth of
other complainants, which is perfectly within the knowledge of
complainant.

Since the above contrary represented facts are false, the


complainant exercised fraud upon court to obtain ex-parte
orders, it is settled law fraud and Justice never dwell together.

Hamza Haji v. State of Kerala & Anr. AIR 2006 SC 3028 it has
been held that no court will allow itself to be used as an
instrument of fraud and no court, by way of rule of evidence and
procedure, can allow its eyes to be closed to the fact it is being
used as an instrument of fraud. The basic principle is that a party
who secures the judgment by taking recourse to fraud should not
be enabled to enjoy the fruits thereof.

In Ram Chandra Singh vs. Savitri Devi and others, reported in


(2003) 8 SCC 319, the Hon'ble Apex Court has held that it is a
fraud in law if a party makes representations which he knows to be
false and injury ensues therefrom although the motive from which
the representations proceeded may not be bad.
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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E). BEFORE PASSING ANY ITERIM ORDER / ENTERTAINING


ANY COMPLAINT UNDER DV ACT AND RULES - WHAT
MANDATORY LEGAL ASPECTS NEEDS TO BE LOOKED INTO
BY THE LEARNED MAGISTRATE OF LOWER COURT?
 Whether the complaint discloses prima facie facts of
domestic violence?

 Whether all the facts stated in the complaint are as nearly as


possible disclose necessary aspects as prescribed under
form-II?

 Whether complainant had shared household with


respondent for the past 1 year?

 Whether complainant shows there is repeated forms of


domestic violence as disclosed in the act, to set at rest the
limitation aspect?

 Whether the facts stated in the complaint has any doubtful


circumstances or has any self-contradictory statements ?

 Whether the statement in the complaint is sworned with


proper affidavit?

 Before making any order on the complaint including order to


summon is it necessary to have speedy summary enquiry
report of alleged facts?

 What is the impending danger faced by complainant in


issuing interim order?

 Whether there is any cause explained for delay in


approaching court?

 Whether on prima facie exaggeration of claims have been


made, in the form of false averments?

 Whether the complainant knows the contents of the


complainant or simply a draft prepared to misuse law?
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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 Is there any material produced to substantiate the financial


capability of respondent or any effort is made to secure it to
show financial capacity of respondent?

 Is there any material produced to show economic burden


and depravity of complainant?

 Is there any material produced to show physical or


psychological form of violence and cruelty with any
documentary proof of complaints or medical certificates?

 (Each facts need different aspects to be previewed)

F). COMPLAINT ITSELF IS BAD IN LAW:- Section 12 of the


Protection of Women from Domestic Violence Act, 2005, Magistrate
shall take into consideration any domestic incident report received
from the Protection Officer or the Services provider before issuing
notice to the respondents. This mandatory proviso of subsection 1
of Section 12 of the DV Act has not been complied with even before
issuing notice. Hence, instituting of this case is bad in law and is
in contravention of Section 12 of DV Act. The order mentioned in
the provision includes ‘order to issue notice to summon
respondents’.

Amar Nath And Others vs State Of Haryana & Others AIR


1977 SC 2185 “The impugned order was, therefore, one of
moment to the appellants involving a decision regarding their
rights. Compelling the appellants to face a trial without proper
application of mind by the Magistrate, cannot be held to be an
interlocutory matter but one which decided a serious question as
to the rights of the appellants.”

G). IMPLEADING 2ND RESPONDENT IS BAD IN LAW;- From the


definition given to a respondent in DV case it would be apparent
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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that although Section 2(q) of the said Act gives the meaning of
respondent "as any adult male person, who is or has been in a
domestic relationship with the aggrieved person and against whom
the aggrieved person has sought any relief under the said Act.
Going by this definition, women cannot be arrayed as
respondents in the complaint under the said Act.

H). SECOND RESPONDENTS ABSOLUTE PROPERTY CAN


NEVER BE A SHARED HOUSE HOLD OR COMPLAINANTS CAN
ASSERT RIGHTS OVER THE SAME:-

The second respondent in the complaint is alleged to have been in


custody of property bequeathed to complainant 2 to 4, which is
again a false averment. The property which is alleged is the
absolute property of the 2nd respondent which never to be a shared
house hold. Interpreting the provisions of the Domestic Violence
Act Court in S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169
held that even a wife could not claim a right of residence in the
property belonging to her mother-in-law.

I). IMPORTANCE OF DOMESTIC VIOLENCE REPORT IS TO


ASCERTAIN REALITY OF INCIDENT:- An application under
Section 12 of Domestic Violence Act has to be treated in
accordance with provisions given under the Domestic Violence Act.
Domestic Violence Act provides for obtaining domestic incident
report. The domestic incident report proforma is given in form 1 of
the schedule 2 of Domestic Violence Rules. This proforma is in
detailed analytical form wherein the details of each incident of
domestic violence are to be entered with date, time and place of
violence and person who caused domestic violence. The purpose is
that all allegations made in application must be specific and the
Court should not exercise jurisdiction without considering
domestic incident report since it is necessary for the Court to know
before issuing any notice to respondent as to who was the
respondent who caused domestic violence and what was the
nature of violence and when it was committed. The proforma
specifies different heads of physical violence, sexual violence,
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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verbal and emotional abuse, economic violence, dowry related


harassment and other forms of violence. The proforma also
provides for filing of documents in support of the application like
medico-legal certificate, list of stridhan and other documents. This
domestic incident report has to be signed by the aggrieved person.
The application under Section 12 is required to be made in form 2
of the Rules wherein the details of various kinds of reliefs and
expenses are to be given.

J). FOLLOWING IMPROPER PROCEDURE HAS RESULTED IN


SUPPRESSION OF MATERIAL FACTS AND EVENTS WHICH
CAUSED PREJUDICE TO THE APPELLANT:-

FORM-1 & FORM-3 MANDATORY:- Rules 5 and 6 of the Domestic


Violence Rules 2006, which enables the Protection Officer to report
to the Magistrate in Form No. 1. The application made under
Section 12 of the DV Act is not supported by an affidavit in Form
No.3, and hence the proceedings initiated against the appellant is
bad in law. Hence, the impugned order/ case itself is liable to set
aside. The Protection Officer or service provider's report is required
to be considered by the Magistrate while passing an order of
issuing notice or for issuing an order for compensation for
damages, if any, or an application filed by the petitioner. An
Affidavit under Form no. 3 and Rule 6 of the Domestic Violence
Rules, is required to made where the application for compensation
for damages is made.

K). SECTION 12(3) OF DV ACT & RULE 6(4) & 7 OF DV RULES,


USES WORD “SHALL” WHICH MAKES MANDATORY TO FILE
AFFIDAVIT AND SUCH PARTICULARS IN FORM III BEFORE
ISSUING EXPARTE ORDER, IT DOES NOT SAY AS NEARLY AS
POSSIBLE AS SAID IN RULE 6(1) .

SUB-SECTION 3 OF SECTION 12 provides that every application


under sub- section 1 shall be in such form and contain such
particulars as may be prescribed.
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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RULE 6 of the Protection of Women from Domestic Violence Rules,


2006 reads: " (1) Every application of the aggrieved person under
section 12 shall be in Form-II or as nearly as possible thereto.
(2) An aggrieved person may seek the assistance of the Protection
Officer in preparing her application under sub-rule (1) and
forwarding the same to the concerned Magistrate.
(3) In case the aggrieved person is illiterate, the Protection Officer
shall read over the application and explain to her the contents
thereof.
(4) The affidavit to the filed under sub-section (2) of section 23
shall be filed in Form-III.
(5) The application under section 12 shall be dealt with and the
orders enforced in the same manner laid down under section 125
of the Code of Criminal Procedure, 1973 (2 of 1974)."

RULE 7:- Affidavit for obtaining ex-parte orders of Magistrate:-


Every affidavit for obtaining ex-parte order under sub-section (2) of
section 23 shall be filed in Form III."

L). IMPORTANT FACTS NOT PLEADED/ SWORNED - TO PASS


EXPARTE ORDERS:- It is absolutely clear from Form III, affidavit
to be filed to get an interim relief under section 23(2) of the Act.
Paragraph 4, 6, 9, 10 of Form III reads:-
“4. The deponent had been living with respondent at ………. Since
…………… to ………………….”
“6. The contents of the application have been read over, explained
to me in English/hindi/any other language ………..”
“9. That the respondent has threatened the applicant that
………….. ………………………………
“10. That the reliefs claimed in the accompanying application are
urgent in as much as the applicant would face great financial
hardship and would be forced to live under threat of repetition/
escalation of acts of domestic violence complained of in the
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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accompanying application by the respondent(s), if the said reliefs


are not granted on an ex-parte ad interim basis.”

With the above requisite facts of the affidavit it is clear affidavit


specifically requires to state in para 4, from when and where she is
living with respondent, it also checks in para 6 whether contents
have been explained in language known to her or it is only
advocate allegations, it also wants to disclose in para 9 what type
of impending threats respondent made, in para 10 existence of
financial hardship, repetition and escalation of domestic violence if
exparte order is not granted has to be sworned.

The complainant has not disclosed such facts in the affidavit filed
in support of IA and has not disclosed escalation of hardship occur
in such situation when such hardship has not been there for 20
years throughout where she remained silent.

M). THE ABOVE PROVISIONS OF DV ACT AND RULES IS SELF


EXPLANATORY AS TO HOW COURT SHOULD ACT:-

It is settled law that court should follow the law as laid down by
act and rules.

In Manish Goel vs Rohini Goel AIR 2010 SC 1099 it is held as


follows “Generally, no Court has competence to issue a direction
contrary to law nor the Court can direct an authority to act in
contravention of the statutory provisions. The courts are meant to
enforce the rule of law and not to pass the orders or directions
which are contrary to what has been injected by law. (Vide State of
Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC
175; State of U.P. & Ors. v. Harish Chandra & Ors. AIR
1996 SC 2173; Union of India & Anr. v. Kirloskar Pneumatic
Co. Ltd. AIR 1996 SC 3285; Vice Chancellor, University of
Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors.
(1997) 10 SCC 264; andKarnataka State Road Transport
Corporation v. Ashrafulla Khan & Ors. AIR 2002 SC 629).”
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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N). DOMESTIC RELATIONSHIP IN THE NATURE OF MARRIAGE


SHOULD HAVE BEEN CONTINUED AT THE TIME OF ALLEGED
DOMESTIC VIOLENCE

D. Velusamy vs D.Patchaiammal Reported in (2010) 10 SCC


469
FACTS:- The appellant herein has alleged that he was married
according to the Hindu Customary Rites with one Lakshmi on
25.6.1980. Out of the wedlock with Lakshmi a male child was
born, who is now studying in an Engineering college at Ooty. The
petitioner is working as a Secondary Teacher in Thevanga Higher
Secondary School, Coimbatore. ……… It appears that the
respondent-D. Patchaiammal filed a petition under Section 125
Cr.P.C. in the year 2001 before the Family Court at Coimbatore in
which she alleged that she was married to the appellant herein on
14.9.1986 and since then the appellant herein and she lived
together in her father's house for two or three years. It is alleged in
the petition that after two or three years the appellant herein left
the house of the respondent's father and started living in his native
place, but would visit the respondent occasionally. ………… Thus it
is the own case of the respondent herein that the appellant left her
in 1988 or 1989 (i.e. two or three years after the alleged marriage
in 1986). Why then was the petition under Section 125 Cr.P.C.
filed in the year 2001, i.e. after a delay of about twelve years, shall
have to be satisfactorily explained by the respondent. This fact also
creates some doubt about the case of the respondent herein.
WHAT COURT HELD:-
However, the question has also be to be examined from the point of
view of The Protection of Women from Domestic Violence Act,
2005. In PARA 33. Court held that “In our opinion a
`relationship in the nature of marriage' is akin to a common law
marriage. Common law marriages require that although not being
formally married :-
(a) The couple must hold themselves out to society as being akin to
spouses.
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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(b) They must be of legal age to marry.


(c) They must be otherwise qualified to enter into a legal marriage,
including being unmarried.
(d) They must have voluntarily cohabited and held themselves out
to the world as being akin to spouses for a significant period of
time.
In our opinion a `relationship in the nature of marriage' under the
2005 Act must also fulfill the above requirements, and in addition
the parties must have lived together in a `shared household' as
defined in Section 2(s) of the Act. Merely spending weekends
together or a one night stand would not make it a `domestic
relationship'.
PARA 39. …………………whether the appellant and respondent
had lived together for a reasonably long period of time in a
relationship which was in the nature of marriage. In our opinion
such findings were essential to decide this case.”

O). MAINTENANCE ORDERS CAN BE PASSED ONLY AT THE


TIME OF DISPOSAL OF APPLICATION UNDER SECTION 12(1)

D. Velusamy vs D.Patchaiammal Reported in (2010) 10 SCC


469 In PARA 18. Court held that “An aggrieved person under the
Act can approach the Magistrate under Section 12 for the relief
mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate
can grant maintenance while disposing of the application under
Section 12(1).”

P). IN THIS CASE THE VERY PURPOSE OF THIS ACT IS BEING


ABUSED:

ABUSING THE TIME OF THE COURT:


This act came in to effect on (1)26th of October, 2006 with a good
purpose to protect the aggrieved women under domestic violence
with the scope of covering those women who are under (2) shared
household, and who are in (3) domestic relationship and who are
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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(4) aggrieved women under (5) domestic violence and approach for
reliefs with (6) clean hands.

Therefore, The very jurisdiction , scope and the purpose of this act
is to protect the aggrieved woman from the domestic violence but
not finance the undutiful, disobedient woman who desert the
husband for 17 years out of 20 years of marriage life and separate
the innocent children from their father, brainwashes the children
against the father, and trains the children not to call the father as
father, and live her life to her taste with full freedom away from
husband, doing activities against the will of the husband and
blackmailing the husband, demanding money from the husband to
show the children to their father and threatening the husband if he
visits the school to see his own children. Taking the oath that she
would see that even the shadow of the husband would not fall on
her children. This cruelty has caused a permanent, irreparable
damage on the relationship between the father and children which
is an unforgivable sin committed by the Complainant No.1.

But she wants money of the husband and threatening the old
mother of the husband calling in midnights that she would put her
in jail if huge amounts are not paid.

G. Sagar Suri & Anr. vs State Of U.P. & Ors. AIR 2000 SC 754
“It is to be seen if a matter, which is essentially of civil nature, has
been given a cloak of criminal offence. Criminal proceedings are
not a short cut of other remedies available in law. Before issuing
process a criminal Court has to exercise a great deal of caution.
For the accused it is a serious matter.”

Q). NO SHARED HOUSEHOLD:

The petitioner herself had admitted that she had been living on her
own in her parents house in Mysore from the year 2000 onwards
in page 3- parah 6 of the application and page2 - parah 5 of the
affidavit confirming that there was no shared household with the
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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respondent from 2000 onwards.This act came in to effect from


26.10.2006 onwards.
Therefore the complaint itself is not maintainable.

RELIED CITATION OF KARNATAKA HIGH COURT:-

K. Narasimhan Vs Smt. Rohini Devanathan, ILR 2010(1) Kar


669: 2010(2) AIR Kar R 20 : AIR 2010 NOC 777: 2010 (5) KLJ
305, 2010 Cri L J 2173 “On the facts held, As per the complaint
itself, there is no mention that the respondent and the petitioner
herein were living together under the same shelter. In the
circumstances, the proceedings initiated against the petitioner and
also the complaint filed by the respondent is abuse of process.
Hence the proceedings pending before the Trial Court in so as the
petitioner is concerned are quashed.”

FACTS OF THE ABOVE CASE IS SIMILAR TO THAT OF THIS


CASE:- “The only allegation against the petitioner is that at the
instance of the first accused i.e. the husband of the respondent,
she approached the petitioner at Chennai and there she was
abused which according to the petitioner is emotional
abuse. As par Section 2(f) or Section 2(s), when the petitioner and
respondent never stayed together in the same household, the
question of making allegations against him would not arise.
Moreover, the petitioner was residing in Canada and only when he
came to India, he stayed at Chennai.”
“In the circumstance making certain allegations against the
respondent by itself would not amount to domestic violence in the
absence of ingredient of shared household and there is no proof of
petitioner and the respondent having lived together or were
living together at any point of time. In the
circumstances, the proceedings initiated against the petitioner and
also the complaint filed by the respondent is abuse of process.”

R). NO DOMESTIC RELATIONSHIP WITH THE RESPONDENT


FROM 2000 ONWARDS:
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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The petitioner herself admitted that from year 2000 onwards there
is no domestic relationship with the respondent in page2- parah5
of Affidavit and page-3-para 6 of application.
The scope of this act is for those women who are in domestic
relationship from the date of enforcement of the act which is
26.10.2006 onwards.
Therefore the complaint itself is not maintainable

ENTIRE COMPLAINT AVERMENTS SAY AFTER YEAR 2000


THERE IS TELEPHONIC DEMANDS OF DOWRY WHICH IS NOT
DOMESTIC VIOLENCE UNDER THE LAW:-

Vijay Verma Vs. State NCT of Delhi and another, 2010(7) RCR
(Criminal) 1145 One has to make distinction between violence
committed on a person living separate in a separate household and
the violence committed on a person living in the shared household.
Only violence committed by a person while living in the shared
household can constitute domestic violence. A person may be
threatening another person 100 miles away on telephone or by
messages etc. This may amount to an offence under IPC, but, this
cannot amount to domestic violence. Similarly, emotional
blackmail, economic abuse and physical abuse can take place
even when persons are living miles away. Such abuses are not
covered under Domestic Violence Act but they are liable to be
punished under Penal laws. Domestic Violence is a violence which
is committed when parties are in domestic relationship, sharing
same household and sharing all the household goods with an
opportunity to commit violence.

S). THE DV ACT IS NOT RETROSPECTIVELY APPLICABLE.

Justification: Making Certain allegations against the respondent


by itself would not amount to domestic violence in the absence of
ingredient of shared household as per DV Act-2005 and there is no
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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proof of petitioner and the respondent having lived together or were


living together at any point of time since the petitioner had left the
shared household 13 years ago from Saudi Arabia along with her
parents separating the children mercilessly from their father in an
inhuman way.

RELIED CITATION OF P&H HIGH COURT RULING:-


Smt. Gita versus Smt. Raj Balaand others 2010 (2) R.C.R.
(Criminal) 84.
Smt.Gita seeks quashing of notice/summoning order dated
19.7.2006 passed by ACJM, Faridabad. She is a married sister-in-
law of the complainant and is separately residing at her
matrimonial home at Palwal, but is summoned to face prosecution
under the provisions of Protection of Women from Domestic
Violence Act, 2005. …….. it is clearly provided in the Act that it
shall come into force on such date as the Central Government may
by notification in the official Gazette appoint. This Act came into
force on 26.10.2006, as already noticed. Thus, the legislature had
given power to the Central Government, delegated authority to
notify the date from which the Act was to come into force. …………
so the Magistrate could take cognizance on 19.7.2006, if permitted
would violate the provisions of Article 20 of Constitution of India.
Article 20 grants protection in respect of conviction for offences by
providing that no person shall be convicted of any offence except
for violation of law in force at the time of the commission of the act
charged as an offence. As per this Article, when a certain act is not
an offence according to law in force at the time when the act is
done, the person who does that act must not be held guilty of an
offence merely because subsequently a law is made making such
act an offence. When the petitioner is alleged to have committed
the offences under various sections of the Domestic Violence Act,
which is not in force on the date of such acts, then the charge
framed under the said sections would not be maintainable in view
of Art. 20(1) of the Constitution as the said penal provisions were
not in existence when the alleged offences were committed. In fact,
there was no law in force at the time when the petitioner allegedly
committed these acts and, therefore, would be entitled to the
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protection of Art.20(1) of the Constitution. Once the Act came into


operation on 26.10.2006, the various provisions of the Act creating
offences would not be an offences for which the petitioner can be
put to trial. The action of the court in taking cognizance on the
basis of this complaint on 19.7.2006, as such, cannot be
sustained. The summoning order, thus, cannot be sustained and
the same is set-aside.

T). THE ELEMENT OF THE BIG GAP OF 13 YEARS DELAY IN


FILING COMPLAINT IGNORED IN THE ABOVE CASE:-

Where there was a lapse of 13 years, petitioner and respondents,


had not been in contact with each other physically or otherwise for
the last 13 years before filing the complaint.

In similar such case it was held that “After a big gap of 15 years, a
respondent cannot claim alleging economic abuse” Kishore Vs
Sou. Shalini 2010(5) CRLJ 86(Bom), 2010 ALL MR (Cri) 1386
In the said case it is observed that “Looking to Explanation - I (iv)
sub clause (c) to Section 3 of the Act of 2005 the same shows that
there has to be prohibition or restriction to continued access to
resources which the aggrieved person is entitled to use and enjoy.
There is neither any prohibition averred in the complaint anywhere
by the petitioner thereof nor any averment that he had put any
restriction or full or part use thereof or that there was use made by
the respondents just before filing of the complaint or recent past
before the complaint and that the continuity thereof was broken by
the petitioner. On the contrary, it is an admitted position that for
the last 15 years there has been no contact or relationship between
them. Perusal of the Explanation - II shows that the Court is
required to take into consideration overall facts and
circumstances. Explanation - II appears to have been inserted
specifically with a view to enable the Court to find out the
deserving and undeserving cases, which will be filed under the
provisions of the Act of 2005. In the instant case the various
factual aspects which I have noted above and in particular
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regarding the total eclipse for the period of 15 long years and in the
absence of any complaint regarding domestic violence at any point
of time before filing of the complaint in the recent past thereof or
within reasonable period this Court is of the opinion that overall
facts and circumstances of this case clearly show that even if the
averments in the complaint are taken to be true at their face value,
no case of domestic violence can even be inferred by the Court. The
respondents could have adopted their remedy available under the
other Laws for enhancement of maintenance or accommodation or
rental or as the case may be, but certainly in the light of the above
discussion the respondents were not entitled to take recourse to
the Act of 2005. Consequently, the Court did not get jurisdiction
under Section 27 of the Act of 2005 to entertain the complaint
which was not maintainable for the above reasons. Both
respondents, however, were entitled to take recourse to remedies
under other Laws. ….. It is true as argued by learned Counsel for
the respondents that the Act of 2005 is beneficial piece of
legislation, but then the provisions of the Act of 2005 and in
particular Explanation - II thereof clearly show that domestic
violence cannot readily be inferred but will have to be found out on
the facts and circumstances of each case. In the instant case
according to me domestic violence having been alleged only after
15 years by the respondents would constitute an abuse of process
of law. Certainly this beneficial piece of legislation would be
available to those who are entitled to the benefits thereof and in
the instant case, I have found that the respondents are not entitled
to at least under the Act of 2005 though they may be entitled
to the reliefs sought by them in the proceedings in some other Law.
In the result, writ petition must succeed. Hence, Misc. Criminal
Complaint Case No.314/2007 before the Judicial Magistrate First
Class, Court No.5, Amravati under Section 12 r/w Sections 19 and
20 of the Protection of Women from Domestic Violence Act, 2005 is
not maintainable and is thus quashed and consequently. all the
orders passed in the said complaint by the Courts below are
quashed.
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U). THE COURT DID NOT CONSIDER THE FOLLOWING PRIMA


FACIE FACTS - BUT PASSED THE INTERIM EX-PARTE
ORDERS WITHOUT APPLICATION OF MIND – HOW PASSPORT
CAME TO THE CUSTODY OF WIFE NOT EXPLAINED:-

In Para-6 of the order the learned judge justifies the interim order
stating that “………Anyhow from the passport produced by the
petitioner it can be assumed that he is working at Saudi Arabia and
he is getting sufficient income. Thus this court is of the opinion that
……”
A passport is a travel document and there is nothing from which a
judge or anyone can assume that the respondent has sufficient
income.

Nrisingha Murari Chakraborty & ... vs State Of West Bengal


AIR 1977 SC 1174, “A passport is a document which by its
nature and purpose is a political document for the benefit Of its
holder. It recognises him as a citizen of the country granting it and
is in the nature of a request to the other country for his free
passage there. It is the property of the State so long as it is with
the passport issuing authority and has not been issued to the
person concerned, and after issue it becomes the property of the
person to whom it has been granted. Passport can be the subject of
ownership or exclu- sive possession and is therefore property
within the meaning of sections 415 and 420 I.P.C.”

And hence grave error has been committed by the Hon’ble


Trial Court, in assuming strangely about passport without
looking into its legal nature, which caused grave injustice to
the appellant herein.

V). UNDER MOHAMMEDAN LAW MOTHER CANNOT ACT AS


GAURDIAN OF MINOR:-
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Without prejudice to our contention that complainant 2 to 4 are


Majors under muslim law. The 1st complainant having filed
complaint having assumed as natural guardian of complainant 2
to 4 may not have been allowed by lower court due to settled law
that - Under Mohamedan law mother can never be the guardian or
custodian of minor children. Mother of a Muslim minor cannot act
or be appointed as the guardian of such minor. (Mahboobh Sahib
v. Syed Ismail - AIR 1995 SC 1205).

W). NO CHILD CAN BE AN AGRIEVED PERSON UNDER THE DV


ACT:-

Under Section 2 (a) "aggrieved person" means any woman who is,
or has been, in a domestic relationship with the respondent and
who alleges to have been subjected to any act of domestic violence
by the respondent;

Under Section 20 (d) the maintenance for the aggrieved person as


well as her children, if any, including an order under or in addition
to an order of maintenance under Section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force.

So DV Act does not exclude order of maintenance under any other


law for the time being in force. The Muslim personal law of
maintenance governs such case. Even if petition under Section 125
Crpc is filed, Whereas the 1986 Act deals with the obligation of a
Muslim husband vis-a-vis his divorced wife including the payment
of maintenance to her for a period of two years of fosterage for
maintaining the infant/infants, where they are in the custody of
the mother, the obligation of a Muslim father to maintain the
minor children is governed by such law.

X). COMPLAINANT MADE EFFORT IN HER COMPLAINT TO GET


SYMPATHY WITH FALSE FACTS:-
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It is settled law that sympathy and sentiment does not allow court
to make its decision process. In the case of Vimalben Ajitbhai
Patel vs Vatslabeen Ashokbhai Patel Reported in AIR 2008 SC
2675 = 2008 (4 ) SCR 1077 = 2008 (4
) SCC 649 Sympathy or sentiment, as is well known, should
not allow the Court to have any effect in its decision making
process. Sympathy or sentiment can be invoked only in favour a
person who is entitled thereto. It should never be taken into
consideration as a result whereof the other side would suffer civil
or evil consequences.

Y). COMPLAINT UNDER DV ACT SHOULD HAVE TO BE FILED


WITHIN ONE YEAR OF THE INCIDENT:- In the instant case
allegation of shared household domestic violence traces back to 13
years back, the complaint itself not maintainable under law.

Justice P. Sathasivam, and Justice B.S. Chauhan of the


Supreme Court of India in the case of Inderjit Singh Grewal vs
State Of Punjab & Anr Cited in 2011 (10) SCR 557 = 2011
(12) SCC 588 held as follows “……… In view of the provisions of
Section 468 Cr.P.C., that the complaint could be filed only within a
period of one year from the date of the incident seem to be
preponderous (superior) in view of the provisions of Sections 28
and 32 of the Act 2005 read with Rule 15(6) of The Protection of
Women from Domestic Violence Rules, 2006 which make the
provisions of Cr.P.C. applicable and stand fortified (to make strong)
by the judgments of this court in Japani Sahoo v. Chandra Sekhar
Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs
Association v. Noida & Ors., (2011) 6 SCC 508.”

Z). LITIGANTS WHO OBTAIN EXPARTE ORDERS WITH FALSE


FACTS SHOULD BE DISCOURAGED:-

Justice Dalveer Bhandari and Justice Deepak Verma in


Ramrameshwari Devi & Ors. vs Nirmala Devi & Ors. Before
Supreme Court of India 2011 (8 ) SCR 992, “We are clearly of
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the view that unless we ensure that wrong- doers are denied profit
or undue benefit from the frivolous litigation, it would be difficult
to control frivolous and uncalled for litigations. In order to curb
uncalled for and frivolous litigation, the courts have to ensure that
there is no incentive or motive for uncalled for litigation. It is a
matter of common experience that court's otherwise scarce and
valuable time is consumed or more appropriately wasted in a large
number of uncalled for cases. ……….. Pleadings are foundation of
the claims of parties………..It is the bounden duty and obligation of
the trial judge to carefully scrutinize, check and verify the
pleadings and the documents filed by the parties. This must be
done immediately after ……. suits are filed. The Court should
resort to discovery and production of documents and
interrogatories at the earliest according to the object of the Act. If
this exercise is carefully carried out, it would focus the
controversies involved in the case and help the court in arriving at
truth of the matter and doing substantial justice… Imposition of
actual, realistic or proper costs and or ordering prosecution would
go a long way in controlling the tendency of introducing false
pleadings and forged and fabricated documents by the
litigants…….In appropriate cases the courts may consider ordering
prosecution otherwise it may not be possible to maintain purity
and sanctity of judicial proceedings. …………….Litigants who
obtained ex-parte ad interim injunction on the strength of false
pleadings and forged documents should be adequately punished.
No one should be allowed to abuse the process of the court.
…..Every case emanates from a human or a commercial problem
and the Court must make serious endeavour to resolve the
problem within the framework of law and in accordance with the
well settled principles of law and justice.”

AA). JUDGES MUST HAVE COMPLETE GRIP OF THE FACTS


BEFORE THEY START DEALING WITH THE CASE

Court in Dalip Singh v. State of U.P. and Others (2010) 2 SCC


114 observed that truth constitutes an integral part of the justice
delivery system which was in vogue in pre-independence era and
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the people used to feel proud to tell truth in the courts irrespective
of the consequences. However, post-independence period has seen
drastic changes in our value system. ........... As stated in the
preceding paragraphs, the pleadings are foundation of litigation
but experience reveals that sufficient attention is not paid to the
pleadings and documents by the judicial officers before dealing
with the case. It is the bounden duty and obligation of the parties
to investigate and satisfy themselves as to the correctness and the
authenticity of the matter pleaded................ The pleadings must
set-forth sufficient factual details to the extent that it reduces the
ability to put forward a false or exaggerated claim or defence. The
pleadings must inspire confidence and credibility. If false
averments, evasive denials or false denials are introduced, then the
Court must carefully look into it while deciding a case and insist
that those who approach the Court must approach it with clean
hands.................. It is imperative that judges must have complete
grip of the facts before they start dealing with the case.

BB). LITIGANTS MUST OBSERVE TOTAL CLARITY AND


CANDOUR IN THEIR PLEADINGS 2011 SC

Amar Singh vs Union Of India & Ors. 2011 (6


) SCR 403 = 2011 (7) SCC 69 It is one of the fundamental
principles of jurisprudence that litigants must observe total clarity
and candour in their pleadings

CC). LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT


THOSE WHO ARE INDOLENT

A.C. Arulappan vs Smt. Ahalya Naik (2001) 6 SCC 600 …….The


general policy of our law to use the legal diligence and this has
been the consistent legal theory from the ancient times: Even the
doctrine of prescription in Roman Law prescribes such a concept of
legal diligence and since its incorporation therein, the doctrine has
always been favoured rather than claiming dis-favour. Law courts
never tolerate an indolent litigant since delay defeats equity. The
Latin maxim 'vigilantibus non dormientibus jure subveniunt' (law
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assists those who are vigilant and not those who are indolent). As a
matter of fact, lapse of time is a species for forfeiture of right.

DD). STATUE PRESCRIBING A PERIOD OF LIMITATION FOR


INSTITUTION OF A PROCEEDING, QUESTIONS OF EQUITY
AND HARDSHIP ARE OUT OF PLACE

In the case of P.D. Jambhekar v. State of Gujarat - AIR 1973 SC


309, the Court has held that interpreting a provision in a statute
prescribing a period of limitation for institution of a proceeding,
question of equity and hardship are out of place.

EE). INNOCENTS SHOULD NOT BE SUBJECTED TO


PROSECUTION AND HUMILIATION 2013 SC

RADHAKRISHNAN, K.S.(J) MISRA, DIPAK(J) in Arun


Bhandari vs State Of U.P.& Ors. 2013 (1 ) JT 467 = 2013 (1
) SCALE 229 It is worth noting that it was observed therein that
one of the paramount duties of the superior court is to see that
person who is absolutely innocent is not subjected to prosecution
and humiliation on the basis of a false and wholly untenable
complaint. …..

FF). TENDENCY OF APPLYING PRESSURE THROUGH


CRIMINAL PROSECUTION

Indian Oil Corporation V. NEPC India Ltd. (2006) 6 SCC 736


"While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into
criminal cases. This is obviously on account of a prevalent
impression that civil law remedies are time consuming and do not
adequately protect the interests of lenders/creditors. Such a
tendency is seen in several family disputes also, leading to
irretrievable breakdown of marriages/families. There is also an
impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement.
Any effort to settle civil disputes and claims, which do not involve
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any criminal offence, by applying pressure through criminal


prosecution should be deprecated and discouraged.”

GG). WIFE WHO WILFULLY DESERTS THE MUSLIM HUSBAND


AND NEGLECTS HER DUTY DOES NOT ENTITLED TO
MAINTENANCE AS PER MUSLIM MARRIAGE ACT 1939:-

Tabassum Shaikh vs Shaikh S.J. Shaikh AIR 2000 Bom 1 In


view of the fact that the wife had deserted the husband it was held
that the wife is not entitled to divorce. The Division Bench has
clearly held as follows : 'The preamble to Act VIII (8) of 1939 shows
that the Act is of a consolidating and declaratory character and
that it was intended to consolidate and clarify the provisions of
Muslim law relating to suits for dissolution of marriages by women
married under Muslim Law and to remove doubts as to the effect of
the renunciation of Islam by a married muslim woman on her
marriage tie. It was never intended to abrogate the general law
applicable to Mahomedans. Now, it is firmly established that under
Mohammedan law no wife can claim maintenance unless she
resides with her husband and is prepared to perform her marital
duties. It is, therefore, not correct to say that Section 2 (ii) of Act
VIII (8) of 1939 casts upon the husband an absolute duty to
maintain his wife and that his failure in all cases would be a
ground for divorce even if the wife herself was at fault and was
really the cause of the husband's refusal to maintain her. Before a
husband can be said to have neglected or failed to provide
maintenance for his wife, it must be held that the husband was
under a legal duty to provide such maintenance. If, therefore, the
appellant in the present case was not under Mohammedan law
bound to maintain his wife by reason of her refusal to live with him
and perform her marital duties, how can it be said that he had
neglected or failed to maintain her if he sent her no money or other
maintenance. It was held in Mt. Badrunisa Bibi v. Mohammad
Yusuf , that the word "neglect" implies wilful failure arid that the
words "has failed to provide" are not very happy, but even they
imply an omission of duty. We are, therefore, of opinion that where
the wife is entirely to blame and no blame attaches to the
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husband, it cannot be said that the husband has failed to provide


for the maintenance of the wife or that he has neglected her."

HH) IN ALL MATTERS BETWEEN MUSLIMS, MUSLIM


PERSONAL LAW IS APPLICABLE

C.Mohammed Yunus vs Syed Unissa And Others AIR 1961 SC


808, 1962 SCR (1) 67 It is expressly enacted in the Shariat Act as
amended that in all questions relating to the matters specified, "the
rule of decision" in cases where the parties are Muslims shall be
the Muslim Personal Law. The injunction is one directed against
the court: it is enjoined to apply the Muslim Personal Law in all
cases relating to the matters specified notwithstanding any custom
or usage to the contrary. The intention of the legislature appears to
be clear; the Act applies to all suits and proceedings which were
pending on the date when the Act came into operation as well as to
suits and proceedings filed after that date. It is true that suits and
proceedings which have been finally decided would not be affected
by the enactment of the Shariat Act, but if a suit or proceeding be
pending even in appeal on the date when the Act was brought into
operation, the law applicable for decision would be the Muslim
Personal Law if the other conditions prescribed by the Act are
fulfilled. In our view, the High Court was right in holding that it
was bound to apply the provisions of the Shariat Act as amended
by Madras Act 18 of 1949 to the suit filed by the plaintiffs.

HEARING TO THIS APPELLANT WOULD HAVE DISCLOSED


REALITY - BRIEF FACTS OF SUCH REALITY - FACTS
MISREPRESENTED BY COMPLAINT – MATERIAL FACTS
SUPPRESSED BY COMPLAINANT – FACTS FRAUDULENTLY
SUPPRESSED BY COMPLAINANT:-

1. In fact the respondent-1 was jobless and suffered in Saudi


Arabia for the past 2 years and six months and who could
only come back to India on 26.01.2013 at his own cost
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without receiving salaries, for having no work with the


Sponsor, purchasing the air ticket borrowing money from his
sister who is working in Saudi Arabia, with the interference
and the help of the Court of Labour disputes- Ministry of
labour- Saudi Arabia through an agreement between the
respondent and the Saudi sponsor. A copy of it is enclosed
for the perusal of the Hon’ble court.

2. The petitioner, willfully manipulated the age of the children


to show all children are minors and the Hon’ble trial court
judge believed the petitioner. (A copy of the real Dates of
Birth Certificates of Children are submitted herewith).

3. The petitioner-2 is above 18 years old and he is not a minor


as that trial court judge has considered in the impugned
order.

4. Civil Law (Muslim personal law) is overlooked by the Hon’ble


court in passing the Interim orders, when all the petitioners-
2, 3, 4 are majors as per muslim personal law, since they
have reached puberty, on the day of submission of
application as per Muslim Law and hence they are not
entitled for maintenance.

5. The imaginations of the petitioner that the respondent is


earning 40-50 lakhs per month is nothing but mocking at
the unemployed respondent.

6. When the 77 year Respondent -2 doesn’t like to leave her


home even to visit the next door and when the unemployed
son has come back to stay with the mother on exit visa
putting an end to his services suffering for Two and Half
years without work in Saudi Arabia. The petitioner imagined
and sought an emergency relief under section 19 where the
Residence Order doesn’t deal with any such provision of
restraining anyone to move out.
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7. Without Ascertaining the current income of the Appellant,


simply, looking in to the copy of the passport which is a
travel document and when there is nothing in the passport
from which one can assume that the respondent has
sufficient income., the Hon’ble trial court has passed the
Interim Ex-parte orders without applying the judicial mind,
which is an injustice to the already economically crippled
Appellant.

8. Compainant No.4 by name Farhaaj Ahammed is not known


to the appellant. But appellant had a third son by name
Mohammed out of this marriage. The birth certificate and
the passport issued based on the birth certificate issued in
Saudi Arabia shows that he was Mohammed not Farhaaj
Ahammed. It is mandatory to check out such contradictory
versions of complainant.

9. It is disputed that the complainants 2 to 4 are Minors. As


the marriage was conducted as per Shariah (Islamic Law),
the male Children begotten out of a muslim’s marriage in
Islam are majors upon reaching the age of puberty i.e above
the age of 12 years as per Hedaya law under Muslim
personal Law. Hence all children are majors as per
Islamic law as detailed below.

10. Actual facts of age of complainants:-

Compl Date of Birth Age at the time Age as of Major As per Major As per
ainant of Application Today Indian Law Islamic Law
No. ( Shariah )-
Muslim
Personal Law

2 27.07.1994 Above 18 years Above 19 Major Major


and 6 months Years ( As above (As above 12
18 years ) Years)

3 09.12.1996 Above 16 years Above 16 Minor Major


and 2 months years and 8 (As above 12
months Years )

4 10.07.1999 Above 13 Years Above 14 Minor Major


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and 7- Months years and (As above 12


one month Years )

11. As per Islamic Law marriage is a civil contract. And the


marriage contract becomes invalid if one of the parties
doesn’t not fulfill the marital obligations. When the wife had
deserted the husband and left to India along with her
parents about 13 ½ years ago with cunning intentions,
promising to get back within 15 days, betraying and cheating
the husband, taking away the kids from the husband, living
life as a free bird to her style and taste as a freelancer
fashion designer, freelancer beautician, living life away from
husband against the will of the husband, disobeyed and was
cruel to the husband by leaving him alone separating the
children from their father and made him suffer depriving his
conjugal rights and she was undutiful. She was demanding
money to show the children and threatening to put kidnap
cases if the respondent -1 tried to see the children in school.
Brainwashed the young minds of the children against the
father. More over the complainant-1 was divorced once.
Hence the complainant without having a domestic
relationship for the past 13 ½ years, disobeyed being
undutiful and unfaithful to the husband, separating the
children from their father forfeits the status of a wife as per
muslim personal law. Since the name of the third child and
age of the third child is shown that as different one, the
second marriage of complainant to get such child of 12 years
after deserting appellant way back in 13 years is a doubtful
circumstances which has to be explained by complainant.

12. Fraudulent mis-statement of facts on her


departure from saudi arabia: The parents of the petitioner
came on pilgrimage to Saudi Arabia and stayed with the
family for about 10-15 days in the year – early 2000 and
requested appellant to send the family for a few days to
Mysore with the family and promising to send them back
within 15 days to Saudi Arabia. But appellant requested
them not to take since the First Child’s education shall get
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affected if he is taken in the middle of the academic session


and it would be difficult for him to live without family in a
foreign country. Since the parents turned deaf ears to his
request, appellant took the parents to the school and got the
parents advised by the school teacher, not to take the child
in the middle of the academic session. But when the parents
of the wife assured that wife and children would return soon
, appellant travelled to Bhukaraia General Hospital which
was more than 1200 kilometers from the city where the
Appellant and respondent were living, and brought the birth
certificate of the third child and prepared the new passport
issued at Jeddah and arranged all air-tickets and Re-Entry
Visa for appellants family to visit Mysore and join
appellant back in Saudi Arabia.

13. After reaching Mysore day by day the response was


getting worse from the wife. Appellant started getting
worried that she might be cheating this appellant again and
might not be coming back as promised. Parents of the wife
started demanding that appellant should stay alone in
Saudi Arabia and keep sending money and can visit once in
a year or two and they were also saying that usually those
who go to gulf countries do the same practice of visiting the
wives in India once in a year or two with money to India. But
appellant wanted to live with the family. Hence appellant
sent his parents to Mysore to persuade his wife and her
parents to send her back to Saudi Arabia as the Appellant is
suffering without wife and children. Though it was inhuman
to separate the children from the father, the hearts of the
wife and her parents did not melt. They insisted that
appellant should work alone in Saudi Arabia and send
money to Mysore so that the petitioner and her parents
would bring up the children. Wife used to say that her
children should be with her and even the shadow of the
husband should not fall on her children. The petitioner never
allowed children to speak to the father. The money was
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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demanded keeping the children as ransom against the will of


the father of the children.

14. The second respondent in the complaint is alleged to


have been in custody of property bequeathed to complainant
2 to 4, which is again a false averment. The property which
is alleged is the absolute property of the 2nd respondent
which never to be a shared house hold. The 77 year old
grandmother provided with love and affection everything that
she could meet the demands of the petitioner from time to
time. The petitioner’s father used to collect money from
appellants mother from time to time. But the demands of
the petitioner increased. The petitioner is a practicing
Fashion and Interior Designer earning more than appellant.
She turned greedy. Without any sympathy on appellant who
had already suffered in Saudi Arabia without a job for the
past 2 years and six months and who could only come back
to India on 26.01.2013 at his own cost without receiving
salaries, for having no work with the Sponsor, purchasing
the air ticket borrowing money from his sister who is
working in Saudi Arabia, with the interference of the
Ministry of labour- Court of Labour disputes- Saudi Arabia
arranging an agreement between the appellant and the
Saudi sponsor. A copy of it is enclosed for the perusal of the
Hon’ble court. In addition to the mental trauma that
appellant just had in Saudi Arabia, in a pre-planned way,
miscalculating that the appellant would have come with
some money from Saudi Arabia the petitioner filed a false,
fabricated case against the husband on 22.02.2013, with
imaginations and halucinations.

15. There was no act, omission or commission or conduct


of the respondent that constitutes the domestic violence as
per the DV Act that has come in to effect on 26.10.2006.

16. There is no Domestic information report/ previous


complaints or disputes that there was any physical abuse,
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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sexual abuse, verbal and emotional abuse, or economic


abuse.

17. Having come to know that the appellant has come


from Saudi Arabia, the petitioner -1 cooked up an
application and submitted on 22nd of February, 2013 and the
interim orders were passed on 23.02.2013.

18. There is no pleadings of accuracy in the complaint.


Each para is contradictory to other para as elicited above.

19. There is complete absence of explanation as to how


after 13 years of silence all of a sudden the matter became
Domestic violence/ Dowry harassment/ Cruelty.

20. Before passing any order Domestic violence report/


Format of complaint and accuracy of description of events
with dates/ Format of affidavit and facts necessary and
mandatory.

21. Interim order without serving the notice to the


Appellant – Against the law. Interim order without hearing
the Appellant – Against the principle of natural justice.

22. Filing of complaint without a “shared household” for


13 years – Against the requirement of DV Act-2005 to apply
the Act.

23. Interim order without any “Domestic Information


Report” bad in law.

24. When there has been a huge gap of 13 years since the
couple lived together that too not in India but abroad. When
no previous complaints are shown, there is no explanation
as to what prevented them to approach authorities for 13
years.

25. Retrospectively considering the shared household prior


to year 2000 of Saudi Arabia raises the jurisdiction of the
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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court and applying it to the act that has come in to force


from 26.10.2006 is error in law.

26. Without any previous complaints or abuse reported on


the Appellant and without any witnesses disclosed in
complaint how such vague allegations contain prima facie
case.

27. Without verifying the age of the respondents-2,3,4 as


contradictory averrments can be seen in petition itself, how
court can find prima facie case and how court can ignore the
applicable Civil Law to muslim community regarding age of
majority, and how with such contradictions court can find
prima facie case believing them as minors

28. Without knowing the unemployment status of the


Appellant for the past Two and Half Years in Saudi Arabia
and the current unemployment status of the Appellant in
India for the past 8 months , who is living with the
Respondent-2 who is his mother and who is a pensioner.

Wherefore under above facts and legal aspects the


Hon’ble court may be pleased to dismiss the
complaint itself as not maintainable or with such
suitable orders as this court deems fit in the ends of
Justice.

Date:
Place: Advocate for Appellant
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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IN THE COURT OF THE HON’BLE DISTRICT


AND SESSIONS JUDGE AT

Crl. Appeal /2013

APPELLANT VS RESPONDENTS

SYNOPSIS OF LEGAL POINTS DELIBERATED AND CITATIONS QUOTED

POINTS DELIBERATED CASES AND LAW RELIED

CONTRARY STATEMENT OF COMPLAINANT Hamza Haji v. State of Kerala &


IN THE COMPLAINT WHICH IS CLEAR Anr. AIR 2006 SC 3028, - In Ram
MISREPRESENTATION OF FACTS:- Chandra Singh vs. Savitri Devi and
others, reported in (2003) 8 SCC
319

COMPLAINT ITSELF IS BAD IN LAW Amar Nath And Others vs State Of


Haryana & Others AIR 1977 SC
2185

IMPLEADING 2ND RESPONDENT IS BAD IN S.R. Batra vs. Taruna Batra :


LAW - SECOND RESPONDENTS ABSOLUTE (2007) 3 SCC 169
PROPERTY CAN NEVER BE A SHARED
HOUSE HOLD OR COMPLAINANTS CAN
ASSERT RIGHTS OVER THE SAME

IMPORTANCE OF DOMESTIC VIOLENCE DV ACT AND RULES


REPORT IS TO ASCERTAIN REALITY OF
INCIDENT

FOLLOWING IMPROPER PROCEDURE HAS DV ACT AND RULES


RESULTED IN SUPPRESSION OF MATERIAL
FACTS AND EVENTS WHICH CAUSED
PREJUDICE TO THE APPELLANT

SECTION 12(3) OF DV ACT & RULE 6(4) & 7 DV ACT AND RULES
OF DV RULES, USES WORD “SHALL” WHICH
MAKES MANDATORY TO FILE AFFIDAVIT
AND SUCH PARTICULARS IN FORM III
BEFORE ISSUING EXPARTE ORDER, IT DOES
NOT SAY AS NEARLY AS POSSIBLE AS SAID
IN RULE 6(1)

IMPORTANT FACTS NOT PLEADED/ DV ACT AND RULES


SWORNED - TO PASS EXPARTE ORDERS
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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THE ABOVE PROVISIONS OF DV ACT AND In Manish Goel vs Rohini Goel AIR
RULES IS SELF EXPLANATORY AS TO HOW 2010 SC 1099
COURT SHOULD ACT

DOMESTIC RELATIONSHIP IN THE NATURE D. Velusamy vs


OF MARRIAGE SHOULD HAVE BEEN D.Patchaiammal Reported in
CONTINUED AT THE TIME OF ALLEGED (2010) 10 SCC 469 In PARA 18
DOMESTIC VIOLENCE

MAINTENANCE ORDERS CAN BE PASSED D. Velusamy vs


ONLY AT THE TIME OF DISPOSAL OF D.Patchaiammal Reported in
APPLICATION UNDER SECTION 12(1) (2010) 10 SCC 469 In PARA 18

IN THIS CASE THE VERY PURPOSE OF THIS G. Sagar Suri & Anr. vs State Of
ACT IS BEING ABUSED U.P. & Ors. AIR 2000 SC 754

NO SHARED HOUSEHOLD K. Narasimhan Vs Smt. Rohini


Devanathan, ILR 2010(1) Kar 669:
2010(2) AIR Kar R 20 : AIR 2010
NOC 777: 2010 (5) KLJ 305, 2010
Cri L J 2173

NO DOMESTIC RELATIONSHIP WITH THE Vijay Verma Vs. State NCT of Delhi
RESPONDENT FROM 2000 ONWARDS - and another, 2010(7) RCR
ENTIRE COMPLAINT AVERMENTS SAY (Criminal) 1145
AFTER YEAR 2000 THERE IS TELEPHONIC
DEMANDS OF DOWRY WHICH IS NOT
DOMESTIC VIOLENCE UNDER THE LAW

THE DV ACT IS NOT RETROSPECTIVELY Smt. Gita versus Smt. Raj Balaand
APPLICABLE others 2010 (2) R.C.R. (Criminal)
84.

THE ELEMENT OF THE BIG GAP OF 13 Kishore Vs Sou. Shalini 2010(5)


YEARS DELAY IN FILING COMPLAINT CRLJ 86(Bom), 2010 ALL MR (Cri)
IGNORED IN THE ABOVE CASE 1386

THE COURT DID NOT CONSIDER THE Nrisingha Murari Chakraborty & ...
FOLLOWING PRIMA FACIE FACTS - BUT vs State Of West Bengal AIR 1977
PASSED THE INTERIM EX-PARTE ORDERS SC 1174,
WITHOUT APPLICATION OF MIND – HOW
PASSPORT CAME TO THE CUSTODY OF WIFE
NOT EXPLAINED

UNDER MOHAMMEDAN LAW MOTHER (Mahboobh Sahib v. Syed Ismail -


CANNOT ACT AS GAURDIAN OF MINOR AIR 1995 SC 1205

NO CHILD CAN BE AN AGRIEVED PERSON DV ACT


UNDER THE DV ACT

COMPLAINANT MADE EFFORT IN HER Vimalben Ajitbhai Patel vs


COMPLAINT TO GET SYMPATHY WITH FALSE Vatslabeen Ashokbhai
FACTS Patel Reported in AIR 2008 SC
2675 = 2008 (4
) SCR 1077 = 2008 (4
) SCC 649

COMPLAINT UNDER DV ACT SHOULD HAVE Justice P. Sathasivam, and Justice


TO BE FILED WITHIN ONE YEAR OF THE B.S. Chauhan of the Supreme
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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INCIDENT Court of India in the case of


Inderjit Singh Grewal vs State Of
Punjab & Anr Cited in 2011
(10) SCR 557 = 2011
(12) SCC 588

LITIGANTS WHO OBTAIN EXPARTE ORDERS Justice Dalveer Bhandari and


WITH FALSE FACTS SHOULD BE Justice Deepak Verma in
DISCOURAGED Ramrameshwari Devi & Ors. vs
Nirmala Devi & Ors. Before
Supreme Court of India 2011 (8
) SCR 992,

JUDGES MUST HAVE COMPLETE GRIP OF Court in Dalip Singh v. State of


THE FACTS BEFORE THEY START DEALING U.P. and Others (2010) 2 SCC 114
WITH THE CASE

LITIGANTS MUST OBSERVE TOTAL CLARITY Amar Singh vs Union Of India &
AND CANDOUR IN THEIR PLEADINGS 2011 Ors. 2011 (6 ) SCR 403 = 2011
SC (7) SCC 69

LAW ASSISTS THOSE WHO ARE VIGILANT A.C. Arulappan vs Smt. Ahalya
AND NOT THOSE WHO ARE INDOLENT Naik (2001) 6 SCC 600

STATUE PRESCRIBING A PERIOD OF In the case of P.D. Jambhekar v.


LIMITATION FOR INSTITUTION OF A State of Gujarat - AIR 1973 SC 309
PROCEEDING, QUESTIONS OF EQUITY AND
HARDSHIP ARE OUT OF PLACE

INNOCENTS SHOULD NOT BE SUBJECTED RADHAKRISHNAN, K.S.(J)


TO PROSECUTION AND HUMILIATION 2013 MISRA, DIPAK(J) in Arun Bhandari
SC vs State Of U.P.& Ors. 2013 (1
) JT 467 = 2013 (1 ) SCALE 229

TENDENCY OF APPLYING PRESSURE Indian Oil Corporation V. NEPC


THROUGH CRIMINAL PROSECUTION India Ltd. (2006) 6 SCC 736

WIFE WHO WILFULLY DESERTS THE MUSLIM Tabassum Shaikh vs Shaikh S.J.
HUSBAND AND NEGLECTS HER DUTY DOES Shaikh AIR 2000 Bom 1
NOT ENTITLED TO MAINTENANCE AS PER
MUSLIM MARRIAGE ACT 1939

IN ALL MATTERS BETWEEN MUSLIMS, C.Mohammed Yunus vs Syed


MUSLIM PERSONAL LAW IS APPLICABLE Unissa And Others AIR 1961 SC
808, 1962 SCR (1) 67

Date:
Place: Mysore Advocate for Appellant
SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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IN THE COURT OF THE HON’BLE DISTRICT


AND SESSIONS JUDGE AT

Crl. Appeal /2013

APPELLANT VS RESPONDENTS

NO LIST OF CASES LAWS PRODUCED

1. Hamza Haji v. State of Kerala & Anr. AIR 2006 SC 3028, - In


Ram Chandra Singh vs. Savitri Devi and others, reported in
(2003) 8 SCC 319

2. Amar Nath And Others vs State Of Haryana & Others AIR


1977 SC 2185

3. S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169

4. In Manish Goel vs Rohini Goel AIR 2010 SC 1099

5. D. Velusamy vs D.Patchaiammal Reported in (2010) 10 SCC


469 In PARA 18

6. D. Velusamy vs D.Patchaiammal Reported in (2010) 10 SCC


469 In PARA 18

7. G. Sagar Suri & Anr. vs State Of U.P. & Ors. AIR 2000 SC 754

8. K. Narasimhan Vs Smt. Rohini Devanathan, ILR 2010(1) Kar


669: 2010(2) AIR Kar R 20 : AIR 2010 NOC 777: 2010 (5) KLJ
305, 2010 Cri L J 2173

9. Vijay Verma Vs. State NCT of Delhi and another, 2010(7) RCR
(Criminal) 1145

10. Smt. Gita versus Smt. Raj Balaand others 2010 (2) R.C.R.
(Criminal) 84.

11. Kishore Vs Sou. Shalini 2010(5) CRLJ 86(Bom), 2010 ALL MR


(Cri) 1386

12. Nrisingha Murari Chakraborty & ... vs State Of West Bengal


AIR 1977 SC 1174,

13. (Mahboobh Sahib v. Syed Ismail - AIR 1995 SC 1205


SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764
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14. Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai


Patel Reported in AIR 2008 SC 2675 = 2008 (4
) SCR 1077 = 2008 (4 ) SCC 649

15. Justice P. Sathasivam, and Justice B.S. Chauhan of the


Supreme Court of India in the case of Inderjit Singh Grewal vs
State Of Punjab & Anr Cited in 2011 (10) SCR 557 = 2011
(12) SCC 588

16. Justice Dalveer Bhandari and Justice Deepak Verma in


Ramrameshwari Devi & Ors. vs Nirmala Devi & Ors. Before
Supreme Court of India 2011 (8 ) SCR 992,

17. Court in Dalip Singh v. State of U.P. and Others (2010) 2 SCC
114

18. Amar Singh vs Union Of India & Ors. 2011 (6


) SCR 403 = 2011 (7) SCC 69

19. A.C. Arulappan vs Smt. Ahalya Naik (2001) 6 SCC 600

20. In the case of P.D. Jambhekar v. State of Gujarat - AIR 1973


SC 309

21. RADHAKRISHNAN, K.S.(J) MISRA, DIPAK(J) in Arun


Bhandari vs State Of U.P.& Ors. 2013 (1 ) JT 467 = 2013 (1
) SCALE 229

22. Indian Oil Corporation V. NEPC India Ltd. (2006) 6 SCC 736

23. Tabassum Shaikh vs Shaikh S.J. Shaikh AIR 2000 Bom 1

24. C.Mohammed Yunus vs Syed Unissa And Others AIR 1961 SC


808, 1962 SCR (1) 67

Date:
Place: Mysore Advocate for Appellant