Domestic Violence Case Written Arguments On Behalf Of Husband To Question Legality Of Orders Passed By Magistrate Ignoring Mandatory Laws

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

APPELLANT

VS

……………

/2013

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

COMPLAINT

STATEMENT

OF

COMPLAINANT

IN

THE

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,

blackmail, economic abuse and physical abuse

emotional

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-inlaw 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

SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764

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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

) SCC 649

(4

)

SCR 1077 =

2008

(4

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 = (12) SCC 588

2011

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

) SCR 403 =

vs

Union

Of

India

&

Ors.

2011

(6

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 MISREPRESENTED

BY

COMPLAINT

–

- FACTS

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 petitioners2, 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.

Compl

Actual facts of age of complainants:-

Date of Birth

ainant

Age at the time

Age as of

Major As per

Major As per

of Application

Today

Indian Law

Islamic Law

No.

( Shariah )Muslim Personal Law

2

3

4

27.07.1994

09.12.1996

10.07.1999

Above 18 years

Above 19

Major

Major

and 6 months

Years

( As above

(As above 12

18 years )

Years)

Minor

Major

Above 16 years

Above 16

and 2 months

years and 8

(As above 12

months

Years )

Above 13 Years

Above 14

Minor

Major

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and 7- Months

11.

years and

(As above 12

one month

Years )

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

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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,

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sexual abuse, verbal and emotional abuse, or economic abuse. 17. from

Having come to know that the appellant has come 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

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

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

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

IN THE COURT OF THE HON’BLE DISTRICT AND SESSIONS JUDGE AT Crl. Appeal

APPELLANT

VS

/2013

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

Anr. AIR 2006 SC 3028, - In Ram

THE

COMPLAINT

WHICH

IS

CLEAR

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.

LAW - SECOND RESPONDENTS ABSOLUTE

(2007) 3 SCC 169

PROPERTY HOUSE

CAN

HOLD

NEVER OR

BE

A

Batra

vs.

Taruna

SHARED

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/

SWORNED - TO PASS EXPARTE ORDERS

DV ACT AND RULES

Batra :

SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

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.

OF

D.Patchaiammal

MARRIAGE

SHOULD

HAVE

BEEN

CONTINUED AT THE TIME OF ALLEGED

Velusamy

vs

Reported

in

(2010) 10 SCC 469 In PARA 18

DOMESTIC VIOLENCE MAINTENANCE ORDERS CAN BE PASSED

D.

ONLY

D.Patchaiammal

AT

THE

TIME

OF

DISPOSAL

OF

Velusamy

vs

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

and

ENTIRE

FROM

2000

COMPLAINT

ONWARDS

AVERMENTS

-

SAY

another,

2010(7)

RCR

(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

CRLJ 86(Bom), 2010 ALL MR (Cri)

DELAY

IN

FILING

COMPLAINT

IGNORED IN THE ABOVE CASE THE

COURT

DID

NOT

1386

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

COMPLAINT TO GET SYMPATHY WITH FALSE

Vatslabeen

FACTS

Patel

Patel

vs

Ashokbhai

Reported in

2675 = )

Ajitbhai

AIR 2008 SC

2008

(4

SCR 1077 =

2008

(4

) SCC 649 COMPLAINT UNDER DV ACT SHOULD HAVE

Justice P. Sathasivam, and Justice

TO BE

B.S.

FILED WITHIN ONE YEAR OF THE

Chauhan

of

the

Supreme

SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

INCIDENT

Court of India in the case of Inderjit Singh Grewal vs State Of Punjab & Anr (10)

Cited in

SCR

557

2011

=

2011

(12) SCC 588 LITIGANTS WHO OBTAIN EXPARTE ORDERS

Justice

WITH

Justice

FALSE

FACTS

SHOULD

BE

DISCOURAGED

Dalveer

Bhandari

and

Verma

in

Deepak

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 =

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

LIMITATION

FOR

A

PERIOD

INSTITUTION

OF

2011

OF

In the case of P.D. Jambhekar v.

A

State of Gujarat - AIR 1973 SC 309

PROCEEDING, QUESTIONS OF EQUITY AND HARDSHIP ARE OUT OF PLACE INNOCENTS SHOULD NOT BE SUBJECTED

RADHAKRISHNAN,

TO PROSECUTION AND HUMILIATION 2013

MISRA, DIPAK(J) in Arun Bhandari

SC

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

TENDENCY

OF

APPLYING

PRESSURE

K.S.(J)

2013 (1 ) SCALE 229

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,

MUSLIM PERSONAL LAW IS APPLICABLE

C.Mohammed

Yunus

Syed

Unissa And Others AIR 1961 SC 808, 1962 SCR (1) 67

Date: Place: Mysore

vs

Advocate for Appellant

SRIDHARA BABU. N Advocate Tumkur, Karnataka, PH: 9880339764

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

IN THE COURT OF THE HON’BLE DISTRICT AND SESSIONS JUDGE AT Crl. Appeal

APPELLANT

NO 1.

VS

/2013

RESPONDENTS

LIST OF CASES LAWS PRODUCED 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

NOTE: Arguments drafted for a specific facts and need/ may change in views from others, do not copy exact contents, use it to create still

innovative drafts, layman shall seek your advocates guidance rather than using these contents – AN EFFORT TO STREAMLINE LITIGATIONS

14.

Vimalben Patel

Ajitbhai

Reported

) SCR 1077 = 15.

Patel

in

vs

AIR

Vatslabeen

2008 SC

Ashokbhai

2675 =

2008

(4

2008 (4 ) SCC 649

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

24.

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

AIR 2000 Bom 1

808, 1962 SCR (1) 67

Date: Place: Mysore

Advocate for Appellant