Whether women can outrage Modesty of women?

Whether women can outrage Modesty of women?

The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent "to outrage his modesty" an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.

Madhya Pradesh High Court
Girdhar Gopal vs State on 18 December, 1952
Equivalent citations: 1953 CriLJ 964

Dixit, J.

1. In this case the petitioner Girdhar Gopal has been convicted by the City Magistrate, Lashker for offences under Sections 342 and 354, Penal Code and sentenced to six months and one year rigorous imprisonment respectively for each of the offences. The sentences were directed to run concurrently. The Sessions Judge of Gwalior rejected an appeal preferred by the accused against the convictions and sentences. The applicant has now come up in revision to this Court.
2. Before me, Mr. Bhagwandas Gupta learned Counsel for the applicant did not challenge the conviction and sentence of the applicant under Section 342, Penal Code, His contention was that Section 354, Penal Code offended against the provisions of Articles 14 and 15 of the Constitution of India and that therefore, Section 354 being void, the conviction of the applicant under that section was illegal. The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent "to outrage his modesty" an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.
3. It is true that the act of assault or use of criminal force to any man with the intention or knowledge of "outraging his modesty" is not made an offence under the Penal Code. Learned Counsel for the applicant was, however, unable to say what according to him was the meaning of the expression "outraging the modesty of a man" or whether the expression meant "offending the impudence of man" or dishonouring him. It would however, appear from Section 353 that an assault or use of criminal force to any man by a woman intending thereby to dishonour him otherwise than on grave provocation is punishable. Be that as it may the objection of the learned Counsel for the applicant that the Penal Code gives no protection to man against assault or criminal force with intent to "outrage his modesty" is really an objection as to the policy of law in not creating a particular offence. It is not an objection as to the infringement of Article 14 of the Constitution. This Article provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territories of India. Article 14 has been construed by the Supreme Court in several cases See Raning Rawat v. State of Saurashtra ; Charanjitlal v. Union of India and by this Court also in Miss Sumitra Devi v. State of Madhya Bharat 1952 Madh B LR 385 (C) and in effect it means that every law that the State makes shall operate alike upon all persons, and property under the same conditions and circumstances. It does not mean that all persons, property or ' occupation must be treated alike by the State. As pointed out by His Lordship Das J. in : While Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act.
4. From these observations it is clear that a reasonable classification of groups for purposes of legislation is permissible and what is prohibited is discrimination between persons who are included in the group to which the law applies. If, therefore, the Legislature has in its wisdom thought it fit to treat men differently from women in regard to modesty and to make an assault or use of criminal force with intent to outrage the modesty punishable under Section 354 when committed only with respect to women, the provisions contained in Section 354, Penal Code cannot be condemned as repugnant to Article 14 of the Constitution.
5. The contention of the learned Counsel for the applicant that Section 354 violates the provisions of Article 15(1) of the Constitution is equally untenable. This Article says that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The word "only" is important and deserves to be noted. It emphasises the fact that the discrimination that is prohibited; under Article 15(1) is a discrimination based on the ground of sex, or race, etc. alone. If the discrimination is based not merely on any of the grounds stated in Article 15(1) but also on considerations of propriety, public morals, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of Article 15(1). It cannot be denied that an assault or criminal force to a woman with intent to outrage her modesty is made punishable under Section 354 not merely because women are women, but because of the factors enumerated above. Our country is not peculiar in making the acts described in Section 354 punishable as an offence. Such acts constitute a penal offence in all other civilised countries. After all civilisation depends on morality. In any country claiming or aspiring to be a civilised country morality and all the incidents of morality are as essential as justice to the citizen and personal liberty. No civilised country whose action is directed towards securing "the greatest good of the greatest number" can allow assaults or criminal force to women with intent to outrage their modesty to go unpunished and permit the position of women to be injuriously affected by chartered libertines. In my opinion, the contention advanced on behalf of the applicant that Section 354 offends Article 15(1) must be rejected.
6. As to the facts of the case, I see no reason to differ from these concurrent conclusions arrived at by the Courts below. On the evidence on record it is conclusively established that on the afternoon of 10.2.1951 at about -4-30 p.m., the applicant who is a Pujari of a Mandir caught hold of a young girl named Saroj of about 9 years of age, took her to his house on the pretext of giving "Parshad" to her and then when she was inside he closed the door of the room, made her lie on a bed, put a covering on her and then sat upon her for some time. Later on the applicant became naked and asked Saroj, to remove all her clothes. When the girl shouted and called her brother, who happened to come near the house in search of Saroj, the applicant forcibly closed her mouth. Saroj was then rescued by the neighbours who forcibly opened the door and entered the room. On her return home, Saroj then complained to her mother. Mr. Bhagwandas Gupta urged that as Saroj was a little girl of nine years of age, she could not have developed the sense of modesty of a woman as contemplated by Section 354, Penal Code and further as her mother was not examined, to support her statement that she complained to her mother, it was doubtful whether the applicant had committed any offence at all under Section 354, Penal Code. Learned Counsel relied on Soko v. Emperor AIR 1933 Cal 142 (D). In that case Jack J., felt some doubt as to whether the act of a man putting a finger into the private parts of a girl of five and half years of age, constituted an offence under Section 354, Penal Code. The learned Judge was inclined to think that when the girl had no hesitation in telling her mother exactly what had happened and having regard to her age, it could not be said that she Had developed a sense of modesty, Ghose J., who was the other member of the Bench which decided that case did not agree with the view taken by his learned brother that the case did not fall under Section 354, Penal Code. In the Calcutta case, the accused was ultimately convicted under Section 323, Penal Code and the sentence of six months rigorous imprisonment which had been awarded to him by the trial Magistrate under Section 354, Penal Code was maintained. Having regard to the circumstance that the sentence was maintained, Bose J., did not wish to differ with the conclusion arrived at by Jack J. With all respect to Jack J., I am unable to find myself in agreement with his reasoning. It is unnecessary to consider here whether a little girl of five years of age can be said to have developed a sense of modesty contemplated by Section 354, Penal Code. So far as the present case is concerned, it is clear that when the applicant asked Saroj to remove her clothes, she refused to do so and shouted. It cannot, therefore, be said that she had not developed any sense of modesty. To my mind, the act of the applicant in confining Saroj in a room, in making her lie on a bed and then sitting on her and becoming naked is clearly one amounting to use of criminal force with the intention or knowledge that the girl's modesty will be outraged. The applicant has been rightly convicted under Sections 354 and 342, Penal Code. The appropriateness of the sentences awarded to him is amply made out.
7. In the result this revision petition is dismissed.

Divorce Petition can not be dismissed on basis of mistake in petition.

Landmark Judgement(SC): Divorce Petition can not be dismissed on basis of mistake in petition.

In this case, the petition has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed.  The case has been pending in the court for many years and it is noted that there is an unintentional drafting error which can be corrected by an amendment simplicitor will be taken to technical view when the thrust of concern in matrimonial be a question of granting or non-granting of divorce. The question is whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition.
                            
HIGH COURT OFDELHI AT NEW DELHI 

                                         
        
MAT. Appeal No.32/2009 

  
Decided on : 28th May, 2015 

   
SUMAN KUNDRA   
                                                                                                              ...... Appellant 

                                                                                          
Versus 

  
SANJEEV KUNDRA   
                                                                    

                                       ...... Respondent
CORAM: 

  
HON'BLE MR. JUSTICE V.K. SHALI 

  
V.K. SHALI, J.

    1. This is an appeal filed under Section 28 read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009 by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13 (i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act. 

    2. The question which is arising for consideration is as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition. 

    3. Both Mr. Chandhiok, the learned senior counsel for the appellant and Mr. Jai Bansal, the learned counsel for the respondent have vehemently canvassed for their point of view with a number of judgments but before dealing with their respective submissions, it may be pertinent here to give a brief background of the case. 

    4. The respondent/petitioner filed a petition against the appellant/wife for grant of divorce underSection 13 (i) (a) and (i) (b) of the Hindu Marriage Act on the grounds of cruelty and desertion. It was not disputed that the parties are Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988. 

    5. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriages Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i) (a) and (i) (b) of the Hindu Marriage Act. 

    6. The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009. 

    7. On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable. 

    8. The respondent/petitioner filed his reply to the application and stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1) (a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits. 

    9. The learned ADJ after hearing the arguments of both the sides dismissed the application of the appellant by holding that he has the jurisdiction to entertain the petition for divorce both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue as there is a cause of action for the same. However, while dismissing the application, the learned Judge distinguished the judgment relied upon by the appellant in Harshad Chiman Lal Modi vs. DLF Universal & Anr.; (2005) 

    7 SCC 791, which was relied upon by them in order to contend that a forum which did not have the jurisdiction could not entertain the same. These judgments were distinguished by the learned ADJ by observing that they related to territorial jurisdiction and not to subject-matter jurisdiction which admittedly the ADJ had in the instant case. The learned ADJ in support of his reasoning relied upon two judgments cited by the learned counsel for the respondent/petitioner to contend that it had the jurisdiction because the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments. The case relied upon are titled Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee vs. Kaveri Guha Chatterjee; AIR 1987 Calcutta 191. 

    10. I have heard both Mr. Chandhiok, the learned senior counsel for the appellant as well as Mr. Jai Bansal, the learned counsel for the respondent. 

    11. Mr. Chandhiok, the learned senior counsel for the appellant has made the following submissions :- 

    12. The first contention is that if the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Actas in that case, the court will not have the jurisdiction over the subject-matter unless and until it is not a family court under the Family Court Act. In order to support his submissions, he has placed reliance on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath vs. K. Padmanabha Kamath; AIR 1992 Kant 372. 

    13. In Stephen Joshus's case (supra), the question which had arisen was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. The submission which was made before the Hon'ble High Court of Delhi was that since under the Special Marriage Act, 1954, mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent. 

    14. This contention was negatived by the High Court stating that the divorce can be granted only on the grounds which are available under a particular act under which parties have got married meaning thereby that since parties were married under the Christian Marriage Act and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar is the judgment in Mohan Raj's case (supra). 

    15. In D. Jacintha Kamath's case (supra) the question which had arisen was whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of HMA at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act. 

    17. In the instant case, the learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Act were mentioned. 

    18. It has been contended by Mr. Chandhiok that no doubt under the Family Courts Act, it is the same Family Judge who deals with the personal laws and the matrimonial laws of all the religions, but before the constitution of the family courts as this is an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order. 

    19. What is involved in the present case is special jurisdiction and admittedly it cannot be said to be an inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu marriage as well as the Special Marriage Act has to be the District Judge and incidentally in the instant case, it is the same additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act. 

    20. Therefore, the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as Special Marriage Act in my view does not lack the jurisdiction to entertain the application of the respondent. 

    21. It may also be stated that objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction when the same is due to an inadvertent drafting error which can be corrected by an amendment simplicitor, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties. 

    22. The learned senior counsel's arguments flow from the assumption as if the divorce under theSpecial Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge. 

    23. I do not agree with this submission of the learned senior counsel for the appellant for the simple reason as stated above that in the instant case it is the same District Judge who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders. 

    24. Therefore, this contention of the learned senior counsel in view of the aforesaid does not persuade me to accept his argument. 

    25. The second submission is that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh vs. Harminder Singh; (2004) 6 SCC 256. 

    26. In Jeet Mohinder Singh's case (supra), the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under: 

    6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows: 

    "The Court may at any stage of a suit recall any witness who has been examined andmay subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit." 

    27. In the aforesaid case, although the application for recalling and examination of a witness was filed but wrong provision of law was mentioned. The Supreme Court although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision. 

    28. There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. 

    29. The learned counsel for the respondent relying on N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 has submitted that in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under Special Marriage Act. 

    30. No Doubt, the pleadings are of utmost importance and so are the provisions of law under which they are filed. But courts are by and large guided by the substantive justice rather than ousting a party on hyper technicalities. This is more so in matrimonial cases which are not like commercial disputes. In matrimonial cases both the a parties are disturbed because of their matrimonial discord, therefore, they need to be dealt with humane approach with a view to find a solution to their vexed problem through adjudication if it is not possible through mediation and conciliation. Therefore, in my view, this judgment does not help the appellant. 

    31. The third submission is non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar vs. Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni vs. Kali Nath; (1962) 2 SCR 747; andUnion of India vs. Baleshwar Singh; 1994 Supp. (2) SCC 587. 

    32. The three judgments with regard to the timely objection regarding the inherent lack of jurisdiction not being taken by the appellant, does not create any bar against the appellant raising that objection now. 

    33. In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Actcan be given divorce when the petition for divorce has been filed under H.M.A., certainly answer to this question is in negative. But then the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition. 

    34. The next submission is also connected with the earlier submissions that the appellant's conduct or his participation in the proceedings will not confer jurisdiction on a court or a Judge who inherently lacks the same. 

    35. Since I have already held above that there is no inherent lack of jurisdiction, therefore, this submission of the learned senior counsel for appellant that the appellant's participation will not confer the jurisdiction is of no merit. There was no inherent lack of jurisdiction. The only thing was wrong provision was invoked by the respondent. Having said so, the appellant ought to have raised this object at the earliest stage. Since this was not done there, it could be taken as an objection having been waived or the appellant is decreed to be estopped from raising the same. But still the question would have remained whether the cause of action for grant of divorce existed under the provision in which petition was filed. That would be question to be decided on merits. 

    36. The next submission is that the divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla vs. Eli Lilly Ranbaxy Ltd.; 741 (1998) DLT 1; and A. Janaki vs. John Keneddy; MANU/TN/0394/2009. 

    37. At the outset, it stated so far as the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity. 38. Mr. Jai Bansal, the learned counsel for the respondent is concerned, has primarily placed reliance on the two judgments of the Bombay High Court and Guwahati High Court. These are Anandrao, s/o Marotrao Kharabe vs. Madhuri posing herself to be w/o Anandrao Kharabe &Anr.; 2009 (111) Bombay LR 832 and Anupam Das vs. Smt. Mampi Das; AIR 2008 Gau 3. 

    39. So far as Anupam Das's case (supra) is concerned, the same is distinguishable on the premise that this was a case which had come up before the High Court of Gauhati when a petition underArticle 227 of the Constitution of India was filed challenging an interlocutory order passed underSection 25 of the Hindu Marriage Act, 1955 and Section 20 (3) of the Hindu Adoptions andMaintenance Act, 1956 by the learned District Judge, Shillong directing the revision-petitioner to pay a sum of Rs.1,000/- per month to the respondent and another sum of Rs.500/- per month to her minor child for the purpose of maintenance. One of the grounds for challenging the maintenance order was that the marriage between the petitioner and the respondent/wife was solemnized and duly registered under the Special Marriage Act, 1954 and the learned District Judge had no inherent jurisdiction to entertain and proceed with the divorce petition filed by the respondent under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and therefore, the application under Section 25 of the Hindu Marriage Act which was for permanent alimony which is to be granted at the time of divorce was itself not maintainable. The Hon'ble High Court did not accept this plea of the petitioner for setting aside the order by giving the reasoning that there is no dispute that the learned District Judge, Shillong had the jurisdiction to entertain the divorce petition, both under the provisions of Hindu Marriage Act and Special Marriage Act. It was also noted that incidentally, cruelty which was a ground for filing a petition for grant of divorce under the Hindu Marriage Act was also a ground for divorce under the Special Marriage Act underSection 27 (1) (d) 

    At the same time, the High Court observed that henceforth, the petition for grant of divorce which has been filed under the Hindu Marriage Act shall be entertained as an application filed under the Special Marriage Act. 

    40. In Anandrao's case (supra) is also distinguishable from the instant case as the issue involved was whether it was open to the parties whose marriage is solemnized under the Special Marriage Act by mutual consent to dissolve their marriage can be legally dissolved as per customs which are saved by Hindu Marriage Act even though marriage is solemnized under Special Marriage Act.Therefore, this judgment also at least recognizes one principle that if a mutual consent is not a ground for divorce and both the parties are Hindus by their religion, they cannot get their marriage dissolved by a provision which was nonexistent in the Special Marriage Act. 

    41. As against this, in the present case, the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under theSpecial Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. 

    42. Because of these reasons, I feel that the acceptance of both these judgments as making a basis of dismissing the application by the learned Trial Judge was misplaced. 

    43. The next question which arises for consideration is though the learned Trial Judge has dismissed the application of the appellant filed under Section 151 CPC for dismissal of the divorce petition, but still it has directed the respondent to amend the divorce petition and for this purpose it has given time. The law regarding amendment of the plaint or a petition is incorporated under Order 6 Rule 17 CPC. The said order reads as under: 

    17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 

    Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 

    44. A perusal of the aforesaid provision would clearly show that Order 6 Rule 17 CPC envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act. 

    45. But at the same time, it is pertinent to note that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities. 

    46. In B.K.Narayana Pillai v. Parameswaran Pillai; AIR 2000 SC 614, the Hon'ble Apex Court has held as under: 

    " The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 

    47. When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party. 

    48. The Hon'ble Supreme Court in Bhuwan Mohan Singh v. Meena;AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simplicitor. 

    49. In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law. 

50. The parties are directed to appear before the learned District Judge on 3rd August, 2015. With this direction, the appeal is partly allowed. 

   
V.K. SHALI, J.

Whether daughters born out of void marriage are entitled to inherit property of their father?

Whether daughters born out of void marriage are entitled to inherit property of their father?

It is an admitted position that respondents 2 and 3 were born out of the wedlock of late Suryanarayana and Pydamma during the subsistence of the marriage between Suryanarayana and Chilakamma. Even assuming, the marriage between late Suryanarayana and Pydamma cannot be treated as a valid marriage because of the subsistence of the marriage between late Suryanarayana and Chilakamma, considering the fact that respondents 2 and 3 were born out of the marriage between Suryanarayana and Pydamma, they would be entitled to succeed to the properties on the death of Suryanarayana and Chilakamma. In this connection, we may consider certain provisions of the Hindu Marriage Act, 1955 (in short 'the Act').

Section 5 of the Act clearly states the grounds when the marriage cannot be solemnized. Clause (i) of Section 5 is one such condition, which clearly provides that no marriage can be performed if there is a living spouse. Therefore, in view of Section 5, the marriage between Suryanarayana and Pydamma cannot be considered to be legal as at the time of such marriage, Chilakamma was very much alive. Section 11 of the Act, which deals with a void marriage says that any marriage solemnized after the commencement of this Act shall be null and void if it contravenes any of the conditions specified in Clause (i), (iv) and (v) of Section 5 of the Act. Therefore, in view of Sections 5 and 11 of the Act, it must be held that the marriage between Suryanarayana and Pydamma is a void marriage as the said marriage was admittedly solemnized after the commencement of the Act. Therefore, considering that the marriage between Suryanarayana and Pydamma was a void marriage, the question that would now arise is whether their daughters, namely, respondents 2 and 3 were entitled to inherit the properties in question, with the first wife, Chilakamma, on the death of Suryanarayana. In this connection, we may refer to Section 16 of the Act. Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that the marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. (Emphasis supplied) Therefore, in view of Section 16, it is clear that the daughters, namely, respondents 2 and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana's death. Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters, namely, respondents 2 and 3, along with Chilakamma and therefore were entitled to evict the appellants from the properties in question along with Pydamma. Accordingly, the findings of the High Court on the question whether respondents 2 and 3 were entitled to inherit the properties in question of late Suryanarayana jointly with Chilakkama cannot be interfered with.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 149 of 2004

Decided On: 12.05.2006

Bhogadi Kannababu and Ors.
Vs.
Vuggina Pydamma and Ors.

Hon'ble Judges/Coram:
Dr. Arijit Pasayat and Tarun Chatterjee, JJ.

Citation:(2006) 5 SCC 532

1. One Shri Vuggina Suryanarayana was the owner of the following lands in vommali village of Madugula Mandalam of Vishakhapatnam district of Andhra Pradesh:

0.64 Acres in S. No. 77/1 1.46 Acres in S. No. 116/1
2.31 Acres in S. No. 117/1
3.06 Acres in S. No. 117/2
2.25 Acres in S. No. 117/5
1.13 Acres in S. No. 117/6
1.16 Acres in S. No. 117/9
1.19 Acres in S. No. 117/9

(hereinafter referred to as "the properties in question").

He died on 8th January 1972 leaving behind two widows, namely Chilakamma and Pydamma. Admittedly, the second marriage between Vuggina Suryanarayana and Pydamma had taken place during the subsistence of the first marriage of Vuggina Suryanarayana and Chilakamma. Out of the second marriage, two daughters, namely, Nukaratnam and Mahalakshmi were born. On 28th July 1973 the first wife of Vuggina Suryanarayana, Chilakamma, died issueless. According to Pydamma, on the death of Suryanarayana and Chilakamma the properties in question devolved on her and her two daughters, who are respondent Nos. 2 and 3 herein. Pydamma, had filed an application for eviction of the appellants under the Andhra Pradesh (Andhra Area) Tenancy Act 1956 (in short 'the A.P. Tenancy Act') before the District Munsif-cum-Special Officer, Madugula, A.P. on 18th September, 1990, which came to be registered as ATC 3/90, without making her daughters, being the respondent Nos. 2 and 3 herein, as parties to the same. Pydamma in her eviction petition claimed eviction, inter-alia, on the grounds of default and sub-letting. It was also the case of Pydamma in her eviction petition that she had inducted the appellants as lessees in respect of the properties in question and after payment of rent for some time, the appellants had stopped paying, inter-alia, on the ground that they had inherited the properties in question on the death of the first wife of Surynanarayana, i.e. Chilakamma. In defence, the appellants pleaded that as they were the nephews of late Suryanarayana and as Suryanarayana had no issue out of his marriage with Chilakamma and as they were the only heirs and legal representatives of late Suryanarayana, being in actual physical possession and enjoyment of the properties in question owned by Suryanarayana since Chilakamma's death, in their own right, the eviction petition filed by Pydamma was not maintainable. They also pleaded that there was no relationship of landlord and tenant between Pydamma and them. The following issues were framed in the eviction petition:

(1) Whether Pydamma is the second wife of Suryanarayana and whether she succeeded the properties of late Suryanarayana and his first wife late Chilakamma ?

(2) Whether there is any landlord and tenant relationship between Pydamma and the appellants in respect of the property in question ?

(3) Whether Pydamma is entitled to evict the appellants from the property in question and whether she is entitled to possession of the same ?

2. By a judgment and order dated 17th November 2000, the District Munsif-cum-Special Officer allowed the eviction petition filed by Pydamma holding that there existed landlord and tenant relationship between Pydamma and the appellants and that the appellants were liable to be evicted on the grounds of default and sub-letting under the A.P. Tenancy Act.

3. An appeal was carried by the appellants to the learned District Judge-cum-appellate authority, who allowed the appeal, holding that Pydamma did not acquire any right, title or interest to the properties in question as she could not be said to be a legally wedded wife in view of the admitted fact that her marriage with late Suryanarayana had taken place during the subsistence of the marriage of late Suryanarayana and Chilakamma. Thus, it was held by the appellate authority that Pydamma was not entitled to evict the appellants from the properties in question as landlady of the appellants.

4. Feeling aggrieved by the judgment and order passed in the appeal, a civil revision petition was moved before the High Court challenging the aforesaid order of the appellate authority. During the pendency of the civil revision case filed under Article 227 of the Constitution, an application for impleadment was filed by the daughters, i.e. respondent Nos. 2 and 3 herein. It is true that an application for impleadment was filed by the daughters of Pydamma only after about 20 years and it is also an admitted fact that they did not approach either the trial court or the appellate court for their impleadment in the eviction petition in respect of the properties in question. By the impugned order, the High Court, while exercising power under Article 227 of the Constitution, inter- alia, held that the appellants were liable to be evicted on the grounds of sub-letting and non-payment of rent. It was also found that the appellants were inducted by Pydamma alone, in the properties in question although at the relevant point of time she did not acquire any right, title or interest in the properties in question on the death of the first wife, Chilakamma. On the date the civil revision case was allowed, the application for impleadment filed by the daughters of Paydamma i.e. respondent Nos. 2 and 3 was also allowed.

5. Two Special Leave Petitions were filed in this Court at the instance of the appellants, one against the main order passed in civil revision case and the other allowing the application for impleadment filed by the daughters, being respondent Nos. 2 and 3 herein, under Order 1 Rule 10 of the Code of Civil Procedure. The Special Leave Petition filed against the order allowing the application under Order 1 Rule 10 of the CPC was, however, rejected in limine by this Court. The Special Leave Petition filed against the judgment and order passed in civil revision case was heard by us in presence of the learned Counsel for the parties on grant of leave.

6. Having heard the learned Counsel for the parties, after going through the impugned order and other materials on record, including the order passed by this Court rejecting the Special Leave Petition filed against the order under Order 1 Rule 10 of the CPC and after careful consideration of the facts and circumstances of the present case, we are of the view that no ground has been made out to interfere with the impugned order directing eviction of the appellants.

7. It was urged on behalf of the appellants that the respondents were not entitled to evict the appellants from the properties in question without there being a proof that on the death of Suryanarayana and Chilakamma the respondent Nos. 2 and 3 inherited the properties in question. It was further submitted that, in view of the finding made by the High Court that Pydamma was not entitled to inherit the properties in question on the death of Suryanarayana and Chilakamma, the question of passing a decree/order for eviction on the application filed by her could not arise at all.

8. So far as the first submission of the learned Counsel for the appellants is concerned, it is on record that the application for impleadment was allowed by the High Court which was affirmed by this Court by rejecting a Special Leave Petition, which relates to impleadment of respondent Nos. 2 and 3 in the revision case. In an application for impleadment under Order 1 Rule 10 of the Code of Civil Procedure, the only question that needs to be decided is whether the presence of the applicant before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings. Therefore, according to the learned Counsel for the appellants, even if the respondent Nos. 2 and 3 were added as parties, but by such addition it cannot be said that they were also entitled to succeed to the properties in question of late Suryanarayana and therefore entitled to evict the appellants.

9. It is true, as noted herein above, that in an application for impleadment under Order 1 Rule 10 of CPC, the Court would only decide whether the presence of the applicant before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings. But in the facts and circumstances of the present case, we are of the view that the question of strict proof whether respondents 2 and 3 were also entitled to evict the appellants from the properties in question may not be germane for decision of this case.

10. It is an admitted position that respondents 2 and 3 were born out of the wedlock of late Suryanarayana and Pydamma during the subsistence of the marriage between Suryanarayana and Chilakamma. Even assuming, the marriage between late Suryanarayana and Pydamma cannot be treated as a valid marriage because of the subsistence of the marriage between late Suryanarayana and Chilakamma, considering the fact that respondents 2 and 3 were born out of the marriage between Suryanarayana and Pydamma, they would be entitled to succeed to the properties on the death of Suryanarayana and Chilakamma. In this connection, we may consider certain provisions of the Hindu Marriage Act, 1955 (in short 'the Act').

Section 5 of the Act clearly states the grounds when the marriage cannot be solemnized. Clause (i) of Section 5 is one such condition, which clearly provides that no marriage can be performed if there is a living spouse. Therefore, in view of Section 5, the marriage between Suryanarayana and Pydamma cannot be considered to be legal as at the time of such marriage, Chilakamma was very much alive. Section 11 of the Act, which deals with a void marriage says that any marriage solemnized after the commencement of this Act shall be null and void if it contravenes any of the conditions specified in Clause (i), (iv) and (v) of Section 5 of the Act. Therefore, in view of Sections 5 and 11 of the Act, it must be held that the marriage between Suryanarayana and Pydamma is a void marriage as the said marriage was admittedly solemnized after the commencement of the Act. Therefore, considering that the marriage between Suryanarayana and Pydamma was a void marriage, the question that would now arise is whether their daughters, namely, respondents 2 and 3 were entitled to inherit the properties in question, with the first wife, Chilakamma, on the death of Suryanarayana. In this connection, we may refer to Section 16 of the Act. Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that the marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. (Emphasis supplied) Therefore, in view of Section 16, it is clear that the daughters, namely, respondents 2 and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana's death. Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters, namely, respondents 2 and 3, along with Chilakamma and therefore were entitled to evict the appellants from the properties in question along with Pydamma. Accordingly, the findings of the High Court on the question whether respondents 2 and 3 were entitled to inherit the properties in question of late Suryanarayana jointly with Chilakkama cannot be interfered with. That apart, in an application for eviction under the A.P. Tenancy Act in which prayer for grant of eviction of a lessee was made, it would not be necessary to decide that the daughters, respondent Nos. 2 and 3 comprehensively had to prove that on the death of Suryanarayana and Chilakamma, they were entitled to inherit the properties in question in the eviction proceedings. Therefore, it is not necessary to finally adjudicate upon the question of right, title and interest of the daughters with respect to the properties in question, which may be done in a comprehensive suit for title.

11. Let us now come back to the other question i.e. whether an eviction proceeding could be maintained by Pydamma, respondent No.1 herein, against the appellants, even if she was not found entitled to inherit the properties of late Suryanarayana.

12. The High Court in its judgment held that although Pydamma was not entitled to inherit the properties of Suryanarayana then also she was entitled to maintain eviction proceeding and obtain a decree/order for eviction under the A.P. Tenancy Act. The High Court in its impugned judgment held that only respondents 2 and 3 were entitled to succeed the properties in question and accordingly modified the findings of the Special Officer and the appellate authority holding that the daughters of late Suryanarayana who were the respondents 2 and 3 were entitled to succeed the properties of late Suryanarayana but not Pydamma. However, the High Court in its impugned judgment directed the eviction of the appellants not only in favour of Pydamma, the original applicant, but also in favour of respondents 2 and 3.

13. In the impugned order, the High Court held that it was Pydamma, respondent No. 1, who had inducted the appellants in the properties in question and it was also the finding of the High Court and also the trial court that the appellants continued to pay rent in respect of the properties in question for some period and thereafter stopped payment. On such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act. In the case of Bilas Kunwar v. Desraj Ranjit Singh MANU/PR/0010/1915, the Privy Council observed as follows:

A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.

(Emphasis Supplied)

This view was also recognized by this Court in Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. MANU/SC/0349/1965 : [1966]1SCR831 . Similar view has also been expressed in a later decision of this Court in the case of Tej Bhan Madan v. II Additional District Judge and Ors. MANU/SC/0536/1988 : AIR1988SC1413 in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if respondent No. 1, Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub-letting under the A.P. Tenancy Act. We keep it on record that the learned Counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us.

14. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding. In this view of the matter and in view of the discussions made herein above, we are of the view that the eviction petition filed by respondent No. 1 was maintainable in law and respondent No. 1 was also entitled to obtain a decree/order of eviction.

15. It is, however, made clear that the right of inheritance of the respondents to the properties in question has not been decided in the present proceedings. Any observation or findings in this judgment cannot be construed as final findings as to such right. For the reasons aforesaid, the appeal stands dismissed. There will be no order as to costs.

16. However, the decree/order for eviction shall not be executed by the respondents for a period of 6 months from this date if, within a month from this date, the appellants file an undertaking to this Court that they shall deliver peaceful and vacant possession of the properties in question to the respondents. In default of filing the undertaking, the decree/order of eviction shall be executed forthwith.

Whether wife can give up her right to claim money,ornaments or future maintenance in divorce proceeding

Whether wife can give up her right to claim money,ornaments or future maintenance in divorce proceeding?

 Regarding the contention that parties have voluntarily

agreed to relinquish the various benefits and claims, I am unable to

agree.         The joint application for divorce contains a unilateral

undertaking by the wife that she will not claim money, ornaments or

future maintenance.        There is nothing to show that this was in

consideration for a mutually satisfactory settlement of all the

existing claims. In such circumstances, it can only be treated as

consent obtained from the wife either by coercion or obtained by

compulsion of circumstances or as a condition imposed on a

desperate wife by the husband for consenting to a divorce.          Of

course, parties are free to enter into a satisfactory settlement of all

their claims, on mutually agreed terms. However, contracting out

of the statutory rights conferred on the wife under section 19 to 22

of D.V Act is against public policy and hence cannot be recognized,

unless it is proved that there was a mutually satisfactory settlement

of all claims. This view is fortified by the settled legal position

under section 3 of the Protection of Women from Domestic Violence

Act, 2005 and under section 125 of Code of Criminal Procedure 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

            MR. JUSTICE SUNIL THOMAS

    13TH DAY OF OCTOBER 2016

                   Crl.MC.No. 2990 of 2016

           BIPIN, V  MEERA D.S.,
          Citation: 2017 CRL1171 Kerala

Grounds-for-Divorce-under-Hindu-Marriage-Act-

http://www.pathlegal.in/Grounds-for-Divorce-under-Hindu-Marriage-Act-blog-1239160

Not only men, but women can also be prosecuted under the Protection of Women against Domestic Violence (DV) Act.

Not only men, but women can also be prosecuted under the Protection of Women against Domestic Violence (DV) Act. The Supreme Court has struck down the words “adult male” from the pertinent provision in the DV Act to lay down that a woman can also file a complaint against another woman, accusing her of domestic violence. Under Section 2(q) of the 2005 Act, a complaint can be made only against an “adult male person”, thereby insulating women from being accused of offences mentioned under the law.

But a bench of Justices Kurian Joseph and Rohinton F Nariman ruled Thursday that this provision frustrated the objective of the legislation since “perpetrators and abettors of domestic violence” can be women too. It noted that the legislative intent of providing effective protection to rights of women could “easily be defeated by an adult male person not standing in the forefront, but putting forward female persons” who could forcibly evict a woman or defeat any other order passed under the Act without fear of inviting prosecution. “The microscopic difference between male and female, adult and non-adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, the words ‘adult male person’ are contrary to the object of affording protection to women who have suffered from domestic violence of any kind,” held the bench.

It underlined that the classification of “adult male person” subverted the doctrine of equality by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence. “We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,” ruled the court. The bench resorted to the “doctrine of severability” and struck down only that part of Section 2(q) that created a distinction based on gender relating to offenders under the Act. “Application of the aforesaid severability principle would make it clear that having struck down the expression ‘adult male’ in Section 2(q), the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words,” it held.

The ruling came on an appeal filed against a judgment of the Bombay High Court in 2014 that had read down the Act to hold that complaints could be filed against the women too. The top court, however, set aside this judgment on the ground that the provision could not be read down. “We declare that the words ‘adult male’ in Section 2(q) will stand deleted since these words do not square with Article 14 (equality) of the Constitution of India,” it said.

Decree of divorce by mutual consent obtained by producing a lady other than wife

IMPORTANT DECISIONS (24.08.2017)

Decree of divorce by mutual consent obtained by producing a lady other than wife -  Anticipatory bail refused to husband. (2017(3) Criminal Court Cases 345 (P&H)

Domestic Violence - Interim custody of child - Court can pass order granting temporary custody of child - However, Act is not a final remedy  for custody and guardianship issues of a minor child. (2017(3) Criminal Court Cases 357 (Delhi)

Interlocutory proceedings - Findings recorded while deciding interlocutory proceedings is confined to the disposal of interlocutory proceedings only. (2017(2) Apex Court Judgments 595 (S.C.)

Last seen - In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. (2017(3) Criminal Court Cases 454 (S.C.)

Material alteration - Alteration in date so as to bring suit within period of limitation - It is a material alteration - It renders the document void. (2017(3) Civil Court Cases 328 (Madras)

Prevention of misuse of S.498-A IPC - Directions issued - These directions will not apply to offences involving tangible physical injuries or death:  (a) No arrest normally be effected till report of Family Welfare Committee, to be appointed in every district, is received; (b) Complaints u/s 498-A IPC may be investigated only by a designated Investigating Officer of the area and such designations may be made within one month from  the date of the judgment in the instant case; (c) In cases where settlement is reached, it will be open to District and Sessions Judge or any other senior Judicial officer nominated by him in the district to dispose of the proceedings including closing of criminal case if dispute primarily relates to matrimonial discord; (d) Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected; (e) District Judge or a designated senior judicial officer may club all connected cases between parties arising out of matrimonial dispute;  (f) Personal appearance of all family members and particularly outstation members may not be required and trial Court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of trial. (2017(2) Apex Court Judgments 723 (S.C.)

*Back window*

Adverse possession - Computation of period - Purchaser of property can count the period of adverse possession only from the date of purchase - Period for which the original vendor held the property or for that matter the date of Mahazar could not be counted. (2016(2) Apex Court Judgments 001 (S.C.)

Arbitration award - Setting aside - Legal misconduct by arbitrator - Must be palpable from the proceedings - To substantiate a stance of legal misconduct, examination of any witness in Court is impermissible. (2016(1) Apex Court Judgments 144 (S.C.)

Charge - Cannot be framed simply on the basis of suspicion - However, charge can be framed on the basis of grave suspicion. (2014(1) Criminal Court Cases 628 (Rajasthan)

Contents of documents - Admitted to be true in examination in chief - However, in cross examination that admission was withdrawn - It is earlier part of the statement which carries weight. (2016(1) Apex Court Judgments 229 (S.C.)

Court questions - Court has a right to ask the party even relevant or irrelevant questions. (2014(2) Civil Court Cases 291   (S.C.)

Cruelty - Though girl friend of husband is not falling within ambit of `relative' but she can still be an abetter to an offence u/s 498-A of IPC. (2015(1) Criminal Court Cases 198 (Gujarat)

Dishonour of cheque -  Funds can be checked online at the bank branch where it was presented and cheque need not to be sent to the bank branch from where it was issued. (2010(1) Criminal Court Cases 661 (Gujarat)  

Dishonour of cheque - Delay - There is no hard and fast rule as to what constitutes sufficient cause to condone delay. (2016(1) Criminal Court Cases 735 (Kerala)

Disproportionate assets - Less than 10% of the total income -  Accused acquitted. (2016(1) Criminal Court Cases 494 (Sikkim)

Divorce -  Subsequent events which are established on the basis of non-disputed material brought on record can be taken into consideration. (2014(3) Civil Court Cases 293 (S.C.)

Dowry death - Cruelty - Mere demand of dowry at one or two instances may not attract the provision of S.304-B IPC though such demand might be an offence punishable u/s 498- A IPC. (2015(1) Criminal Court Cases 859 (S.C.)  

FIR - No delay in lodging FIR - Question of its manipulation does not arise. (2016(1) Criminal Court Cases 070 (S.C.)

Injured witness - Generally a reliable witness - Even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest that he may have falsely implicated some innocent persons. (2016(2) Apex Court Judgments 534 (S.C.)

Maintenance u/s 125 Cr.P.C. - Cannot be denied to  wife on the ground that husband has no means of income. (2016(1) Criminal Court Cases 439 (J&K)

Rent & Eviction - Landlord can seek eviction of a tenant from non residential building on ground of personal necessity. (2010(1) Civil Court Cases 316 (S.C.)  

Securitization and Reconstruction of Financial Assets - Secured creditor is entitled to proceed only against secured assets mentioned in notice u/s 13(2) of Act - However, in terms of S.13(11) of Act, secured creditor is also free to proceed first against guarantors or sell the pledged assets - But such guarantor, if aggrieved, cannot approach DRT u/s 17 of  SARFAESI Act, as that right is restricted only to persons aggrieved by steps u/s 13(4) of the Act proceeding for recovery against the secured assets. (2016(2) Apex Court Judgments 456 (S.C.)

State Police Chief can appoint a suitable and competent officer to investigate a case irrespective of limits of local jurisdiction of such officer. (2016(2) Apex Court Judgments 038 (S.C.)

Written statement - Absence of specific denial to the allegation made in plaint, is treated as admitted. (2016(1) Apex Court Judgments 433 (S.C.)

SC:"Irretrievable breakdown of marriage" - When available as a ground for divorce - Sec.13, Hindu Marriage Act, 1955 - Divorce

_*⭐SC:"Irretrievable breakdown of marriage" - When available as a ground for divorce - Sec.13, Hindu Marriage Act, 1955 - Divorce.*_

_Held, though not a statutory ground of divorce as yet, but Supreme Court in exercise of its plenary powers under Art.142 of Constitution has powers "to pass such decree or make such order as is necessary for doing complete justice in any case or order pending before it" ._

_Case:_
_*K. Srinivas Vs. K.Sunita*_

_Citation:_
_*(2014) 16 SCC 34 : (2015) 3 SCC (Cri) 400 : (2015) 3 SCC (Civ) 415.*_
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No Toilet At Home Amounts To Cruelty’: Family Court Grants Divorce...

‘No Toilet At Home Amounts To Cruelty’: Family Court Grants Divorce...

Read more at: http://www.livelaw.in/no-toilet-home-amounts-cruelty-family-court-grants-divorce/

Maintenance

Caveat emptor

Caveat emptor /ˌkævɛɑːt ˈɛmptɔːr/ is Latin for "Let the buyer beware"^[1] (from caveat, "may he beware", a subjunctive form of cavēre, "to beware" + ēmptor, "buyer"). Generally, caveat emptor is the contract law principle that controls the sale of real property after the date of closing, but may also apply to sales of other goods. The phrase caveat emptor and its use as a disclaimer of warranties arise from the fact that buyers typically have less information about the good or service they are purchasing, while the seller has more information. The quality of this situation is known as 'information asymmetry'. Defects in the good or service may be hidden from the buyer, and only known to the seller.

A common way that information asymmetry between seller and buyer has been addressed is through a legally binding warranty, such as a guarantee of satisfaction. But without such a safeguard in place the ancient rule applies, and the buyer should beware.

://en.m.wikipedia.org/wiki/Caveat_emptor

Abetment of suicide -

IMPORTANT DECISIONS (16.08.2017)

Abetment of suicide - Finding of harassment - Harassment is a lesser degree of cruelty - Finding of harassment does not lead to conclusion that there is `abetment of suicide' in absence of proof that accused subjected the victim to cruelty - In the instant case said vital link missing - Accused acquitted. (2017(2) APEX COURT J 513 (S.C.)

Death sentence - Brutal murder after rape of four years girl - While in jail accused pursuing studies - Jail record without any blemish -  Brutal murder completely outweigh the mitigating circumstances - Death sentence upheld. (2017(2) APEX COURT J 551 (S.C.)

Dishonour of cheque - Service of notice is presumed when notice is sent by registered post is returned with postal endorsement `refused' or `not available in the house'  or `house locked' or `shop closed' or `addressee not in station'. (2017(3) Civil Court Cases 001 (S.C.)

Exclusion of time - Pursuing of criminal remedy does not bring the case within the provision of S.14 of Limitation Act. (2017(3) Civil Court Cases 208 (P&H)

Maintenance - Can be enhanced as per changed circumstances - Rise in prices is changed circumstance. (2017(2) CIVIL COURT CASES 745 (H.P.)

Rent and eviction - Bona fide requirement - Merely because landlord has not examined the member of the family who intends to do business in the premises, he cannot be non suited in case he has otherwise established a genuine need. (2017(2) APEX COURT J 183 (S.C.) 0

Service - Promotion - Right of promotion does not crystallize on the date of occurrence of vacancy - Promotion is to be extended on the date when it is actually effected. (2017(2) APEX COURT J 523 (S.C.)

*Back window*

Acknowledgement of debt - By e-mail - Constitutes valid and legal acknowledgment. (2014(2) Civil Court Cases 581 (Karnataka)

Anticipatory bail - Absconder - Should not be granted anticipatory bail. (2014(1) Criminal Court Cases 244 (S.C.)

Co-owner - A co-owner can always maintain a suit for eviction.   (2010(1) Civil Court Cases 014 (S.C.)  

Counter claim - Not a part of written statement - Plaintiff is at liberty to file written statement in answering the counter claim. (2014(2) Civil Court Cases 051 (Allahabad)

Custody of motorcycle given in dowry at the time of marriage - Registration in the name of petitioner - Vehicle was `stridhan' of respondent No.2 - Trial Court rightly directed the interim custody of vehicle to respondent No.2. (2014(1) Criminal Court Cases 436 (Rajasthan)

Dishonour of cheque - Accused cannot be permitted to lead his evidence by way of affidavit. (2010(1) Civil Court Cases 669  (S.C.)

Dishonour of cheque - Lawful consideration for issuance of cheque not stated in complaint and notice - Complaint and notice is not encyclopedia - Complainant in statement in Court, is always at liberty to clarify for what the cheque was issued. 2014(4) Civil Court Cases 257 (Raj.)

Dishonour of cheque - Probation - Merely because the cheque amount has been deposited by accused after a lapse of considerable period of 10 years it would not disentitle accused from the benefit of probation - Accused released on probation. (2014(1) Criminal Court Cases 456 (Rajasthan)

Divorce - Petition u/s 13(1) of Act cannot be converted to be one u/s 13-B of Act - A new petition u/s 13-B of Act is required  to be filed before District Court. 2014(4) Civil Court Cases 764 (Calcutta)

Domestic relationship - It is the relationship in the nature of marriage which is recognised by the Act and not a live-in relationship simplicitor. (2014(1) Criminal Court Cases 126 (S.C.)

Dowry death - Death caused by burns - Not necessary for prosecution to prove that death occurred otherwise than under normal circumstances as death due to burns comes under otherwise then under normal circumstances. (2015(1) Criminal Court Cases 778  (S.C.)

Expunging remarks against Advocate - While deciding lis conduct of counsel not to be commented upon nor mala fide should be imputed against counsel who is an Officer of Court - Adverse remarks ordered to be deleted from judicial record. (2014(3) Civil Court Cases 373 (P&H)

Family settlement - A family settlement can be among not only heirs of a particular class, but also can take in its fold, persons outside the purview of succession. (2010(1) Civil Court Cases 161 (A.P.)  

Injunction - Decree - It is binding on the subsequent assignee. (2014(3) Civil Court Cases 462 (Kerala)

Marriage -  Medical examination - There should be strong prima facie case and sufficient material to direct medical examination - Adverse inference has to be drawn if party fails for medical examination - Court cannot compel a party to undergo medical examination to which he is not willing. (2014(2) Civil Court Cases 083 (P&H)

Wife frequenting parents and friends can’t be a ground for divorce, says HC

Wife frequenting parents and friends can’t be a ground for divorce, says HC
http://toi.in/BENQoZ/a19ah

SC:Nature of death - Death "otherwise than under normal circumstances" due to dowry demand - Homicide or Suicide or Accident -

_*⭐SC:Nature of death - Death "otherwise than under normal circumstances" due to dowry demand - Homicide or Suicide or Accident - Relevance.*_

_Ss. 304-B, 302 and 306 IPC . - "Death of a woman otherwise than under normal circumstances" - Includes suicidal death, homicidal death and also homicide masquerading as accident - Whenever such death occurs, accused should also be charged under Sec.302 or Sec.306 apart from under Sec.304-B._

_Case:_
_*Sher Singh Vs. State of Haryana*_

_Citation:_
_*(2015) 3 SCC 724 : (2015) 2 SCC (Cri) 422.*_
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_*Shared by:*_
_*ADV. Jacob Samuel
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Neglecting To Maintain Wife & Living With Another Woman Is ‘Domestic Violence’ To Wife:

Neglecting To Maintain Wife & Living With Another Woman Is ‘Domestic Violence’ To Wife: Karnataka HC [Read Order]...

Read more at: http://www.livelaw.in/neglecting-maintain-wife-living-another-woman-domestic-violence-wife-karnataka-hc-read-order/

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

NO. 43 OF 2005 [13th September, 2005.]
 An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

 CHAPTER I PRELIMINARY 1.
Short title, extent and commencement. 1. Short title, extent and commencement.-
(1) This Act may be called the Protection of Women from Domestic Violence Act, 2005.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions. 2. Definitions.-In this Act, unless the context otherwise requires,-
(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; (b) "child" means any person below the age of eighteen years and includes any adopted, step or foster child;
 (c) "compensation order" means an order granted in terms of section 22;
 (d) "custody order" means an order granted in terms of section 21;
 (e) "domestic incident report" means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;
 (f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
(g) "domestic violence" has the same meaning as assigned to it in section 3;
(h) "dowry" shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);
 (i) "Magistrate" means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
(j) "medical facility" means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;
 (k) "monetary relief" means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;
(l) "notification" means a notification published in the Official Gazette and the expression "notified" shall be construed accordingly;
(m) "prescribed" means prescribed by rules made under this Act;
 (n) "Protection Officer" means an officer appointed by the State Government under sub-section (1) of section 8;
(o) "protection order" means an order made in terms of section 18;
 (p) "residence order" means an order granted in terms of sub-section (1) of section 19;
(q) "respondent" means 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 this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
 (r) "service provider" means an entity registered under sub-section (1) of section 10;
(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; (t) "shelter home" means any shelter home as may be notified by the State Government to be a shelter home for the purposes of this Act.
CHAPTER II DOMESTIC VIOLENCE
3. Definition of domestic violence. 3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it - (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,- (i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; (ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) "verbal and emotional abuse" includes- (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. (iv) "economic abuse" includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration

. CHAPTER III POWERS AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS, TC. 4. Information to Protection Officer and exclusion of liability of informant. 4. Information to Protection Officer and exclusion of liability of informant.-(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer. (2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1). 5. Duties of police officers, service providers and Magistrate. 5. Duties of police officers, service providers and Magistrate.-A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person- (a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act; (b) of the availability of services of service providers; (c) of the availability of services of the Protection Officers; (d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987); (e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant: Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence. 6. Duties of shelter homes. 6. Duties of shelter homes.-If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home. 7. Duties of medical facilities. 7. Duties of medical facilities.-If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility. 8.Appointment of Protection Officers. 8. Appointment of Protection Officers.-(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act. (2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed. (3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed. 9.Duties and functions of Protection Officers. 9. Duties and functions of Protection Officers.-(1) It shall be the duty of the Protection Officer- (a) to assist the Magistrate in the discharge of his functions under this Act; (b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area; (c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order; (d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made; (e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate; (f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated; (g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place; (h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974); (i) to perform such other duties as may be prescribed. (2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act. 10.Service providers. 10. Service providers.-(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act. (2) A service provider registered under sub-section (1) shall have the power to- (a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place; (b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place; (c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place. (3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence. 11.Duties of Government. 11. Duties of Government.-The Central Government and every State Government, shall take all measures to ensure that- (a) the provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals; (b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act; (c) effective co-ordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted; (d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.

 CHAPTER IV PROCEDURE FOR OBTAINING ORDERS OF RELIEFS 12. Application to Magistrate. 12. Application to Magistrate.-(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. 13. Service of notice. 13. Service of notice.-(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. (2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved. 14. Counselling. 14. Counselling.- (1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed. (2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the case within a period not exceeding two months. 15. Assistance of welfare expert. 15. Assistance of welfare expert.-In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions. 16.Proceedings to be held in camera. 16. Proceedings to be held in camera.-If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera. 17.Right to reside in a shared household. 17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 18.Protection orders. 18. Protection orders.-The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favor of the aggrieved person and prohibit the respondent from- (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order. 19. Residence orders. 19. Residence orders.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order - (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman. (2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly. (5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to

. 20. Monetary reliefs. 20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (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. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
 21. Custody orders. 21. Custody orders.-Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit. 22.Compensation orders. 22. Compensation orders.-In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. 23.Power to grant interim and ex parte orders. 23. Power to grant interim and ex parte orders.-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section
22 against the respondent. 24.Court to give copies of order free of cost. 24. Court to give copies of order free of cost.-The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.
25.Duration and alteration of orders. 25. Duration and alteration of orders.-(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge. (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate. 26.Relief in other suits and legal proceedings. 26. Relief in other suits and legal proceedings.-(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 27. Jurisdiction. 27. Jurisdiction.-(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India. 28.Procedure. 28. Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. 29. Appeal. 29. Appeal.-There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. CHAPTER V MISCELLANEOUS 30.Protection Officers and members of service providers to be public servants. 30. Protection Officers and members of service providers to be public servants.-The Protection Officers and members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or any rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860). 31.Penalty for breach of protection order by respondent. 31. Penalty for breach of protection order by respondent.-(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions. 32.Cognizance and proof. 32. Cognizance and proof.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable. (2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused. 33.Penalty for not discharging duty by Protection Officer. 33. Penalty for not discharging duty by Protection Officer.-If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. 34.Cognizance of offence committed by Protection Officer. 34. Cognizance of offence committed by Protection Officer.-No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf. 35.Protection of action taken in good faith. 35. Protection of action taken in good faith.-No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder. 36. Act not in derogation of any other law. 36. Act not in derogation of any other law.-The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. 37.Power of Central Government to make rules. 37. Power of Central Government to make rules.-(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the qualifications and experience which a Protection Officer shall possess under subsection (2) of section 8; (b) the terms and conditions of service of the Protection Officers and the other officers subordinate to him, under sub-section (3) of section 8; (c) the form and manner in which a domestic incident report may be made under clause (b) of sub-section (1) of section 9; (d) the form and the manner in which an application for protection order may be made to the Magistrate under clause (c) of sub-section (1) of section 9; (e) the form in which a complaint is to be filed under clause (d) of sub-section (1) of section 9; (f) the other duties to be performed by the Protection Officer under clause (i) of sub-section (1) of section 9; (g) the rules regulating registration of service providers under sub-section (1) of section 10; (h) the form in which an application under sub-section (1) of section 12 seeking reliefs under this Act may be made and the particulars which such application shall contain under subsection (3) of that section; (i) the means of serving notices under sub-section (1) of section 13; (j) the form of declaration of service of notice to be made by the Protection Officer under subsection (2) of section 13; (k) the qualifications and experience in counselling which a member of the service provider shall possess under sub-section (1) of section 14; (l) the form in which an affidavit may be filed by the aggrieved person under sub-section (2) of section 23; (m) any other matter which has to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulmen