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COURT:
DELHI
JUDGE:
H.L. DATTU & CHANDRAMAULI KR. PRASAD
FACTS OF THE CASE:
The facts are that Ms. Payal Malik used to live with her parents before marriage at
Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at
Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001.
Nagesh Malik was already working in USA and after marriage both of them went to USA
on 20th September, 2001 where they settled their matrimonial home and lived together.
On 24th October, 2002 a female child was born to the couple at USA, who was named
as Vanishka. The parties continued living together in USA till 2008. It seems deep
differences arose between the parties and they could not pull on together.
There are allegations and counter allegations made by wife and husband which are not
relevant for the purpose of deciding this petition. However, husband alleged that on 6th
August, 2008 due to these differences, parties executed a post-nuptial agreement and
decided to obtain divorce from each other, sticking to the agreement. Wife refutes
having signed the agreement voluntarily and alleges that she was turned out from USA
by her husband on 22nd August, 2008. Whereas the husband contention is that she of
her own left USA without joining the husband for obtaining divorce through a Court in
USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery
Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly
served on her. The Court of New Jersey allowed the divorce petition and a decree of
divorce was granted on 4th December, 2008.
JUDGMENT:
H.L. DATTU & CHANDRAMAULI KR. PRASAD
Shri Basava Prabhul Patil, learned senior counsel appearing for the
contemnor/respondent would submit that pursuant to the directions issued by this
Court, the respondent herein has deposited a sum of Rs.2 lacs before the learned
Magistrate (Mahila Court), South East District, New Delhi. Further, today he is offering a
demand draft for a sum of Rs.50, 000/- to the learned counsel appearing for the
complainant. Both sides would agree that the aforesaid amounts would satisfy the
interim directions issued by this Court upto the end of July, 2012.
The complainant, if she so desires, is at liberty to withdraw the sum of Rs.2 lacs
deposited by the contemnor before the learned Magistrate. The learned counsel
appearing for the complainant acknowledges the draft handed over by Shri Patil,
learned senior counsel, for and on behalf of the contemnor. In view of this, nothing
survives in this Contempt Petition and the same is accordingly, disposed.
SOURCE (http://www.legalcrystal.com/904738).
JUDGMENT:
Poverty is not a defense against the right of a woman. Therefore, the petitioner is both
legally and morally bound to pay maintenance of Rs.800/- per month to the respondentwife. Furthermore, the Act does not require that the aggrieved person must stay with
the offending husband. Hence, merely because the respondent-wife is not staying with
the petitioner-husband, it would not absolve the husband from his liability under the Act.
Therefore, the contention raised by the learned counsel for the petitioner is without any
foundation.
For the reasons stated above, this Court does not find any illegality or perversity in the
impugned orders. This petition, being devoid of any merit is, hereby, dismissed. The
stay petition also stands dismissed.
SOURCE (http://www.lawyerscollective.org/files/OM%20PRAKASH.pdf)
JUDGMENT:
Disagreeing with the view of the High Court the apex court observed that unlike in
England where the rights of spouses to the matrimonial home was governed by the
Matrimonial Homes Act, 1967, no such right exists in India. The Court held that the
house belonged to the motherin-law of the respondent and hence the respondent
cannot claim right to live in the said house. The court also held that the house could not
be said to be a 'shared household' within the meaning of Section 2(s) of the Protection
of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor
was it joint family property. Accordingly, the appeal was allowed. It laid down, that only
in three instance can the wife claim the husbands house as the matrimonial home, they
being; if the property was in the name of the husband; or if the husband was paying
rent of the property; or if the husband was a member of a joint family and the property
being undivided.
The court also went on to discuss the legal obligation of the husband to provide
residence to the wife. The fact that Amit Batra applied for a divorce from the Petitioner
(although the divorce petition is now said to have been dismissed in default) does not
take away his obligation.
Consequently, Amit Batra shifting from the second floor of the said property to
Ghaziabad would not ipso facto shift the Petitioner's matrimonial home to Ghaziabad.
Hence according to the Supreme Court in the present case there was no obligation of
the respondent to let the petitioner reside in the house that does not belong to their
son.
SOURCE (http://www.lawyersclubindia.com/articles/Case-Comment-S-R-Batra-v-TarunaBatra-1250.asp#.U7OYV5SSwcs)
house i.e. residential flat No. A-102, 'Om Adarsh Co-op. Housing Society Ltd. Deonar,'
Gowandi (hereinafter called the 'subject-flat') and decree of permanent injunction
restraining respondent-husband, his mother and relatives from evicting, dispossessing
and/or excluding the respondent-wife from the subject flat is said to be a shared
household.
The aforesaid application was opposed by the petitioner-husband, on the various
grounds, contending that the subject flat is in the name of his mother. The flat situate at
'Pamakuti, Chunna Bhatti' is in the name of his grandfather, occupied by his aunt and
other relatives. In short, he denied his interest in the subject-flat. He has also
challenged the maintainability of the subject application and prayed for rejection
thereof.
JUDGMENT:
This petition, filed by petitioner-husband under Article 227 of the Constitution of India, is
directed against the order dated 29.7.2008 passed below Exh. 10 in Petition No. A-113
of 2007 by the Principal Judge of the Family Court, Bandra, Mumbai whereby the
petitioner, his mother, sister, other relatives, servants and agents are restrained from
obstructing the respondent-wife to reside in a shared household.
Rule, returnable forthwith. Heard finally by consent of parties. Perused the petition.
SOURCE (http://www.legalcrystal.com/367832)
proceedings before the Metropolitan Magistrate, New Delhi. Very briefly stated, the
Petitioner admits that a Ring Ceremony had been performed between him and
Respondent No. 2, but no marriage had been celebrated. Respondent No. 2 however
appears to have taken the stance that their marriage was duly solemnized.
Learned Counsel for the Petitioner has assailed the vires of the Act on the ground that
inasmuch as it provides protection only to women and not to men, the statute offends
Article 14 of the Constitution of India. It is beyond cavil that legislation must be
presumed to be legally sound and proper, and therefore the burden of proving that it is
unconstitutional rests heavily on the Petitioner who asserts so. It has been laid down
that if it is evident that a statute is predicated on an intelligible differentia between
persons falling within the protection of the provision viz-a-viz those falling outside, and
this classification/differentia bears a reasonable nexus to the object sought to be
achieved by the legislation, it would not infract or impinge upon the equality doctrine
articulated and enshrined in Article 14 of the Constitution.
JUDGMENT:
After hearing learned Counsel for the petitioner at great length we had suggested to
him that it would be in the interest of justice of the petitioner to address and
concentrate upon prayer (b) relating to the quashing of the proceedings before the
Metropolitan Magistrate. He has, however, insisted that the Act is ultra vires the
Constitution, thereby needlessly wasting public time on an issue in respect of which no
arguments of substance have been articulated. The challenge to the vires of the
Protection of Women from Domestic Violence Act is misconceived and devoid of merit.
The challenge is dismissed with costs of Rupees Three Thousand to be paid by the
Petitioner to Legal Aid for Women, Children, SC, ST and Poor, Delhi High Court, New
Delhi to be deposited within two weeks from today.
SOURCE (http://www.indiankanoon.org/doc/511970/)
NAME OF TH CASE:
10. Smt. Neetu Singh Vs. Sunil Singh
COURT:
Chhattisgarh
Judge:
L.C. Bhadoo and; Sunil Kumar Sinha, JJ.
FACTS OF THE CASE:
Facts necessary for the disposal of this appeal are that the appellant herein filed an
application under Section 12 of the Act, 2005 read with Section 7 of the Family Courts
Act, 1984, in the Court of Judge, Family Court, and Bilaspur on 13-6-2006 with the
averments that the appellant was married to respondent on 28-4-2003 as per the Hindu
custom. Just after the marriage, her in-laws started treating her with inhuman, cruel and
neglect behaviour. In connection with demand of money in-laws started beating the
appellant and she was thrown out of the matrimonial house, against which reports were
lodged in the Police Station on 7-8-2003 and 16-9-2004. On 9-11-2004, the appellant
sent a notice to the respondent reminding him about his matrimonial duties, thereafter
the appellant filed an application under Section 125 of the Cr. P.C. in the Court of Chief
Judicial Magistrate, Bilaspur, from where same has been transferred to the Family Court,
Bilaspur. The Family Court vide its order dated 20th April, 2005 passed an order for
interim maintenance to the tune of Rs. 1500/- per month. Her husband is earning about
Rs. 20,000/-per month. The in-laws have refused to return her articles which were given
to her by her parents in her marriage.
On the contrary, they have levelled false allegation of character assassination against
the appellant, complaint of which was made by her in the Police Station. Ultimately, the
appellant demanded Rs. 2 lakhs which were spent by her parents on arrangement of the
marriage i.e. on tent, shamiyana & food, an amount of Rs. 1, 56,792, value of articles,
which were given to her in the dowry and Rs. 1 lakh for subjecting her to cruelty and
character assassination. On 15-6-2006, the learned Judge, Family Court, in the presence
of the appellant, passed the impugned order.
JUDGMENT:
In view of the above scheme of the Act, especially as per the provisions of Section 26 of
the Act, the appellant herein is entitled to seek relief available to her under Sections 18,
19, 20, 21 and 22 of the Act, 2005 in the maintenance proceeding pending in the Family
Court, Bilaspur. But the appellant is required to move an application under Section 26
read with Section in which she is seeking relief. However, instead of doing that, the
appellant moved an independent fresh application under Section 12 of the Act, 2005
which can be entertained only by the Magistrate having jurisdiction. An application
under Section 12 cannot be filed before Family Court because proceeding under Section
12 of the Act, 2005, as per the scheme of the Act, has to be filed before the Magistrate
competent to entertain the application.
In the circumstances, we do not find any illegality or infirmity in the order impugned
passed by the learned Judge, Family Court. The appeal is, therefore, liable to be
dismissed and it is hereby dismissed. Still the appellant is entitled to move an
application under Section 12 of the Act, 2005 before the Family Court in the
maintenance proceeding said to be pending before that Court.
SOURCE (http://www.legalcrystal.com/496843)