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3rd RGNUL NATIONAL MOOT COURT COMPETITION, 2014

TEAM CODE- TC 31
The Case Concerning Domestic Violence

BEFORE THE HONOURABLE JUDICIAL MAGISTRATE


DISTRICT COURT, SINDUSTHAN

IN THE MATTER OF:VIMLA DEVI


.Petitioner
Versus
HARI LAL
Respondent

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

MOST RESPECTFULLY SUBMITTED TO THE HONBLE DISTRICT COURT


OF SINDUSTAN

Memorial on the behalf of Petitioner

Table of Contents

TABLE OF CONTENTS

S.No.

Heading

Page No.

1.
2.
3.
4.
5.
6.
7.
8.

Table of Contents
Index of Authorities
List of Abbreviations
Statement of Jurisdiction
Statement of Facts
Questions Presented
Summary of Pleadings
Pleadings:
ISSUE 1: Whether the action initiated against the Respondent is

i
ii
v
vi
vii
ix
X
1-17

maintainable under section 12 of PWDV Act, 2005, before Judicial


Magistrate of Sindusthan?
ISSUE 2: Whether the Petitioner and her daughter are entitled to claim
maintenance & different reliefs provided under the PWDV Act, 2005?
ISSUE 3: Whether Vimla Devi is estopped from claiming the said
9.

maintenance by the Doctrine of Estoppel?


Prayer

Index of Authorities

INDEX OF AUTHORITIES

18

LIST OF CASES

Preetam Singh v. State of U.P (2013) CRI.L.J. 22


Maroti Lande v. Sau. Gangubai Maroti Lande (2012) Cri LJ 87
Manivannan v. Thenmozhi
Mithlesh Kumari v. Bindhawasani, 1990 Cri LJ 45
Kashi Ram v. Ram Kali, 1970 MPLJ 20.
Meera v. Sukumar, 1994 Mad 168.
Raghvan Radhakrishnan v. Satyabhama Jai Kumari, AIR 1985 Kerala 193
Dattu Bhau Undage v. Tarabhai, AIR 1985 Bom 106
Samar Ghosh v.. Jaya Ghosh, (2007) 4 SCC 511
Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618
Madhuri M. Chithis v. Mukund M. Chitnis, 1992 Cri. C.J.111 (Bom)
Ravi Kumar v. Julmi Devi, (2010) 4 SCC 476: JT 2010 (12) SC 213: (2010) 2 SCALE

289 (2).
V. Ramasubramanian

MANU/TN/7835/2007
Ram Devi v. Raja Ram, 1963 All.564.
Kusum krishnaji Rewatkar v. Krishnaji Nathuji Rewatkar AIR 2008 Bom. 185
Chandra Kishore v. Nanak chand AIR 1975 Del 175.
Wali Ram Waryan Singh v. Mukhtiar Kaur AIR 1969 Punj. 285
Om Prakash v.. State of Rajasthan & Anr (S.B. Criminal Revision Petition

No.1220/2010)
Hema & Hemlata (Smt.) & Anr. V.. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291]
Gajendra Singh v.. Smt. Minakshi Yadav and Anr., S.B. Cr. Revision Petition No.

449/2010
Lal and Ors. v. Kanta Bai, (2010) 2 Crimes 862,
Rina Devibora v. Dwijen Ch. Bora & Anr.
Sushil Kumar v. Neelam
Geeta Satish Gokarna v. Satish Shankarrao Gokarna
Hirabai Bharucha v. Pirojshah Bharucha AIR 1945 Bom. 537.
Chandra Kishore v. Nanak Chand AIR 1975 Del. 175

J.

Vandhana

v.

STATUTES

Indian Evidence Act, 1872

T.

Srikanth

and

Krishnamachari,

Hindu Marriage Act, 1955


The Constitution of India, 1950
Indian Penal Code (45 of 1860)
The Code of Civil Procedure, 1908
The Code of Criminal Procedure, 1973
Dowry Prohibition Act, 1961
Hindu Adoption and Maintenance Act, 1956
The Protection of Women from Domestic violence Act, 2005
The Guardianship and Wards Act, 1890

BOOKS
DD Basu, Constitutional Law of India
Mulla, Principles of Hindu Law
P.M Bakshi, The Constitution of India
D.K Ganguly, Commentary on Protection of Women from Domestic Violence Act
R. P Kataria & Alok Saxena, Protection of Women from Domestic Violence Law
Anil Sachdeva, An Exhaustive Commentary on Protection of Women from Domestic

Violence Act & Rules


U.P.D Keshari, Modern Hindu Law
Paras Diwan, Modern Hindu Law
Dr. Suman Rai, Law relating to Protection of Women from Domestic Violence
DICTIONARIES

Henery Campbell Black, Blacks Law Dictionary


Bryan A. Garner, A Dictionary of modern Legal Usage
Ramanatha P. Aiyar, The Law Lexicon
Merriam Webster, Dictionary of Law
Steven. H. Gifs, Dictionary of Legal Terms
Elizabeth Martin, Oxford- Dictionary of Law
E-SOURCES

http://www.findlaw.com
http://www.indiankanoon.com

http://www.indlawinfo.org/

http://www.jstor.org.
http://www.judis.nic.in
http://www.lawsofindia.org
http://www.manupatra.com
http://www.scconline.com
http://www.supremecourtcaselaw.com

List of Abbreviation

LIST OF ABBREVIATION

&

And

Anr.

Another

AIR

All India Reporters

Bom.

Bombay

Cri.L.J.

Criminal Law Journal

Cr.P.C

Criminal Penal Code

C.P.C

Code of Civil Procedure

Del.

Delhi

D.V

Domestic Violence

D.P.A

Dowry Prohibition Act

HC

High Court

I.P.C

Indian Penal Code

I.L.R

Indian Law Reports

Ors.

PWDV

Raj.

Others
Protection of Women against Domestic Violence
Rajasthan

SC

Supreme Court

SCC

Supreme Court Cases

SCR
U/S

Supreme Court Reporter


:

Under Section

Statement of Jurisdiction

STATEMENT OF JURISDICTION

THE COUNSEL FOR THE PETITIONER WOULD LIKE TO PRESENT THE CASE IN
THE JURISDICTION OF THE HONORABLE DISTRICT COURT OF SINDUSTHAN
UNDER SECTION 271 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005.

1 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.

Statement of Facts

STATEMENT OF FACTS

1. Vimla Devi married Hari Lal in 1983. After few months of marriage, Hari Lal began to
neglect Vimla Devi. Gradually, he and his family members began to demand dowry from
Vimla Devi and her parents. There was no warmth in the marriage and physical violence
against Vimla Devi at hands of Hari Lal became a routine.
2. Vimla Devi resided with her husband for an year and a half, where after, she got
pregnant, she was sent to her parents house by her husband and the larger part of the
period of pregnancy was spent by her at her parents house in Bhimpur.
3. Vimla Devi gave birth to a girl child Dolly on 22nd March 1986. No one came to take
her away. When Dolly was two months old, father and brother of Vimla, brought her to
the house of Hari Lal, however, the incidents of illtreatment, verbal, physical and
emotional abuse at the hands of Hari Lal continued.
4. After a few days, she was driven out by Hari Lal alleging that Dolly was not his child.
Vimla Devi never returned except in 1990. She got employed as an Anganwari worker, in
1991.

5. In 1994 Hari Lal moved the Court under the Guardianship and Wards Act, for the custody
of Dolly. The action was contested by Vimla, who was able to substantiate that she was in
a better position to take care of Dolly and fulfilling her basic requirements.
6. In the year 1997 Vimla moved an application before the concerned Gram Panchayat of
Bhimpur for provision of maintenance for herself and her daughter. After hearing both the
parties the concerned Gram Panchayat, ordered Hari to pay a maintenance of Rs. 500/
per month to the applicant for herself and her daughters purposes. Not even a single
payment was made by him as per this order.
7. During this entire time, the name of Vimla and her daughter had been struck off from the
local registers, pertaining to the family of Hari Lal as they were living separately and
their record was being maintained as a separate unit in the place of their residence.
8. Hari, who was working as a government servant and earning a monthly salary of about
Rs. 30,000, had moved out of the joint family house and constructed a new house in
Bhimpur and shifted in this house along with his brother.
9. In the year 2010 Dolly completed her education at the college level, Vimla initiated an
action against Hari under the Protection of Women from Domestic Violence Act, 2005,
praying that she was aggrieved person and since, she had suffered verbal, physical and
emotional abuse at the hands of Hari, where after she remained economically deprived
for want of any maintenance or economic support by Hari for a period of more than 2
decades and now when her daughter was grownup into the age of marriage, she and her
daughter are entitled to different reliefs provided for under the Protection of Women from
Domestic Violence Act, 2005.
10. In the course of evidence, the respondent was able to prove that the local authorities, after
due consideration and by way of a resolution, had ordered deletion of the name of Vimla
from the list of people Below Poverty Line, of the concerned area, the resolution was
passed in January 2011.

Questions Presented

QUESTIONS PRESENTED

The following questions are presented before the Honble Court in the instant matterIssue 1
Whether the action initiated against the Respondent is maintainable under section 12 of
Protection of Women against Domestic Violence Act, 2005, before Judicial Magistrate of
Sindusthan?
Issue 2
Whether the Petitioner and her daughter are entitled to claim maintenance & different
reliefs provided under the Protection of Women from Domestic Violence Act, 2005?
Issue 3
Whether Vimla Devi is estopped from claiming the said maintenance by the Doctrine of
Estoppel?

Summary of Pleadings

SUMMARY OF PLEADINGS

1) Whether the action initiated against the Respondent is maintainable under section
12 of PWDV Act, 2005, before Judicial Magistrate of Sindusthan?
It is humbly submitted before the Honble Court that the Respondent is liable for his act under
the PWDV Act, 2005. The law recognizes the right of women to the finances of the husband, as
well as, economic right of having the Stridhan and the right to be maintained by the husband. In
the present case, the said right is violated. Admittedly, even after coming into force of the Act on
October 26, 2006, the petitioner is not being maintained by the respondent. Therefore, she is
being subjected to economic abuse. Since a civil wrong is continuously being committed after
October 26, 2006, obviously the Act would apply to the petitioner. Therefore, the question of
retrospective application of the Act does not even arise in the present case.
2) Whether the Petitioner and her daughter are entitled to claim maintenance &
different reliefs provided under the PWDV Act, 2005?
It is humbly submitted before the Honble Court that Petitioner and her daughter both are entitled
to claim different reliefs provided under the PWDV Act. The court can intervene in matter
concerning monetary relief and permanent maintenance orders. The respondents act, omission or
commission or conduct comes under the preview definition of Domestic Violence. The rights of
appellant have been infringed. The case involved grave and substantial injustice done to the
appellant.

3) Whether Vimla Devi is estopped from claiming the said maintenance by the Doctrine of
Estoppel?
It is humbly submitted before the Honble Court that in the present case petitioner may not be
bound by her act or conduct, by the Doctrine of Estoppel. If the Respondent waived or abstain
the petitioner right to claim maintenance, by the doctrine of Estoppel in future then such a term is
contrary to public policy and may be prosecuted for the same.

Pleadings

CONTENTION A
Whether the action initiated against the Respondent is maintainable under section 12 2 of
Domestic Violence Act, 2005, before Judicial Magistrate of Sindhustan?
It is humbly submitted before the Honble Court that Mrs. Vimla Devi is an Aggrieved Person
under Protection of Women from Domestic Violence Act, 2005. An Aggrieved Person has been
defined U/S 2 (a) of this act- which means any woman who is, or has been, in a domestic
relationship3 with the respondent and who alleges to have been subjected to any act of domestic
violence by the respondent is said to be Aggrieved Person. This clearly indicates that any
woman who has been in a domestic relationship with the respondent could be an aggrieved
person, if she has been subjected to any act of domestic violence.

2 (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 favor 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 endeavor to dispose of every application made under subsection (1) within a period of sixty
days from the date of its first hearing.

3 Section 2(f) of Domestic Violence Act 2005 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;

Domestic violence has been defined in section 2(g) of the Protection of Women from Domestic
Violence Act, 2005 as under:- 2(g): domestic violence has same meaning as assigned to it in
section 34;
Now, the Counsel for the Applicant would like to bring to the kind notice of Honble Court on
two possible perspectives.
1.1)

If Matter Concerns with the Retrospective effect of the DV Act:

4 Section 3 of Domestic Violence Act 2005 defines the 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.

Now, only question which came up for determination is whether the petition under the provisions
of the PWD Act, 2005, is maintainable, who was no longer residing with her husband or who
was allegedly subjected to any act of domestic violence prior to the coming into force of the
PWD Act on 26th October, 2006.
In the recent judgment of the Honble Supreme Court in Lt. Col. V. D. Bhanot v. Savita Bhanot5
dealt with the matter of retrospective operation of the Act. It was held that the past conduct of the
parties, even if prior to the Act coming into effect, were relevant for passing orders under
Sections 18, 19 and 20 of the Act and maintainable U/S 12 of this Act. The Honble SC also
declared that Delhi High Court held that even if a wife, who had shared a household in the past,
but was no longer doing so when the act came into force, would still be entitled of the PWD Act,
2005
Now, if the Counsel considers the Constitutional Safeguards under Article 21 of the Constitution,
vis--vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the
statement of objects and reasons for the enactment of the PWD Act, 2005, the counsel considered
that it is with the view of protecting the rights of women under Articles 14, 15 and 21 of the
Constitution that the Parliament enacted the PWDV Act, 2005, in order to provide for some
effective protection of rights guaranteed under the Constitution to women, who are victims of
any kind of violence occurring within the family and matters connected therewith and incidental
thereto, and to provide an efficient and expeditious civil remedy to them. So that a petition under
the provision of the PWDV Act 2005 should be maintainable even if the acts of domestic
violence had been committed prior to the coming into force of the said Act.

5 Special Leave Petition (Crl.) No. 3916 of 2010, Decided On: 07.02.2012

1.2)

If Matter do not concern with the Retrospective effect of the DV Act:

Now, the Counsel would like to submit before the Honble Court that Section 3 of the Act
defines the term domestic violence which includes economic abuse. An explanation in Section 3
of the Act defines the term economic abuse as the denial of maintenance and denial of Stridhan.
Although it is true that the parties have been living separately since 1986, but the fact remains
that after the Act came into force in 2006, even thereafter, Vimla Devi is not being maintained by
the respondent. Therefore, her economic right of maintenance is being violated. Since the civil
wrong is continuously being violated, therefore the Act is certainly applicable. And it is further
contented by the counsel for the Applicant that as the Respondent allegedly involved in the
incidents and act of cruelty, illtreatment, verbal, physical and emotional abuse etc, although
committed prior to the coming into force of the Act are continuous causes of action and, as such,
the question of retrospective effect of the Act does not arise at all. In the case of Rina Devibora
v. Dwijen Ch. Bora & Anr6, the Hon'ble Judge of the Gauhati High Court has held "The
respondent is continuously depriving the petitioner, who is legally entitled to a shared household
in terms of the provisions of the Domestic Violence Act. The denial of access to shared
household to the petitioner took place prior to coming into force of the Domestic Violence Act,
but such denial continued even thereafter. As the act complained of by the petitioner is a
continuing breach of legal right as envisaged in the Domestic Violence Act, there is no question
putting a halt to the relief sought for. Therefore, giving relief to the petitioner for such continuous
breach of the legal right which has accrued to her, would not amount to giving retrospective
effect to the provisions of the Domestic Violence Act. The Court held that there is no hesitation
to hold that continued deprivation of economic or financial resources and continued prohibition
6 E Cr. N. 2009 (4) 724(GAU)

or denial of access to shared household to the aggrieved person is a domestic violence and the
protection under the Domestic Violence Act will be available to the petitioner, who was driven
out from her husband's shared household prior to coming into effect of the Domestic Violence
Act, as the deprivation continued even after the Act came into force."
In case of Nityananda Das @ Chantu Das v. State Of West Bengal & Anr 7 the honourable
High Court held that that the acts of torture, cruelty etc are the continuing causes of action no
regard to retrospective of act for which the Learned Magistrate has the jurisdiction to pass
necessary orders under the provisions of the Act relying on the judgment of Bulu Das v. Ratan
Das8 and Rina Devibora v. Dwijen Ch. Bora & Anr9.
In another case of Gajendra Singh v. Smt. Minakshi Yadav and Anr 10. the Honourable High
Court of Rajasthan held that the marriage of the parties continues to subsist; although the parties
are living separately, but the Respondent wife continues to face domestic violence including
threats, verbal and emotional abuse, and economic abuse. Therefore, the Respondent/wife has a
right of protection under the Act. Since civil wrongs are continued to be committed against her,
she is certainly entitled to move the application under Section 12 of the Act.
1.3)

If the Matter Concerns with period of Limitation :

7 CRR NO. 690 OF 2011


8 E Cr. N. 2010 (1) 599(GAU)
9 (supra)
10 2011(1) Cr.L.R.(Raj.) 839

It is humbly submitted before the Honble Court that Section 3 of the Limitation Act, it has been
specifically said that subject to the provisions contained in Sections 4 to 24, every suit instituted,
appeal preferred and an application made after the prescribed period shall be dismissed, although
limitation has not been set up as a defence. Section 511 of that Act enables any Court to entertain
any appeal or application after the prescribed period, if the appellant or the applicant satisfies the
Court that he had "sufficient cause for not preferring the appeal or making the application
within such period". So far Section 473 of the Code is concerned; the scope of that Section is
different. Section 473 of the Code provides:Extension of period of limitation in certain cases- Notwithstanding anything contained in the
foregoing provisions of this Chapter, any Court may take cognizance of an offence after the
expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the
case that the delay has been properly explained or that it is necessary so to do in the interest of
justice. The Honourable Supreme Court of India in Vanka Radhamanohari (Smt) v. Vanka
Venkata Reddy And Ors12 held that the allegation that the complainant had been made is
subjected to cruelty by the respondent, the High Court should have held that it was in the interest
of justice to take cognizance even of the offence under Section 498A ignoring the bar of Section
468.

11 Extension of period in certain case.--Any appeal or application for [a revision or] a review of judgment or for
leave to appeal or any other application to which this section may be made applicable [by or under any enactment]
for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or
applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application
within such period. Explanation.---The fact that the appellant or applicant was misled by any order, practice or
judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause
within the meaning of this section.

12 1993 (2) BLJR 875, 1993 (2) Crimes 275 SC

In view of his above discussion, most interpretation that can be drawn that continued deprivation
of economic or financial resources and continued prohibition or denial of access to shared
household to the aggrieved person is a domestic violence and the protection under the Domestic
Violence Act will be available to the petitioner, who was driven out from her husband's shared
household prior to coming into effect of the Domestic Violence Act, as the deprivation continued
even after the Act came into force.
Thus it is humbly submitted before the Honble Court that in the present case the petitioner have
been tortured, illtreated, verbally, physically and emotionally abused and also remained
economically deprived for want of any maintenance or economic support by Respondent for a
period of more than 2 decades, although the act committed prior to the coming into force of the
Act are continuous causes of action and, as such, the question of retrospective effect of the Act
does not arise at all. Hence in the present case the said right is violated as a civil wrong the Act
provides a remedy to the aggrieved person. Admittedly, even after coming into force of the Act
on October 26, 2006, Mrs. Vimla Devi is not being maintained by the Respondent. Therefore,
she is being subjected to economic abuse. Since a civil wrong is continuously being committed
after October 26, 2006, till date of filing the petition. However, in the present case, the marriage
of the parties continues to subsist; although the parties are living separately, but the Respondent
wife continues to face domestic violence including threats, verbal and emotional abuse, and
economic abuse.
It is humbly submitted before the Honble Court that the Respondent is guilty for his act
under the PWDV Act, 2005. The law recognizes the right of women to the finances of the
husband, as well as, economic right of having the Stridhan and the right to be maintained
by the husband.

Pleadings

CONTENTION B
Whether the Petitioner and her daughter are entitled to claim maintenance & different reliefs
provided under the Protection of Women from Domestic Violence Act, 2005 ?
It is humbly submitted before the Honble Court that Applicant and her daughter both are
aggrieved person under the PWDV Act, 2005. The Applicant and her daughter both are
continuously mentally and economically deprived for want of any maintenance or economic
support by Hari Lal for a period of more than 2 decades.
A magistrate may pass protection order, residence order, monetary reliefs, custody orders and
compensation orders. The magistrate may also pass interim and exparte orders in the nature of
protection order, residence order, monetary reliefs, custody orders and compensation orders in
favor of aggrieved party.
Madras High Court in V. Ramasubramanian J. Vandhana v. T. Srikanth and
Krishnamachari13 opined that a healthy and correct interpretation of Sections 2(f) and 2(s)
would be that the words live or have at any point of time lived would include within their
purview the right to live.

13 MANU/TN/7835/2007

This judgment clarified that the womans right to protection under Section 17 of the Act, coexists with her right to live in the Shared Household and is not dependent on whether or not she
had marked her "physical presence in the Shared Household.
In Ram Devi v. Raja Ram 14 where husband by his conduct eventually creates a condition under
which her wife could not able to cohabite with him, this creates justifies reason under which wife
could live separate and claim maintenance to fulfill her requirements and needs.
Recently in Kusum krishnaji Rewatkar v. Krishnaji Nathuji Rewatkar 15, the Bombay High
court held that a wife can recover the marriage expenses of daughter from her husband. In this
case wife filed a suit against husband for recovery of marriage expenses of their daughter. She
lived with her daughter, separately since last 25 years and she had spent money for performance
of marriages of their daughters. Under the Hindu law father is bound to make provision for
marriage of daughter. The court observed that there is no ground to deny marriage expenses to
her. So the wife is entitled to recovery of reasonable expenses from her husband.
In Chandra Kishore v. Nanak chand16, it was held by the Delhi High Court that the obligation of
the Hindu father includes the obligation to maintain unmarried daughter not only for the purpose
of her day to day expenses but also in respect of reasonable expenses of her marriage. Thus a
Hindu father is obliged to meet marriage expenses his daughter, whether there is joint family
property or not a joint family property.

14 1963 All.564.
15 AIR 2008 Bom. 185
16 AIR 1975 Del 175.

In another landmark judgment of Punjab High Court, In Wali Ram Waryan Singh v. Mukhtiar
Kaur17 it was held that the burden of unmarried daughter is on the father or mother to charged
from his or her liability to pay maintenance to her unmarried daughter and if anyone of the party
(father/mother) not able to maintain her unmarried daughter then it is the duty of another party to
maintain her unmarried daughter.
The Domestic Violence Act reorganized a womens right to reside in the shared housed with her
husband or a partner even when a dispute is on. Sec.2(s) defines household as the place where
the aggrieved person lives/lived in a domestic relation. And thus sec.17 of this Act, gives a
aggrieved women the right to reside in the shared household the women can demand alternate
accommodation and such accommodation and her maintenance has to be paid by her husband or
partner.
The counsel for the Applicant strenuously contends that Section 3 of the Act defines the term
domestic violence which includes economic abuse. An explanation in Section 3 of the Act
defines the term economic abuse as the denial of maintenance and denial of Stridhan. Although
the party are living separately since 1986, but the fact remain the same as both the Applicant her
daughter are economically deprived by the Respondent, but where it was the duty of the
respondent to provide better maintenance and live hood to both of them.
The High Court of Rajasthan in Om Prakash v. State of Rajasthan & Anr 18., held that it is the
duty of the husband and right of women to finance from her husband as well as, economic right
of having the Stridhan and the right to be maintained by the husband. In case the said right is
17 AIR 1969 Punj. 285
18 (S.B. Criminal Revision Petition No.1220/2010)

violated as a civil wrong the Act provides a remedy to the aggrieved person. Admittedly, even
after coming into force of the Act on October 26, 2006.
In Gajendra Singh v. Smt. Minakshi Yadav and Anr.19 The Rajasthan High Court held that in
present case the parties continue to be husband and wife, as the marriage is still subsisting.
Moreover, the acts of domestic violence have been committed by the Petitioner and his family
members even after coming into force of the Act. Hence the Respondent, Minakshi Yadav
entitled to get relief under the PWD Act.
Undoubtedly the PWD Act is meant to protect the women from domestic violence committed
against them by the husband and his family members. The Act has recognized the fact that
domestic violence is limited not only to physical and mental cruelty, but can also extend to
verbal and emotional abuse, and even to economic abuse. The Act has recognized the fact that
mental cruelty can take the form of verbal and emotional abuse; such an abuse would include
threat to causing physical abuse to any person in whom the aggrieved person is interested.
Moreover, the Act has recognized that aggrieved person has a right to economic resources
of the husband and his family members, has a right to "stridhan", and has a right to be
maintained.
In a landmark and recent case of Preetam Singh v. State of U.P20, Allahabad High Court was in
the view that U/S 12 of the PWDV Act, 2005 an aggrieved person may request an application
to the Magistrate seeking maintenance & different reliefs. Accordingly, for the purpose of
entitlement to move the application U/S 12, the person must be an aggrieved person.
19 S.B. Cr. Revision Petition No. 449/2010
20 (2013) CRI.L.J. 22

Aggrieved person is defined U/S 2(a) of the Act. It 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.
The word has been is important. This clearly indicates that any woman who has been in a
domestic relationship with the respondent could be an aggrieved person, if she has been
subjected to any act of DV.

Domestic Violence has been defined U/S 2(g) 21 of PWDV Act, 2005. It explains that even
economic abuse would constitute Domestic Violence. Section 3(iv)(a) of the PWDV Act, 2005
provides that economic abuse includes 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 which the aggrieved party requires out of necessity. It further
includes household necessities to the aggrieved & the child if any, Stridhan, property-jointly or
separately.
21 (g) "domestic violence" has the same meaning as assigned to it in section 3; Section 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.

Reading together the provisions of Section 2(a) & section 3(iv)(a) of PWDV Act, it is clear from
the facts of present case that Vimla Devi, even if she was driven out of her matrimonial home
prior to the commencement of the PWDV Act, 2005, if she continues to be deprived of all or any
economic or financial resources to which she is entitled under any law or custom whether
payable under an order of a Court or which she requires out of necessity, thus she is entitled to
move an application U/S 12, further claim maintenance & different reliefs provided under this
act.
In the case of Marti Lande v. Sau. Gangubai Maroti Lande22 , Bombay High Court was ohf the
view that deprivation to the benefits of a matrimonial home amounts to economic abuse & it
generates a continuous cause of action.
The Delhi High Court held a view in a case that, even if a wife who has shared a household in
the past, but was no longer doing so when the Act came into force, would still be entitled to the
protection of the PWDV Act, 2005.
Thus it is humbly submitted before the Honble Court that the Petitioner and her daughter
both are entitled to claim different reliefs provided under the PWDV Act. The court can
intervene in matter concerning monetary relief and permanent maintenance orders. The
respondents act, omission or commission or conduct comes under the preview definition of
Domestic Violence. The rights of appellant have been infringed. The case involved grave
and substantial injustice done to the appellant.

22 (2012) Cri LJ 87

Pleadings

CONTENTION C

Whether Vimla Devi will be debarred or estopped from claiming the said maintenance by the
Doctrine of Estoppel?
It is humbly submitted before the Honble Court that the petitioner and her daughter are not
estopped or bound by the Doctrine of Estoppel, which is defined under section 11523 of Indian
Evidence Act, 1872.
In case of Sushil Kumar v. Neelam, Justice Satish Kumar Mittal of Punjab and Haryana High
Court held that, if the respondent- wife is debarred or estopped from claiming the said
maintenance and if she had agreed not to claim the maintenance from the petitioner in future.
The right to claim maintenance by the wife, children and the old parents, who are not capable to
maintain themselves, serve as a public policy by the State.
The definition of "wife" has also been given extended meaning by the statute in order to provide
security in life to a wife and who being a destitute is unable to maintain herself. This is a matter
of public policy and not of an individual. In such circumstances, the statutory right which has
been conferred on a person under a public policy cannot be waived. It is also well settled that
any contract which is opposed to public policy is void under Section 23 24 of the Indian Contract
Act, 1872, and the same cannot be enforced in a Court of law.

23 Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in
any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

24 The consideration or object of an agreement is lawful, unless- it is forbidden by law 1[ ; or is of such a


nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies
injury to the person or property of another or; the Court regards it as immoral, or opposed to public
policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every
agreement of which the object or consideration is unlawful is void.

In another case Geeta Satish Gokarna vs Satish Shankarrao Gokarna, Bombay High Court
held that Right to claim maintenance is a part of larger right to life. Neither the Provision under
section 11 of the Code of Civil Procedure, 1908 nor the Principle of Res Judicata nor the
Doctrine of Estoppel can be evoked to defeat the wifes claim to maintenance.
In case of Hirabai Bharucha v. Pirojshah Bharucha25 the leaned judge held that if wife right
to claim alimony/maintenance is waived or abstain by the doctrine of Estoppel in future then
such a term is contrary to public policy. As it remarked by Lord Atkin the wifes right to
future maintenance is a matter of public concern which she cannot barter away.
As in the present case the petitioner, who said that she was in a better position to take care of her
daughter Dolly and fulfilling her basic requirements; further she also admitted in the Court that
she did not have enough source of income to support the education of her daughter on her own,
so here right to claim maintenance against her daughter had not been waived or abstain by the
Doctrine of Estoppel and if respondent denied to maintain her daughter and his wife, then it
would create a situation of contrary to public policy and the respondent could be punished for
waiving his right to maintenance against her wife and daughter.
It has also been inferred from the present case that when the respondent in 1994 moved the Court
under the Guardianship and Wards Act, seeking that the custody of Dolly be handed over to him.
The action was contested by Vimla Devi, who was able to substantiate that she was in a better
position to take care of Dolly and fulfilling her basic requirements. Then at that time, the
petitioners daughter Dolly was minor but now at the date of filing the petition she has attained
the age of majority and grownup into the age of marriage. Now at the present time the petitioner
25 AIR 1945 Bom. 537.

cannot be estopped by her act or conduct, which was declared or delivered at 1994. And now, it
is the duty of Respondent to maintain her unmarried daughter not only the basic necessities or
day to day expenses only but also in respect of reasonable expenses of her marriage26.
Thus, it is humbly submitted before the honorable court that the petitioner/ Mrs. Vimla
Devi and her daughter is not bound or estopped by the Doctrine of Estoppel and if they
estopped or bound to claim relief then if would create against the public policy.

26 Chandra Kishore v. Nanak Chand AIR 1975 Del. 175

Prayer

PRAYER

In the light of above mention issues raised, arguments advanced and authorities cited, the
Petitioner humbly submits that the Honble Court may be pleased to adjudge and declare that:

A decree of Maintainability/ Monetary relief and Order for Compensation be passed.


The Petitioners daughter should be provided a share in property of Respondent directing
him not to commit any further act of Domestic Violence against petitioner and her
daughter
Pass an order for restoration of stridhan.

And to pass any such order or orders as the Honble Court may deem fit and
proper in the light of justice, equity and good conscience. The counsel shall forever
beseech this Honorable Court for its Honorable Consideration.

Counsel for the Petitioner

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