Академический Документы
Профессиональный Документы
Культура Документы
IN THE MATTER OF
Smt. Vimla Devi & Anr. .APPLICANT
Versus
Hari Lal.RESPONDENT
TABLE OF CONTENTS
1.2.
1.3.
1.4.
1.5.
COMPLAINT......................................................................................................................... 7
1.6.
Page | I
THE APPLICANT IS NOT ENTITLED TO ANY OF THE RELIEF UNDER PWDVA, 2005. ... 12
2.1.
2.2.
2.2.1.
2.2.2.
2.2.3.
2.3.
2.4.
2.4.1.
2.4.2.
2.5.
PRAYER .................................................................................................................................. X
Page | II
Page | III
Page | IV
STATUTES
Code of Criminal Procedure, 1973. ......................................................................................... 12
Guardianship and Wards Act, 1890 ......................................................................................... 12
Indian Evidence Act, 1872 ....................................................................................................... 13
Protection of Women from Domestic Violence Act, 2005 ..............................................1, VI, 1
BOOKS REFERRED
J.D. Jain, The Limitation Act, Eleventh Edition, Allahabad Law Agency, 1988 ..................... 11
Kusum, Harassed Husbands, Second revised edition, Regency Publications, New Delhi,
2003...................................................................................................................................... 3, 20
MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, Goyal Publishers and
Distributors Pvt. Ltd., 2005...................................................................................................... 13
ARTICLES
Kanchan Chaudhari, After separation of a year, wife cant file complaint under domestic
violence act, says high court, Hindustan Times Mumbai, First Published: 01:50
IST(15/3/2013), Last Updated: 01:51 IST (15/3/2013) ........................................................... 11
Page | V
The respondent most humbly submit to the jurisdiction encroached upon by the applicant
u/12 of the Protection of Women from Domestic Violence Act, 2005 (43 0f 2005).
Page | VI
Page | VII
I.
II.
WHETHER
Page | VIII
The present complaint is not maintainable as the same has been filed after 24 years of
separation between the parties and without any sufficient grounds for delay in filing the
present compliant on behalf of the applicant. Moreover, the parties have been living
separately since more than 28 years therefore there is no domestic relationship as per 2 (s)
of the Domestic Violence Act. Also, the present complaint does not come within the ambit of
shared household as enshrined under 2 (f) of the DV act. Hence, the present compliant is
untenable in law.
II.
WHETHER
The applicant is not entitled to any of the reliefs under the provisions of Domestic Violence
Act as firstly, the accommodation for which the respondent prayed is not a shared
household within the Domestic Violence Act. Moreover, the daughter Dolly is also not
entitled to share in the property of the respondent as the property in question is a self acquired
property of the respondent and not an ancestral property. Furthermore, the protection order
cannot be passed as any act of domestic violence has not taken place since the last 28 years as
both the parties have been living separately, and the same cannot be further foreseen. The
monetary relief and compensation cannot be granted to the applicant as proper reasons and
grounds have not been provided by the applicant for the same.
Page | IX
ARGUMENTS ADVANCED
1.
It is most respectfully submitted, that the present complain u/12 of the Protection of Women
from Domestic Violence Act, 2005 (herein after referred to as PWDVA) is not maintainable
as the present complaint has been filed on behalf of the complainant after 24 years of her
separation from the respondent and without any sufficient grounds for delay. Secondly, it has
to be observed by the court that there has been no act or allegation of Domestic Violence on
or after the enforcement of the PWDVA, 2005. All the allegations of the complainant pertain
to the period prior to the enforcement of PWDVA. Thirdly, the present case does not come
within the definition of Shared household and Domestic relationship as given in 2 (f), (s)
of the PWDVA, respectively, hence, the said respondent cannot be made a Respondent
within definition of 2 (q) of PWDVA. Therefore, the court cannot entertain the present
complaint in respect of cause of action as the same would be an abuse of process of law.1
1.1. NO ALLEGATION OF DOMESTIC VIOLENCE ON OR AFTER THE ACT.
The applicants case is based on acts of domestic violence alleged to be committed by the
respondent during and prior to the year 1986, but there is no evidence relating to the same,
moreover, there has been no Domestic Incident Report produced before the court by the
Protection Officer as per 9 of the act. If the report of the protection officer does not support
the complaint, then the complainant would fail.2 There are no instant or immediate acts of
domestic violence alleged to have been caused by the respondent on or after the PWDVA
came into force. The domestic violence has to be shown to have occurred in the near or recent
1
2
Kishor v. Sou Shalini 2010(112) BOM L.R. 1398, 2010 Cri L.J. 4049
Parag Vasat Mewada and Others v. State of Gujarat and Another 2013Cri.L.J. 4635
Page | 1
Supra, note 1.
State of Harayana and Others v. Bhajan Lal and Others MANU/SC/0115/1992 : 1992 Suppl. (1) SCC 335
5
I (2007) DMC 545 : MANU/DE/7223/2007
6
Kusum, Harassed Husbands, Second revised edition, Regency Publications, New Delhi, 2003
4
Page | 2
Page | 3
12
13
Ibid.
2011 (1) Crimes 496 : 171 (2010) D.L.T. 67 : II (2010) D.M.C. 202 : (2010) I.L.R. 6 Delhi 625
Page | 4
14
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.
15
Girish & Ors. v. Poonam, 2013(2) Crimes 18: 2013(1) R.C.R. (Criminal) 767
16
Umesh Sharma v. State I (2010) D.M.C. 556 : 2010 (115) D.R.J. 88 : I.L.R. (2010) Supp.(1) Delhi ; S.R.
Batra v. Smt. Taruna Batra AIR 2007 SC 1118 : 2007 (2) ALD 66 (SC) : 2007(3) ALT 18 (SC) : 2007 1
AWC (Supp) 664 SC : 2007(3) CTC219 : 136 (2007) DLT1(SC)
17
S.R. Batra v. Smt. Taruna Batra AIR 2007 SC 1118 : 2007 (2) ALD 66 (SC) : 2007(3) ALT 18 (SC) : 2007 1
AWC (Supp) 664 SC : 2007(3) CTC219 : 136 (2007) DLT1(SC)
18
2013 (2) Crimes 18, 2013 (1) R.C.R. (Criminal) 767
Page | 5
19
Page | 6
22
Harbans Lal Malik v. Payal Malik 2011(1) Crimes 496, 171 (2010) D.L.T. 67, II (2010) D.M.C. 202, (2010)
I.L.R. 6 Delhi 625
23
Supra, note 1.
24
1969 MPLJ 361: See also Anna Saheb v. Tarabai AIR 1970 MP 36 (DB); 1979 Hindu LR 313 (P&H)
25
Sitaram Ram Charan v. M.N. Nagrashana A.I.R. 1960 SC 260
26
Delay is not by itself a bar but is relevant when considering want of sincerity, that is, such conduct on the part
of the petitioner as ought to estop him or her from the remedy. Delay itself does not amount to approbation
and it is for this reason that the statue says that the delay must be improper and unnecessary. [vide Vinod
Chandra Dube v. Aruna Dube, AIR 1977 Del 24: (1976) 12 DLT 200: 1976 Rajdhani LR 526: (1977) 79
Punj LR (Del) 221: 1977 Hindu LR 751]
27
Smt. Vijaya Vasant Sawant v. Ms. Shubhangi Shivling Parab & Ors. 2013 (4) A.B.R. 833 : 2013ALL M.R.
(Cri) 2360 : 2013 Cri. L.J. 3592
Page | 7
of
civil
or
criminal
proceedings.
Further delay of
three
years
28
State of Harayana and Others v. Bhajan Lal and Others MANU/SC/0115/1992 : 1992 Suppl. (1) SCC 335
2013 (4) A.B.R. 833: 2013 ALL M.R (Cri) 2360 : 2013Cri. L.J. 3592
30
2012 (4) M.P.H.T. 169 : 2013 (2) R.C.R. (Civil) 827
29
Page | 8
31
Supra, note 1.
2010 (112) BOM L.R. 1398 : 2010 Cri L.J. 4049
33
Supra, note 6.
32
Page | 9
34
(2006) 4 SCC 1
J.D. Jain, The Limitation Act, Eleventh Edition, Allahabad Law Agency, 1988
36
Ibid, at p.3
37
Ibid
35
Page | 10
38
Page | 11
41
Page | 12
MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, Goyal Publishers and Distributors Pvt.
Ltd., 2005.
43
Jagad Bandhu Chatterjee v. Nilima Rani & Others Civil Appeal No. 2170 of 1967.
44
(2007) 6 MLJ 205 (Mad.).
Page | 13
45
Page | 14
46
47
Page | 15
2011 (100) AIC 12 (Mad) : 2011 (4) RCR (Crl) 499 : 2011 (1) CTC 841 : 2011 (2) DMC 159
2009 (2) LRC 150(All) : 2008 (61) ACC 228 : 2008 (1) JIC 931 : 2008 (2) All Cr. R 1953
Page | 16
Page | 17
50
Kusum, Harassed Husbands, Second revised edition, 2003, Regency Publications, New Delhi.
Page | 18
PRAYER
Therefore in the light of the issues raised, arguments advanced, reasons given and authorities
cited, the Honble Court may be pleased:
I.
II.
And pass any other relief that the Honble Court may be pleased to grant and for this act of
kindness the counsels for the respondent shall forever humbly pray.
Page | X