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Discussion > Family Law > Marriage > Can she dismiss this i say yes or may be no now what you say   Unanswered Threads Post New Topic

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There are 11 Replies to this message


Tajobsindia


Senior Partner
[ Scorecard : 19064]
Posted On 26 March 2013 at 00:16 Report Abuse

In my opinion this is a controversial Judgment;


1. Suppose wife had domestic relationship in Chennai with you. She leaves for Mumbai her natal home 1 year ago. After 1 more year she files from Mumbai DV Complaint. You file quash, will Mumbai HC dismiss your wife's complaint if Mumbai HC single Bench reasoning applied?


I say probably not even if such quash moved to same Single Bench? So where is the catch in this :-)


However with above caveat I open the discussion, let us hear you out one by one;


Bombay High Court
(1) (4) APL 160/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPLICATION NO. 160 OF 2011


Sejal Dharmesh Ved .. Applicant

Vs.

The State of Maharashtra & Ors. .. Respondents

Mr. Amit S. Dhutia i/b Niranjan Mundargi for the Applicant.
Mrs. A. A. Mane, APP for Respondent No.1State.


CORAM : MRS. ROSHAN DALVI, J.


DATE : 7 th MARCH, 2013 .


1. The applicantwife has challenged the order of the Court of Sessions at Greater Bombay dated 27.10.2010 holding that her application under the Prevention of Women from Domestic Violence Act, 2005 (D.V Act) is not maintainable because she was not in any domestic relationship.


2. The applicant married on 04.05.1999. She lived with her husband in the US. There are two issues from the marriage. She returned to India on 11.02.2009.


3. She filed her application under the D.V Act on 18.01.2010.


4. The learned Judge has considered that under these circumstances, she having come to India in February, 2009 and having filed this application in January, 2010, there was no domestic relationship between the parties. The learned Judge has considered the definition of domestic relationship. Of course, that relationship is defined to be one of which the party then lived andhad earlier lived. That would be during the subsistence of the union between them. The application under the D. V. Act could be filed, when the marriage union subsisted. That having came to an an end and long after the physical relationship came to be an end, she having returned to India, she cannot be taken to be living in any domestic relationship in India.


5. A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act.


6. A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. Such wife cannot be taken to be in any domestic relationship. The order of the learned Judge is, therefore, correct. The writ petition is completely devoid of merits and accordingly dismissed.


(ROSHAN DALVI, J.)



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stanley


Freedom
[ Scorecard : 3921]
Posted On 26 March 2013 at 11:05 Report Abuse

After almost a year after returning to india she filed a D.V case ?? 

As per the DV act (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;

As per the D.V act they  were in a relationship but the above judgement shows it the other way round .

It is not know under what circumstances she came to india and what was the status of her Visa and why she could not return back . Secondly if Domestic violence took place in the U.S than she should have filed a case of domestic violence which could be tried out over there . Than the question of jurisdication would also arise . 

:-) the funny part in india is that when a Dv case is filed in india these cases take years to come to a conclusion in the Meanwhile the applicant moves out of the home and stays at her parents place seeking reliefs which does not come so easily .The relation ship ceases and as per the above judgement say for 2-3 years they are not in any sort of domestic relationship . Hence all Domestic violence cases in india should be dismissed which is my point of view :-)

India is a strange country and the strangest of things happens only in india .

 

 

 

 

 



Amit


NA
[ Scorecard : 885]
Posted On 26 March 2013 at 12:16 Report Abuse

Imagine a live-in partner filing DVC several years after the domestic relationship has ended. Does not make sense.

 

Same thing applies for wife too. If there was domestic violence during the domestic relationship, once it comes to an end by separation, what's stopping the wife from filing DVC? Unless she has compelling reasons for not being able to file DVC, I think the one yr limit seems good to me.



stanley


Freedom
[ Scorecard : 3921]
Posted On 27 March 2013 at 10:44 Report Abuse

Originally posted by : Amit

Imagine a live-in partner filing DVC several years after the domestic relationship has ended. Does not make sense.

 

Same thing applies for wife too. If there was domestic violence during the domestic relationship, once it comes to an end by separation, what's stopping the wife from filing DVC? Unless she has compelling reasons for not being able to file DVC, I think the one yr limit seems good to me.

Normally even after DV being filed the relation ship comes to and end the couple is staying seperate for 2-3-4 yrs status pending court orders , heavy load of courts or just inaction in the case and dilly dalling delaying  tactis of counsels :-) than the judge should also dismiss all these cases .



Samir N (2HelpU)


Business
[ Scorecard : 1148]
Posted On 13 July 2013 at 23:48 Report Abuse

The Bombay High Court case is supported by cases from Delhi High Court from Justice Dingra and other cases from Andhra Pradhesh High Court. The law is becoming uniform - File DV case when Domestic Relationship is active or within one year from that time.  In general, the DV Act is becoming more pro-men through judgments though it started as thoroughly anti-men 



Amit


NA
[ Scorecard : 885]
Posted On 14 July 2013 at 05:43 Report Abuse

Samir, can you cite judgements of AP HC regarding the 1yr limit?



Samir N (2HelpU)


Business
[ Scorecard : 1148]
Posted On 21 July 2013 at 22:06 Report Abuse

I do not have the AP judgment with me as it was shown to me by an advocate AFTER my case was argued. I do have the Justice Dingra cases.  If you are unable to get them, let me know.  Also, it is worthwhile to simply file an application to dismiss the case if there was no domestic relationship for some time prior to the filing of the DV petition.  Let the Judge decide.  In general, Judges are aware these days that the DV Act is abused and if your is such as case, he will use this to rule in your favor. Give him some ammunition to do so.. So, go ahead, and file an application to dismiss. Keep it simple and focus on only THIS issue and nothing else.



Anuj Bansal


Student
[ Scorecard : 24]
Posted On 10 March 2014 at 16:12 Report Abuse

Samir Sir if you can kindly share the Judgments of Justice Dhingra it would be a great help for me. And also if you can cite some Supreme Court's Judgments as well supporting the same Law Point.


Anuj Bansal


Student
[ Scorecard : 24]
Posted On 10 March 2014 at 16:16 Report Abuse

Samir Sir if you can kindly share the Judgments of Justice Dhingra it would be a great help for me. And also if you can cite some Supreme Court's Judgments as well supporting the same Law Point.


Samir N (2HelpU)


Business
[ Scorecard : 1148]
Posted On 10 March 2014 at 18:42 Report Abuse

@Anuj Bansal:

Here they are. Some are more relevant than others but read each one thoroughly to find the relevance:

Inderjit Singh Grewal vs. State of Punjab & Anr. Cri. Appeal No. 1635/2011 (Supreme Court)
Sejal Dharmesh vs. State of Maharashtra. Crim. Appeal No. 160/2011 (Bombay High Court)
Harbans Lal Malik & Anr. vs. Payal Malik 171 (2010) Delhi Law Times (67)
Vijay Verma vs. State N.C.T. of Delhi Crl. M.C. No. 3878/2009 (Delhi High Court)
Umesh Sharma vs. State 1 2010 DMC 556 (Delhi High Court)

Please do not ask me to send them as I do not have them with me here as soft or hard copy at this time. Good Luck!
 




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