Can dv and 498a run on different aligations?

@ Author

In simple Bare Act / Code legal drafted English let me try to place the actual respective Bare Act / Code before you first (read the bold highlighted parts);


S. 498a IPC reads as follows:

498A. Husband or relative of husband of a woman subjecting her to cruelty.


Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.


Explanation-For the purpose of this section, "cruelty" means-


(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.


Now take a look at Definition of Domestic Violence (S. 3 of the Act)


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, s*xual 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) "s*xual abuse" includes any conduct of a s*xual 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 are there any further comments left to elucidate here if allegations should be ditto and or should vary then where comes the question that does S. 300 (1) of Cr.P.C. is wider than Art. 20 (2) of the Constitution?


While, Art. 20 (2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', S. 300 (1) of Cr.P.C. on the other hand states that “no one can be tried and convicted for the same offence or even for a different offence but on the same facts and or on different facts”. In the present query although the offences are different but also the facts are also different and no verdict of respective Courts has been announced yet. Hence, S. 300 (1) of Cr.P.C. applies or not is too early a question is my opinion.


I offer myself for discussion on my above reply only by ld. brothers.

Section 300 (1) of CrPC saying

 A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.

In my case 498a filed and chargesheet also submitted to in one court and again DV filed in another court.  The dates of voilence is same in both the complaints, but in 498a she mentioned for additional dowry demant and in DV it is s*xual harrasment?

Dear Sir,

Thanks for the information.  How can I ask both the trails to be conducted in one court?

@ Author

Citing reasoning illustration of extreme hardship to party such as;

- Inconvenience to travel on two different dates to two different Courts (reasoning works if you are coming from out of town)
- Hard to get leave to attend two different courts on two different court dates and thus loss of Job resulting into status degradation for which she is hoping much to get via maint. / alimony eventualy J (reasoning works if you are in pvt. Sector and bring on record some stricture letter from your Employer if you have appraised him of of matrimonial cases on your head and are in good books of your Employer)
- Cannot leave old dependent parents (reasoning works well if medical unfit old dependent parents are left behind)
- Cannot leave minor child behind (reasoning works well if yours truely ladyship left behind her minor child in your custody and just walked off to file two diverse cases upon you and your side)


Or as alternate pray for morning and afternoon proceeding cause list entry on same date to respective Courts cherry picking above grounds (this alternate reasoning works well if both MM courts are physicaly placed in same Court complex)


However based on my practice experience I always suggest clients to seek respective exemption from appearance if they hired me cherry picking from above grounds and give via Affidavit assurance to Hon’ble Court(s) to appear only when evidence stage required and with added assurance to Court that you will co-operate in investigations; thus allowing hired Lawyer to handle your case with hearing outcome feedbacks passed to a client on end of day basis.


Thus clients are kept happy = I am happy too at the end of day by not being bugged too often thus able to concentrate on more case more freely J


Colly. reasoning on above suggestion:
1. It is always better to have speaking Orders from two application of minds than from one assumingly biased mind. Thus not in favour of two different cases clubbed to one Court looked by one PO.


Choose from above which expected outcome shall work out well for you.  

Criminal Proc.code Sec. 221.Where it is doubtful what offense has been committed (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences , and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

Section 221 of Cr.PC is more relevant to you than Sec.300 of Cr.PC because the trial is still going on.  Sec.300 (1) Cr.PC relates to a situation where a person is already either convicted or acquitted.  In your case, you are not convicted or acquitted in either of the cases filed.  So Sec.221 of Cr.PC is more appropriate for you.  As both offenses are alleged to have been committed on same dates, you can pray the Court to try the charges at once under Sec.221 (1).

Though you can make an effort, I doubt that the same would be granted.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Dear Sudhakar :

Why are you worried about the omissions of pleadings in DV vis-a - 498 A matters ? 

On the contrary you should be very happy about it. 

Your wife wil not succeed in either in absence of these omissions. 

Relax. ! Get a good lawyer from criminal side he would do the needful.

Best Wishes.

Ganesh Sovani

Advcoate - Bombay High Court

M : 098209 28507

E-mail: ganeshsovani@hotmail.com

www.twitter.com/ganeshsovani