Anil 26 April 2020

Filing repeated dv

I married in year 2003 (Hindu marriage). My engineer wife deserted matrimonial house in year 2007 with my then 3 yr old son. She filed DV case for maintenance in year 2008. After completion of her cross examination it was clear to the trial court that domestic violence is not established. At this point she and her lawyer were continuously absent for the proceedings and the case was dismissed by the trial court in year 2016. 1 year after her dv case dismissal she filed for reinstating her dismissed dv case in distict court and on non-compliance of district court order to satisfy it on certain point this appeal was also dismissed after 1 year as she and her lawyer remained absent for proceedings. Immediately after dismissal of her appeal she filed another DV case in 2018 in different district court in same district. Since we do not have any domestic relationship since year 2007 and her one DV case and appeal against me is already dismissed, what should I do ?? She has also filed 498a, maint. under CrPC 125 and divorce cases in year 2013-14. I have filed for custody of child in year 2015. Now also I am ready to cohabit with her, which she is refusing and demanding divorce, child custody & money. We are acquited in 498A case this year. Should her refiled DV case should be considered by court to grant her interim relief. Please guide.

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4 Replies

P. Venu (Advocate) 27 April 2020

The Court is not expected to entertain the DV Petition in the absence of prima-facie evidence?

Anil 27 April 2020

Sir, thank you for your reply. On what basis (i.e. section or any judgement??). Court will consider her fabricated affidavit to give her interim relief without asking her to produce any evidence of abuse. Pl clarify/guide.

Vanya Agarwal 27 April 2020

Hello sir,

An application under Domestic Violence is mainly of a civil nature therefore the doctrine of Res Judicata would be applicable in such cases. The doctrine operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. A cause of action is the set of facts on the basis of which a person has the Right to Sue.

This doctrine has been enumerated under Section 11 of the Civil Procedure Code. As per Section 11, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of their claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which this issue has been subsequently raised and has been heard and finally decided by the court.

Since she has filed the same case with the same cause of action in a lower court, even though her case has already been dismissed on appeal, so the Doctrine of Res Judicata will be applicable. Therefore, her suit would be barred by Section 11 of Civil Procedure Code.

However, if she is claiming a new cause of action, i.e. another incident of domestic violence after the 2008 case, her application would not be hit by res judicata and would be liable to be disposed off on merits.

Hope this answers your question!

Regards

Vanya Agarwal

Anil 27 April 2020

Thank you sir for detailed reply. There is no new cause of action because she has not cohabited with me after 2007. But economic abuse is a continuos offence even though she has deserted without any valid reason and based on this she may get the interim relief till final order, they are trying to exploit this point. Please clarify. Regards.