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Court rejected apex ruling

(Querist) 11 December 2012 This query is : Resolved 
I made an application at the first hearing of the DV case on behalf of husband that due to DV act has no retrospective effect, in 2005 a decree of divorce on the ground of desertion has been passed in favor of husband, so cause of action does not arise against my client and case should be closed.
I cited apex court as well as Rajasthan high court rulings.
The court assumed my plea but rejected my application on the ground that "the main petition of agreived woman under sec 12 of DV act can not be rejected at this stage. The Rulings does not ruled out that an application under section 12 of DV act could be rejected at the stage prior to taking of evidence. The Judgments of SC as well as HC are passed under inherent powers, which has no binding effect upon this court. Therefore the plea of respondent shall be considered at the stage of final arguments."

I preferred an appeal against said order of magistrate before court of session. Here again Mr.Judge asking me for ruling where apex court allowed magistrate to quash DV case at earlier stage.

Please help me..
Raj Kumar Makkad (Expert) 11 December 2012
Both the courts are within their rights to frame the opinion as has been seen as the judgment is to be pressed at the time of final argument and if you have no citation which may direct the trial court to dismiss the complaint/application at any stage then it shall work otherwise courts are perfect in their stand.
ajay sethi (Expert) 11 December 2012
The court has to take the complaint on its face value and the allegations made in the complaint require adjudication on facts/


Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same.
generally courts are reluctant to quash DV case .

you have not mentioned detailed facts of your case . you have merely stated that DV has no retropsective feect . please marrate the facts of your case
Raj Kumar Makkad (Expert) 11 December 2012
Soni! Can you please provide the citation of Apex court according to which it has been decided that DV Act application cannot be moved for the period prior to the enactment of the Act.
Ravikant Soni (Querist) 12 December 2012
Date of marriage 10-02-2002
wife left matrimonial home 02-03-2002
Div pet filed by husband july 2004
Decree passed on the gnd of desertion 24 Apr 2005
against which no appeal was preferred by wife.
DV act come in force 26 Oct 2006
wife filed aplication under section 12 of DV act on 06 July 2010
Summons recd by husband in sept 2010
Very first day of hearing husband filed application mentioned above.



I have cited rulings:

Inderjeet sing grewal vs state
http://indiankanoon.org/doc/1337239/

Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291]
Raj Kumar Makkad (Expert) 12 December 2012
Both the citations posted by you have nothing to do with the conclusion arrived at by you and those are not remotely concerned with the issue in hand.
Guest (Expert) 12 December 2012
Dear Shri Soni,

Citations become applicable only in similar circumstances of the past and present cases, but with due regard to the prevalent law, as case laws cannot overrule the main legal provisions.
ajay sethi (Expert) 12 December 2012
soni has the divorced wife waived her right of maintenance . ? if she had waived her right then she cannot by filing DV case claim maintenance . if wife had not waived her right she can claim maintenance as it is a continuing offence .
ajay sethi (Expert) 12 December 2012
No case of domestic violence after divorce: High Court Friday, Jul 30, 2010The HINDU




Staff Reporter






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Dismisses a lower court order

‘In-laws not responsible if living separately'


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NEW DELHI: The Delhi High Court on Thursday dismissed a lower court order directing the husband, father-in-law and brother-in-law of a woman to pay her Rs.50,000 per month as interim maintenance under the Domestic Violence Act, saying that the sub-ordinate court had ignored the fact of divorce between the couple and applied the provisions of the Act to the case in an arbitrary manner.

The woman, Payal Malik, had married Nagesh Malik, based in the U.S., at Panipat in Haryana in 2001. The couple had thereafter shifted to the U.S. They stayed together there for more than seven years and a baby was born to them before they separated.

After having been divorced by her husband following an ex-parte decree by a New Jersey court in the U.S, Payal Malik filed a complaint in a Metropolitan Magistrate court here seeking protection, residence order, monetary relief and compensation under the Act.

Admitting her complaint, the Magistrate asked the respondents, husband, father-in-law and brother-in-law of the woman to pay to her an interim relief of Rs. 50,000 per month.

Thereafter, the respondents moved a Sessions court which also upheld the Magistrate's order. The Sessions court directed that a request be sent to the Ministry of External Affairs for execution of the order.

Then the three respondents filed appeals in the High Court against the Sessions court order. The husband of the woman submitted that he could be proceeded against as Payal Malik had filed the complaint under the Domestic Violence Act after separating from him.

The father and brother of Nagesh Malik argued that they had no liability in the matter as Payal Malik had been living separate from them with her husband in the U.S. Harbans Malik and Varun Malik, father and brother of Nagesh Malik, live at Panipat in Haryana.

Upholding the contentions of the respondents, Justice S.N. Dhingra said the lower courts were wrong in allowing the complaint of Payal Malik.

A complaint under the Domestic Violence Act against the husband of a woman can only be entertained when there are living together in a shared household at the time of filing of the complaint, Justice Dhingra held. He further ruled that relatives of a woman aggrieved of domestic violence are also absolved of their liability under the Act if they are living separate from the couple.

Justice Dhingra also allowed the divorce decree against Payal Malik by the New Jersey court and on that ground he also dismissed her complaint saying the she had moved the court after separating from Nagesh Malik.

Raj Kumar Makkad (Expert) 12 December 2012
The judgments cited by Soni and Sethi deal with different situations and moreover the basic query which Soni put has already been resolved very well.


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