Quashing of complaint under pwdv act
V.N.K. MENON
(Querist) 07 November 2017
This query is : Resolved
Appended below is order from H/C which is self-explanatory. I am petitioner in-person. I would be thankful if experts would give their views on the matter. Whether lower court will take it as a stay till next hearing on 18.01.2018. Any other view shall be highly appreciated.
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$~42
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+CRL.M.C. 3538/2017
V N K MENON..... Petitioner
Through: Petitioner in person.
versus
MS GREESHMA
Through:
Nemo.
..... Respondent
%
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
04.09.2017
Crl. M.A.No. 14420/2017 (exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 3538/2017
The present petition under Section 482 Cr.PC has been filed seeking quashing of time barred d/v complaint read with Section 468 Cr.PC, Section 28 and 32 of the Protection of Women from Domestic Violence Act, 2005
read with Rule 15 (6) of PWDV Rules 2006 for quashing of complaint filed under Section 12 of PWDV Act by respondents.
Notice.
Learned APP for the State accepts notice and seeks time to file status report/reply.
Status report/reply be filed before the next date of hearing,with an advance copy to learned counsel for the petitioner. List on 18.01.2018.
SANGITA DHINGRA SEHGAL, J
SEPTEMBER 04, 2017/ssc
Ms.Usha Kapoor
(Expert) 07 November 2017
Restitution of Conjugal Rights in Hindu Marriage Act
If your spouse has left you without giving any reasonable ground, the Hindu Marriage Act 1955 gives you remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.
What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his favor.
Three essential conditions for Section 9 of HMA
Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights. Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.
If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13.
Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected
First, if the respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for wife not to join the company of her husband.
Burden of proof under Section 9 of the HMA
Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.
Kiran Kumar
(Expert) 07 November 2017
Mr. Menon there is no stay granted by the Hon'ble High Court. The trial court is not bound to adjourn the matter awaiting final orders from HC.
Vijay Raj Mahajan
(Expert) 07 November 2017
It's simple order of the Delhi High Court for notice and status report of the pending complaint for domestic violence in magistrate court, no temporary stay granted.
V.N.K. MENON
(Querist) 07 November 2017
Thank you experts Ld. Vijay Kr & Mr. Vijay Mahajan. Also Ms., Kapoor.
Rajendra K Goyal
(Expert) 07 November 2017
Agree with the expert Vijay Raj Mahajan.
Dr J C Vashista
(Expert) 08 November 2017
I fully agree with the observation, analyses and advise by experts Mr. Vijay Raj Mahajan and Mr. Kiran Kumar. Your petition for quashing of domestic violence complaint has been admitted by Delhi High Court and directed to issue notice to respondent(s) which has been accepted by APP and the APP is directed to file status report. The order is amply clear and there is no ambiguity.
Dr J C Vashista
(Expert) 08 November 2017
I could not understand the involvement and concept of the term "restitution of conjugal rights" as pointed out/ adventured to explain by an impersonating expert.
V.N.K. MENON
(Querist) 10 November 2017
Please accept experts my gratefulness for the opinion and guidance.
V.N.K. MENON
(Querist) 10 November 2017
My query is whether I have to take notice from the court and serve on the opposite party
V.N.K. MENON
(Querist) 10 November 2017
or the instruction is to APP only - in view of Dr. Shrivastava's noting.
