Release from pwdva

The execution petition is against husband and he has no alternative but to satisfy.

Other 5 respondents (not accused)/ family members should move in appeal before Sessons Court. 

and/or

They may file a petition before High Court for early hearing and decision on complaint against them or quashing of complaint against other 5 respondents.

What is the opinion and advise of your lawyer engaged for the purpose for such a long time who is well aware about facts and circumstances of the case ?

The relief of interim maintenance orders have been passed against your son alone and not against the other respondents.

In this situation, since the trial court is not taking up the main matter but shows interest in the execution petition alone, you may approach high court with a petition to quash the false DV case against you people alone and an applicaiton to stay all the further proceedings till the disposal of this petition and also to pass an order to dispense with your personal appearance before the trial court till then.

The other 5 are also accused by her and respondents in the case. We have filed a quash petition u/s 482 in the High Court from 5 family members as also from my son separately. Both are pending since 2 years. The trial court is just wasting time and giving dates without passing any order which is what the complainant wants. I am looking for a case law wherein trial court can discharge other respondents / accused while execution is pending against husband. Complainant has not taken any steps against accused. It may help the judge to decide.

Thanking you,

You can get the desired case law either by browsing internet or through your lawyer.

If the quash case is pending before court how can you file a discharge petition before trial court.

In this complaint, it is the complainant who require relief and not respondents.

Hence the other respondents can file a petition under section 205 cr.p.c before trial court seeking dispensation of personal appearance for the reasons relied upon.

Wife cannot implicate one and all in the Family

Case name: Ashish Dixit vs. State of UP & Anr.

In this case, the Supreme Court has held that a wife cannot implicate one and all in a Domestic violence case. In this case, the complainant apart from arraying the husband and in-­laws in the complaint, had also included all and sundry as parties to the case, of which the complainant didn’t even know names.

We have applied for discharge u/s 25(2) of PWDV as she has not taken a single step in last 6 years to move the case forward. Quash u/s 482 is pending on other grounds. Judge is not inclined to discahrge the family members because of execution case pending against the husband.

Execution and main case u/s 12 of PWDV Act are two different subjects which cannot be thrust upon all and sundry (respondents), submit an application for permanent exemption from personal appearance of other respondents through your lawyer.

The trial court judge has passed an order against my son saying he is evading payment and court orders. Even though execution of warrant of arrest is pending he has the liberty to defend himself. However, he will have to be physically present in the next hearing failing which the case gaainst him will proceed ex parte.

Obviously he will not appear. Can they force him to appear in a DV matter where the trial has not even begun or proceed ex parte. If it goes ex parte all false charges will be pinned against him and he will be found guilty and slapped with a heavy fine. This will become a lifelong liability. Can we say that his personal appearance can at best be called for in execution case for non payment and not in DV matter? Is there any case law to support this? The order is silent on the police's stand and on the release of other 5 members sought.

Personal Appearance in DV Cases:

In DV cases, the personal appearance of the accused (your son) is not always mandatory during the trial proceedings.

Courts recognize that personal appearance can be burdensome and may not always be necessary, especially when the trial has not yet begun.

The court’s primary focus is to ensure justice and fairness, considering the rights of both parties.

Ex Parte Proceedings:

If your son fails to appear in court, the case may proceed ex parte, meaning the court will make decisions without his presence.

However, an ex parte order does not automatically imply guilt. It only means that the court made a decision based on the available information.

Your son can later challenge the ex parte order by filing an application for setting aside the ex parte decree.

Balancing Interests:

Courts balance the interests of both parties. While your son has the right to defend himself, the court also has a duty to ensure proceedings move forward.

If there are compelling reasons for his absence (such as illness, unavoidable circumstances, or legal representation), the court may consider those factors.

Case Law and Precedents:

Neha Chawla vs. Virender Chawla (Punjab-Haryana High Court, 2019):

In this case, the court held that personal appearance of defendants (accused) is not mandatory unless specifically required for a specific purpose.

The court emphasized that personal appearance should be insisted upon only when compelling reasons exist.

Vinod M. and Ors. vs. Namitha and Ors. (Kerala High Court, 2013):

The court reiterated that personal appearance should not be insisted upon unless necessary for a specific purpose reasons.

Don’t give criminal color to pleas by domestic violence victims: HC (Chennai High Court, 2021):

The court emphasized that personal appearance of relatives and third parties in DV cases should be insisted upon only for compelling reasons.

Thank you very much for your response. I have 2 queries:
 

1) In Neha Chawla vs. Virender Chawla (Punjab-Haryana High Court, 2019) I could not find "the court emphasized that personal appearance should be insisted upon only when compelling reasons exist." Please tell me the para where this is written.

2) Vinod M.S/O. P.K. Muraleedharan Nair vs Namitha it is written "

Unless their personal appearance is found to be necessary for any specific purpose and without specifying that specific purpose, the learned Magistrate should not insist on the personal presence of the petitioner. Ordinarily on all dates of posting, they shall be permitted to appear through a counsel."

In our case JM has stated that personal appearance is necessary "considering his conduct (non payment for a long time) in the case." Does this qualify as giving the "specific purpose?"

Please enlighten me.

With regards,

D Kanoria