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Ashish (student)     09 October 2010

Sections provided in DV for injunction, declaration, reposs.

I have across a case of lady as below:-

1. She was married in  Delhi in 2002 where she was residing with her parents. Husband  was staying  in the city of ghaziabad, at the time of marriage. Both decided to own their own flat after marrige in the city of ghaziabad only.  She contributed from her GPF account, savings bank account for making initial payment towards the flat, and for rest of money she took loan on herself and had paid monthly installment for 8 years..  Some part of money was also given from husband side.

2. in the year 2006 onwards there were regular disputes between husband and wife, in fact husband was forcing the lady to get more loans on her name, for the car, celebrating birthdays, jagrans, buying new sofas and all that. He was successful in piling  few loans on her by acts of threatening, abusing, scaring her of dire consequences. The lady could not withstand this mental agony, and harrasements from all side, mental, physical, emotional, financial. Got severe health problems all these years, and finally in the year 2008 she was diagnosed with very severe kidney problem. Her husband even did not pity on her condition and used to torture more on her condition, like not  following her to prescribed medical advises, not getting her medicines, used to keep her salary atm card and did not allow her to keep more thatn 100-200 rupess, and even forced her to keep going to office, othewise salary would be cut. Due to all these atrocities she was forced to leave her matrimonial home (joint property of her and her husband on the title deed) in end of  2009.

3. After recovering little bit from her illness, she is preparing herself to fight court battle. She has been advised to file a DV suit.  At present she is living in Delhi so she wants to file all cases from Delhi only.

---Is there any provision / relief  (plz give sections details)  in DV act 2005 to get injuction on the joint property between husband and wife, would including this in DV suit create any jurisdiction problem.

--- Would a declaration suit be needed to have her share in propery given by court, can the same be filed from delhi alongwith DV suit

--- She does not want to file partition suit at present, since she is not capable of paying heavy stamp duty. She has hardly any money to get her ongoing treatments.

What are the sections/sub-sections provided for followings where she can ask

1. for  a equivalent status house from husband (in which husband is living at present), till something is decided about this flat in court

   (she does not want to join her husband, at least for time being, in an environment of threats, abusing, and assaults )

3. for expenditure on medicines, travel to doctors and lab/investigations, hospitalization, rent  and other expenditures she is presently paying to make her living (ideally this should have been  borne by husband)

4. to meet her only child, which her husband has denied to her for last 10  months.

5. Last but not the least, the jurisdiction Delhi or Ghaziabad. (she is staying in Delhi for last 10 months, getting her treatment from a nearby hospital in delhi only)

 
Thanks in advance to members participating in this discussion

 



Learning

 5 Replies


(Guest)

As you asked the remedy and said what are the sections/sub-sections provided for followings where she can ask ?   Here it is :THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

17.Right to reside in a shared household.( 1. for  a equivalent status house from husband (in which husband is living at present), till something is decided about this flat in court(she does not want to join her husband, at least for time being, in an environment of threats, abusing, and assaults ))

 

17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other

law for the time being in force, every woman in a domestic relationship shall have the right to

reside in the shared household, whether or not she has any right, title or beneficial interest in

the same.

 

(2) The aggrieved person shall not be evicted or excluded from the shared household or any

part of it by the respondent save in accordance with the procedure established by law. 

 

18.Protection orders.(if needed )

 

18. Protection orders.-The Magistrate may, after giving the aggrieved person and the

respondent an opportunity of  being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favor of the

aggrieved person and prohibit the respondent from-

 

(a) committing any act of domestic violence;

 

(b) aiding or abetting in the commission of acts of domestic violence;

 

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a

child, its school or any other place frequented by the aggrieved person;

 

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including

personal, oral or written or electronic or telephonic contact;

 

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by

both the parties, jointly by the aggrieved person and the respondent or singly by the

respondent, including her stridhan or any other property held either jointly by the parties or

separately by them without the leave of the Magistrate;

 

(f) causing violence to the dependants, other relatives or any person who give the aggrieved

person assistance from domestic violence;

 

(g) committing any other act as specified in the protection order. 

 

19. Residence orders.(Must)

 

19. Residence orders.-(1) While disposing of an application under sub-section (1) of section

12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a

residence order -

 

(a) restraining the respondent from dispossessing or in any other manner disturbing the

possession of the aggrieved person from the shared household, whether or not the respondent

has a legal or equitable interest in the shared household;

 

(b) directing the respondent to remove himself from the shared household;

 

(c) restraining the respondent or any of his relatives from entering any portion of the shared

household in which the aggrieved person resides;

 

(d) restraining the respondent from alienating or disposing off the shared household or

encumbering the same;

 

(e) restraining the respondent from renouncing his rights in the shared household except with

the leave of the Magistrate; or

 

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved

person as enjoyed by her in the shared household or to pay rent for the same, if the

circumstances so require:

 

Provided that no order under clause (b) shall be passed against any person who is a woman. 

(2) The Magistrate may impose any additional conditions or pass any other direction which he

may deem reasonably necessary to protect or to provide for the safety of the aggrieved person 

or any child of such aggrieved person.

 

(3) The Magistrate may require from the respondent to execute a bond, with or without

sureties, for preventing the commission of domestic violence.

 

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the

Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

 

(5) While passing an order under sub-section (1), sub-section (2) or sub-section  (3), the court

may also pass an order directing the officer in charge of the nearest police station to give

protection to the aggrieved person or to assist her or the person making an application on her

behalf in the implementation of the order.

 

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent

obligations relating to the discharge of rent and other payments, having regard to the financial

needs and resources of the parties.

 

(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction

the Magistrate has been approached to assist in the implementation of the protection order.

 

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved

person her stridhan or any other property or valuable security to which she is entitled to. 

 

 

21. Custody orders.( 4. to meet her only child, which her husband has denied to her for last 10  months.)

 

 

21. Custody orders.-Notwithstanding anything contained in any other law for the time being in

force, the Magistrate may, at any stage of hearing of the application for protection order or for

any other relief under this Act grant temporary custody of any child or children to the

aggrieved person or the person making an application on her behalf and specify, if necessary,

the arrangements for visit of such child or children by the respondent:

 

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful

to the interests of the child or children, the Magistrate shall refuse to allow such visit.

:P

2 Like

sibasish pattanayak (lawyer)     10 October 2010

pravakar ji ,

you please follow the section 18 of dv act for your purpose,specifically sec.18(e) clearly suggest that

a Magistrate can pass an order with a direction upon the respondents " not to alienating any assests...................

...................enjoyed by both the parties,jointly by the aggrieved person.............................

or singly..............................." . the act also provide the provision of punishment u/s. 31 of the act.MAY BE THE

WORD "  INJUNCTION " IS ABSENT.{ SEE VIDYANIDHI DALMIA VS Nilanjana Dalmia 1(2008)DMC848 (DEL).}may help you.

regards,

SIBASISH PATTANAYAK,Advocate,kolkata,09874854594/09477090999.

e-mail:sibasish_adv@yahoo.co.in

1 Like

Ashish (student)     11 October 2010

My sincere thanks to Sh. Kushan Vyas Ji, Sh. Prabhakar Ji & Sh. Sibasish Pattanayak Ji for

point-wise analysis and valuable inputs.

Ashish (student)     11 October 2010

I would appreciate if esteem members could provide  me link to  any online resources (pdf/web) or any good writer book on DV Act.

Thanks,

Ashish


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