#domesticviolence

–Report by Shreya Gupta

In the recent case of SURAJ MALIK Versus THE STATE GOVT. OF NCT OF DELHI, the bail was sought under section 439 of CrPC, 1973. The applicant was arrested under Sections 498A/306/34 of the Indian Penal Code, 1860. The petitioner, in this case, is Suraj Malik and the respondent is the state govt. of NCT of Delhi.

FACTS:

Shefali Malik the deceased was admitted to the hospital on account of burn injuries by her neighbour. It was revealed to the police that she was married for less than 7 years to her husband who had a 4-year-old son from his previous marriage on account of which F.I.R. was registered. The statement the patient was taken in which she admitted that she burned herself because she did not want to live as her mother-in-law used to taunt her for dowry and harasses her. She also claimed that her husband used to abuse her and that her sister-in-law was innocent. The F.I.R. was filed under Sections 498/306/34 of the IPC was registered and an investigation was taken up.

PETIONER’S CONTENTIONS:

The advocate of the applicant stated that the statement given by the father of the deceased varied completely from the dying declaration of the deceased. He alleged that statement was given by the father only to add section 304B to the F.I.R. since earlier it was registered only under section 306 of the IPC. He stated that there was no abetment to suicide. He also added that the deceased in the hospital asked the applicant to stay with her. He stated that since the chargesheet is already filed there is no useful purpose in making him stay under custody. He supported his arguments with previous judgements of i. Ranjeet Singh v. State, 2005 (2) J.C.C. 905 ii. Kamal @ Kailash Joshi v. State, 2007 I.A.D. (Delhi) 31 iii. Nitin Kumar v. State, 2015 IVAD (Delhi) 109 iv. Deepak v. State, 120 (2005) D.L.T 146.

RESPONDENT’S CONTENTIONS:

The father of the deceased alleged that she was harassed and demanded a dowry. He alleged that the applicant and the mother-in-law burnt his daughter to death. He alleged that her daughter was asked for Rs. 25 lakhs out of which he already gave Rs. 10 lakhs in demand of it. He also alleged that her daughter was pregnant but they got her aborted because Suraj malik already had a son from his previous marriage. He also alleged that she was maltreated when she got pregnant for the second time. The advocate mentioned that it is stated in the dying declaration that she was harassed and abused by her husband and mother-in-law.

JUDGEMENT:

The court stated that “Perusal of the aforesaid dying declaration made by the deceased reflects that the deceased was not happy at her matrimonial home, more specifically, with her relationship with her mother-in-law, but at the same time the fact that she did not make any allegation with respect to demand of dowry made by the present applicant cannot be lost sight of.” The court further passed his application for bail provided with some terms and conditions and a personal bond of Rs. 50,000 and a surety.

READ FULL JUDGEMENT: https://bit.ly/40YO59g

Neutral Citation Number: 2023/DHC/001062

-Report by Shivansh Pratap Singh

In the case of MR. JAY SURYAKANT KAKADE Vs MRS. ANUNAYA JAY KAKADE dated 02.Feb.2022 a husband has filed an application for transfer of proceedings from the magistrate to the family court but the wife argues her right to appeal will be infringed.

Facts of the case:

The Applicant (Husband) seeks to transfer the proceedings filed by the wife under the Protection of Women under the Domestic Violence act,2005 before the Judicial Magistrate to the family court where he has filed a divorce petition.

Applicant’s Contention:

As the primary evidence in both cases remains the same there is the risk of conflicting judgements by two different judges. Further, the efficiency of cross-examination would be reduced and the judicial time of different courts will be wasted.

Respondent’s Contention:

Respondent disputed the applicant’s contention about conflicting judgements and the efficiency of cross-examination as misplaced. Domestic Violence Act aims to provide speedy remedy to women and such transfer will take away that right and also would be a serious infringement upon her right to appeal.

Judgement:

Amit Borkar opined that it is consistent with the court’s previous decisions to transfer the proceedings under Domestic Violence Act to the family court as the application filed under the Magistrate can be effectively tried under the family court. Further, the transfer is “Necessary” to avoid conflicting judgements. Whereas when it comes to the right to appeal, no such right is being infringed upon as the right being referred to here is just the right of revision. Further, the claim for speedy right of justice can be negated by the inversion test as not being the orbiter dicta or binding precedent.

KeyTakeaway from the judgement:

While delivering the judgement Amit Borkar sir referred to the ‘inversion test’ by Eugene Wambaugh to counter two points of the respondent, inversion test is a test to identify the ratio decidendi or obiter dicta of a judgement by treating a point to be absent and checking if the outcome/result varies. If it does vary then it’s the ratio decidendi or orbiter dicta but not if the resulting doesn’t vary. Further Orbiter Dicta is that part of the judgement that has to be treated as a binding precedent.

READ FULL JUDGEMENT: MCA/500/2022

The order came after a writ petition had been filed by a woman for the continuation of the investigation against her husband, which had been stayed by the court. A complaint had been filed by a wife in which she had accused her husband of forcing her to have unnatural sex with him. However, the Investigating Officer did a shady investigation and filed a chargesheet only for an offence under Section 498A of the IPC.

The woman was pursuing her PhD from IIT, Mumbai where she met her husband, who was also pursuing the same. They eventually got married in Bangalore. It is alleged by the woman that he started forcing her for having unnatural sex with him and even assaulted her when she refused. As a result, she went to live with her parents in Raipur, three months after the wedding. She came back to Mumbai for some work when her husband convinced her to come back after assuring her that he would not behave the way he did previously. When the situation got worse, she left him permanently and went to Raipur.

It is further stated that he started threatening her to release some obscene photos of her if she did not return. The photos were sent to her father and two of her friends on Facebook and Whatsapp.

An FIR was registered in Raipur for offences punishable under Section 498A, 377, 34 of the IPC and Sections 66E and 67 of the Information Technology Act, 2000. The case was transferred to Bangalore since it was the place of the incident. However, the Bangalore City Police only filed an offence under section 498A in its chargesheet.

After considering the facts of the case, Hon’ble Justice M Nagaprassana observed that the “report of the Police unmistakably reveals gross variance”. It was further observed:

“If the complaint registered at Raipur and the statements recorded by the Police at Raipur are juxtaposed with the findings of investigation/ final report filed by the Police, it would unmistakably reveal gross variance. The graphic details in the complaint and the contents of the statement recorded by the Police are completely thrown to the winds by the Investigating Officer. The offence punishable under section 377 of the IPC or under the Act is a go-bye. The gross variance is what has driven the Petitioner to this court.………The crime was no doubt registered for all the offences, but the shady probe conducted by the jurisdictional police (Bangalore City Police) has led to filing of a charge sheet only for an offence under Section 498A of the IPC. Therefore, this becomes a classic case where the investigation has been so shoddy that a further investigation into the matter is needed,”

The judge further directed that the Director-General of Police (DGP) deal strictly with these investigating officers.

“In view of the preceding analysis, it also becomes a case where the head of the department, either the State or the Commissioner of Police should take stock of such shoddy investigations by investigating officers, who either lack competence or deliberately indulge in such investigations. It is high time the head of the Department sets its house in order, by appropriately dealing with such investigating officers on the departmental side,”

The judge held that the complaint and the statement clearly bring the offences committed by the husband within the ingredients of the sections under which the FIR has been filed. Therefore further investigation was ordered and the report has to be filed before the magistrate within two months.

Case: Vikram Vincent vs State of Karnataka

Case Number

Civil Appeal No. 5837 of 2006 with Contempt Petition (C) No. 38 of 2006.

Equivalent citation

(2007) 3 SCC 169.

Bench

S.B. Sinha, Markandey Katju.

Date Of Judgment

15/12/2006

Relevant Act

The Protection of Women from Domestic Violence Act, 2005

Facts

The petitioner Smt. Taruna Batra was married to Amit Batra, son of the respondent, on 14^th April 2000. After the marriage, Taruna Batra was living with Amit Batra in her in-law’s house. Amit Batra has filed a divorce petition against his wife. In response, Taruna Batra also filed an F.I.R. against his husband, mother-in-law, father-in-law, and sister-in-law under Indian Penal Code Section 406, 498A, 506, and 34. They were arrested by police and after three days they got bail. Taruna Batra started living in her mother’s house. Later, she tried to enter the appellant’s house, but she could not enter because of the lock. Amit Batra had bought a house in Ghaziabad and was living there.

Arguments

The argument made by the petitioner

Smt. Trauma Batra has raised the issue that she has the right to live in the respondent’s house because it is her matrimonial house.

The argument made by respondent

The petitioner has no right because it cannot be her matrimonial house. After all, her husband is not living in the suit property. Her matrimonial house had shifted to her husband’s new house.

The issue before the Court

A woman has the right to reside in the shared household of her husband. Shared household which is defined under Section 2(s) of the Domestic Violence Act, 2005.

Lower Court Judgment

The Senior Civil Judge held that Amit Batra was not living with his parents at their house. Hence, home does not mean where the wife was residing. The respondent had only right to her husband’s property.

After the Lower Court decision Smt. Trauma Batra filed a petition in the High court under Article 227.

High Court Judgment

The High Court held that in India, there is no specific law like the British Matrimonial Homes Act, 1967. The rights may be provided under any statute against the husband’s property and but not against in law’s house. The suit property belongs to her mother-in-law and it does not belong to her husband.

Supreme Court Judgment

The Supreme Court held that a wife is entitled to reside in a shared household which is defined under Section 2(s) Protection of Women from Domestic Violence Act, 2005. A Shared household means the house belongs or is taken by the aggrieved person or the husband and property which belongs to a joint family where the husband is a member. The court decided Smt. Trauma Batra has the right to reside in her matrimonial home. But the Court also held that the wife has no right to reside in the residence which is owned by her in-laws whether it is a matrimonial home. The court observed the High Court decision and disagreed with the High Court concerning the Matrimonial Homes Act which does not exist in India.

Conclusion

The issue is ruling in the case that the wife has the right to reside in a shared household where the husband owns some share. In the decision of the Supreme Court, there is some fallacy in the definition of the shared household.

The case analysis has been done by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, a 4th-year Law student of Banasthali Vidyapith.

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ALTHOUGH DECEASED WIFE UNHAPPY, NO PROOF OF DOWRY DEMAND