Tag: #DVAct

​​​​​​​-​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

–Report by Muskan Chanda

Facts

• An application was filed by the Respondent under Section 12 of the Protection of Women against Domestic Violence Act, 2005 ( DV Act) before the Chief Magistrate, Tis Hazari Court, stating that she was already married when she met the petitioner in the year 2009.
• In 2014 respondent got married to the petitioner after obtaining a divorce from her husband. The respondent had a son, named Master Jatin, aged thirteen years, from her previous wedding. The petitioner had not disclosed his marital status to the respondent at the time they each met thus inducing the respondent to marry him. The petitioner executed a wedding Agreement to indicate his genuineness and responsibility towards the respondent and her kid.
• Within the agreement it had been mentioned that the respondent was married and incorporates a son from her previous wedding. Later the petitioner herein told the respondent that his spouse is on dialysis and wouldn’t survive long and so he’s trying to find a life partner.
• Further, the respondent took a divorce from her husband and got married to the petitioner in 2014. Another Agreement-cum-Marriage Deed was entered into between the petitioner and also the respondent on 22 November 2014.
• The petitioner herein had organized a rental accommodation and both of them were living as husband and wife. The name of the petitioner is mentioned as the father of the kid of the respondent in the school records. In the bank accounts of the respondent, the petitioner is shown as a nominee.
• Differences arose between the parties and also the respondent was subjected to physical and mental abuse by the petitioner. The respondent filed an FIR against the petitioner. The respondent prayed for an order restraining the petitioner from evicting the respondent from the rented accommodation. An application for a grant of interim maintenance has conjointly been filed by the respondent.

Petitioner’s Submission

The learned counsel for the petitioner contends that an application under Section 12 of the DV Act could be filed solely by an aggrieved person. According to the definition of “aggrieved person” under Section 2(a) of the DV Act. An aggrieved person has been defined as any woman who is or has been, in a domestic relationship with an individual and who alleges to have been subjected to any act of domestic violence by that person. He states that the respondent in her application has admitted that both the parties were married when they met. When the respondent knew that the petitioner was married to somebody else the respondent cannot claim any relief under the DV Act. Till the issue of maintainability is not decided, the decision to pay ad-interim maintenance to the respondent is unreasonable.

Respondent’s Submission

The learned counsel for the respondent contended that the respondent and petition got along in the year 2009 and got married in the year 2014 and they resided together for 6 years before the difference arose between them in the year 2020. He contends that it was not as if the petitioner was a casual visitor to the house. The learned counsel for the respondent states that the petitioner has filed an affidavit and entered into a contract with the respondent stating that he has married the respondent and that he would take care of the respondent and the child. He further stated that in school records the petitioner is shown as the father of the child and in the bank accounts of the respondent, the petitioner is shown as the nominee. Hence, the application filed by the respondent was maintainable and the orders of the learned Metropolitan Magistrate and the Additional Sessions Judge rejecting that directed the petitioner to pay ad-interim maintenance of Rs. ten thousand per month to the respondent does not warrant any interference.

Judgment

The learned Metropolitan Magistrate passed an order on 26 October 2020, had directed the petitioner to pay a sum of Rs ten thousand per month to the respondent herein as an interim arrangement. The principal challenge is that the order could not be passed since the application under the DV Act was not maintainable as the respondent is not an aggrieved person.
In case the Metropolitan Magistrate, after evidence is led, concludes that the respondent herein was not entitled to the protection of the DV Act then adequate safeguards must be made to ensure that the respondent returns the amount received by her as interim maintenance in terms of the order dated 26 October 2020, passed by the learned Metropolitan Magistrate back to the petitioner with interest.