Memorial Respondent(3rd RGNUL National Moot Court Competition, 2014)

TEAM CODE: 62 3RD RGNUL NATIONAL MOOT COURT COMPETITION, 2014

IN THE HON’BLE COURT OF LD. JUDICIAL MAGISTRATE OF FIRST CLASS, DISTRICT SINDUSTHAN U/§ 12 of the Protection of Women from Domestic Violence Act, 2005

Complaint No. _____ / 2010

IN THE MATTER OF Smt. Vimla Devi & Anr. ……………………………….………………………APPLICANT Versus Hari Lal………………………….……………………………………………RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

3RD RGNUL NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ I INDEX OF AUTHORITIES ................................................................................................. III Cases..................................................................................................................................... III Statutes .................................................................................................................................. V Books Referred ...................................................................................................................... V Articles .................................................................................................................................. V STATEMENT OF JURISDICTION ....................................................................................VI STATEMENT OF FACTS .................................................................................................. VII ISSUES RAISED................................................................................................................. VIII SUMMARY OF ARGUMENTS ...........................................................................................IX ARGUMENTS ADVANCED .................................................................................................. 1 1.

THE PRESENT COMPLAINT IS NOT MAINTAINABLE. ........................................................ 1 1.1.

NO ALLEGATION OF DOMESTIC VIOLENCE ON OR AFTER THE ACT. ...... 1

1.2.

NOT A ‘DOMESTIC RELATIONSHIP’ WITHIN §2 (F) OF ACT. .......................... 3

1.3.

NOT A ‘SHARED HOUSEHOLD’ WITHIN § 2 (s) OF THE ACT. ......................... 5

1.4.

THE SAID RESPONDENT CANNOT BE MADE A ‘RESPONDENT’. ................. 6

1.5.

NO SUFFICIENT GROUNDS FOR DELAY IN FILING THE PRESENT

COMPLAINT......................................................................................................................... 7 1.6.

NO CAUSE OF ACTION. .......................................................................................... 9

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3RD RGNUL NATIONAL MOOT COURT COMPETITION 1.7. 2.

BAR OF LIMITATION. .......................................................................................... 10

THE APPLICANT IS NOT ENTITLED TO ANY OF THE RELIEF UNDER PWDVA, 2005. ... 12 2.1.

DOCTRINE OF ESTOPPLE AND WAVIER.......................................................... 12

2.2.

NOT ENTITLED TO SHARED HOUSEHOLD UNDER § 17 OF THE ACT. ...... 13

2.2.1.

No protection order under § 17. ........................................................................ 13

2.2.2.

No restriction or prohibition to use the shared household. ............................... 14

2.2.3.

Daughter of applicant not entitled to share in the property. .............................. 14

2.3.

APPLICANT IS NOT ENTITLED TO PROTECTION ORDER ............................ 15

2.4.

NOT ENTITLED TO MONETARY RELIEF AND COMPENSATION. ............... 17

2.4.1.

The applicant is not entitled to monetary relief under §20. ............................... 17

2.4.2.

The applicant not entitled to compensation under §22. ..................................... 17

2.5.

NOT ENTITLED TO STRIDHAN. .......................................................................... 18

PRAYER .................................................................................................................................. X

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3RD RGNUL NATIONAL MOOT COURT COMPETITION INDEX OF AUTHORITIES CASES Adil & Ors. v. State & Anr., 2010 (4) JCC 2577 (Del) ............................................................ 15 Anna Saheb v. Tarabai AIR 1970 MP 36 (DB)......................................................................... 7 Azimuddin @ Kunta v. State of U.P., 2009 (2) LRC 150(All) : 2008 (61) ACC 228 : 2008 (1) JIC 931 : 2008 (2) All Cr. R 1953 ........................................................................................... 17 Girish & Ors. v. Poonam, 2013(2) Crimes 18: 2013(1) R.C.R. (Criminal) 767 ....................... 5 Harbans Lal Malik v. Payal Malik, 2011(1) Crimes 496, 171(2010) D.L.T. 67, II (2010) D.M.C. 202, (2010) I.L.R. 6 Delhi 625 ................................................................................. 4, 7 Inderjit Singh Grewal v. State of Punjab & Anr, 2011 (3) A.C.R. 3544 (SC): 2012 Cri. L.J. 309 : III (2011) D.M.C. 7 SC : 2011 (4) K.C.C.R. 3283 : 2011 (3) K.L.J. 40 : 2011 (4) K.L.T. (SN) 69 : 2011 (2) N.C.C. 544 : 2011 (4) R.C.R. (Civil) 129 : 2011 (9) SCALE 295 : (2011) 12 SCC 588 : [2011] 10 S.C.R. 557: 2011 (3) UC 1758 ......................................................... 12 Jagad Bandhu Chatterjee v. Nilima Rani & Others Civil Appeal No. 2170 of 1967 ............. 13 Kavita Chaudhri v. Eveneet Singh and Anr., MANU/DE/2766/2012 : 188 (2012) DLT 755 .. 7 Kishor v. Sou Shalini 2010(112) BOM L.R. 1398, 2010 Cri L.J. 4049 ................................ 1, 2 M.Muruganandam and another V. M.Megala, 2011 (100) AIC 12 (Mad) : 2011 (4) RCR (Crl) 499 : 2011 (1) CTC 841 : 2011 (2) DMC 159 ................................................................ 17 Masud Khan v. State of Uttar Pradesh, A.I.R. 1974 S.C. 28 .................................................. 12 Mr. Johnson Fernandes v. Mrs. Maria Fernandes, Mr. Michael Fernandes and State, 2011CriLJ1504, 2011(2)Crimes656 ........................................................................................ 14 Neera Singh v. State MANU/DE/7223/2007 : I (2007) DMC 545............................................ 2 Neetu Mittal v. Kanta Mittal & Ors., MANU/DE/1415/2008 : 2008 (106) DRJ 6223 ............. 7 Parag Vasat Mewada and Others v. State of Gujarat and Another 2013Cri.L.J. 4635 ............ 1 Radha Raman Srivastava v. State of Bihar, 2013CriLJ459, 2013(3)PLJR667 ....................... 16

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3RD RGNUL NATIONAL MOOT COURT COMPETITION Raj Kumari v. Preeti Satija & Anr., MANU/DE/0144/2012 : 2012 (193) DLT 224 ................ 7 S.R. Batra v. Smt. Taruna Batra AIR 2007 SC 1118 : 2007 (2) ALD 66 (SC) : 2007(3) ALT 18 (SC) : 2007 1 AWC (Supp) 664 SC : 2007(3) CTC219 : 136 (2007) DLT1(SC) ............ 5, 6 Sardar Malkiat Singh v. Kanwaljit Kaur II (2010) D.M.C. 848 : (2010) 158 P.L.R. 59 : MANU/DE/0714/2010 ........................................................................................................... 6, 7 Sejal Dharmesh Ved v. State of Maharashtra and Others 2013(5) LJ SOFT 48 : 2014 ALL M.R. (Cri) 636.......................................................................................................................... 11 Shri Rama Singh v. Smt. Maya Singh and Others 2012 (4) MPHT 169 : 2013(2) RCR (Civil) 827.............................................................................................................................................. 4 Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors 174 (2010) D.L.T. 79 ........................ 6, 7 Sitaram Ram Charan v. M.N. Nagrashana A.I.R. 1960 SC 260 ............................................... 8 Smt. Vijaya Vasant Sawant v. Ms. Shubhangi Shivling Parab & Ors. 2013 (4) A.B.R. 833 : 2013ALL M.R. (Cri) 2360 : 2013 Cri. L.J. 3592....................................................................... 8 State of Harayana and Others v. Bhajan Lal and Others MANU/SC/0115/1992 : 1992 Suppl. (1) SCC 335 ........................................................................................................................... 2, 8 State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1.................................. 10 U.U. Thimmanna & Ors. v. U.U. Sandhya & Ors2009 (1) ALT (Crl.) 285 (A.P.) ................... 3 Umesh Sharma v. State I (2010) D.M.C. 556 : 2010 (115) D.R.J. 88 : I.L.R. (2010) Supp.(1) Delhi ........................................................................................................................................... 5 Vandana v. T Srikanth & Others., (2007) 6 MLJ 205 (Mad.) ................................................. 14 Vijay Verma v. State N.C.T. of Delhi : 2010 (4) JCC 2377 : 2010 MLR 730 : 2010 (3) LCR 291 (Del) .................................................................................................................................... 3 Vinod Chandra Dube v. Aruna Dube, AIR 1977 Del 24: (1976) 12 DLT 200: 1976 ............... 8

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3RD RGNUL NATIONAL MOOT COURT COMPETITION

STATUTES Code of Criminal Procedure, 1973. ......................................................................................... 12 Guardianship and Wards Act, 1890 ......................................................................................... 12 Indian Evidence Act, 1872 ....................................................................................................... 13 Protection of Women from Domestic Violence Act, 2005 ..............................................1, VI, 1 BOOKS REFERRED J.D. Jain, The Limitation Act, Eleventh Edition, Allahabad Law Agency, 1988 ..................... 11 Kusum, Harassed Husbands, Second revised edition, Regency Publications, New Delhi, 2003...................................................................................................................................... 3, 20 MERRIAM-WEBSTER’S DICTIONARY OF LAW, First Indian Edition, Goyal Publishers and Distributors Pvt. Ltd., 2005...................................................................................................... 13 ARTICLES Kanchan Chaudhari, After separation of a year, wife can’t file complaint under domestic violence act, says high court, Hindustan Times Mumbai, First Published: 01:50 IST(15/3/2013), Last Updated: 01:51 IST (15/3/2013) ........................................................... 11

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3RD RGNUL NATIONAL MOOT COURT COMPETITION STATEMENT OF JURISDICTION

The respondent most humbly submit to the jurisdiction encroached upon by the applicant u/§12 of the Protection of Women from Domestic Violence Act, 2005 (43 0f 2005).

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3RD RGNUL NATIONAL MOOT COURT COMPETITION STATEMENT OF FACTS [¶1] The respondent Harilal married Vimla Devi in the year 1983 and thereafter Vimla Devi lived with the respondent and his family at the house of her father-in-law in village Bhimpur, district Sindhusthan. After about one and a half year Vimla Devi became pregnant and left her matrimonial home and thereafter continued to stay at her parents’ house permanently. However, when the child was two months old she came back and stayed at the house of her father-in-law for a couple of days but due to strained relations between her and the respondent herein she left the house of the respondent and thereafter having no connection with the respondent for over 28 years. In this way, the respondent could not enjoy the married life and love of his daughter for whole of his life. [¶2] It is pertinent to mention here that the respondent invited the applicant to his house for attending a marriage ceremony in the year 1990 and the applicant attended the same. However, after attending the aforesaid marriage ceremony the applicant left the house of the respondent as she had established her own household separately and was living there with her daughter. The applicant was appointed as an Anganwari worker in the year 1991. In 1994, the respondent moved the court under Guardianship and Wards Act to obtain custody of his daughter namely “Dolly” but the applicant contested the same and admitted in the court that she is in a better position to take care of her daughter and the court gave the custody of the daughter to the applicant herein. [¶5] Harilal is working as a government servant and he had moved out of his joint family house and constructed a new house in Bhimpur and thereafter shifted in this house along with his brother. Both the parties have been living separately since the past 28 years without any contact.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION ISSUES RAISED

I.

WHETHER THE PRESENT COMPLAINT IS MAINTAINABLE OR NOT.

II.

WHETHER

THE APPLICANT IS ENTITLED TO ANY OF THE RELIEF UNDER THE

PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION SUMMARY OF ARGUMENTS I.

WHETHER THE PRESENT COMPLAINT IS MAINTAINABLE OR NOT.

The present complaint is not maintainable as the same has been filed after 24 years of separation between the parties and without any sufficient grounds for delay in filing the present compliant on behalf of the applicant. Moreover, the parties have been living separately since more than 28 years therefore there is no ‘domestic relationship’ as per §2 (s) of the Domestic Violence Act. Also, the present complaint does not come within the ambit of ‘shared household’ as enshrined under §2 (f) of the DV act. Hence, the present compliant is untenable in law. II.

WHETHER

THE APPLICANT IS ENTITLED TO ANY OF THE RELIEF UNDER THE

PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT.

The applicant is not entitled to any of the reliefs under the provisions of Domestic Violence Act as firstly, the accommodation for which the respondent prayed is not a ‘shared household’ within the Domestic Violence Act. Moreover, the daughter ‘Dolly’ is also not entitled to share in the property of the respondent as the property in question is a self acquired property of the respondent and not an ancestral property. Furthermore, the protection order cannot be passed as any act of domestic violence has not taken place since the last 28 years as both the parties have been living separately, and the same cannot be further foreseen. The monetary relief and compensation cannot be granted to the applicant as proper reasons and grounds have not been provided by the applicant for the same.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION

ARGUMENTS ADVANCED

1.

THE PRESENT COMPLAINT IS NOT MAINTAINABLE.

It is most respectfully submitted, that the present complain u/§12 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as PWDVA) is not maintainable as the present complaint has been filed on behalf of the complainant after 24 years of her separation from the respondent and without any sufficient grounds for delay. Secondly, it has to be observed by the court that there has been no act or allegation of Domestic Violence on or after the enforcement of the PWDVA, 2005. All the allegations of the complainant pertain to the period prior to the enforcement of PWDVA. Thirdly, the present case does not come within the definition of ‘Shared household’ and ‘Domestic relationship’ as given in §2 (f), (s) of the PWDVA, respectively, hence, the said respondent cannot be made a ‘Respondent’ within definition of §2 (q) of PWDVA. Therefore, the court cannot entertain the present complaint in respect of cause of action as the same would be an abuse of process of law.1 1.1. NO ALLEGATION OF DOMESTIC VIOLENCE ON OR AFTER THE ACT. The applicant’s case is based on acts of domestic violence alleged to be committed by the respondent during and prior to the year 1986, but there is no evidence relating to the same, moreover, there has been no Domestic Incident Report produced before the court by the Protection Officer as per §9 of the act. If the report of the protection officer does not support the complaint, then the complainant would fail.2 There are no instant or immediate acts of domestic violence alleged to have been caused by the respondent on or after the PWDVA came into force. The domestic violence has to be shown to have occurred in the near or recent

1 2

Kishor v. Sou Shalini 2010(112) BOM L.R. 1398, 2010 Cri L.J. 4049 Parag Vasat Mewada and Others v. State of Gujarat and Another 2013Cri.L.J. 4635

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3RD RGNUL NATIONAL MOOT COURT COMPETITION past before filing the complaint and unless that is not done, the court cannot entertain the complaint in respect of the cause of action.3 In the present case, no deep probe into the acceptability and reliability of the allegations can be indulged herein, more so, in the absence of any clinching proof on the material placed before the Court. Where the allegations made in the complaint, even taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the continuance of prosecution in such cases would amount to an abuse of process of law.4 In the case of Neera Singh v. State5 it was stated that allegations of domestic violence have to be scrutinized carefully by the Court before framing the charge. The allegations of the applicant are vague and without necessary particulars, hence, liable to be set aside. Also, twice the matter relating to the parties reached the competent authority, i.e., the court in the year 1994 when the respondent moved to the court to obtain custody of his daughter and secondly, when the complainant filed the suit for the provision of maintenance for herself and her child in the Gram Panchayat, but the court must take into consideration the fact, that nowhere was the issue of domestic violence brought up against the respondent. There was no mention of any acts of Domestic Violence and there were no allegations of the same. The courts and society should not proceed on a priori assumption that it is always the husband who is guilty. Special statutory provisions are aimed at guarding the interests of wives but unfortunately, they are double-egged weapons and if misused they can cause a lot of harassment to the non-complainant.6

3

Supra, note 1. State of Harayana and Others v. Bhajan Lal and Others MANU/SC/0115/1992 : 1992 Suppl. (1) SCC 335 5 I (2007) DMC 545 : MANU/DE/7223/2007 6 Kusum, Harassed Husbands, Second revised edition, Regency Publications, New Delhi, 2003 4

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3RD RGNUL NATIONAL MOOT COURT COMPETITION In the case of U.U. Thimmanna & Ors. v. U.U. Sandhya & Ors.7, there was no allegation either in the report or in the statement or in the complaint of the 1st respondent therein with regard to the acts of domestic violence that took place on or after 26-10-2006 when the Act came into force, the continuation of the proceedings in the domestic violence case was held to be an abuse of process of Court. 1.2. NOT A ‘DOMESTIC RELATIONSHIP’ WITHIN §2 (F) OF ACT. The separation between the parties took place in the year 1986 and after separation the name of complainant and her daughter was struck off from the local registers i.e. family registers, ration cards etc. pertaining to the family of respondent as they were living independently and their records were being maintained as separate unit in the place of their residence. 8 There had been a complete seclusion of both the parties and the complainant had started living separately from the respondent. Since 31 years she has been residing in a separate house with her daughter. Where a family member leaves a shared household to establish his own household, and actually establishes his own household, he cannot claim to have right to move on application under §12 of Domestic Violence Act on the basis of domestic relationship.9 Even if the allegations made against the petitioners in the application, are taken at their face value and accepted in their entirety, no justification for initiation of action against them would be made out in view of the admitted fact that during the relevant period, they were residing separately from the respondent.10 In the case of Vijay Verma v. State NCT of Delhi & Anr.11, it was held:

7

2009 (1) ALT (Crl.) 285 (A.P.) ¶4, Moot preposition 9 Vijay Verma v. State N.C.T. of Delhi : 2010 (4) JCC 2377 : 2010 MLR 730 : 2010 (3) LCR 291 (Del) 10 Shri Rama Singh v. Smt. Maya Singh and Others 2012 (4) MPHT 169 : 2013(2) RCR (Civil) 827. 11 Supra, note 9. 8

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3RD RGNUL NATIONAL MOOT COURT COMPETITION “Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase “at any point of time”, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives.”12 Furthermore, in Harbans Lal Malik v. Payal Malik13, the court while interpreting domestic relationship in the act enumerated, “The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there.” Therefore, it is vehemently contended that there is no ‘Domestic Relationship’ between the parties as per §2 (f) of the PWDVA, 2005. Moreover, after the separation from the respondent there were no efforts on behalf of the applicant to reconcile the strained relations.

12 13

Ibid. 2011 (1) Crimes 496 : 171 (2010) D.L.T. 67 : II (2010) D.M.C. 202 : (2010) I.L.R. 6 Delhi 625

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3RD RGNUL NATIONAL MOOT COURT COMPETITION The mere fact that the respondent invited the applicant for a marriage in his house in the year 1990 signifies that he made an effort to save their domestic relationship. 1.3. NOT A ‘SHARED HOUSEHOLD’ WITHIN §2 (S) OF THE ACT. The definition of ‘Shared household’ under §2 (s)14 of PWDVA, 2005 unambiguously lays down that a shared household is a household where the person aggrieved lives or at any stage has lived in a domestic relationship, but the present complainant is neither living nor had at any point of time lived with the respondent at his present residence in Bhimpur.15 The applicant has prayed for a shared accommodation at the present residence of the respondent for herself and her daughter, but the same cannot be granted to her for the mere fact that the present accommodation does not come within definition of the ‘Shared household’ as stipulated under §2 (s) of PWDVA, 2005.16 Moreover, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both in which the husband has no right, title or interest, cannot be called a ‘shared household’.17 In case of Girish & Ors. v. Poonam18, the petitioners had filed for quashing the complaint under §12 of the PWDVA. In this case, the petitioner husband was residing along with his mother in a separate household which was not the matrimonial house of the respondent. Sabina, J of Hon’ble High Court of Punjab & Haryana held:

14

“Shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” 15 Girish & Ors. v. Poonam, 2013(2) Crimes 18: 2013(1) R.C.R. (Criminal) 767 16 Umesh Sharma v. State I (2010) D.M.C. 556 : 2010 (115) D.R.J. 88 : I.L.R. (2010) Supp.(1) Delhi ; S.R. Batra v. Smt. Taruna Batra AIR 2007 SC 1118 : 2007 (2) ALD 66 (SC) : 2007(3) ALT 18 (SC) : 2007 1 AWC (Supp) 664 SC : 2007(3) CTC219 : 136 (2007) DLT1(SC) 17 S.R. Batra v. Smt. Taruna Batra AIR 2007 SC 1118 : 2007 (2) ALD 66 (SC) : 2007(3) ALT 18 (SC) : 2007 1 AWC (Supp) 664 SC : 2007(3) CTC219 : 136 (2007) DLT1(SC) 18 2013 (2) Crimes 18, 2013 (1) R.C.R. (Criminal) 767

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3RD RGNUL NATIONAL MOOT COURT COMPETITION “4. Since petitioners were not residing in the matrimonial home of respondent, they cannot be prosecuted under the Act. In these circumstances, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.” In Sardar Malkiat Singh v. Kanwaljit Kaur19 & Others the Hon’ble High Court of Delhi held: “While the legal position is clear that the husband has a legal and moral obligation to provide residence to his wife, and if the house where the wife lived on being wedded, belongs to her husband, it would certainly be treated as a "shared household" or a matrimonial home but not otherwise” Furthermore, in the case of Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors20, the Division Bench of Hon’ble High Court of Delhi has in relation to §17 of the Domestic Violence act held as follows: “The property which exclusively belongs to the father-in-law or the mother-in-law or to them both in which the husband has no right, title or interest, cannot be called a ‘shared household’”21 Therefore, the case of the complainant does not come within the definition of ‘shared household’ as given in §2 (s) of PWDVA and liable to be set aside. 1.4. THE SAID RESPONDENT CANNOT BE MADE A ‘RESPONDENT’. The said respondent cannot be made a respondent within the definition of §2 (q) the PWDVA, 2005 for the simple reason that a person can be a respondent within the definition

19

II (2010) D.M.C. 848 : (2010) 158 P.L.R. 59 : MANU/DE/0714/2010 174 (2010) D.L.T. 79 21 See also Sardar Malkiat Singh v. Kanwaljit Kaur, MANU/DE/0714/2010: 2010 (168) DLT 521 ; Neetu Mittal v. Kanta Mittal & Ors., MANU/DE/1415/2008 : 2008 (106) DRJ 6223 ; Kavita Chaudhri v. Eveneet Singh and Anr., MANU/DE/2766/2012 : 188 (2012) DLT 755 ; Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors., MANU/DE/2773/2010 : 174 (2010) DLT 79 ; Raj Kumari v. Preeti Satija & Anr., MANU/DE/0144/2012 : 2012 (193) DLT 224 20

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3RD RGNUL NATIONAL MOOT COURT COMPETITION of the act only if he has been in a domestic relationship with the complainant. 22 But in the present matter before us, there has been no ‘domestic relationship’ between the parties as the complainant had established a separate household and had been living there along with her daughter. The said act would be available to those who are entitled to the benefits thereof, but, in the instant case, the applicants are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other law. 23 Hence, Mr. Harilal cannot be prosecuted under the act. 1.5.NO SUFFICIENT GROUNDS FOR DELAY IN FILING THE PRESENT COMPLAINT. In order to disentitle the applicant to relief on the ground of delay it has to be shown that delay was both unnecessary and improper.24 In other words, the party at default must satisfactorily explain or account for each day’s delay in making the application.25 In the present matter, the delay26 in filing the complaint under the Domestic Violence act has not been sufficiently and reasonably explained on behalf of the complainant.27 The complainant has approached the court of law after 24 years of the alleged acts of domestic violence upon her; it was open for her to take recourse to proceedings under general law either by way of civil or criminal proceedings. Moreover, the domestic violence act came into force in 2006 and the complaint was filed in the year 2010, but, there are no sufficient grounds for a further delay of four years in filing the present complaint by the applicant. The continuance of

22

Harbans Lal Malik v. Payal Malik 2011(1) Crimes 496, 171 (2010) D.L.T. 67, II (2010) D.M.C. 202, (2010) I.L.R. 6 Delhi 625 23 Supra, note 1. 24 1969 MPLJ 361: See also Anna Saheb v. Tarabai AIR 1970 MP 36 (DB); 1979 Hindu LR 313 (P&H) 25 Sitaram Ram Charan v. M.N. Nagrashana A.I.R. 1960 SC 260 26 Delay is not by itself a bar but is relevant when considering want of sincerity, that is, such conduct on the part of the petitioner as ought to estop him or her from the remedy. Delay itself does not amount to approbation and it is for this reason that the statue says that the delay must be “improper” and “unnecessary”. [vide Vinod Chandra Dube v. Aruna Dube, AIR 1977 Del 24: (1976) 12 DLT 200: 1976 Rajdhani LR 526: (1977) 79 Punj LR (Del) 221: 1977 Hindu LR 751] 27 Smt. Vijaya Vasant Sawant v. Ms. Shubhangi Shivling Parab & Ors. 2013 (4) A.B.R. 833 : 2013ALL M.R. (Cri) 2360 : 2013 Cri. L.J. 3592

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3RD RGNUL NATIONAL MOOT COURT COMPETITION proceedings against the respondent would amount to an abuse of process of law where the allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.28 In the case of Smt. Vijaya Vasant Sawant v. Ms. Shubhangi Shivling Parab & Ors.,29 it was said: “3. all the instances alleged pertain to the period prior to September, 2004 when the petitioner left the matrimonial home. There is no allegation whatsoever of any incident thereafter. It is of the opinion that though the Act came into force in the year 2006, it was open for the petitioner to take recourse to the proceedings under the general law either by way

of

civil

or

criminal

proceedings.

Further delay of

three

years

in filing the complaint not explained by the petitioner.” Furthermore, in Shri Rama Singh v. Smt. Maya Singh and Others30, it was held: “However, fact of the matter is that the application filed on 2-11-2011 by the respondent neither contains details of any recent incident of domestic violence. as defined in § 3 of the Act, nor, furnishes any explanation for non-presentation of the application at an earlier point of time despite the fact that the Act has been brought into force on 26-102006. Hence, the complaint under DV act quashed.” We are for the protection of women but against the harassment of men. These provisions and laws are for the upliftment and protection of the women in the society. However, these laws cannot be said or observed as a negative blackmailing weapon and a means of extorting the money out of the respondent. It is a general psyche and thinking of the society that if an incident of harassment or outraging the modesty of women, whether true

28

State of Harayana and Others v. Bhajan Lal and Others MANU/SC/0115/1992 : 1992 Suppl. (1) SCC 335 2013 (4) A.B.R. 833: 2013 ALL M.R (Cri) 2360 : 2013Cri. L.J. 3592 30 2012 (4) M.P.H.T. 169 : 2013 (2) R.C.R. (Civil) 827 29

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3RD RGNUL NATIONAL MOOT COURT COMPETITION or not, is alleged, the society tends to have a balance of favor towards the women. Hence, it would be an abuse of process of law if the present complaint is entertained by the court of law. 1.6. NO CAUSE OF ACTION. It is an admitted fact that since 1986 i.e. almost 28 years, the parties have been living separately and since 1997 there had been no contact or communication between both of them. The domestic violence has to be shown to have occurred in the near or recent past before filing the complaint and unless that is not done, the court cannot entertain the complaint in respect of the cause of action.31 The complainant has also alleged that she was forced out of the matrimonial household in 1986, but it is clearly an afterthought plea as there has been no complaint to that effect. The Bombay High Court in Kishor v. Sou Shalini32 pronounced the Ratio decidendi: “Alleging domestic violence after the elapse of 15 years, where there is no factum of living together for last 15 years, would constitute an abuse of process of law and the court cannot entertain the application in respect of cause of action” However, what is disturbing is when laws like domestic violence are misused and false and malicious criminal cases are filed against the husband and his family to settle the scores unrelated to domestic violence or cruelty. This not only causes great harassment to the husband and his family but ruins the marriage and defeats the very purpose behind the protective laws.33

31

Supra, note 1. 2010 (112) BOM L.R. 1398 : 2010 Cri L.J. 4049 33 Supra, note 6. 32

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3RD RGNUL NATIONAL MOOT COURT COMPETITION A Constitution Bench of the Hon’ble Supreme Court in Secretary, State of Karnataka and others v. Umadevi and others34 opined that “Sympathy or sentiment, as is well known, should not allow the Court to have any effect in its decision making process. Sympathy or sentiment can be invoked only in favour a person who is entitled thereto. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences.” Henceforth, it is most vehemently contended that the applicant has no cause of action against the respondent and it would be a travesty of justice the present complaint is entertained. 1.7.BAR OF LIMITATION. The statute of limitation is a statue of repose, peace and justice. It extinguishes the stale demands and ensures security of rights.35 The principle upon which the statutes of limitation are based is that, it is to the interest of the State which remedies for violated rights, should be sought in a court without a delay.36 Unlimited and perpetual litigation disturbs the peace of society and leads to disorder and confusion. A constant dread of judicial process and a feeling of insecurity retard the growth and prosperity of a nation. The Romans had the maxim interest republicae ut sit fines litium implying the interest of the state requires that a period should be put to litigation. The necessity for putting a limit to litigation arises also from the perishable nature of man and all that belongs to him. It has been said by John Voet, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal.37 According to the Limitation Act, chapter X puts a bar of three years when the right to sue accrues in all civil matters.

34

(2006) 4 SCC 1 J.D. Jain, The Limitation Act, Eleventh Edition, Allahabad Law Agency, 1988 36 Ibid, at p.3 37 Ibid 35

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3RD RGNUL NATIONAL MOOT COURT COMPETITION In Sejal Dharmesh Ved v. State of Maharashtra and Others38 the Bombay High court has held that after separation of husband and wife for a year, the wife cannot file a complaint under the provisions of Domestic Violence Act.39 The Hon’ble Justice Roshan Dalvi held: “A wife who lived in a domestic relationship earlier, but which ceases only because of any Domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act.” Furthermore, the Hon’ble Supreme Court in the judgment of Inderjit Singh Grewal v. State of Punjab & Anr40 held: “24. The complaint could be filed only within a period of one year from the date of the incident seem to be pre-ponderous in view of the provisions of §s 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.” Hence, the present complaint is barred by the law of Limitation as envisaged under §468 of the Code of Criminal Procedure, 1973.

38

2013(5) LJ SOFT 48 : 2014 ALL M.R. (Cri) 636 Kanchan Chaudhari, After separation of a year, wife can’t file complaint under domestic violence act, says high court, Hindustan Times Mumbai, First Published: 01:50 IST(15/3/2013), Last Updated: 01:51 IST (15/3/2013) 40 2011 (3) A.C.R. 3544 (SC): 2012 Cri. L.J. 309 : III (2011) D.M.C. 7 SC : 2011 (4) K.C.C.R. 3283 : 2011 (3) K.L.J. 40 : 2011 (4) K.L.T. (SN) 69 : 2011 (2) N.C.C. 544 : 2011 (4) R.C.R. (Civil) 129 : 2011 (9) SCALE 295 : (2011) 12 SCC 588 : [2011] 10 S.C.R. 557: 2011 (3) UC 1758. 39

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3RD RGNUL NATIONAL MOOT COURT COMPETITION 2. THE APPLICANT IS NOT ENTITLED TO ANY OF THE RELIEF UNDER PWDVA, 2005. 2.1. DOCTRINE OF ESTOPPLE AND WAVIER. The principle of estoppel is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favor of an accused such a finding would constitute an estoppel or res judicata against the prosecution.41 In the present matter, when the respondent moved the court under Guardianship and Wards act to obtain the custody of their daughter in the year 1994, the applicant admitted in the court of law that she was in a better position to take care of her daughter and fulfill her basic requirements which constituted an admission under §17 of the Indian Evidence Act, 1872. The complainant herein has been estopped from praying such reliefs for herself and her daughter under §115 of the Indian Evidence Act. Moreover, in the year 1997, the complainant, Vimla, moved an application before the Gram Panchayat of Bhimpur for the provision of maintenance for herself and her daughter but the petitioner did not initiate an action against the accused for the alleged acts of domestic violence, as she had only filed for maintenance in the Gram Panchayat. On the contrary, in the present complaint she wants monetary relief for the acts of acts of domestic violence alleged to have been committed by the respondent prior to the Gram Panchayat’s decision. There was no issue pertaining to any act of domestic violence brought against the respondent in the Gram Panchayat by the applicant herein. Therefore, it is vehemently contended that the accusations against the respondent for the acts domestic violence alleged to have been committed by him are falsely fabricated in order to extort money out of him. Also, there is no prima facie evidence to establish the same.

41

Masud Khan v. State of Uttar Pradesh, A.I.R. 1974 S.C. 28 at ¶30.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION Waiver is the act of intentionally relinquishing or abandoning a known right, claim, or privilege42. Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver. A waiver signifies nothing more than an intention not to insist upon the right.43 In the present matter before us, the applicant has waived her right to get any of the reliefs which she had prayed in her complaint due to an unjustified period of delay. 2.2. NOT ENTITLED TO SHARED HOUSEHOLD UNDER § 17 OF THE ACT. In Vandana v. T Srikanth & Others. 44, Madras High Court held that: “to be entitled to protection under §17, a woman will have to establish two facts, namely (i) that her relationship with the opposite party is a "domestic relationship" and (ii) that the house in respect of which she seeks to enforce the right, is a "shared household.” 2.2.1. No protection order under §17. Firstly, to be entitled to protection orders under §17 of the act, the parties must have a domestic relationship. But in the present case, domestic relationship does not subsists between the parties, hence, the complainant is not entitled for the protection as provided under §17 of the Act. Secondly, to have a right to reside in a shared household, the house in respect of which the aggrieved person seeks to enforce the right should be a “shared household”. §2 (s) of the Act defines “shared household” as a household where the person aggrieved lives or at any stage has lived in a domestic relationship. But as the respondent has moved out of the joint family house and has been living in a newly constructed house and the fact that they are not in a domestic relationship or has ever been in a domestic relationship in the newly constructed house does not make it a shared household. 42

MERRIAM-WEBSTER’S DICTIONARY OF LAW, First Indian Edition, Goyal Publishers and Distributors Pvt. Ltd., 2005. 43 Jagad Bandhu Chatterjee v. Nilima Rani & Others Civil Appeal No. 2170 of 1967. 44 (2007) 6 MLJ 205 (Mad.).

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3RD RGNUL NATIONAL MOOT COURT COMPETITION In case of Mr. Johnson Fernandes v. Mrs. Maria Fernandes, Mr. Michael Fernandes and State45, the court held that, as the respondent and the applicant were living separately and there was no evidence to disclose that both of them have lived together at any point of time in a ‘shared household’, therefore, the household in respect of which the applicant is claiming right cannot be construed as ‘shared household’. 2.2.2. No restriction or prohibition to use the shared household. There are no allegations relating to any restriction or prohibition or deprivation of any act on part of the respondent at a particular time or date or period reasonably recent in point of time before filing of the complaint. After leaving the matrimonial household, the complainant never returned back home or even tried to reconcile the strained relations between them. However, in the year 1990 the present applicant retuned back to her matrimonial house to attend a marriage ceremony. It has to be observed by the court, that there was no complaint nor any allegation of any kind of domestic violence committed on behalf of the respondent during that time and the applicant left the house after attending the aforesaid marriage out of her own accord. Therefore, the applicant herein is not entitled to claim any of the reliefs under PWDVA, 2005 It also has to be observed by this court that the respondent even moved to the court to obtain custody of his daughter. This shows his willingness to fulfill his obligations as a father which the court must take into account. 2.2.3. Daughter of applicant not entitled to share in the property. The applicant has prayed for the share in the property of the respondent for herself and her daughter but the respondent is alive and he has constructed a new house from his income along with his brother and it is not an ancestral accommodation, therefore, till the life of the

45

2011 Cri.L.J. 1504 : 2011 (2) Crimes 656.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION respondent, applicant and her daughter are not entitled for any share in the property of the respondent herein. In Adil & Ors. v. State & Anr.46, the court envisaged that it must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence, when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. 2.3. APPLICANT IS NOT ENTITLED TO PROTECTION ORDER The complainant is also not entitled to the protection order under §18 of the Act. To be entitled to protection orders under §18 of the Act, the Magistrate, on being prima facie satisfied that domestic violence has taken place or is likely to place, may pass a protection order in favor of the aggrieved person. The applicant alleged that the acts of domestic violence was committed by the respondent during the year 1986 and prior to it, but there is no prima facie case against the respondent as there is no evidence pertaining to it, also, there are no instant/immediate acts of domestic violence allegedly caused on behalf of the respondent. Under §18 of the Act, the word ‘likely to take place’ is used, which means that the court must look into the facts and circumstances of each and every case and decide whether there is a possibility of any kind of domestic violence and then pass the protection order accordingly. In the present matter, no domestic violence can be foreseen; hence, protection orders cannot not be passed. In case of Radha Raman Srivastava v. State of Bihar47, Patna HC held that:

46 47

2010 (4) JCC 2577 (Del) 2013Cri.L.J. 459, 2013 (3) PLJR 667.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION “On plain reading of §§18 and 19 of the PWDV Act, it is apparent that for passing any order under §18 of the PWDV Act, the Magistrate has to be satisfied about the domestic violence having taken place or is likely to take place. However, for passing any order under §19 of the PWDV Act, the Magistrate is obliged to record his satisfaction about commission of domestic violence. Merely on surmises and conjecture, orders under §§18 and 19 of the PWDV Act cannot be passed.” There is no evidence regarding the alleged acts of domestic violence committed by the respondent. It is also pertinent to note that no such report of domestic violence was earlier alleged by the complainant. The complainant, during the custody proceeding of her daughter never reported any domestic violence by the respondent. Also, during maintenance proceeding before the Gram Panchayat, she never mentioned any acts of domestic violence by the respondent. In M.Muruganandam and another V. M.Megala48, Hon’ble Madras High Court in ¶25 of the judgment held as under: “A combined reading of §§17 and 19 would show that it is only when a protection order under §17 read with clauses (a), (b), c, (d) and (e) of Sub § (1) of §19 is claimed, that the property in respect of which it is claimed, should fall within the definition of the expression “shared household” under §2(s). To put it in simple terms, if an aggrieved woman seeks either a protection order to enable her to continue to reside in the shared household, then the property which forms the subject matter of the claim, should be a “shared household”, within the meaning of the Act.” In Azimuddin @ Kunta v. State of U.P.,49 Hon’ble Allahabad High Court hold that relief sought by aggrieved party, i.e. seeking protection from being dispossessed from premises, or for getting compensation if her husband wants to dispossess her, the act is an act in praesenti 48 49

2011 (100) AIC 12 (Mad) : 2011 (4) RCR (Crl) 499 : 2011 (1) CTC 841 : 2011 (2) DMC 159 2009 (2) LRC 150(All) : 2008 (61) ACC 228 : 2008 (1) JIC 931 : 2008 (2) All Cr. R 1953

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3RD RGNUL NATIONAL MOOT COURT COMPETITION and it cannot be said that as some incidents referred to a date earlier to the date of commencement of the Act, proceedings hereunder are not maintainable. 2.4.NOT ENTITLED TO MONETARY RELIEF AND COMPENSATION. 2.4.1. The applicant is not entitled to monetary relief under §20. §2 (k) of the Act defines monetary relief: “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;” For granting monetary relief there has to be some grounds on which the magistrate may order the respondent to pay to the aggrieved person relief in order to meet the expenses incurred and the losses suffered as a result of the domestic violence. The relief which is provided to the aggrieved person is the relief which is a result of the domestic violence but as the domestic violence has not been established; monetary relief should not be granted to the complainant. 2.4.2. The applicant not entitled to compensation under §22. §22 of the Act marks as under: “The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.” Compensation under §22 of the Act is granted for the mental torture and emotional distress, caused by the acts of the domestic violence committed by that respondent. Since in the present matter no such domestic violence has been proved, orders for compensation cannot be passed. Moreover, it has to be shown by the complainant and proper reasons should also be

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3RD RGNUL NATIONAL MOOT COURT COMPETITION provided to the court for granting compensation for the injuries which was caused by the acts of domestic violence by the respondent. Moreover, the respondent was not only deprived by the Applicant form love and affection but also from the affection of his daughter. So the respondent has also suffered a lot and in view of this, the applicant and her daughter are not entitled for the relief of monetary compensation. The instant relief is not sought on the basis of existing facts and circumstances but same is based upon presumption which is not tenable in law. 2.5. NOT ENTITLED TO STRIDHAN. The word Stridhana is derived from Stri (woman) and dhana (property). Stridhana means woman’s property, that is to say, properties over which a woman has got absolute power of disposal. A woman has absolute right over her stridhan and she cannot be denied of her right over the same. But in the present matter there is no such record of having any stridhan in the possession of the respondent. It is also not clear what are the properties which the complainant claims to be her stridhan, as no details regarding the stridhan has been given by the complainant. According to a newspaper report in 1999, in 90% of the cases coming up to the crimes against the women cell (CWAC), Delhi, the lists of dowry items filed by the women are exaggerated. The report also reveals that between 20-30% of these cases are such where stridhana was actually in possession of the women still they lodged a complaint against the husband. 50

50

Kusum, Harassed Husbands, Second revised edition, 2003, Regency Publications, New Delhi.

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3RD RGNUL NATIONAL MOOT COURT COMPETITION

PRAYER

Therefore in the light of the issues raised, arguments advanced, reasons given and authorities cited, the Hon’ble Court may be pleased:

I. II.

THAT THE PRESENT COMPLAINT IS NOT MAINTAINABLE THAT THE APPLICANT IS NOT ENTITLED TO ANY OF THE RELIEFS UNDER THE PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.

And pass any other relief that the Hon’ble Court may be pleased to grant and for this act of kindness the counsels for the respondent shall forever humbly pray.

All of which is respectfully submitted.

Sd/Counsels on behalf of the Respondent

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