Escolar Documentos
Profissional Documentos
Cultura Documentos
IN THE MATTER OF
Smt. Vimla Devi & Anr. .APPLICANT
Versus
Hari Lal.RESPONDENT
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
INDEX OF AUTHORITIES ................................................................................................. III
List Of Cases ........................................................................................................................ III
Statutes .................................................................................................................................IV
Books Referred ...................................................................................................................... V
Articles And Other Authorities ............................................................................................. V
STATEMENT OF JURISDICTION .................................................................................... VI
STATEMENT OF FACTS ................................................................................................... VII
ISSUES RAISED................................................................................................................. VIII
SUMMARY OF ARGUMENTS ........................................................................................... IX
ARGUMENTS ADVANCED .................................................................................................. 1
1.
2005 .................................................................................................................................... 1
2.
1.2.
1.3.
1.4.
1.5.
2.1.1
2.1.2
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2.1.4
2.1.5
2.2.
3.
4.
3.1.1.
3.1.2.
3.2.
3.3.
3.4.
MONETARY RELIEF.............................................................................................. 14
3.5.
PRAYER .................................................................................................................................. X
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LIST OF CASES
A. Ashok Vardhan Reddy v. P. Savitha 2012 (3) ALT (Cri) 163 : 2012 Cri.L.J. 3462 : 2013
(2) Crimes 38 : 2012 (4) JCC 2417.......................................................................................... 12
Azimuddin v. State of U.P. 2009 (2) LRC 150 (All) : 2008 (2) All Cr. R 1953 ...................... 10
Bhagirath Kanoria v. State of M.P. (1984) 2 SCC 222 ........................................................... 10
Bhagirath v. State of M.P. AIR 1984 SC 1688 : (1984) 4 SCC 222 ....................................... 12
Bhai Sher Jang Singh v. Virinder Kaur, 1979 Cri.L.J. 493 ..................................................... 22
Bhandu Mukhti Morcha v. Union of India AIR 1984 SC 802 : (1984) 2 SCC 161 ................ 16
Chandra Kishore v. Nanak Chana, AIR 1975 Delhi 175 ........................................................ 24
Dennison Paulraj v. Mayawinola Paulraj 2009 (2) DMC 252 : 2008 (3) LRC 248 (Mad) ... 10
Gangadhar Pradhan v. Rashmibala Pradhan, 2012 Cri.L.J. 4106 ............................. 11, 13, 20
Gokak Patel v. Dundayya, (1991) 2 SCC 141 : 1991 AIR SCW 505 ..................................... 12
K. Ramaraju v. K. Lakshmi Pratima 2008 (2) ALD (Crl.) 1 (AP) .......................................... 12
Karim Khan v. State of Maharashtra, 2012 (1) JCC 764 ........................................................ 12
M.C. Mehta v. Union of India AIR 1987 SC 1086 .................................................................. 16
Mithu Devi v. Siya Chaudhary................................................................................................. 10
Mohankumar v. Santhamma, 2012 (5) LRC 369 (Ker) ........................................................... 12
Mohit Yadam v. State of Andhra Pradesh, 2010 (1) ALD (Cri.) 1 (AP) ................................. 12
Monika Garg v. Sanjay Garg 2012 (6) LRC 412 (P & H) ...................................................... 10
Natasha Kohli v. Mon Mohan Kohli, 2010 (119) DRJ 44 (Del).............................................. 20
Om Prakash v. State of Rajasthan AIR 2011 (NOC) 368 : 2012 (5) LRC 431 (Raj) ............. 14
Priya v. Shibu, 2009 MLR 274. ............................................................................................... 22
Rajesh Kurre v. Safurabai & Others, 2009 (1) MPHT 37 CHH ............................................. 23
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STATEMENT OF JURISDICTION
The present application is under 12 (1) of the Protection of Women from Domestic
Violence Act, 2005 (43 of 2005) read with 125 and 472 of the Code of Criminal
Procedure1.
The provisions of this act are in addition to, and not in derogation of the provisions of any
other law, for the time being in force.2 The Protection of Women from Domestic Violence
Act, 2005 supplements existing law pertaining to the protection of women from violence.
1
2
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STATEMENT OF FACTS
[1] Harilal married Vimla Devi in 1983 and after few months of marriage, he soon began to
neglect Vimla. Gradually, Harilal and his family members began to demand dowry from the
complainant and her parents. Physical violence and Verbal abuse by Harilal became a routine
in her life. Vimla was sent to her paternal home during her pregnancy by Harilal where she
gave birth to their daughter. Neither Harilal nor the any of his family member came to take
her away. When the child was two months old, the father and brother of Vimla brought her to
the house of Harilal. However, the incidents of ill-treatment, verbal, physical and emotional
abuse at the hands of Harilal aggravated. After a few days of stay at her matrimonial house,
Vimla was driven out by Harilal with her daughter in a cruel manner. [2] In 1994 Harilal
moved the court under Guardianship and Wards Act, seeking the custody of Dolly but the
action initiated by him failed and the court gave the custody of Dolly to Vimla. [3]In
1997, Vimla moved an application before the concerned Gram Panchayat for the provision of
maintenance for herself and her daughter and the Gram Panchayat ordered Hari to pay
maintenance of Rs. 500/- p.m. but not even a single payment was made by him as per this
order. [4]The family unit consisting of Vimla and her daughter lived separately from Harilal
and they were in the list of BPL as maintained with local authorities. [5]On the other hand,
Harilal has been working as a govt. employee and earning a salary of about Rs. 30,000/- p.m.
He had constructed a new house in Bhimpur and has been living there along with his brother.
[6]In 2010, when Dolly completed her education at college level, Vimla initiated an action
against Harilal under the Protection of Women form Domestic Violence Act, 2005 being an
aggrieved person within the definition of the said act.
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ISSUES RAISED
I.
II.
III.
IV.
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The present complaint is maintainable as there is no bar of limitation to the present complaint
u/12 of the Domestic Violence Act. Moreover, the Act has a retrospective effect an
application by a women who has shared a household in the past but was no longer residing
with her husband and who was subjected to any act of domestic violence prior to coming into
force of the act is maintainable. Also, the applicant has a continuing cause of action against
the respondent herein. Hence, the present complaint is maintainable.
II.
The applicant herein had been subjected to domestic violence soon after her marriage. The
respondent committed acts of verbal, emotional and physical abuse on the applicant and even
demanded dowry for her parents. The applicant was thrown out of the matrimonial household
in the year 1986 by the respondent and hence, was deprived of all her matrimonial rights,
therefore, subjected to Domestic Violence.
III. THE APPLICANT IS ENTITLED TO RELIEFS UNDER THE PROVISIONS OF THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.
The aggrieved person has been subject to Domestic Violence by her husband and also has
been deprived of her right of maintenance, right to use the shared household etc., therefore
entitled to multifarious reliefs under the benevolent legislation of PWDVA, 2005.
IV.
The principle of estopple does not apply to the present complaint as the doctrine of estopple
as envisaged under 300 of Cr.P.C. is applicable only in criminal proceedings, on the
contrary, the proceedings in present suit are civil in nature. Also, 115 of Evidence act is not
applicable to the present case.
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ARGUMENTS ADVANCED
1. THE PRESENT COMPLAINT IS MAINTAINABLE.
It is most respectfully submitted, that the present complaint is maintainable as there is no
prescribed period of limitation3 to the present complaint u/12 of the Protection of Women
from Domestic Violence Act, 2005 (herein after referred to as PWDVA). The PWDVA, 2005
is a retrospective4 piece of legislation, hence, an application by a women who has shared a
household in the past but was no longer residing with her husband or who was subjected to
any act of domestic violence prior to coming into force of the act is maintainable. 5 Further,
the applicant herein has a Continuing Cause of Action6 against the respondent as she had
remained economically deprived for want of maintenance and financial support from her
husband since all these years. Therefore, the present complaint is maintainable.
1.1.DOMESTIC RELATIONSHIP WITHIN THE MEANING OF 2 (F), PWDVA, 2005
The PWDVA governs domestic relationships7 and includes within its ambit the
relationships through marriage.8 In the present case, the marriage between parties took place
in the year 1983 and a child was born out of the wedlock in the year 1986.9 Therefore as per
2 (f) of the PWDVA, 2005 it constitutes a domestic relationship by Marriage. The family
A certain period limited by statute after which actions or prosecution cannot be brought into courts,
MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, 2005, Goyal Publishers and Distributors
Pvt. Ltd.
4
An enactment that attaches new disabilities with respect to acts and transactions completed before its
enactment, MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, 2005, Goyal Publishers and
Distributors Pvt. Ltd.
5
V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.
6
472 of the Code of Criminal Procedure, 1973.
7
2 (f): "domestic relationship" means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members living together as a joint family.
8
Indra Jaising, Handbook on Law of Domestic Violence, Lawyers Collective, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.
9
1 Moot Proposition.
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10
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19
Supra, note 5.
Ibid.
21
MANU/SC/1193/2013.
22
2012 Cri. L.J. 4106.
20
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30
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33
1 Moot Proposition.
Violation of 3 of Protection of Women from Domestic Violence Act, 2005.
35
Om Prakash v. State of Rajasthan AIR 2011 (NOC) 368 : 2012 (5) LRC 431 (Raj).
36
Dr. Sukanta K. Nanda, Women and Children, The law House, Orissa, 2012.
34
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37
Poornima Advani, Curbing domestic violence: Inching Forward, The Hindu, dated 27.06.2006.
Physical abuse: any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life,
limb, or health or impair the health or development of the aggrieved person and includes assault, criminal
intimidation and criminal force.
39
Supra, note 8.
40
319, Hurt defined, The Indian Penal Code, 1860.
41
1, Moot Proposition.
42
State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225 : (1977) 2 SCC 83.
43
M.C. Mehta v. Union of India AIR 1987 SC 1086 ; Bhandu Mukhti Morcha v. Union of India AIR 1984 SC
802 : (1984) 2 SCC 161.
38
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44
Acts of emotional violence by the husband against the wife include: saying or doing something to humiliate
her in front of others, threatening to hurt or harm her or someone close to her, or insulting her or making her
feel bad about herself
45
1, Moot Proposition.
46
Ibid.
47
2, Moot Proposition.
48
3 (b), The Protection of Women from Domestic Violence Act, 2005.
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49
1, Moot Proposition.
Statement of Object and Reasons, Protection of Women from Domestic Violence Act, 2005.
51
Economic abuse: Deprivation of all or any economic or financial resources to which the aggrieved person is
entitled under any law or custom whether payable under an order of a court or otherwise or which the
aggrieved person requires out of necessity including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved
person, payment of rental related to the shared household and maintenance.
52
Supra, note 8.
53
Karim khan v. State of Maharashtra 2012 (1) JCC 764.
54
3, Explanation I: Prohibition or restriction to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the
shared household.
50
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1 Moot Proposition.
Supra, note 5.
57
NFHS-3, The National Family Health Survey (NFHS) is a large-scale, multi-round survey conducted in a
representative sample of households throughout India.
58
Acts of physical violence by the husband against his wife include: pushing, shaking, throwing something at
her, slapping, arm twisting, hair pulling, punching, kicking, dragging, beating, trying to choke or burn her on
purpose, and threatening her or attacking her with a weapon. Acts of sexual violence by the husband include
physically forcing the wife against her will to have sex or perform other sexual acts that she did not want to
perform.
56
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59
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67
19(1) (c). restraining the respondent or any of his relatives from entering any portion of the shared household
in which the aggrieved person resides.
68
19(1) (d). restraining the respondent from alienating or disposing off the shared household or encumbering
the same.
69
18, PWDVA, 2005.
70
1 Moot Proposition.
71
(2012) 3 SCC 183,Para. 8. See also, Dennison Paulraj v. Mrs. Mayawinola, 2008 (3) JCC 1577.
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to, (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved
person as well as her children, if any, including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
78
2009 (1) MPHT 37 CHH.
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79
80
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81
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84
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PRAYER
Therefore in the light of the issues raised, arguments advanced, reasons given and authorities
cited, the Honble Court may be pleased:
I.
II.
125
OF CR.P.C.
IN
FAVOR OF THE
COMPLAINANT
III.
IV.
V.
TO
COMPLAINANT.
And pass any other relief that the Honble Court may be pleased to grant and for this act of
kindness the counsels for the appellant shall forever humbly pray.
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