Can you avoid maintenance in dv case? False domestic violence charges.

The rise of domestic violence cases in India and abroad has opened the eyes of many. Well, there are alot of articles on how to protect women from domestic violence . However, let’s not ignore the other side as well. Where people face false domestic violence charges and above all bear the burdern of paying of maintenance charges.

Can you avoid maintenance in false domestic violence charges?
Source: Google images

WHAT IS DOMESTIC VIOLENCE?

Domestic violence is violence or other abuse in a domestic setting, such as in marriage or cohabitation. Domestic violence is often used as a synonym for intimate partner violence, which is committed by a spouse or partner in an intimate relationship against the other spouse or partner. It can take place in heterosexual or same-sex relationships, or between former spouses or partners.

3 MOST IMPORTANT DOMESTIC VIOLENCE LAWS IN INDIA

1. The Indian Penal Code Amendment in 1983 

The legislature however in an extraordinary segment, numbered 498-A, that officially made domestic violence a criminal offense under IPC in 1983. This segment of the law explicitly covers pitilessness towards wedded women by their spouses or their husbands’ families. 

An accommodating condition in this segment permits women’s family members to submit a question about them. This is amazingly gainful in situations where the woman is too hesitant to even think about speaking up for herself. For example, her significant other captures her or essentially can’t go out. 

One kind of mercilessness that can be rebuffed is conduct that causes a lady’s passing or genuine injury or pushes her to end it all. Another kind is the sort of badgering relating to intimidating the lady or her family members to surrender her property. 

Under the approach, acts of cold-bloodedness include, yet not limited to, the following: physical maltreatment; mental torment through dangers to her or her friends and family, (for example, kids); denying the lady nourishment; locking her in or out of the house as discipline; and demanding unreasonable sexual acts against the lady’s will. It sentences offenders for as long as three years of jail, just as a powerful fine. 

2. The 2005 Protection of Women from Domestic Violence Act 

Enforced in 2006, the Protection of Women from Domestic Violence Act is exactly what the title declares. This is the first law in quite a while that explicitly recognizes each woman’s entitlement to be in a home without violence. In fact, scholars viewed it as a significant advance forward in securing women’s privileges and increasingly viable protection. 

It is a long and complete law that subtleties a few significant strategies and systems intended to support women. In the first place, it gives a particular definition of domestic violence. “Actual or dangers of physical, mental, passionate, sexual, or boisterous attack, just as badgering regarding endowment or property.” 

Women are given the option to look for protection against such acts. Their family members can document a complaint about them against spouses who overstep the law.  Second, it is a woman’s entitlement to dwell in their “marital family unit”. No person can oust her from it as she legitimately shares it with her better half.  Incase her inlaws or others oust her, she has the privilege to look for fiscal pay and safe house. This is similar to a free lawful and clinical guide. 

Violators of this law either remunerate the woman financially. Or they will be served a restraining order to get them far from the complainant.

3. The 2013 Criminal Law Amendment 

As a reaction to the solicitations of Justice Verma Committee, the authorities had set up a commission named after India’s most profoundly respected legal advisers. An extensive rundown of amendments to the IPC, CrPC and the Indian Evidence Act were presented in the 2013 demonstration. 

The point of the amendment was to give harsher and swifter discipline to those criminals who carried out maltreatment against women. 

It also includes explanations and insights about rape and assault . For example, “assault” was given a superior and increasingly comprehensive lawful definition, to incorporate non-consensual infiltration utilizing non-sexual articles, just as non-penetrative sexual acts. 

There was exapnsion of scope of punishments for offenses, for example, assault, ambush, and lewd behavior. Specifically, the Act announces heavier sentences for attackers. For example, assault where the culprit left the casualty in a vegetative state after the wrongdoing. 

Certain new offenses also come under the amendment. However, they do not limit to: corrosive assaults (the demonstration of tossing corrosive upon a lady with the expectation of deforming, harming, or inside and out slaughtering her);  following; voyeurism (spying with obscene or disgusting interest); and openly and mightily undressing a lady. In any case, regardless of the commission’s proposals, the amendment neglected to address the issue of conjugal assault. This special case fundamentally accepts that marriage naturally implies the lady will consistently agree to her better half’s sexual wants. 

This strange idea suggests that assault can’t occur inside a marriage, when in certainty it does, and even happens as often as possible to Indian women.

ALL ABOUT DOMESTIC VIOLENCE ACT

Can you avoid maintenance in false domestic violence charges?
Source: Google Images
What is the Domestic Violence Act?

The main object of the Act is protection of women from violence in domestic sphere. It is a progressive Act, whose sole intention is to protect the women irrespective of the relationship she shares with the accused. The definition of an aggrieved person under the Act has a wide scope. It even includes women who are living with their partners in a live-in relationship.

Who is covered under the Act? 

The Act covers all ladies who might be mother, sister, spouse, widow or accomplices living in a mutual family unit. The relationship might be in the nature of marriage or reception. Likewise associations with relatives living respectively as a joint family are additionally included. In any case, no female relative of the spouse or the male accomplice can document a grievance against the wife or the female accomplice, for example the mother-in-law can’t document an application against a girl in-law, yet she can record an application against her little girl in-law for abetting her child to submit viciousness against her.

Against whom can the complaint be filed?
  • Any grown-up male part who has been in a local relationship with the lady 
  • Family members of the spouse or the male accomplice 
  • Incorporates both male and female family members of the male accomplice
How to avoid maintenance in Domestic Violence case?

Let us discuss the ways to avoid maintenance in a dv case (Domestic Violence). Listed below is very clear judgement of the Bombay High Court which states that the husband cannot be straightaway arrested or a non-bailable warrant issued against the husband for non-payment of maintenance under DV act

Various other procedures as envisaged under the criminal procedure code have to be followed before any arrest

We hope that all falsely accused people will repeatedly use this judgement if a non bailable warrant threatens them for non-payment of maintenance or interim maintenance under the Domestic Violence Act !!

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO.305 OF 2014.

Mr. Sachin s/o Suresh Bodhale, Aged 36 years, Occupation – Business, R/o Plot No.2, Apana Ghar Scheme, Visava Naka, Godoli, Satara (MH)……. PETITIONER

VERSUS

Sau. Sushma w/o Sachin Bodhale, Aged 35 years, Occupation – Nil, R/o C/o Sau. Savita Sanjay Patil, Plot No.119, Shri Mahalaxmi Apartment, Nelco Housing Society, Subhash Nagar, Nagpur…….RESPONDENT

*****************

Shri Sudhir Moharir, Advocate for the petitioner,

Shri R.R. Vyas, Advocate for the respondent.

**********

CORAM : M.L. TAHALIYANI, J.

DATED : 6 MAY, 2014.

ORAL JUDGMENT :

1. Heard learned Counsel Shri Sudhir Moharir for the petitioner and learned Counsel Shri R.R. Vyas for the respondent.

2. Rule. Rule made returnable forthwith by the consent of the learned Counsel appearing for the parties.

3. The petitioner has moved this Court by invoking powers of this Court under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure. The petitioner is aggrieved by the order passed by the learned Magistrate in Misc. Criminal Application No.890/2012 (Sushma vs. Sachin). The order, which is questioned before this Court, reads as under :- "Perused the application and stay. Heard learned Advocate for both sides. Applicant relied on 2013 All M.R.(Cri.) 2572. Learned Advocate for N.A. has opposed that Magistrate has no powers. N.A. has not paid any amount towards interim maintenance. Learned Advocate has also confessed that N.A. has not paid any amount towards interim maintenance order which is passed on Exhibit 13. Provision under Section 28(2) is very clear when N.A. has not paid amount and not complied the order, she cannot be kept high and dray. Magistrate is empowered under Section 28(2) to issue N.B.W. Citation filed by applicant is very much applicable in the case in hand. Hence application is allowed. Issue N.B.W. against non-applicant." Http://Vinayak.WordPress.com

4. The petitioner is husband of the respondent. The respondent has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned Magistrate. An interim order has been passed granting monetary relief. It appears that the petitioner has 3 wp305.14 not paid the amount to the respondent as per the interim order. A non-bailable warrant has been issued for non-payment of amount of interim maintenance to the respondent by the petitioner. It appears from the order of the learned Magistrate that the learned Magistrate was of the view that he could formulate his own procedure under Section 28(2) of the Protection of Women from Domestic Violence Act, 2005. It appears that the Magistrate was also of the view that he can lay down his own procedure for recovery of the amount of interim maintenance. Sub-section (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 reads as under :- "28(2). Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. Sub-section(1) of Section 28 of the said Act reads as under :- "28(1). Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)"

5. Therefore, it is abundantly clear that basically the learned Magistrate has to follow the procedure laid down in the Code of Criminal Procedure for recovery of maintenance either final or interim. Sub-section (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 can be pressed into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic Violence Act, 2005. If the procedure is available in Code of Criminal Procedure, that is necessarily to be followed.

6. In my considered opinion, the procedure laid down under Section 125(3) of the Code of Criminal Procedure for getting compliance of the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic Violence Act, 2005. The reliefs available under Section 125(1)(a) of the Code of Criminal Procedure are analogous to the reliefs available under Section 20 of the Protection of Women from Domestic Violence Act, 2005. The procedure for getting compliance of the order passed under Section 125(1) of the Code of Criminal Procedure is available under Section 125(3) of the Code of Criminal Procedure, which runs as under :- "125(3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing."

7. The procedure for levying of fines is available under Section 421 of the Code of Criminal Procedure as under :- "…421. Warrant for levy of fine – When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may – (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter:" Http://Vinayak.WordPress.com

8. Thus there is absolutely clear provision under the Code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued non-bailable warrant directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the 6 wp305.14 Code of Criminal Procedure. In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property. The other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter. The Magistrate could have sentenced the petitioner for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.

9. As such the first option available to the Magistrate was to issue a warrant for levying fine. If whole of the amount was recovered by adopting the procedure under Section 421 of the Code of Criminal Procedure, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that.

10. In view of above discussion, it is abundantly clear that the order dated 02-4-2014 passed by the learned Magistrate in Misc. Criminal Application No.890/2012 cannot be sustained. It needs to be quashed and is accordingly quashed. The respondent is at liberty to take necessary steps in accordance with law. Http://Vinayak.WordPress.com

11. Rule is made absolute in the above terms.

Hoping that this article would help you in making the right decision lawfully. If you’re an NRI who is struggling with any legal matter, you can get in touch with our team of expert lawyers here and at Law Advisor India we would love to expedite your journey to justice.  

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