Written Objection on the application for condonation of delay

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal

11A, Mirza Ghalib Street, Kolkata – 700087

Under the Consumer Protection Act 2019

 

Revision Petition No. RP/121/2023

(arisen out of the order dated 20^th day of January’ 2023, in Case No. Complaint Case Number CC/1/2022, of the District Commission, South 24 Parganas)

 

In the matter of ;

Indian Overseas Bank, & Others,

                   ________Revisionists

-      Versus –

Kalyan Chatterjee,

                   ________Respondent

 

Written Objection on the application for condonation of delay;

 

The humble petition of the above named respondent Kalyan Chatterjee, most respectfully;

Sheweth as under;

 

1.   That the Petition under objection is not tenable in the given form.

 

2.   That the Petition under objection has been cited as an application under Section 14 of the Limitation Act, 1963, which is not applicable under the Consumer Protection Act, 2019, it would be an application for condonation of delay under Section 5 of the Limitation Act’ 1963. Pertinently petition under objection cited no due diligence of the revisionists in preferring their present Revision Application under Section 47(1)(b) of the Consumer Protection Act, 2019, therefore the petition under objection is liable to be dismissed inlimnie.

 

3.   That the above referred revisionists are the Opposite Parties in a Consumer Case no. CC/1/2022 and the Respondent herein is a Consumer Complainant, which is pending before the Learned District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas. The Stage of the said Consumer Complaint is fixed for argument, therein. The said Consumer Case is pending at its appropriate stage for adjudication it has not yet disposed, being pending at the behest of the Revisionists.

 

4.   That the impugned Order dated 20^th day of January, 2023, has been rightly and appropriately passed in CC/1/2022, by the Learned District Consumer Disputes Redressal Commission, South 24 Parganas after affording several opportunity to the revisionists herein. This is the revisionists who did not due diligently acted upon on any occasion even after availing several opportunity in the said Consumer Case before the Learned District Consumer Disputes Redressal Commission, South 24 Parganas.

 

5.   That the impugned Order dated 20^th day of January, 2023, passed in Consumer Case no. CC/1/2023, by the Learned District Consumer Disputes Redressal Commission, South 24 Parganas, is an interim order in a consumer proceeding pending before the Learned District Commission, therefore the present Revision Application under Section 47(1)(b) of the Consumer Protection Act, 2019, should be preferred within a period of 90 (Ninety) days.

 

6.   That the Revisionists insist of preferring the present Revision application before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, lodged an Appeal under Section 41 of the Consumer Protection Act’ 2019, which has registered as A/99/2023 {Indian Overseas Bank and Others – Versus – Kalyan Chatterjee}, on 22/03/2023, and the same was also beyond the limitation and thus the said appeal accompany with the petition of condonation of delay petition placed by the present Revisionist. The Revisionist endorsed the said appeal as “NOT PRESSED” only on 10-08-2023, therefore in view of such fact the said appeal has been dismissed being not pressed. The Hob’le State Commission did not give any leave to file a fresh any other appropriate proceeding, to the Revisionist.

 

7.   That barely on the face of record of the Consumer Complaint, the Appeal, and the present Revisaion Application, well established that the revisionists are not due diligent in placing their steps in terms of the prescribed provisions of the Consumer Protection Act’ 2019, as well as the facts in its entirety, before the Hon’ble Commission with clean hands, so far for the fair and appropriate adjudication. The Condonation of delay application of the revisionists is nothing but a futile attempt to survive themselves illogically.

 

8.   That the impugned Order was passed on 20-01-2023, and the present Revision Petition under Section 47(1)(b) of the Consumer Protection Act’ 2019, has been placed only on 19-08-2023, thus a period of  211 (Two Hundred Eleven) days or 6 (Six) months and 30 (Thirty) days has been elapsed; While the period of limitation being 90 (Ninety) days accommodate for the Revision application, the period of 121 (One Hundred Twenty One) days  lies to explain sufficiently the cause which shows to prevent you in placing the revision application within period of limitation. The present application under Section 14 of the Limitation Act, 1963, do not give any explanation being sufficient cause and even do not indulge themselves to express about the period of delay, so far therefore the present application under Section 14 of the Limitation Act, 1963, is not tenable and liable to be dismissed inlimnie with exemplary cost.

 

9.   That the application under Section 14 of the Limitation Act’ 1963, placed by the Revisionists are groundless rather it will be better to say that there is no ground at all in placing their such application. The citation of application under Section 14 of the Limitation Act, 1963, is wrong and the same is not tenable. However, if we consider the said application being the application for condonation of delay preferred under Section 5 of the Limitation Act, 1963, Thus, while deciding an application under Section 5 of Limitation Act, the courts must adopt a liberal approach, provided there is no gross negligence, deliberate inaction or lack of bona fide imputable to the party seeking condonation of delay. Further, while considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. In the instant case, the Revisionists are the Nationalized Bank with a legal department. The application for condonation of delay is highly casual in nature, it lacked material particulars and did not disclose sufficient cause for the condoning the delay. A bald statement of taking opinion from some counsels could not be taken as a sufficient cause. Holding thus, the same views, the Delhi High Court denied to condone the delay and dismissed. [Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd.,  2018 SCC OnLine Del 9559, dated 03-05-2018].

 

10.                That while the impugned order dated 20^th day of January, 2023, passed in Consumer Case no. CC/1/2023, by the Learned District Consumer Disputes Redressal Commission, South 24 Parganas, is an interim order in a consumer proceeding pending before the Learned District Commission, South 24 Parganas. The Concise statements and the direction of the said impugned order dated 20/01/2023, is as follow as “The case record is put up today for Order regarding acceptance of show-cause as well as W.V. filed by the O.Ps. on 25.07.2022. It appears from the record that last date for filing W.V. was 01.03.2022. Thereafter, if we enlarge the same by adding 90 days grace period it will be on 01.06.2022 which is the ultimate date for filing W.V. But it is reflected from the record that W.V. has been filed on 25.07.2022 and the ex-parte order was passed by Order dated 29.06.2022 after the expiry of the statutory period + grace period. Therefore, this Commission cannot extend further time limit for filing W.V. by the O.Ps. Therefore, the show-cause petition filed by the O.Ps. is devoid of merit and as such we are not inclined to accept the same. Hence, it is ORDERED That the show-cause petition filed by the O.Ps. on 25.07.2022 is not accepted and simultaneously the W.V. filed by the O.P. on 25.07.2022 cannot be accepted”.

 

11.                That Section 51(5) of the Act grants power to the National Commission to set aside the ex parte orders passed by the State Commission and Section 61 of the Act grants power to the National Commission to set aside its own ex parte orders. But there is no specific provision in the Consumer Protection Act that expressly grants power to the District Commission to set aside the ex parte orders passed by them. Therefore, the District Commission has no power and / or jurisdiction to accept the written version beyond the statutory period prescribed under the Act i.e. 45 days in all.

 

12.                That the controversy is squarely covered by the judgment of the Hon’ble Supreme Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another ) wherein it was held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35, 36,37,38 & 39 of the said judgment are relevant which are reproduced as under :-

 

“35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.

 

36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

 

37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.

 

38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.

 

39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.”

 

13.                That the same issue was also there before the Hon'ble Supreme Court in judgment of case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil Appeal No. 936 of 2013 decided on 05/02/2013 wherein earlier judgment of Supreme Court passed in connection with the case namely Rajeev Hitendra Pathak's case (Supra) was relied and it was held that "The District Forum and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised”.

 

14.                That the Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. , 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2)3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.

 

15.                That the case in hand clearly shows that W.V. filed by the O.Ps. (Revisionists) on 25.07.2022. As it appears from the record that last date for filing W.V. was given on 01.03.2022. Thereafter, if the same by adding 90 days grace period it will be on 01.06.2022 which is the ultimate date for filing W.V.; But it is reflected from the record that W.V. has been filed on 25.07.2022 and the ex-parte order was passed by Order dated 29.06.2022 after the expiry of the statutory period + grace period. Thus there is no substantial merit to intervene with the said impugned Order dated 20-01-2023. The impugned order passed by the Learned District Commission is within the jurisdiction and which is not bad in law. There is no scope of interference with the impugned order.

 

16.                That pertinently the contents and purports of the petition under objection have not yet been substantiated with any document or paper in establishing the truthiness. The cause of delay purportedly tried to elaborate in the statements of the paragraph number 4, 5, 6, 7, 8, 9, and 10, of the petition under objection; but without any paper, so far.

 

(a)  With reference to the paragraph number 4 of the petition under objection the revisionists stated that the certified copy of the impugned order dated 20-01-2023, was obtained only on 24-03-2023; but failed to provide the same with the present revision petition under Section 47(1)(b) of the Consumer Protection Act’ 2019 therefore such statement is false and vague based on illusionary vision in establishing their concocted story.

 

(b)  With reference to the paragraph number 5 of the petition under objection the revisionists did not place any paper to show that the direction given by the higher authority of the petitioner’s bank ever required to take opinion before filing an appeal or revision by the two or more opinions from the empanelled advocate upon which the higher authority will able to decide whether the bank will preferred an appeal or not, therefore such statement is false and vague based on illusionary vision in establishing concocted story, as no rules or regulation has ever been termed therein;

 

(c)  With reference to the paragraph number 6 of the petition under objection the revisionists stated that on 22-03-2023, the Learned Advocate preferred to file an appeal under section 41 of the Consumer Protection Act, 2019, therefore the statements in the paragraph number 4 of the petition under objection is established to be a false statements which says that the certified copy of the impugned order dated 20-01-2023, has been obtained by the revisionists only on 24-03-2023, as the appeal cannot prefer in absence of any certified copy of the impugned judgments, since the purported appeal has been placed on 22-03-2023, prior to obtaining the certified copy of the impugned order. The Present Revision Petition has been placed by the Revisionists probably without any Certified Copy of the Impugned Order dated 20-01-2023, as the same is not available with the copy which has ever been served by the Hon’ble Commission to the Respondent, therefore the petition under objection is liable to be rejected at once and inlimnie;

 

(d)  With reference to the paragraph number 7 of the petition under objection the revisionists states that the revisionists realized at the time of hearing of the condonation petition in the said purported appeal, that the said appeal under Section 41 of the Consumer Protection Act’ 2019, was a cause of their technical error made on the part of the revisionists’ Learned Advocate; But failed to explained the meaning of such technical error, what’s about and How it was cause at the behest of the Learned Advocate of the Revisionists, who is well qualified and able to practices Law. Thus the statements under the garb of so called technical error is not sufficient to accept and to take any liberal view while considering an application for condonation of delay, therefore the petition under objection is liable to be rejected at once and inlimnie;

 

(e)  With reference to the paragraph number 8 of the petition under objection the revisionists stated that the reliefs sought for as well as the facts and grounds are same as stated in the said purported appeal under Section 41 of the Consumer Protection Act’ 2019, which was registered as A/99/2023, and the same was “NOT PRESSED” on 10-08-2023. The Revisionists do not take any recourses to states such facts and grounds and the relief sought for, in their present revision application as well in the petition under objection. The Revisionists do not propose any manner by which such facts, grounds and relief sought therein in the said purported appeal being A/99/2023, can be imported in the present revision application as well as in the petition under objection. The far remote facts, grounds, and the relief sought for, while the same has been dismissed without any leave of the Hob’ble Commission as “NOT PRESSED” by the present revisionists, therein, the same cannot be considered or taken to be considered on any stretch of imaginations, while taking  the petition under objection found without any ground, so far, therefore the petition under objection is liable to be rejected at once and inlimnie;

 

(f)   With reference to the paragraph number 9 of the petition under objection the revisionists not able to show by way of placing any evidentiary valued paper that there is no laches on the part of the revisionists in preferring the present revision petition with in the statutory period of 90 (Ninety) days, and there is every possibility to succeed in the revision petition of the revisionists. It’s clearly appeared that the present petition under objection has been placed in a very casual and callous manner, therefore the petition under objection is liable to be rejected at once and inlimnie;

 

(g)  With reference to the paragraph number 10 of the petition under objection the appellants did not place any paper to show that there is no laches on the end of your petitioners to prefer the said appeal within the stipulated time but the circumstances, as stated herein above, there is delay of 121 (One Hundred Twenty One) days for preferring the same. The petitioners submit that there is every possibility to succeed in the said appeal by your petitioners. Therefore such statement is false and vague based on illusionary vision in establishing concocted story, as no proof of diligent performance has ever been placed by way of any evidentiary value paper or document and the circumstances has not been sufficiently placed which shows to prevent the revisionists in preferring the present revision petition within its statutory period given, the delay of purported 121 (One Hundred Twenty One)  days has not been sufficiently given with diligent reasoning,  possibility to succeed in the said appeal does not arise while no appeal lie challenging the impugned order dated 20^th January, 2023, being an interim order in a Consumer Case no. CC/1/2022, which still pending for adjudication before the Learned District Consumer Disputes Redressal Commission, South 24 Parganas, therein;

 

17.                That in the case of Ansul Agarwal Vs. New Oghla Industrial Development Authority (2011) 14 SCC 578, the Hon’ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has held as under :- “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras”.

 

18.                That in a recent judgment the Hon’ble Supreme Court observed that condonation of delay would depend on the background of each and every case; and routine explanation would not be enough. The Hon’ble Supreme Court in University of Delhi vs. Union of India & Ors. in Civil Appeal Nos.94889489 of 2019 (Arising out of SLP (Civil) Nos.55815582 of 2019) decided on 17.12.2019 has held as under :- “The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation Page 24 of 34 would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation ................ That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal”.

 

19.                That pertinently the parameter of condonation of delay application is “sufficient cause” meaning thereby the entirety of the provisions under Section 5 of the Limitation Act, 1963, which prevented the revisionists in preferring the revision petition and while the same has not been apparently placed with any evidentiary document by the revisionists thus the cause has not been sufficiently placed by the revisionists in seeking condonation of delay, therefore liable to be dismissed inlimnie.

 

20.                That this application is made bonafide and in the interest of administration of Justice.

 

It is therefore prayed that your Lordship would graciously be pleased to accept the written objection of the respondent, and to dismissed the petition for condonation of delay placed by the revisionists, in the interest of administration of Justice, and or to pass such other necessary order or orders as your Honour may deem fit and proper for the end of justice.

 

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

I, Kalyan Chatterjee, Son of Adhir Kumar Chatterjee, aged about 40 years, by faith Hindum by Occupation Law Professional, residing at Village – Radhakantapur, Police Station – Raidighi, District South 24 Parganas, Pin – 743354, and also at Narendrapur Station Road, Post Office Ramkrishna Pally, Kolkata – 700150, do hereby solemnly affirm and declare as follows;

 

1.   That I am the respondent in the present revision petition. I am acquainted and conversant with the material facts, as stated therein. I am competent to swear this affidavit.

 

2.   That the facts contained in my written objection, have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge and belief.

 

The above statements are true to my knowledge and belief.

 

 

 

 

 

DEPONENT

Identified by me,

 

 

Advocate

 

Drafted & prepared in my Chamber;

 

 

Advocate

Date : _________day of ______’ 2023;

Place : Kolkata

 

 

N O T A R Y

 

 

 

 

 

 

 

 

 

 

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal

11A, Mirza Ghalib Street, Kolkata – 700087

Under the Consumer Protection Act 2019

 

 

Revision Petition No.

RP/121/2023

(arisen out of the order dated 20^th day of January’ 2023, in Case No. Complaint Case Number CC/1/2022, of the District Commission, South 24 Parganas)

 

 

In the matter of ;

Indian Overseas Bank, & Others,

                   ________Revisionists

-      Versus –

Kalyan Chatterjee,

                   ________Respondent

 

 

 

Written Objection

on the application for condonation of delay;

 

 

 

 

Drafted & Prepared in my Chamber;

 

Ashok Kumar Singh, Advocate High Court Bar Association Room No. 15, High Court Calcutta. Mobile Number : 9883070666 / 9836829666 Email : aksinghadvocate@rediffmail.com

 

Bombay High Court Judgement on Domestic Violence Act 2005

 

Bombay High Court

Bench: A B Chaudhari

 

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO.37/2008

 

PETITIONER:- Kishor s/o Shrirampant Kale,

 age about 50 years, r/o Chimote

Layout, Dastur Nagar, Amravati.

…VERSUS…

RESPONDENTS:- 1. Sou. Shalini w/o Kishor Kale,

age about 42 years.

  2. Master Shantnu s/o Kishor Kale,

age about 15 years, (Minor through

guardian, Respondent No.1).

Both resident of c/o Sahebrao Gadhawe

Kolha Kakda, Tq. Achalpur, Dist. Amravati.

3. State of Maharashtra,

Through P.S.O.

Rajapeth Police Station,

Amravati, District Amravati.

————————————————————————————————— [Shri P.P. Mahalle, Adv. for petitioner]

[Ms T.H. Udeshi, Adv. for respdt. Nos.1 & 2]

[A.P.P. for respdt. No.3]

————————————————————————————————— CORAM:- A.B. CHAUDHARI, J.

Date of reserving the judgment :- 17.02.2010 Date of pronouncing the judgment :- 30.03.2010 JUDGMENT

1. In the present writ petition, the petitioner husband has put to challenge the proceedings in Misc. Criminal Complaint Case wp37.08.odt 2/22 No.314/2007, filed by respondent Nos.1 and 2 in the Court of Chief Judicial Magistrate, Amravati under Section 12 r/w Section 19 an 20 of the Protection of Women from Domestic Violence Act, 2005 as not maintainable and also the orders dated 31.10.2007 and 11.12.2007, made by the Courts below in the said proceedings. FACTS

2. Respondent No.1 is the wife of petitioner and respondent No.2 is the son of the petitioner. They filed complaint under Section 12 r/w 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (For short, hereinafter referred to as ‘the Act of 2005′) in the Court of Chief Judicial Magistrate, Amravati. In their complaint they stated that respondent No.1 was married to the petitioner on 8.5.1990 at Amravati and out of their wedlock respondent No.2 was born on 24.2.1991. Respondent No.1 was treated with cruelty for demand of dowry by the petitioner and his relatives. Finally, the petitioner deserted both the respondent Nos.1 and 2 in the year 1992 and since then respondent Nos.1 and2 are living separately with her father at his village and thereafter at Amravati. She filed proceedings for grant of maintenance which were decided on 30.11.1996 and both respondents were awarded maintenance amount by the Court and presently the maintenance i.e. awarded to them in the proceedings under wp37.08.odt 3/22 Section 125 of the Code of Criminal Procedure is Rs.1800/- per month for both. The petitioner had initiated divorce proceedings and were dismissed and now appeal is said to be pending. The petitioner and his mother have sold ancestral house that was located at Kishor Nagar, Amravati with an oblique motive to keep the applicants away from its enjoyment and benefits. The petitioner is a lecturer in Junior College and earning salary of Rs.25,000/- per month. Respondent No.2 is taking education in 12th standard and now he needs separate accommodation for his studies, which is not available at the house of her brother. Her brother has now been asking respondent Nos.1 and 2 to make their own arrangement for residence and therefore they require sum of Rs.7,000/- per month to each of them, which the petitioner can easily pay. The petitioner must provide accommodation to both the respondents as he is under legal obligation to do so. The cause of action for filing the complaint arose initially in the year 1992. The respondent Nos.1 and 2 were deserted and neglected and it continued.

3. Based on these facts, reliefs were claimed or directions to the petitioner to pay Rs.7,000/- per month to each for maintenance from the date of application and to allow the respondents to reside in the house of the petitioner or to pay rent for other accommodation. wp37.08.odt 4/22 The petitioner appeared before the trial Court and filed application for dismissal of the complaint and also raised objection about maintainability of the complaint. Judicial Magistrate First Class, Court No.5, Amravati rejected the application (Exh.12) for dismissal of complaint by his order dated 31.10.2007 and by order dated 31.12.2007 allowed application (Exh.5) in the complaint by directing the petitioner to pay maintenance @ Rs.2,000/- per month to respondent No.1 and Rs.1,000/- per month to respondent No.2 by way of interim maintenance and Rs.1200/- per month by way of rent of house. Appeal that was filed by the petitioner was dismissed by the appellate Court by order dated 11.12.2007. Hence, this petition under Article 227 of the Constitution of India.

SUBMISSIONS :

4. Learned Counsel for the petitioner in support of the writ petition vehemently argued that the complaint that was filed under the Act of 2005 was itself not maintainable and the trial Court ought to have allowed application (Eh.12) for dismissal of complaint. The complaint was not filed in Format-II and Sections 5 and 7 of the Act of 2005 provide for mandatory forms.

5. Learned Counsel for the petitioner invited my attention to Format-II under Rule 6 (1) of the Protection of Women From Domestic Violence Rules, 2006 and the various items mentioned in the said format, which provide for giving information as mentioned therein and according to him, in this case there is failure on the part of the respondents in giving the material details, required as per the said format with a view to suppress the material facts. Learned Counsel repeatedly argued that the details required by the said format were not furnished by the respondents in order that the facts if brought before the Court as per the said information required would have entailed dismissal of the complaint itself. According to him, it is for this reason this format II will have to be held to be mandatory requirement and upon failure thereof the consequence ought to be the dismissal of such application for non-compliance of mandatory provisions of law. Learned Counsel then argued that it is an admitted fact that since 7.11.1992 i.e. almost 15 years before filing of this complaint, the respondents have been living separate from the petitioner and it is not even the case of respondent Nos.1 and 2 that during this period of 15 years the respondents had seen each other even eye to eye much less had any contact of any nature whatsoever. Learned Counsel then argued inviting my attention to Section 3 of the Act of 2005, which wp37.08.odt 6/22 defines domestic violence and the complaint filed by the respondents does not at all disclose any domestic violence within the meaning of said Section 3 of the Act of 2005. The domestic violence according to him has to be shown to have occurred in the near or recent past and since in the instant case from 1992 onwards admittedly there had been no contact, communication or relationship whatsoever the existence of domestic violence cannot be presumed even on the contents or averments in the complaint taken to be true at their face value.

6. Inviting my attention to paragraph regarding cause of action, learned Counsel for the petitioner argued that it is the case of the respondents that cause of action is of the year 1992 and therefore various prayers made in the complaint on the basis of the averments in the complaint were untenable. According to learned Counsel for the petitioner, unless it is shown that there has been domestic violence in the recent past before filing the complaint, the Court cannot entertain the complaint in respect of the cause of action, which according to the respondents arose firstly in the year 1992. According to learned Counsel for the petitioner the complaint nowhere shows single allegation about any restriction or prohibition or the deprivation of any act on his part at a particular time or date or period reasonably recent in point of time before filing of the complaint and therefore, no wp37.08.odt 7/22 domestic violence can be said to have been constituted and consequently the complaint could not have been entertained and was liable to be dismissed by the trial Court. According to him, it is not the case of the respondents that after 1992, respondents had any access to facilities or accommodation etc. or that there was any deprivation thereof by the petitioner. Since the averments in the complaint do not disclose any cause of action and since according to learned Counsel for the petitioner filing of the complaint clearly amounts to abuse of process of the Court, this Court acting in its supervisory jurisdiction may dismiss the complaint as not maintainable as the trial Court did not have jurisdiction to entertain the complaint itself under the Act of 2005. No act of violence was at all alleged against the petitioner in the complaint right after 1992. Respondent No.2 cannot become aggrieved person, he being a minor child on the date of application and thus his complaint was also not maintainable.

7. Per contra, learned Counsel for respondent Nos.1 and 2 vehemently opposed the petition and argued that both the respondents became aggrieved persons in the light of definition under Section 2(a) and 2(b) of the Act of 2005. According to her, there is no dispute that the legal status of marriage between the petitioner and respondent No.1 and paternity of respondent No.2 is also not in dispute wp37.08.odt 8/22 and consequently respondent No.1 is the legally married wife and respondent No.2 is the child born out of the wedlock between petitioner and respondent No.1 and therefore as per Section 2 (f) of the Act of 2005 there is domestic relationship by marriage. According to her, domestic violence as defined in Section 3 of the Act of 2005 is not to be understood with the literal meaning of the word violence as sought to be canvassed by learned Counsel for the petitioner and in terms of Section 3 of the Act of 2005 amplitude thereof is very wide and the Act of 2005 being beneficial piece of legislation settled interpretation in relation thereto will have to be applied while interpreting the provisions of Act of 2005. It is not necessary for constituting the domestic violence the party should come in contact or physical contact as is clear from the explanation (iii) of verbal and emotional abuse and explanation (iv) economic abuse. She further submitted that economic abuse, refusal to provide maintenance, house accommodation or financial resources or such other facilities as the respondents are entitled to from the petitioner/husband without there being any actual violence amounts to domestic violence since the said definition of domestic violence under Section (3) of the Act of 2005 is inclusive in nature. These are ultimately the matters which are required to be decided on evidence and the question can be raised by wp37.08.odt 9/22 the petitioner in the trial Court where the trial is on. The extraordinary jurisdiction under Article 227 of the Constitution of India cannot be exercised in the present matter and it is for the trial Court to determine upon recording evidence etc. answers to the questions raised in the present writ petition. The son of the petitioner and respondent No.1 i.e. respondent No.2 has grown up and is taking education in engineering and both the respondents who are living together want to live in Amravati for his education and consequently they require more amount towards maintenance and they also require accommodation at Amravati, which the petitioner is obliged to provide and that is why grant of house rent allowance @ 1200/- per month has been made by the Courts below. There is averment in the complaint about disposal of the ancestral house property of the petitioner and his mother and the said act on their part would fall within the meaning of economic abuse. It is not necessary that there would be no domestic violence as defined under the Act merely because of the separation from the year 1992. Learned Counsel for respondents, therefore, prayed for dismissal of writ petition.

CONSIDERATION :

8. I have heard learned Counsel for the rival parties at length on some dates. I have gone through the copy of the complaint under wp37.08.odt 10/22 Section 12 r/w Sections 19 and 20 of the Act of 2005 carefully. Following facts are not in dispute.

The petitioner and respondent No.1 were married on 8.5.1990 and respondent No.2 was born on 24.2.1991. Thereafter on 7.11.1992 respondent No.1 went to her father with her son at his village and started living with her father and thereafter brother since the year 1992. Litigation between the parties thus started after 1992 and award of maintenance to both respondent Nos.1 and 2 was made by the Court and the amount of monthly maintenance is being paid to respondent Nos.1 and 2 in those proceedings under Section 125 of the Code of Criminal Procedure. A decree of divorce was passed on 2.10.2008 and in the appeal the said order has been stayed, in the result the legal status of respondent No.1 as a married wife of petitioner continues. On the date of filing of the application, respondent No.2 son was admittedly minor but immediately after few months of the filing thereof he became major i.e above 18 years. Respondent No.2 is taking education and as per submission made by respondent No.1 he is now taking education in Amravati in some engineering college. There is further no dispute that after a departure of respondent No.1 from the house of petitioner on 7.11.1992 there had been neither any conduct nor communication or relationship of wp37.08.odt 11/22 whatsoever nature except for the relationship as understood in law. In other words, practically speaking, there had been no communication or relationship between them for all these number of years till the date of filing of complaint in question and admittedly after period of 15 years respondent No.1 filed the complaint in question alleging domestic violence under the Act of 2005 on the ground that the petitioner had given false information to his authority, showing respondent No.1 as dead and thus removing her name as his nominee and that the petitioner and his mother disposed of ancestral house at Kishor Nagar, Amravati with a view to keep the respondents away from its enjoyment and benefits ; and respondent No.2 wants to pursue his studies and does not have independent accommodation for studies at the house of her brother and that wife of her brother wants her to make her own separate arrangement of residence and that they need Rs.7,000/- per month each towards maintenance and respondent No.2 being grown up, needs company of his father, who is under legal obligation to maintain both the respondents. In paragraph No.7, regarding cause of action, it is stated that cause of action arose in the year 1992 when they were deserted and it is continued one since the wife of her brother had asked her to make her own arrangement of accommodation. It is on the basis of these averments in the complaint wp37.08.odt 12/22 reliefs are claimed for grant of maintenance @ Rs.7,000/- per month and for residence at Amravati where petitioner is living or to pay rent in lieu thereof.

9. Reading of the entire complaint to my mind it would be pertinent to note that the complaint does not contain a single averment that before filing the complaint, the petitioner had committed any act of omission or commission or shown any such conduct by which he wanted to deprive any of the respondents from enjoyment of shared household and maintenance or the petitioner had at any point of time prohibited or restrained or restricted any alleged continued access to the resources or facilities which the respondents could be said to have been entitled to use or enjoy by virtue of their domestic relationship. To put it in other words, there is no assertion anywhere in the complaint that the respondents had made any such demand for accommodation for any reason whatsoever with the petitioner and the petitioner had denied to provide the same or had omitted to do so even by conduct of any nature whatsoever. It is in the light of these averments in the complaint the fate of the present matter will have to be decided. The law is well settled that the averments in the complaint even if taken to be true at their face value if no offence is made out ; and in the instant case offence of domestic wp37.08.odt 13/22 violence, the complaint is liable to be thrown out as the Court does not get jurisdiction to entertain the same in the absence of any such offence having been made out. It is with this legal position the present case will have to be carefully examined in the light of the various provisions of the Act of 2005.

10. In the instant case, peculiar facts are that admittedly the petitioner and respondents have not been in contact with each other physically or otherwise for the last 15 years before filing of the complaint against him. In other words, suddenly after a big gap of 15 years the Act of 2005 having been brought into force, respondent Nos.1 and 2 approached the Court with the grievance that they want higher amount of maintenance and rental in lieu of accommodation as there is domestic violence on the part of the petitioner, which constitutes economic abuse and since the economic abuse is included in the domestic violence under Section 3 of the Act of 2005, offence of domestic violence is made out. The moot question, therefore, in the light of these admitted facts is whether the complaint could be said to be maintainable. In so far as the averments regarding showing name of respondent No.1 as nominee in the service book or she being shown as dead are vague. In so far as averments regarding disposal of ancestral house at Kishor Nagar by petitioner and his mother are as wp37.08.odt 14/22 vague as could be and it is not possible to hold that on such vague averments the complaint should be entertained on the ground that the averments could be proved in the evidence. That is not enough. The Act of 2005 opens with the preamble as under :

“An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”

11. Following definitions of the Act of 2005 are relevant. “2 (a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(b) “child” means any person below the age

of eighteen years and includes any adopted, step or foster child.

(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.

wp37.08.odt 15/22 (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a

household where 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.”

12. Definition of ‘domestic violence’ is to be found in Section 3 of the Act of 2005, which reads thus.

“Section 3 (a) harms or injuries or endangers the health, safety, life limp or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) ……………….

(c) ……………….

(d) ………………

Explanation I For the purposes of this section, – (i) …

wp37.08.odt 16/22 (ii) .

(iii)

(a) ………

(b) ….

(iv) “economic abuse” includes

(a) deprivation of all or any economic or

financial resources to which the aggrieved person in 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.

(b) disposal of household effects, any

alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic

relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) 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 wp37.08.odt 17/22 household.

Explanation II For the purpose of determining whether any act, omission, commission or conduct of the

respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

13. Perusal of the definition of ‘aggrieved person’ shows that respondent No.1 being married wife of petitioner, respondent No.2 being son of petitioner and minor till he attains majority would be aggrieved persons. Therefore, reading definition of ‘aggrieved person’ with the definition of ‘domestic relationship’ there is no manner of doubt that the application at the instance of respondent No.1 as a wife and at the instance of respondent No.2 till he attains the age of majority, is maintainable. The Court is, however, entitled to decipher the period of minority and majority of respondent No.2. The expression ‘has been’ and harms, injures or endangers’ occurring in the definition of aggrieved person and elsewhere will have to be interpreted keeping in mind the opinion expressed by the Apex Court in the case of The Secretary, Regional Transport Authority, Bangalore and another…Versus…D.P Sharma and another, reported in 1989 .

Supreme Court 509, in particular paragraph No.15, which reads thus. . …..In our opinion, whether the expression ‘has been’ occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute.”

Now Explanation – II clearly provides that ‘overall facts and circumstances of the case shall be taken into consideration’. In the case at hand, the respondents have abruptly after a long gap of 15 years alleged domestic violence against the petitioner. There is no proximity shown anywhere nearer to the date of filing the complaint or any deprivation, prohibition or restriction upon demand being made before filing the complaint.

14. Looking to the definition of ‘shared household’ it can be seen that the words used are ‘at any stage has lived in a domestic relationship or has right in such household’. Definition of ‘domestic violence’ in Explanation – I (iv) to Section 3 shows that economic abuse has been by inclusion defined as ‘domestic violence’. Explanation – I (iv) ‘economic abuse’ has further been elaborated. Following are the dictionary meanings :

Deprivation denial of something considered essential. Prohibition action to prevent. Restriction put a limit on. Perusal thereof particularly in clause (a) and (c) show that aggrieved person has to be deprived of the economic or financial resources or maintenance by the petitioner or the aggrieved person requires out of necessity for herself and children including payment of rental related to accommodation and maintenance. Now in the instant case, it is not in dispute that both respondents are getting maintenance as per the orders of the Court passed in various proceedings way back in the year 1996 and therefore, to say that the petitioner has committed domestic violence by not paying any maintenance would be incorrect. What the respondents want is the higher amount of maintenance due to the higher cost of living but then there is nothing on record to show in the complaint that any such higher amount of maintenance for any good reasons was demanded by them from the petitioner and he refused or omitted to accede to such demand. Similar is the case of the rental. Since it is an admitted fact that complaint does not show single averment to the effect that accommodation in the house of the petitioner was demanded by both of them or the petitioner was doing any such acts resulting into deprivation of the accommodation and/or entitled to consequent wp37.08.odt 20/22 payment of rental thereof in lieu of accommodation due to failure to provide one. Looking to Explanation – I (iv) sub clause (c) to Section 3 of the Act of 2005 the same shows that there has to be prohibition or restriction to continued access to resources which the aggrieved person is entitled to use and enjoy. There is neither any prohibition averred in the complaint anywhere by the petitioner thereof nor any averment that he had put any restriction or full or part use thereof or that there was use made by the respondents just before filing of the complaint or recent past before the complaint and that the continuity thereof was broken by the petitioner. On the contrary, it is an admitted position that for the last 15 years there has been no contact or relationship between them.

14. Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, which will be filed under the provisions of the Act of 2005. In the instant case the various factual aspects which I have noted above and in particular regarding the total eclipse for the period of 15 long years and in the absence of any complaint regarding domestic violence at any point of time before filing of the complaint in the recent past  thereof or within reasonable period this Court is of the opinion that overall facts and circumstances of this case clearly show that even if the averments in the complaint are taken to be true at their face value, no case of domestic violence can even be inferred by the Court. The respondents could have adopted their remedy available under the other Laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly in the light of the above discussion the respondents were not entitled to take recourse to the Act of 2005. Consequently, the Court did not get jurisdiction under Section 27 of the Act of 2005 to entertain the complaint which was not maintainable for the above reasons. Both respondents, however, were entitled to take recourse to remedies under other Laws.

15. It is true as argued by learned Counsel for the respondents that the Act of 2005 is beneficial piece of legislation, but then the provisions of the Act of 2005 and in particular Explanation II thereof clearly show that domestic violence cannot readily be inferred but will have to be found out on the facts and circumstances of each case. In the instant case according to me domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefits thereof  and in the instant case, I have found that the respondents 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.

16. In the result, writ petition must succeed. Hence, I make the following order.

ORDER

(i) Rule is, therefore, made absolute and it is held that Misc. Criminal Complaint Case No.314/2007 before the Judicial Magistrate First Class, Court No.5, Amravati under Section 12 r/w Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 is not maintainable and is thus quashed and consequently, all the orders passed in the said complaint by the Courts below are quashed.

No order as to costs.

JUDGE

SSW

 

THE ANAND MARRIAGE ACT, 1909

 

THE ANAND MARRIAGE ACT, 1909

An Act to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand

Whereas it is expedient to remove any doubts as to the validity of the marriage ceremony common among the Sikhs called Anand;

It is hereby enacted as follows:

1. Short title and extent. ? (1) This Act may be called `The Anand Marriage Act, 1909'; and

(2) It extends to the whole of India [i][1] [except the State of Jammu and Kashmir].

2. Validity of Anand Marriage. ? All marriages which may be or may have been duly solemnized according to the Sikh Marriage ceremony called Anand shall be and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law.

3. Exemption of certain marriages from Act. ? Nothing in this Act shall apply to ?

?(a)? any marriage between persons not professing the Sikh religion, or

?(b)? any marriage which has been judicially declared to be null and void.

4. Saving of marriages solemnized according to other ceremonies. ? Nothing in this Act shall affect the validity of any marriage duly solemnized according to any other marriage ceremony customary among the Sikhs.

5. Non-validation of marriages within prohibited degrees. ? Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal.

[ii][1] Substituted by Miscellaneous Personal Laws (Extension) Act 1959.

 

---

 

 

Judgement on Mutual Divorce

 

JUDGMENT

 

R. Basant, J.

 

Can the waiting period after filing the joint petition for divorce under S.13B of the Hindu Marriage Act, S.10A of the Indian Divorce Act and S.28 of the Special Marriage Act be waived by the Court suo motu or on the application of both parties?

 

2. This question arose for consideration in various petitions and we posted all such cases together for hearing. Sri.G.Shrikumar, Advocate, has rendered assistance as amicus curiae for the Court. We have had the advantage of hearing Advocates M/s S. Subash Chand. Sandhya Raju, M.R. Rajesh, R. Sunilkumar, Shoby K. Francis and others on the question.

 

3. We have answered that question in Mat. Appeal No. 633/08 today [Ed.Note : Please refer 2010 (2) KLT 459]. The finding on that question is extracted below:

“We may, in these circumstances summarise the law and state that not only conditions A, B, C and D below; but condition E below also are mandatory requirements that must all co-exist before the Court's power under S.13B of the Hindu Marriage Act, S.10A of the Divorce Act and S.28 of the Special Marriage Act to pass the decree for dissolution on the basis of a joint application for divorce on mutual consent is invoked:

A. Solemnisation of marriage.

B. The mutual agreement of the spouses that the marriage should be dissolved.

C. That the spouses have been living separately for the specified period of one year/two years prior to the presentation of the application.

D. They have not been able to live together during this period; and

E. Minimum period of six months and maximum period of 18 months has elapsed from the date on which the application for divorce under S.13B of the Hindu Marriage Act and S.10A of the Divorce Act is filed and the spouses have made the second motion for dissolution thereafter.”

 

4. Having so understood the law, we look at the facts in this case. The parties are Christians. They both employed abroad. Their marriage was solemnized on 18.9.04. They started separate residence with effect from 7.6.09. In December, 2009 they applied for dissolution of marriage by mutual consent under S.10Aof the Divorce Act. That application stands dismissed by the impugned order - Ext. P3. The petitioners pray that the impugned order may be set aside and the period of waiting may be dispensed with.

 

5. In the light of the law that we have already ascertained, which we have extracted above, the prayer to dispense with the period of six months under S.10A of the Divorce Act is found to be without any merit. This petition is accordingly dismissed.

 

6. We may hasten to observe that the personal presence of such applicants/spouses in the application for dissolution of marriage by mutual consent need not be unnecessarily insisted by the Court. It is submitted that the parties find it difficult to personally appear after the period of waiting. After the period of waiting, a second motion need only be made and personal presence of the spouses need not be insisted. The learned counsel can make such second motion on their behalf. Their presence need not also be insisted to tender evidence. Ordinarily chief affidavits can be filed by them to state their case on oath. Hence the personal presence of the parties need not ordinarily be insisted. In the instant case, conciliation has already taken place, it is submitted. Even otherwise, ritualistic insistence on personal presence of the parties for conciliation/counselling need not be made by a Court in a joint application for divorce on the ground of mutual consent, if the Court is otherwise satisfied about the genuineness of the application.