IN THE COURT OF THE HON’BLE S
WRITTEN ARGUMENTS FILED ON BEHALF OF THE RESPONDENT
That the respondent submits that the petitioner has filed this instant petition seeking various reliefs under the Domestic violence act.
“physical abuse” means 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;
That the averments in chief examination which may attract the provisions of physical abuse are replicated below for brevity.
During the eight month of my pregnancy and one occasion my husband along with his brother demanded to bring Rs.300000 from my parents, when I refused to comply the demands of the respondent he used to beat me. whenever my parents came to Nellore for courtesy sake then the 1st respondent in their presence abused me in filthy and vulgar language and beat me by saying as NUVVU NANNU VADILI VELLIPO LEDANTE DABBU TECHI KATTAMANU. on the instigation of respondent my husband started to develop some suspicion towards me and use to harass me physically and mentally.
The respondent brutally kicked me with his hands and legs and threatens herewith and necked out of the house.
Argument to show that there is no physical abuse
That the respondent submits that there is no trust worthy evidence in respect of the allegations in support of the allegations made in the examination in chief regarding physical abuse, except for the ipse dixit statements of the petitioner and even otherwise the allegations are vague and bereft of details, and hence are not reliable.
“sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
That there are no allegations whatsoever that the petitioner was subjected to sexual abuse by the petitioner.
Verbal And emotional Abuse
“verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
That the averments in chief examination which may attract the provisions of verbal and emotional abuse are replicated below for brevity.
Further, my husband developed illegal contacts with his colleague, who is a married woman having two children, then my husband leading adulators life with her secretly and came to house with late nights, when I questioned him about his ill behavior and illegal contacts with said then my husband did not provide basic needs and came to the house with quarrelling mind and did not return to house days together. that on several occasions my husband openly told me that he got illegal intimacy with said xxxxxxxx.
whenever my parents came to Nellore for courtesy sake then the 1st respondent in their presence abused me in filthy and vulgar language and beat me by saying as NUVVU NANNU VADILI VELLIPO LEDANTE DABBU TECHI KATTAMANU. on the instigation of respondent my husband started to develop some suspicion towards me and use to harass me physically and mentally.
The respondent brutally kicked me with his hands and legs and threatens herewith and necked out of the house.
Respondent is working as a school teacher and he have illegal intimacy with another teacher who is working in same school and police arrested them two times, I have documentary proof with regard to arrest of the respondent and the said teacher. It is not true to suggest that police referred my case as false case.
Argument in favor of no verbal and emotional abuse
That the respondent submits that there is no supporting evidence in support of the statements made by the petitioner, if at all the petitioner was subjected to verbal and emotional abuse by her parents, her statements would have been supported by the direct witnesses of the verbal abuse, who are none other than the own parents of the petitioner. It is rather surprising that the petitioner choose to bring a hearsay witness to corroborate her evidence instead of the direct witness, which decreases the credibility of her testimony.
That the factum that the petitioner filed a case seeking restitution of conjugal rights, after filing a case under section 498A of IPC would show that the allegations of cruelty leveled by the petitioner are nothing but false, a wife is not allowed to make allegations of harassment against the husband and at the same demanding restitution of conjugal rights on the other hand. A person is not allowed to approbate and reprobate and take inconsistent and shifting stands at the same time, at the threat of criminal cases& other cases a husbands can’t be compelled to join his wife.
That the respondent further submits that it is him who was subjected to emotional abuse by being falsely accused of committing adultery with a married woman, without any basis, and the petitioner cannot be allowed to take advantage of her own wrong doings.
(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 household.
Allegations in the chief examination
At the time of marriage, my parents gave cash of Rs.4,50,000 as dowry to my husband on his demand. Further my parents presented 25 sovereigns gold ornaments to me towards my ‘Stridhan’ and presented a gold ring to my husband. Further my parents spent Rs.2,00,000 to perform the marriage. Then my parents spend Rs 60,000/- and provide furniture to the said house During the eight month of my pregnancy and one occasion my husband along with his brother demanded to bring Rs.3,00,000 from my parents, when I refused to comply the demands of the respondent he used to beat me. whenever my parents came to Nellore for courtesy sake then the 1st respondent in their presence abused me in filthy and vulgar language and beat me by saying as NUVVU NANNU VADILI VELLIPO LEDANTE DABBU TECHI KATTAMANU.
My husband used to harass me physically and mentally and again started to demand additional dowry of Rs 3,00,000/- on that event they trying to necked out me along with my minor female child.
The 1st respondent completely neglected me and my minor child without providing food or other amenities.
Since my maintenance and my daughter became pathetic and my husband did not provide maintenance and when there is alternative, I am totally dependent on the mercy of my relatives.
It is true to suggest that I filed maintenance case against the respondent
It is true to suggest that as per the orders of Hon’ble family court maintenance was granted for an amount of Rs.5,000/- to me and Rs.2,000/- to my daughter.
It is not true to suggest that I conceal the facts of passing the orders of maintenance in said FCOP and obtain the interim orders as ex-party orders from this Hon’ble court.
It is true to suggest that respondent deposing an amount of Rs 7,000/- per month in my bank account.
It is not true to suggest that the said facts was suppressed before this Hon’ble court at the time of passing of the interim maintenance order.
I filed the encumbrance for the property mentioned in ex.p4 and p5.
I do not have any documentary evidence with regard to respondent sold away the properties stand in his name and the same is not mentioned in his affidavit.
Arguments In Favour of No Economic Abuse
(iv) “economic abuse” includes—
(a) 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.
That the respondent submits that he is already paying the maintenance which was granted by the Hon’ble family court, and the petitioner has conveniently suppressed this vital material fact, and hence she is not entitled to any relief whatsoever, and the respondent is relying on the judgments of apex court to support his contention.
Rajnesh Vs Neha
VI Final Directions In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
The respondent is relying on the judgment of the hon’ble apex court in K.D.Sharma Vs Steel Authority Of India, where it was held that “ The petitioner approaching the court must come with clean hands and put forward all the facts before the court without concealing or suppressing material facts and seek appropriate reliefs. If there is no candid disclosure of relevant and material facts, or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
The respondent is also relying on the definition of maintenance which is replicated below for brevity.
Section 3(b) in The Hindu Adoptions and Maintenance Act, 1956
(b) “Maintenance” includes—
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
That the respondent submits that maintenance is not defined anywhere else except in H.A.M.A and hence he is taking the support of this external aid of interpretation.
That the respondent further submits that there is no evidence whatsoever to support the allegations regarding dowry and marriage expenses, and hence she is not entitled to that relief.
In the facts and circumstances of this case, the respondent submits that
That the respondent submits that there is no allegation nor supporting evidence which is of such a nature that harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so, or has the effect of threatening the aggrieved person or any person related to her by any conduct of such nature .
That the respondent submits that there is no trust worthy evidence to show that the respondent has harassed, harmed, injured or endangered the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security orhas the effect of threatening the aggrieved person or any person related to her by any conduct
That the respondent submits that there is no trust worthy evidence to show that he has done acts of commission or omission that has the effect of threatening the aggrieved person or any person related to her by any conduct As there is no domestic violence, she should not be awarded maintenance and the respondent is relying on the judgments of various high courts to support his contention.
The High Court of Himachal Pradesh, in Anil Kumar vs Shashi Bala, has held that if there is no evidence with regard to maltreatment or violence, no order of maintenance can be granted invoking the provisions of the Domestic Violence Act
Koushik Vs. Sau. Sangeeta Koushik Gharami & ors on 05 May 2014 the honble high court of bombay held that
The aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on the part of the respondent. In the present case, since the learned Magistrate has come to a conclusion that the domestic violence could not be proved and since that finding of the learned Magistrate has not been challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also