3rd RGNUL NATIONAL MOOT COURT COMPETITION, 2014

TEAM CODE- TC 31
The Case Concerning Domestic Violence

BEFORE THE HONOURABLE JUDICIAL MAGISTRATE

DISTRICT COURT, SINDUSTHAN

IN THE MATTER OF:VIMLA DEVI

.Petitioner
Versus
HARI LAL
Respondent

WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT

MOST RESPECTFULLY SUBMITTED TO THE HONBLE DISTRICT COURT

OF SINDUSTAN

Memorial on the behalf of Respondent

Table of Contents

TABLE OF CONTENTS

S.No.

Heading

Page No.

1.
2.
3.
4.
5.
6.
7.
8.

Table of Contents
Index of Authorities
List of Abbreviations
Statement of Jurisdiction
Statement of Facts
Questions Presented
Summary of Pleadings
Pleadings:
ISSUE 1: Whether the action initiated against the Respondent is

i
ii
v
vi
vii
ix
x
1-18

maintainable under section 12 of Protection of Women against Domestic

Violence Act, 2005, before Judicial Magistrate of Sindusthan?
ISSUE 2: Whether the Petitioner and her daughter are entitled to claim
maintenance & different reliefs provided under the Protection of Women
from Domestic Violence Act, 2005?
ISSUE 3: Whether Vimla Devi is estopped from claiming the said
9.

maintenance by the Doctrine of Estoppel?

Prayer

Index of Authorities

INDEX OF AUTHORITIES

19

LIST OF CASES

S.L. Srinivasa Jute Twine Mills P. Ltd v. Union of India & Anr, 2006 (2) SCC 740

Hema @ Hemlata and Anr. v. Jitendra and Anr., 2009 (1) Cr.L.R. (Raj.) 291
Shyam Lal and Ors. v. Kanta Bai, (2010) 2 Crimes 862
Anil Kumar Goel v. Kishan Chand Kaura, (2009) 1 SCC (Cri) 209
Keshavan Madhava Menon v. The State of Bombay, 1951 SCR 228
Dennison Paul Raj & Ors v. Mrs. Mayawinola
U. U. Thimmanna & Ors. v. Smt. U.U.Sandhya & Anr, Crl.P.No.3714/2007
Govind Das and Ors. v. Income Tax Officer and Anr., Manu/SC/0248/ 1975
Vijay Verma v. State N.C.T. of Delhi & Anr., (Cr.M.Case No. 3878/2009)
Smt. Sabana @ Chand Bai & Ans. v. Mohd. Talib Ali & Anr., (S.B.CRIMINAL REVISION

PETITION NO.362/2011)
Kishor s/o Shrirampant Kale v. Sou. Shalini w/o Kishor Kale, AIR 2008
Inderjit Singh Grewal v. State Of Punjab & Anr.
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
Gurbux Singh v. Harminder Kaur, AIR 2011 SC 114
A.Sreenivasa Rao And Others v. State Of A.P, MANU/AP/0143/2011
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhi Patel, (2008) 4 SCC 649
Sejal Dharmesh Ved v.The State of Maharashtra & Ors.
S.R. Batra v. Taruna Batra,AIR 2007 SC 1118 at 1121 : 2006(4) Crimes 433
Neetu Mittal v. Kanta Mittal and Ors., AIR 2009 (Del) 72
Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 at 636
Minakshi Gaur v. Chitranjan Gaur and Anr, AIR 2009 SC 1377
Krishna Beharilal v. Gulabchand and Othrs, AIR 1971 SC 1041
Deb Narayan Halder v. Anushree Halder, 2004 SCC Cr. 164
Bheekha Ram v. Goma Devi &Othrs, 1999 CRLJ 1789 RAJ
Chaturbhuj v. Sitabai, (2008) 2 SCC 316
Mohd. Jusab v Haji Adam, I.L.R. 7 Bom 71.
Cairncross v. Lorimer, 1860 3 H.L.C. 829
Mohd.Siddiq v. Zubeda Khatoon, AIR 1952 Allahabad 616
Vinayagam v. Aruna, 197 5 Crl.L.J.137
STATUTES

Indian Evidence Act, 1872

Hindu Marriage Act, 1955

The Constitution of India, 1950

Indian Penal Code (45 of 1860)
The Code of Civil Procedure, 1908
The Code of Criminal Procedure, 1973
Dowry Prohibition Act, 1961
Hindu Adoption and Maintenance Act, 1956
The Protection of Women from Domestic violence Act, 2005
The Guardianship and Wards Act, 1890

BOOKS
DD Basu, Constitutional Law of India
Mulla, Principles of Hindu Law
P.M Bakshi, The Constitution of India
D.K Ganguly, Commentary on Protection of Women from Domestic Violence Act
R. P Kataria & Alok Saxena, Protection of Women from Domestic Violence Law
Anil Sachdeva, An Exhaustive Commentary on Protection of Women from Domestic

Violence Act & Rules

U.P.D Keshari, Modern Hindu Law
Paras Diwan, Modern Hindu Law
Dr. Suman Rai, Law relating to Protection of Women from Domestic Violence
DICTIONARIES

Henery Campbell Black, Blacks Law Dictionary

Bryan A. Garner, A Dictionary of modern Legal Usage
Ramanatha P. Aiyar, The Law Lexicon
Merriam Webster, Dictionary of Law
Steven. H. Gifs, Dictionary of Legal Terms
Elizabeth Martin, Oxford- Dictionary of Law
E-SOURCES

http://www.findlaw.com
http://www.indiankanoon.com

http://www.indlawinfo.org/

http://www.jstor.org.
http://www.judis.nic.in

http://www.lawsofindia.org
http://www.manupatra.com
http://www.scconline.com
http://www.supremecourtcaselaw.com

List of Abbreviation

LIST OF ABBREVIATION

&

And

Anr.

Another

AIR

All India Reporters

Bom.

Bombay

Cri.L.J.

Criminal Law Journal

Cr.P.C

Criminal Penal Code

C.P.C

Code of Civil Procedure

Del.

Delhi

D.V

Domestic Violence

D.P.A

Dowry Prohibition Act

I.P.C

Indian Penal Code

I.L.R

Indian Law Reports

Ors.

Others

PWDV

Protection of Women against Domestic Violence

Raj.

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Court Reporter

Rajasthan

U.P.

Uttar Pradesh

U/S

Under Section

Statement of Jurisdiction

STATEMENT OF JURISDICTION

THE COUNSEL FOR THE RESPONDENT WOULD LIKE TO PRESENT THE CASE IN
THE JURISDICTION OF THE HONORABLE DISTRICT COURT OF SINDUSTHAN
UNDER SECTION 271 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005.

1 Jurisdiction.-(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may
be, within the local limits of which-(a) the person aggrieved permanently or temporarily resides or carries on
business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this
Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.

Statement of Facts

STATEMENT OF FACTS

1. Vimla Devi married Hari Lal in 1983. After few months of marriage, Hari Lal began to
neglect Vimla Devi. Gradually, he and his family members began to demand dowry from
Vimla Devi and her parents. There was no warmth in the marriage and physical violence
against Vimla Devi at hands of Hari Lal became a routine.
2. Vimla Devi resided with her husband for an year and a half, where after, she got
pregnant, she was sent to her parents house by her husband and the larger part of the
period of pregnancy was spent by her at her parents house in Bhimpur.
3. Vimla Devi gave birth to a girl child Dolly on 22nd March 1986. No one came to take
her away. When Dolly was two months old, father and brother of Vimla, brought her to
the house of Hari Lal, however, the incidents of illtreatment, verbal, physical and
emotional abuse at the hands of Hari Lal continued.
4. After a few days, she was driven out by Hari Lal alleging that Dolly was not his child.
Vimla Devi never returned except in 1990. She got employed as an Anganwari worker, in
1991.
5. In 1994 Hari Lal moved the Court under the Guardianship and Wards Act, for the custody
of Dolly. The action was contested by Vimla, who was able to substantiate that she was in
a better position to take care of Dolly and fulfilling her basic requirements.

6. In the year 1997 Vimla moved an application before the concerned Gram Panchayat of
Bhimpur for provision of maintenance for herself and her daughter. After hearing both the
parties the concerned Gram Panchayat, ordered Hari to pay a maintenance of Rs. 500/
per month to the applicant for herself and her daughters purposes. Not even a single
payment was made by him as per this order.
7. During this entire time, the name of Vimla and her daughter had been struck off from the
local registers, pertaining to the family of Hari Lal as they were living separately and
their record was being maintained as a separate unit in the place of their residence.
8. Hari, who was working as a government servant and earning a monthly salary of about
Rs. 30,000, had moved out of the joint family house and constructed a new house in
Bhimpur and shifted in this house along with his brother.
9. In the year 2010 Dolly completed her education at the college level, Vimla initiated an
action against Hari under the Protection of Women from Domestic Violence Act, 2005,
praying that she was aggrieved person and since, she had suffered verbal, physical and
emotional abuse at the hands of Hari, where after she remained economically deprived
for want of any maintenance or economic support by Hari for a period of more than 2
decades and now when her daughter was grownup into the age of marriage, she and her
daughter are entitled to different reliefs provided for under the Protection of Women from
Domestic Violence Act, 2005.
10. In the course of evidence, the respondent was able to prove that the local authorities, after
due consideration and by way of a resolution, had ordered deletion of the name of Vimla
from the list of people Below Poverty Line, of the concerned area, the resolution was
passed in January 2011.
Questions Presented

QUESTIONS PRESENTED

The following questions are presented before the Honble Court in the instant matterIssue 1
Whether the action initiated against the Respondent is maintainable under section 12 of
Protection of Women against Domestic Violence Act, 2005, before Judicial Magistrate of
Sindusthan?
Issue 2
Whether the Petitioner and her daughter are entitled to claim maintenance & different
reliefs provided under the Protection of Women from Domestic Violence Act, 2005?
Issue 3
Whether Vimla Devi is estopped from claiming the said maintenance by the Doctrine of
Estoppel?

Summary of Pleadings

SUMMARY OF PLEADINGS
1) Whether the action initiated against the Respondent is maintainable under section
12 of PWDV Act, 2005, before Judicial Magistrate of Sindusthan?
It is humbly submitted before the Honble Court that the action initiated against the Respondent
U/S 12 of PWDV Act is not maintainable. The essential elements of section 3 of this Act are not
satisfied to prosecute the Respondent. The petition filed by the Petitioner may be dismissed by
the Court as the action initiated against the Respondent are completely false, biased and baseless.
2) Whether the Petitioner and her daughter are entitled to claim maintenance &
different reliefs provided under the PWDV Act, 2005?
It is humbly submitted that the Petitioner & her daughter are not entitled to claim maintenance &
different reliefs provided under the PWDV Act, 2005. The reliefs claimed by the Petitioner are
not justified under the present case and such petition should be dismissed by the Honble Court
on grounds of expiry of limitation period.
3) Whether Vimla Devi is estopped from claiming the said maintenance by the Doctrine of
Estoppel?
The Counsel on behalf of the Respondent would like to humbly submit that Vimla Devi would be
estopped from claiming maintenance, as she accepted that she was resourceful enough to provide
herself and Dolly with the basic necessities. Moreover she is no more an indigent person after
deletion of her name from the list of people Below Poverty Line.
Pleadings

PLEADINGS

CONTENTION A
Whether the action initiated against the Respondent is maintainable under section 12 of
Protection of Women against Domestic Violence Act, 2005, before Judicial Magistrate of
Sindusthan?
The counsel for the Respondent would like to humbly submit before the Honble District Court
of Sindusthan that the action initiated by Mrs. Vimla Devi under Section 12 2 is completely false.
The petition filed under Section 12 must satisfy certain essential condition of DV, which is
absent in the present case. The petitioner claims to be an Aggrieved person but as per Section
2(a), "aggrieved person" means any woman who is, or has been, in a domestic relationship3 with
2(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present
an application to the Magistrate seeking one or more reliefs under this Act:Provided that before passing any order on
such application, the Magistrate shall take into consideration any domestic incident report received by him from the
Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of
the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under
this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed
or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of
receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under subsection (1) within a period of
sixty days from the date of its first hearing.

3 Section 2(f) of Domestic Violence Act 2005 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;

the respondent and who alleges to have been subjected to any act of domestic violence4 by the
respondent. The counsel for the Respondent submits that as there has not been any cohabitation
or domestic relation between the parties since 1986, no matter of Domestic Violence rises in the
present case .

1.1)

If the Matter Concerns with the Retrospective effect of the DV Act:

4 Section 3 of Domestic Violence Act 2005 defines the Definition of domestic violence.-For the purposes of this
Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -(a)
harms or injures or endangers the health, safety, life, limb 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) harasses, harms, injures or endangers 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; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in
clause (a) or clause (b); or
(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,(i) "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;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates
the dignity of woman;
(iii) "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.
(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;
(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.
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.

The Counsel on behalf of the Respondent would like to humbly submit that since the
actscomplained of relate to the period prior to 2006, the application U/S 12 of the Act is not
maintainable, as the Act itself came into force on 26/10/2006.
It is most humbly submitted that the PWDV Act, 2005 is Prospective in Nature. It is supported
by the legal maxim lex retro non agit, it means all penal provisions or laws does not operate
retrospectively.
It is clearly held by Hon'ble SC in S.L. Srinivasa Jute Twine Mills P. Ltd v. Union of India &
Anr5. Unless there are words in the statute sufficient to show the intention of the Legislature to
affect existing rights, it is deemed to be prospective only nova constitution futuris formam
imponere debet non praeteritis. In the words of LORD LANESBURG, "provisions which touch a
right in existence at the passing of the statute are not to be applied retrospectively in the absence
of express enactment or necessary intendment." The Section 5 of the General Clauses Act clearly
states that a Central Act comes into operation on the date on which it receives the assent of the
President of India. The PWD Act received the assent on 26/10/2006; therefore, the Act is
prospective in nature, and it cannot be given a retrospective effect.
The Respondents relied on Hema @ Hemlata and Anr. v. Jitendra and Anr.6 wherein the Court
held that the Act was not retrospective in nature. The counsel for the Respondent submit that as
per the provisions of Section 1(3), the Act enacted by the Parliament was to come into force on
such date as Central Government may by notification in the Official Gazette appoint and
therefore, the Act which has come into force on 26.10.2006, vide notification dated 17.10.2006,
5 2006 (2) SCC 740
6 2009 (1) Cr.L.R. (Raj.) 291

issued by the Central Government, cannot be made operative retrospectively so as to provide the
remedy for the act of domestic violence alleged to have been committed prior to coming into
force of the Act. Article 20(1) of the Constitution provides that no person shall be convicted of
any offence except for violation of law in force at the time of commission of the act charged as
an offence. No provision of the Act makes any act committed prior to coming into force of the
Act punishable with any imprisonment, fine or penalty.
It was further contended that the acts of domestic violence complained, relate to the period 1986
to 2010. The Petitioner has been staying away from the Respondent since 1986. Hence, no act of
domestic violence was committed after 1986. In such a scenario, the application under Section
12 of the Act was not maintainable. Relying on the judgment of Hema @ Hemlata and Anr.
(supra), the learned Counsel assert that the Act could not be given a retrospective effect. In the
case of Shyam Lal and Ors. v. Kanta Bai7 a case decided by Hon'ble Madhya Pradesh High
Court, wherein it was held that the Act could not be given a retrospective effect.
In Anil Kumar Goel v. Kishan Chand Kaura 8, wherein the Apex Court held that all laws that
affect substantive rights generally operate prospectively and there is a presumption against their
retrospectivity, if they affect vested rights and obligations, unless the legislative intent is clear
and compulsive.
It is the cardinal principle of interpretation of statutes that all statutes are prospective unless the
language of the statute makes them retrospective either expressly or by necessary implication but
the penal statute which create new offences are always prospective. In support of the contention
7 (2010) 2 Crimes 862
8 (2009) 1 SCC (Cri) 209

raised aforesaid, it was relied upon the decision of the Honble Supreme Court in the matter of
Keshavan Madhava Menon v. The State of Bombay9.
Similarly the Honble Madras HC, in the matter of Dennison Paul Raj & Ors v. Mrs.
Mayawinola, considered the DV Act, 2005 only from one perspective (i.e. no penal provisions)
whereas it is cardinal principle of construction that every statute (irrespective of whether it has
penal consequences or not) is prima facie prospective, unless it is expressly or by necessary
implication, made to have retrospective operation. Unless there are words in the statute sufficient
to show the intention of the legislature to affect existing rights, it is deemed to be prospective
only.
The Counsel for the Respondent would like to place reliance on U. U. Thimmanna & Ors. v.
Smt. U.U.Sandhya & Anr10., where it was held that There is no dispute that the Act came into
effect when the Central Government appoints 26-10-2006 as the date on which the Act was came
into force. For acts of violence, certain penal provisions are incorporated. Therefore, it is a
fundamental principle of law that any penal provision has no retrospective operation but only
prospective and as there was no allegation either in the report or in the statement or in the
complaint off the Respondent with regards to the acts of domestic violence that took place on or
after 26-10-2006 when the Act came into force, the continuation of the proceedings in the
domestic violence case was held to be an abuse of process of court.

9 1951 SCR 228

10 Crl.P.No.3714/2007

In another landmark judgment of Govind Das and Ors. v. Income Tax Officer and Anr.11 the
Honble Supreme Court has laid down that:
Now it is well settled rule of interpretation hallowed by time an sanctified by judicial decisions
that unless the terms of a statute expressly so provide or necessarily require it, retrospective
operation should not be given to a statute so as to take away or impair an existing right or create
a new obligation or impose a new liability otherwise than as regards matters of procedure.
The general-rule as stated by HALSBURY in Vol. 36 of the LAWS OF ENGLAND (3rd Edn,)
and reiterated in several decisions of this Court as well as English Courts is that all statutes other
than those which are merely declaratory or which relate only to matters of procedure or of
evidence are prima facie prospective and retrospective operation should not be given to a statute
so as to affect, alter or destroy an existing right or create a new liability or obligation unless that
effect cannot be avoided without doing violence to the language of the enactment. If the
enactment is expressed in language which is fairly capable of either interpretation, it ought to be
construed as prospective only.
Also the legislatures and the competent authority under Article 30912 of the Constitution of
India have the power to make laws with retrospective effect and that intent has to be expressed
11 Manu/SC/0248/ 1975

12 Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it
shall be competent for the President or such person as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services
and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of
service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of
the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any
such Act

in unambiguous language. The PWDVAct, 2005 by its enactment has come into force w.e.f.
26.10.2006 through Official Gazette publication and doesnt contain any express provision to
make it applicable with retrospective effect.
1.2)

If the Matter Concerns with the Limitation Act:

It is humbly submitted before the Honorable Court that the parties are residing separately and
there is no cohabitation and domestic relationship between the parties since June, 1986. All the
allegations regarding violence which has been set up in the complaint are prior to October, 2010.
Residing separately since 24 year cannot be termed as act of domestic violence relying on the
Judgment of Vijay Verma v. State N.C.T. of Delhi & Anr 13, decided on 13.8.2010 passed by the
High Court of Delhi wherein it has been specifically held that only violence committed by a
person while living in the shared household can constitute domestic violence.
In the case of Smt. Sabana @ Chand Bai & Ans. v. Mohd. Talib Ali & Anr 14.., it was held that
the penalty and the punishment for an offence can never be awarded in circumstances when such
punishment and penalty for that offence was not prescribed at the time of the commission of
offence. Therefore, the act of violence committed prior to the coming into the force of the act
cannot be the subject matter of proceeding to be initiated under the act. It was further submitted
that the Act does not create any conclusive right in favor of women and it being a penal statute
has to be made operative prospective. In this case affirming the order passed by the trial court
holding that the act of violence committed prior to coming into force of the Act cannot be made
basis for initiating proceedings under the Act and therefore, the petitioner cannot be said to be an
13 (Cr.M.Case No. 3878/2009)
14 (S.B.CRIMINAL REVISION PETITION NO.362/2011)

aggrieved person, is solely based on the decision of this court in Hema @ Hemlata's case (supra),
which stands overruled by us, therefore, no fruitful purpose to be maintainable U/S12 of this Act.
It is humbly submitted that as per provisions of Section 28, the proceedings before the
Magistrate under the Act are to be governed by the procedure laid down under the Criminal
Procedure Code and therefore, for all intent and purposes, such proceedings have to be treated to
be criminal proceedings. No action can be initiated under the said provisions for the grant of
relief in respect of the acts of domestic violence committed prior to coming into force of the Act.
Learned counsel would submit that if the act of domestic violence alleged to have been
committed prior to coming into force of the Act is taken cognizance of for grant of the relief to
the aggrieved person, then, the provisions incorporated shall be in violation of the provisions of
Article 20(1) of the Constitution.
In the case of Kishor s/o Shrirampant Kale v. Sou. Shalini w/o Kishor Kale 15 the learned
Magistrate held that petition filed under Section 12 r/w Sections 19 and 20 of the PWDV Act,
2005 and which is barred by the limitation act is not maintainable
Further U/S 2(f) of the Act, it has been given that the relationship between two persons who at
any point of time lived together said to be in Domestic Relationship, but a natural limitation is
implied in this case and that limitation says that after a period of around two decades one cannot
wake up from a slumber and ask for the maintenance and property. Petitioner has been living
separately for around two decades and in the year 2010 she asked for maintenance; for which she
is not entitled because of two reasons1) She is not the aggrieved person, which the counsel had already proved.
15 AIR 2008

2) Equity aids the vigilant, not who slumber on their rights.

The principle behind the Latin maxim recognizes that an adversary can lose evidence,
witnesses, and a fair chance to defend himself or herself after the passage of time from the
date that the wrong was committed. The law in the interest of justice encourages a speedy
resolution for every dispute. An inordinate or unreasonable delay like this is called Laches.
Vimla Devi should have approached the court at that very moment.
In the equivalent case of Inderjit Singh Grewal v. State Of Punjab & Anr. decided on
28.08.2011 by the Hon'ble SC, it was held that the PWDV Act is not retrospective and the
complaint was quashed. In this case it was held that the limitation period for filing a case against
the PWDV Act, 2005 is 1 year from the date act or action initiated against the aggrieved party.
Hence the learned magistrate held not compatible to file a petition.
Thus the Counsel for the Respondent humbly submits before the Honorable Court that
with the help of above statement, citation and rule of the Court, the action initiated against
the Respondent are completely false, biased and baseless and the petition under Section 12
of DV is not maintainable.

Pleadings

CONTENTION B
Whether the Petitioner and her daughter are entitled to claim maintenance & different reliefs
provided under the Protection of Women from Domestic Violence Act, 2005 ?
It is humbly submitted before the Honble Court that the Respondent is not liable to pay
maintenance; as the Petitioner is unable to prove Domestic Violence done to her. There is no
evidence of actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and
economic suffered by Vimla Devi. Moreover there is no evidence of Harassment due to dowry.
There was no evidence regarding habitual assaults or miserable cruelty on the part of Respondent
forcing the Petitioner to leave the house. Moreover the Respondent did not commit any act under
the section 316 of PWDV Act 2005, so the petition to claim different relief under this act is not
maintainable. The reliefs claimed by the Petitioner are frivolous and liable to be dismissed.

16 Section 3 of the Act defines the words domestic violence as under:Definition of domestic violence.for the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic
violence in case it
(a) Harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggri
eved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and eco
nomic abuse; or
(b) harasses, harms, injures or endanger the aggrieved person with a view to coerce her or any other person related t
o her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in Clause (a) or Clause (b); or
(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person

In Samar Ghosh v. Jaya Ghosh17 Honble SC held that, mere trivial irritations, quarrels,
normal wear and tear of the married life... is not emotional abuse. Married life should be
assessed as a whole and a few isolated instances would not constitute mental or emotional
harm.18 Thus, in the present case, a few heated exchanges over contradictory lifestyles would not
amount to domestic violence. When there was no jural relationship of man and his wife between
the parties, a case under the Act prima-facie is not maintainable. 19If the domestic relationship
does not continue in the present, a person cannot be made a respondent under the Act on the
ground of a past relationship.20
The definition of domestic violence pre-supposes that the woman is living with the person who
committed violence and domestic relationship is not dead buried or severed. This does not speak
of past violence which a woman suffered before grant of divorce. Having noted the relevant
provisions in PWDV Act, 2005, we may point out that the expression domestic relationship21
includes not only the relationship of marriage but also a relationship `in the nature of marriage;
the question therefore, arises as to what is the meaning of the expression `a relationship in the
nature of marriage'. Unfortunately this expression has not been defined in the Act. 22 No doubt the
view we are taking would exclude many women who have had a live in relationship from the
17(2007) 4 SCC 511
18Gurbux Singh v. Harminder Kaur AIR 2011 SC 114
19A.Sreenivasa Rao And Others vs State Of A.P MANU/AP/0143/2011
20 Ibid.
21Section 2(f) of the Act as follows: 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.

benefit of the 2005 Act23. Parliament has used the expression relationship in the nature of
marriage and not live in relationship. A wife who has been lived in domestic relationship
prior and come to an end only for the reason that domestic violence can file a case for domestic
violence within a reasonable time.
In a significant order, the Bombay HC has held that a wife can file an application for specific
reliefs under the Domestic Violence Act only while remaining in a domestic relationship.24
However, if living separately from husband for quite some time, she cannot be said to be in
domestic relationship and, therefore, cannot file such application under the Act. In present case it
is clearly stated in fact sheet that she is filing the petition after 24 years in 2010 under Domestic
Violence Act 2005.
The SC in S.R. Batra v. Taruna Batra25authoritatively pronounced that under the definition of
shared household in section 2(s) of the Act, a wife could not claim residence or receive an
injunction from dispossession of property where the mother-in-law owned the house. A 'shared
household' would only mean the house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband is a member. 26 In the present case
the property was owned by the father in law, so there is no claim for maintenance. It could be
22D.VelusamyvsD.Patchaiammal on 21 October, 2010
23CRIMINAL APPEAL NOS. 2028-2029__OF 2010
24Sejal Dharmesh VedVs.The State of Maharashtra & Ors.
25 (2007) 3 S.C.C.169; cited with authority in VimlabenAjitbhai Patel v. VatslabenAshokbhi Patel (2008)
4 SCC 649; Umesh Sharma v. State 2010(115)DRJ88
26Neetu Mittal v. Kanta Mittal and Ors., AIR 2009 (Del) 72

noted that in the present case the petitioner demanded of living in a shared household, the
question that the counsel would like to cite is that if there was domestic violence against her 24
years before, why today she has no fear of residing with her husband in the same household.
Moreover, why didnt she initiate to return to Hari Lals house earlier if she really wanted to?
Thus it is clear from the facts itself that she had wrong intentions against the Respondent to
claim monetary relief and compensation as the Respondent had a government job and earns Rs.
30,000 per month & lives in a separate house. Moreover the important aspect is that when the
Respondent lived in joint family with his parents, Vimla Devi never wanted to go back. Only
when he shifted to a new house in Bhimpur along with his brother, the Petitioner showed her
malafide intention to reside with him.
Moving to the aspect of Stridhan, which the Petitioner demands to be restored to her & her
daughter to be provided with share in property. A pure & simple act of entrustment of the
stridhan to the husband does not attract any of the essential ingredients of a partnership unless it
is purposely given in custody of husband to keep it27. In present case Hari Lal had no possession
of Stridhan. Moreover there is no evidence of act of entrustment.
The Counsel of Respondent would like to submit that from the fact it is clearly understood that
filing of the case after 24 years shows her malafide intention against her husband. This petition
was not filed to seek justice but for her desire to get higher and higher amount of maintenance.
From 1990 to 2010 there was neither a single act, attempt and intention by her to come back to
Respondents house nor any effort towards resolving the matter. Therefore the Respondent is not
entitled to maintain Petitioner U/S 20 of PWDV Act, 2005. Further the Respondent is not bound
to fulfill the reliefs demanded in such petition. The counsel for the Respondent would like to
27 Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 at 636

bring to the kind notice that the application moved by Vimla Devi in 1997 before the concerned
Gram Panchayat of Bhimpur for provision of maintenance is not justified & not maintainable.
In respect of her claim to get share for her daughter in Respondents property, in 1994, when
Respondent moved the Court under the Guardianship and Wards Act, seeking the custody of
Dolly, Petitioner contended to be in a better position to take care of Dolly and fulfilling her
basic requirements. Vimla Devi accepted that she was independent enough to provide Dolly
with basic necessities and thus she need not to be maintained. Her employment as an Anganwari
Worker in 1991, indicates her sufficient source of earning to maintain Dolly. Vimla Devi being
an earning lady cannot claim maintenance as she has sufficient source of income to take care of
herself and her daughter. The fact that Dolly had already completed her graduation by 2010
proves the capability of Vimla Devi of fulfilling her educational expenses.
In a leading case of Minakshi Gaur v. Chitranjan Gaur and Anr28, The Magistrate dismissed the
petition on the sole ground that the wife was a working lady and had income from properties, as
such, she may be able to maintain herself out of the said income.
As per section 2(b) "child" means any person below the age of eighteen years and includes any
adopted, step or foster child; From the fact it is clear that Dolly is 20 years of age in 2010 when
she filed petition, thus she is not a child within the definition U/S 2(b) of DV Act. Another
argument put forth by counsel for Respondent is that the daughter of Vimla Devi is now a grown
up and educated person, after completing her graduation and she is able to maintain her mother.
The Court should not be inclined to accept this petition for the reason that it is the primary
responsibility of the husband to maintain her wife. Maintenance cannot be claimed as a
28AIR 2009 SC 1377

punitive measure. It is one time relief when required and now since both the mother and
daughter have been settled, hence no purpose should be served. Learned counsel has relied upon
a precedent of Hon'ble Apex Court in the case of Krishna Beharilal v. Gulabchand and Othrs29.
It is humbly submitted before the Honorable Court that, Hon'ble Apex Court in the case of Deb
Narayan Halder v. Anushree Halder30, wherein the Hon'ble Apex Court was of the view that if
the wife had left her matrimonial home without any justifiable ground and was residing for 10
years long in segregation, then she was debarred from claiming maintenance. In another case of
Bheekha Ram v. Goma Devi &Ors31, the learned Magistrate held that the allegations of neglect
and cruelty for the dowry were not proved. Holding that the wife left the matrimonial home
without just cause, and she was not entitled to maintenance. When it is found that the wife
declines to live with husband without any just cause and there is no evidence of ill-treatment by
the husband, wife is not entitled to maintenance. In the present case Vimla Devi has not been
able to establish that she had been neglected by her husband. As a matter of fact she is living
with her parents on her own accord. Moreover leaving the matrimonial house without just cause
clearly states that she willfully refused to stay with her husband. Unexplained delay in filing
Petition debars the petitioner from claiming any maintenance32.

29 AIR 1971 SC 1041

30 2004 SCC Cr. 164
311999 CRLJ 1789 RAJ
32Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered
to be just ground for his wifes refusal to live with him.(4) No wife shall be entitled to receive an [allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under
this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.

In the landmark judgment of Chaturbhuj v. Sitabai33, the SC held that The object of the
maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who are unable to support themselves and
who have a moral claim to support. The right to maintenance is not merely a moral but also a
legal obligation as held by Bombay High Court in its verdict Mohd. Jusab v. Haji Adam34.
It is humbly submitted that the Petitioner & her daughter are not entitled to claim
maintenance & different reliefs provided under the PWDV Act, 2005. The reliefs claimed
by the Petitioner are not justified under the present case and such petition should be
dismissed by the Honble Court on grounds of expiry of limitation period.
Pleadings

CONTENTION C
Whether Vimla Devi will be debarred or estopped from claiming the said maintenance by the
Doctrine of Estoppel?
The Counsel on behalf of the Respondent would like to humbly submit that Vimla Devi would be
estopped from claiming maintenance by the doctrine of Estoppel.

(5) ON proof that any wife in whose favour an order has been made under this section is living in adultery, or that
without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent,
the Magistrate shall cancel the order.

33 (2008) 2 SCC 316

34I.L.R. 7 Bom 71.

Estoppel is defined under section 11535 of Indian Evidence Act, 1872. The general principle of
estoppel is stated thus by the Lord Chancellor in Cairncross v. Lorimer36 : The doctrine will
apply, which is to be found, in the laws of all civilized nations that if a man either by words or
conduct has intimated that he consents to an act which is to be done and that he will offer
no opposition to it, although it could not have been lawfully done without his consent, and he
thereby induces others to do that from which they otherwise might have abstained, he cannot
question the legality of the act he has so sanctioned, to the prejudice of those who have so given
faith to his words or to the fair inference to be drawn from his conduct
Respondent would like to submit that firstly, as per the facts of present case in 1994 when Hari
Lal moved the Court under the Guardianship and Wards Act, seeking that the custody of Dolly be
handed over to him. Petitioner was able to substantiate that she was in a better position to take
care

of Dolly and fulfilling her basic requirements. Petitioner accepted that she was

independent enough to provide Dolly with the basic necessities and thus she need not to be
maintained. She also stated that she was not able to fulfill her educational requirements, but facts
reveal that Dolly already completed her education at the college level, which implies that she is
capable enough to maintain her daughter & herself. She got employed as an Anganwari Worker,
thus having sufficient source of earning. So she cannot claim maintenance for herself and her
daughter. She is estopped from claiming the maintenance thus applying the doctrine of estoppel.
35 Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny
the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs
to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be
allowed to prove his want of title.
36 1860 3 H.L.C. 829

In case of Mohd.Siddiq v. Zubeda Khatoon37 , it was observed that If the wife choose for
purpose of some advantage to herself not to live with her husband, she cannot say that it is
the husband who has neglected her or refused to maintain her.
In Vinayagam v. Aruna38, it was held that if the wife is unsuccessful in establishing in a case for
restitution of conjugal rights about the assault made upon her by her husband and the fact of
being knocked away from the matrimonial home, than she is estopped from claiming
maintenance subsequently based upon the admission made by the husband. In the instant case,
Vimla Devi, wilfully refused to stay with her husband, (she was not living in destitute) and is
unable to establish evidence of neglect and being knocked away from Hari Lal house. Hence she
is estopped from claiming maintenance.
Secondly, after separating from Hari Lal, name of Vimla Devi and her daughter got struck off
from local registers as they were living separately and their record was being maintained as a
separate unit in the place of their residence. Being with Hari Lal, her name was in the list of
people Below Poverty Line maintained with the local authorities. In the course of evidence, the
respondent was able to prove that the local authorities, after due consideration and by way of a
resolution, had ordered deletion of the name of Vimla from the list of people Below Poverty
Line, of the concerned area. This proves her economic stability; she can be estopped 39 from
claiming maintenance. So,Vimla Devi is no more an indigent person according to order XXIII
of C.P.C 1908 & should not be given special privilege in this case. The point is that Vimla Devi
37 AIR 1952 Allahabad 616
38 197 5 Crl.L.J.137
39 Banisdhar Mohanty Vs Jyoshnarani Mohanty AIR 2002 Orissa 182

was available with the remedies before the enactment of this new law & she should have used
them to get justice for her. But her approach of petition after 24 years shows that her intentions
are not clear but she had greed of property.
The Counsel for the Respondent would like to submit that the application of Doctrine of
Estoppel must be confirmed. It is humbly submitted before the Honble Court with the
help of above cited provision, case-laws, digests, precedent and various Courts decision
which proves that Vimla Devi would be estopped from claiming the maintenance.

Prayer

PRAYER

In the light of above mention issues raised, arguments advanced and authorities cited, the
Respondent humbly submits that the Honble Court may be pleased to adjudge and declare that:

The petition filed by the petitioner may be dismissed.

The various reliefs that are claimed by the petitioner may not be granted.

And to pass any such order as the Honble Court may deem fit and proper in the
light of justice, equity and good conscience. The counsel shall forever beseech this
Honorable Court for its Honorable Consideration.

Counsel for the Respondent