Professional Documents
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Gist of 3rd WORKSHOP ON ENCROACHMENT 2017 - Bhandara
Gist of 3rd WORKSHOP ON ENCROACHMENT 2017 - Bhandara
Gist of 3rd WORKSHOP ON ENCROACHMENT 2017 - Bhandara
DISTRICT COURT, BHANDARA
GIST OF PAPER
IN RESPECT OF SUBJECT :
EVIDENCE OF EXPERT IN CASES OF
ENCROACHMENT SUBMITTED FOR
3rd WORKSHOP SHEDULED TO BE HELD
ON 25th MARCH, 2017.
EVIDENCE OF EXPERT IN CASES OF ENCROACHMENT
INTRODUCTION
MEANING OF AN EXPERT
An expert is a person who devotes his time and
study to a special branch of learning. The Supreme Court of
United States of America defined an expert as “a person who
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EXPERT WITNESS
An expert is a person having special and high
level knowledge of a particular subject. When such an
individual is asked to testify with regard to his specialized
knowledge, he is confined to be an expert witness. The role
of an expert witness is to assist and determine the issue in
dispute by furnishing the court with information, which is
likely to be out side the knowledge and experience of the
judge. The judge should ensure that the expert is qualified
on the disputed issue and only relevant and reliable opinion
3
are accepted from him or her. There is no threshold test in
common law for the admissibility of expert evidence which
determine its reliability and it is at the judge's discretion to
accept it or not.
ROLE OF EXPERT WITNESS
The role of an expert witness is to assist and
determine the issues in dispute by furnishing the court with
scientific information, which is likely to be outside the
knowledge and experience of a judge.
CODE OF CIVIL PROCEDURE,1908
Section 75 to 77 of Part III, deal with Incidental
proceedings. Section 75 gives power to the Court to issue
Commissions. As per Clause (b) of Section 75, the Court can
make a local investigation. As per Clause (e) the Court can
have a power to hold a scientific, technical or expert
investigation.
OBJECT
The object of local investigation is not so much
to collect evidence which can be taken in Court but to obtain
evidence which from its particular nature can only be had on
the spot. Cases of boundary disputes and disputes about the
identity of lands are instances when a Court should order a
local investigation under Order 26 Rule 9. In order to
determine whether there has been an encroachment, it is
always desirable to get the fields measured by an expert and
find out the exact area encroached upon. Oral evidence
cannot conclusively prove such an issue. Sukhdeo
Parashramji Bhugul Vs. Wamanrao Nagorao Charhat
5
[2004(3) ALL MR 645].
PROCEDURE OF COMMISSIONER
In any Civil Suit or Proceeding, Commissioner
appointed, has to follow the procedure prescribed under
Rule 10 of Order XXVI of the C.P.C. As per Rule 10, Subrule
(1), the Commissioner, after such local inspection as he
deems necessary and after reducing to writing the evidence
taken by him, shall return such evidence, together with his
report in writing signed by him, to the Court.
REPORT S
AND DEPOSITIONS TO BE EVIDENCE IN SUIT
Subrule (2) of Rule 10 of Order XXVI, provides
that the report of the Commissioner and the evidence taken
by him (but not the evidence without the report) shall be
evidence in the suit and shall form part of the record; but
the Court or, with the permission of the Court, any of the
parties to the suit may examine the Commissioner personally
in open Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
COMMISSIONER MAY BE EXAMINED IN PERSON
As per Subrule (3) of Rule10, where the Court
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ENCROACHMENT
According to Black's Law Dictionary, an
encroachment is “To enter by gradual steps or stealth into
the possessions or rights of another, to trespass or intrude.
To gain or intrude unlawfully upon the land, property or
authority of another”.
EVIDENTIARY VALUE
Section 83 of the Evidence Act, 1872 lays down
that the Court shall presume that the maps or plans
purporting to be made by the authority of the Central
Government or any State Government were so made and are
accurate. But maps or plans made for purpose of any cause
must be proved to be accurate by the person who has
prepared them. They are post litem motesa and lack
necessary trustworthiness. Hence, there is no presumption
of accuracy in respect of the map or plan which is made for a
particular cause and it goes without saying that a map
prepared for the purpose of a particular suit must, therefore,
be duly proved and it is not admissible in evidence in
absence of proof of its accuracy. (Ram Kishore Sen and
Ors. Vs. Union of India, AIR 1966 SC 644). (Ushabai w/o
Sharadchandra Bannore Vs. Wasudeo s/o Baliramji
9
Mehare and others, 2004 (2) Mh. L.J.594).
power to appoint commissioner under Order XXVI Rule 9 of
the CPC, has absolutely no merit in view of the reason, that
as per Order XXVI Rule 18A of the CPC, the provision of
Order XXVI are applicable to the proceeding in execution of
decree or order also. (Gurram Anantha Reddy Vs. Katla
Sayanna C.R.P. No. 2982 of 2014).
ELEMENTS OF EXPERT EVIDENCE
expert’s evidence can explain how the field of “specialized
knowledge” in which the witness is expert, and on which the
opinion is “wholly or substantially based” applies to the facts
assumed or observed so as to produce the opinion
propounded.
EVIDENCE OF EXPERT IN ENCROACHMENT CASES
To prove encroachment it is necessary to prove
title of the party who asserts encroachment upon his
property. While proving title of land, most of times, the
defendant simply denies the title without specific denial.
Section 110 of the Indian Evidence Act speaks, that
Possession is primafacie proof of ownership. Possession by
itself is an indication of title. A person in possession is
entitled to protection against all persons except the true
owner. Therefore, a person in possession is entitled to
remain in possession until another person discloses a better
title than that of the party who is in possession of said
property.
PROOF OF FACT OF ENCROACHMENT
(i) The cases of boundary disputes and disputes about the
identity of lands are instances, when a Court should order a
local investigation under Order XXVI, Rule 9 of C.P.C.
(Krishnarao Vs. Mahadeorao, 1953 N.L.J. Note 230 at
page 72).
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(iii) If there be undisputed boundaries, encroachment can
be a question or a matter of fact, which can be seen by a
person where encroachment was witnessed. Fact of
encroachment could be a matter of oral evidence, if the
admitted boundaries are destroyable, and have been
destroyed in presence of witness by party making the
encroachment. Such fact of encroachment may be proved
partly by oral evidence.
(iv) Proof of extent of encroachment – Extent of
encroachment, i.e., area, is not a matter to be adjudicated
upon oral evidence of any number of witnesses, who have
witnessed the act of encroachment.
(v) Witnesses who may be the persons who have
measured the land allegedly encroached with reference to
public records in relation to the survey numbers or Pot Hissa
survey numbers on application by parties or under order of
Courts, can certainly prove the fact of encroachment in
terms of length, breadth, area etc.
(vi) Extent of encroachment cannot be proved in absence
13
of public records and procedure emerging from Section 36
and Section 60 of the Evidence Act.(Vijay S/o Shrawan
Shende and others Vs. State of Maharashtra and others,
2009 (5) Mh. L.J.279).
Measurement by cadastral surveyor, notice to all
concern is necessary. It is mandatory provision. If the Rules
regarding Revenue Survey and Sub Division of Survey
Numbers (1969) framed under Maharashtra Land Revenue
Code, 1966 are seen, it can be said that at the time of fixing
of boundaries as per Rule 16, when there is a dispute, both
the sides need to be heard while fixing boundaries. It is
mandatory provision. Rule 4 of Maharashtra Land Revenue
(Boundary and Boundary Marks) Rules 1969, shows that the
boundary marks as mentioned in these Rules need to be
mentioned. Though as per Rule 13 of Boundary Marks Rules,
owner of survey number can apply for fixing, demarketing
the boundary marks, at the time of fixing boundary mark
when there is dispute, notice to other side is must.
(Sahebrao Vs. Sarjerao, 2014 (6) Mh.L.J.553).
14
IDENTIFICATION OF PROPERTY IN PRESENCE OF PARTIES
Suit property identified by the Court
Commissioner in presence of the party with reference
to the plots lying as boundary, it is not necessary to survey
all the adjacent lands to find out, whether an encroachment
was made in the suit land belonging to the plaintiff.
(Subhaga Vs. Shobha, 2006(6) Mh.L.J.545 (SC)).
AdvocateCommissioner cannot be appointed to
find out the factum, as to who is in possession of the
property. Even if an AdvocateCommissioner is appointed
and his report is filed, it can be questioned by the other side
by filing objections, as the dispute in the suit could be
resolved only on the basis of oral and documentary evidence
led by the parties. (M/s. Benz Automobiles Private Limited
Vs. Mohanasundaram, reported in 2003 (3) Mh.L.J. 391)
15
WHETHER THE COURT IS BOUND BY THE OPINION GIVEN
BY AN EXPERT ON A PARTICULAR FACT IN A CASE
The Court is not bound by the evidence of the
experts which is to a large extent advisory in nature. The
Courts have full powers to derive its own conclusion upon
considering the opinion of the experts which may be
adduced by both sides, cautiously, and upon taking into
consideration the authorities on the point on which he
deposes. The opinion could be admitted or denied. Whether
such evidence could be admitted or how much weightage
should be given thereto, lies within the domain and
discretion of the Court. The evidence of an expert should,
however, be interpreted like any other evidence. (Malay
Kumar Ganguly Vs. Dr. Sukumar Mukherjee)
witnesses and proving documents to nullify the effect of the
Commissioner's report or to place materials from the report
itself to prove that the same cannot be relied upon.
(Kantaru Sahu And Ors. Vs. Dharma Sahu And Anr., AIR
1983 Ori 259).
Mere proving signature of the surveyor on the
survey report by a witness who knows the signature of the
surveyor, does not prove the contents of the report.
(Hindustan Copper Ltd Vs. New India Assurance Co. Ltd
decided on 10 August, 2010).
KINDS OF MEASUREMENT
(i) Fixation of boundaries, (ii) Pot Hissa
measurement, (iii) nonagriculture measurement, (iv) Court
Commission, (v) Effecting Partition under a decree of Court,
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METHOD OF MEASUREMENT
(i) Shankhu Sakhali, (ii) Plain table and (iii)
computerized technique by Electronic Total Station Machine
(ETS)
Shankhu Sakhali method was being used in old
days. Till date a plain table method is being used for
measurement of lands. In this method in all maps are
prepared in three copies i.e. A, B and C, copies. Usually A
and B copies are kept in the concern Land Record office. The
Office used to give Ccopy to the party or send it to the
Court, after execution of a commission.
DUTY OF COURT
At the same time, if land is already measured,
about which the plaintiff did not make any grievance, the
Court should not opt for allowing application for re
measurement, that too when the evidence was almost
completed. (Chandrarao S/o Hanumantrao Wable Vs.
Dhondu Fula Patil, 2012 (2) AIR Bom R. 60).
CONCLUSION
19
Submitted with due respect.
Member
Workshop Committee,
Bhandara.
Date :
Questions and Answers on Civil Side
appoint a court Commissioner so as to ascertain
the extent of encroachment. The Court
Commissioner has to follow the procedure
prescribed under Rule 10 of Order 26. In case of
his failure to adopt proper procedure, his report
may be discarded. But the parties to the litigation
should not suffer for latches on the part of the
Court Commissioner. Thus, in case if the Court
Commissioner had not complied with the order of
the Court and failed to measure the
lands/properties properly, he can be reappointed
to measure the lands/properties by following the
proper procedure that too in the same fees paid
by the parties.
Que.2 : When both parties objected on the report of
Court Commissioner and one of the them i.e.
the plaintiff moved application to call Court
Commissioner as a witness, whether he is
treated as court witness?
Ans : Even if, both parties have objected to the report
of Court Commissioner, the plaintiff/either party
can call and examine the Court Commissioner. In
that case he will be treated as witness of the
plaintiff and not as Court witness. A reference
may be made to the ruling of the Hon'ble Bombay
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map prepared for a particular purpose lies on the
party who produced it. The map/Ccopy must be
proved by the person who has prepared it. In
view of the ratio laid down by Hon'ble Bombay
High Court in the case of Kashinath Chindhuji
Shastri Vs. Haribhau Nathuji Bawanthade,
(2004 (2) Mh.L.J. 722), it is held that, “a
tendency to colour exaggerate and favour can
only be countenanced by swearing the maker to
the trust of his plan.
Que.5 : In appreciating evidence of cadastral surveyor,
whether process of measurement Formalities
are materials?
Ans : Yes. The cadastral surveyor being expert in the
said field, it is expected from him to follow the
procedure and formalities scrupulously while
carrying out the measurement. The little error on
his part may affect adversely to either of the party
and he may make a mistake of measurement and
may lead to erroneous dimensions in the map
prepared by him.
Que.6 : What are options to the evidence of cadastral
surveyor for proving encroachment?
OR
Whether private person can be entertained as
23
on expert on encroachment cases ?
Ans : A reference may be made to the ratio laid down
by the Hon'ble Bombay High Court in the case of
Kashinath Ramkrishna Chopade Vs.
Purshottam Tulshiram Tekade & Ors., (2005
(4) Mh.L.J.471), wherein it is held that, “Map
prepared by a person who is neither City surveyor
nor an expert is not reliable. From the cited case
it can be said that even if a person is expert in the
field, can not be appointed as a Commissioner for
the said purpose.
Que.7 : Whether measurement map is prior condition
to initiate the suit for removal of
encroachment?
Ans : When the suit is filed for removal of
encroachment and for possession of immovable
property, the plaintiff is required to take care to
comply with Bombay amendment to Order VII,
Rule 3 of the Code of Civil Procedure and to
annex a Map with the plaint. It is also necessary
to give detail description of the properties.
Without such description, the trial Court may not
be assisted properly by the plaintiff to pass an
effective decree, if it is passed for the removal of
encroachment from the suit land/property in such
24
cases.
Laxman Wamanrao Nagapure Vs. Shankar
haribhau Adhau, (2014 (3) Mh.L.J.791).
Que.9 : Whether presumption given under Section 83
of the Evidence Act is available in case of
private?
Ans : Section 83 of the Evidence Act, 1872 lays down
that the Court shall presume that the maps or
plans purporting to be made by the authority of
the Central government or any State Government
were so made and are accurate. But maps or
plans made for purpose of any cause must be
provided to be accurate by the person who has
prepared them. They are post litem motesa and
lack necessary trustworthiness. Hence, there is
no presumption of accuracy in respect of the map
or plan which is made for a particular cause and
it goes without saying that a map prepared for
25
the purpose of a particular suit must, therefore,
be duly proved and it is not admissible in
evidence in absence of proof of its accuracy.
Ushabai w/o. Sharadchandra Bannore Vs.
Wasudeo s/o. Baliramji Mehare and others
(2004 (2) Mh.L.J. 594)
area etc.
DISTRICT COURT : BHANDARA
29
GIST OF PAPER
IN RESPECT OF SUBJECT :
RIGHTS UNDER THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT
SUBMITTED FOR 3rd WORKSHOP SHEDULED
TO BE HELD ON 25th MARCH, 2017.
STATEMENT OF OBJECTS AND REASONS OF THE ACT 2005
In order 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, the Bill was proposed. Domestic violence is
undoubtedly a human rights issue and serious deterrent to
development. The United Nations Committee on Convention
on Elimination of All Forms of Discrimination Against
Women in its General Recommendation has recommended
that State parties should act to protect women against
violence of any kind especially that occurring within the
family.
The phenomenon of domestic violence is widely
prevalent but has remained largely invisible in the public
domain. Presently, where a woman is subjected to cruelty by
her husband or his relatives, it is an offence under section
498A of the Indian Penal Code. The civil law does not
however address this phenomenon in its entirety. It is,
30
The Act covers those women who are or have
been in a relationship with abuser where both parties have
lived together in a shared household and are related by
consanguinity, marriage or through a relationship in the
nature of marriage or adoption. In addition, relationships
with family members living together as a joint family are
also included. Even those women who are sisters, widows,
mothers, single women, or living with the abuser are entitled
to legal protection under the proposed legislation. However,
whereas the Bill enables the wife or the female living in a
relationship in the nature of marriage to file a complaint
under the proposed enactment against any relative of the
31
husband or the male partner, it does not enable any female
relative of the husband or the male partner to file a
complaint against the wife or the female partner.
G OALS OF
THE
A
CT
i) The Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as "PWDV Act") aims at
providing accessible and speedy justice for protection of
women who are victims of various forms of violence within
the family. PWDV Act is a civil law and is enacted with a
view to safeguarding and promoting women's human rights.
ii) Based on the principle of substantive equality within
the framework of international human rights, and Articles
14,15 and 21 of the Constitution and the Legislative intent,
the goals of PWDV Act are :
a) To stop domestic violence on the aggrieved woman.
b) To protect aggrieved woman from any form of
domestic violencephysical, sexual, verbal, emotional or
economic from the male respondent or any of his relatives.
c) To provide the aggrieved woman right of safe housing.
d) To protect her children, dependents and others who
may be supporting her.
e) To provide holistic multiagency support of service
providers to the aggrieved woman such as shelter, health
care, legal services, counseling and any other service the
32
court may think fit.
f) To grant speedy remedies and justice.
iii) The Act recognizes three important rights :
a) The right to be free from violence, which is to be
inferred from the definition of 'domestic violence' contained
in the Act,
b) The right to reside in the shared household that is
recognized in section 17 and ;
c) The right to seek remedies under this law as provided
for in the Act.
WHAT IS DOMESTIC VIOLENCE
The expression “ domestic violence ” is defined
under the Act to include actual abuse or thereat or abuse
that is physical, sexual, verbal, emotional or economic.
Harassment by way of unlawful dowry demands to the
woman or her relatives would also be covered under this
definition.
RIGHTS UNDER THE ACT
RIGHT TO RESIDE IN A SHARED HOUSEHOLD :
Section 17 provides for right to reside in a
33
shared household. This section lays down that irrespective
of any contrary provision in any other law, every woman in a
domestic relationship shall have the right to reside in the
shared household and the aggrieved person shall not be
evicted or excluded from the shared household by the
respondent except in accordance with the procedure
established by law. It provides for the right of a woman to
secure housing. It also provides for the right of a woman to
reside in her matrimonial home or shared household,
whether or not she has any title or rights in such home or
household. This right is secured by a residence order, which
is passed by the Magistrate.
In S.R.Batra...Vs...Smt. Tarun Batra [2006(8)
34
In the landmark judgment of B. P. Achala Anand
V/s. Appi Reddy [(2005) 3 S.C.C. 313], Lahoti, J of
Hon’ble Supreme Court had clearly upheld this right of
residence in the matrimonial home. Supreme Court opined:
“A Hindu wife is entitled to be maintained by her husband,
she is also entitled to separate residence if by reason of the
husband’s conduct or by his refusal to maintain her in his
own residence or other just cause she is compelled to live
apart from him. Right to residence is a part and parcel of
wife’s right to maintenance. The right to maintenance
cannot be defeated by the husband executing a will to defeat
such a right. The right has come to be statutorily recognized
with the enactment of the Hindu Adoption and Maintenance
Act, 1956. Section 18 of the Act provides for maintenance of
wife. Maintenance has been so defined in clause (b) of
section 3 of the Hindu Adoption and Maintenance Act, 1956
as to include therein provision for residence amongst other
things. For the purpose of maintenance the term ‘wife
35
includes a divorced wife.”
The right to residence provision under the Act had
evolved in the Indian courts largely within the framework of
the Hon’ble Supreme Court’s judgment in the case of S. R
Batra V/s. Taruna Batra [2007 (3) S.C.C. 169]. The
respondent had married appellant’s son and started living
together at the appellant’s mother’s house. Appellant filed
divorce petition later on. As a counterblast respondent
lodged FIR under section 498A along with other provisions
of Indian Penal Code. In the present case the daughter in law
had sought an order to allow her to reenter her matrimonial
home. The Appellants retaliated by contending that their son
had shifted his residence to a new flat prior to the starting of
proceedings. Temporary Injunction was granted in favour of
the respondent by the trial court. Senior Civil Judge on
appeal held that respondent had no right to the property of
appellant other than that of her husband. Respondent filed
petition under Article 227 and High Court gave a judgment
in her favour to continue to reside at the appellant’s house.
Aggrieved by the decision of the High Court, appellants
preferred appeal to Supreme Court.
right under Section 17(1) to reside in a shared household
and shared household would only mean a house belonging
to or taken on rent by the husband or a house belonging to a
joint family in which the husband is a member”.
PROTECTION ORDERS :
The right to secure protection orders in favour
of aggrieved person are enumerated in section 18 of the Act.
It empowers the Magistrate to pass protection orders in
favour of the aggrieved person to prevent the respondent
from aiding or committing an act of domestic violence or
any other specified act, entering a workplace or any other
place frequented by the aggrieved person, attempting to
communicate with her, isolating any assets used by both the
parties and causing violence to the aggrieved person, her
relatives or others who provide her assistance from the
domestic violence.
Officers and registration of nongovernmental organizations
as service providers for providing assistance to the aggrieved
person with respect to her medical examination, obtaining
legal aid, safe shelter, etc. The Bills seeks to achieve above
objects of the act.
DIFFERENT KINDS OF RELIEFS
UNDER THE
A CT
PROTECTION ORDER :
Under this provision an aggrieved person may
apply to a Magistrate for seeking protection orders against
abuser. The Magistrate after giving an opportunity to the
aggrieved person and respondent of being heard and the
Magistrate is satisfied that a prima facie incident of domestic
violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and
prohibiting the respondent from committing any act of
domestic violence, such as :
i) aiding or abetting in the commission of acts of domestic
violence,
ii) entering the place of employment of the aggrieved person
or, if the person aggrieved is a child, its school or any other
place,
iii) attempting to communicate in any form, including
personal, oral or written or electronic or telephonic contact,
iv) alienating any assets, operating bank accounts, bank
lockers held or enjoyed by both the parties, jointly or singly
38
by the respondent, including her 'stridhan',
v) causing violence to the dependents, other relatives or any
other person who give the assistance to the aggrieved person
or committing any other acts as specified by the Protection
Officer.
RESIDENCE ORDERS :
If aggrieved person is removed from the
residence shared by her with her husband or male partner
then she may apply to the court of Magistrate to seek
residence order. This valuable right is provided under section
19 of the Act. The Magistrate being satisfied that domestic
violence has taken place, pass a residence order such as :
i) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the shared
household,
ii) directing the respondent to remove himself from the
shared household,
iii) restraining the respondent or any of his relatives from
entering any portion of the shared household where the
aggrieved person lives,
iv) restraining the respondent from alienating or disposing
off the shared household or encumbering it,
v) restraining the respondent from renouncing his rights in
the shared household,
vi) directing the respondent to secure same level of alternate
39
accommodation for the aggrieved person as enjoyed by her
or to pay rent for the same, if the circumstances so require,
No order shall be made against woman under
this section. Magistrate may impose any additional
conditions or pass any other order to protect the safety of
the aggrieved person or any child. The Magistrate is also
empowered to order direction to the concerned Station
House Officer of the Police Station to give protection to the
aggrieved person or to assist in implementing his order. The
Magistrate may also impose on the respondent to direct
'stridhan' or any other property or valuable security to
aggrieved person is entitled to.
MONETARY RELIEFS :
If there are no means for the survival to a
woman or she is deserted or driven away from shared
household, she may apply to the Magistrate for monetary
reliefs. This right is given to the aggrieved person under
section 20 of the Act. After inquiry, the Magistrate may direct
the respondent to pay monetary reliefs to meet the expenses
of the aggrieved person or of child as a result of the
domestic violence and such relief may include :
i) the loss of earnings,
ii) the medical expenses,
iii) the loss caused due to the destruction or removal or
40
damage of any property,
iv) pass order of maintenance of the aggrieved person as
well as her child, if any.
Quantum of relief under this provisions shall be
fair, reasonable and consisting with the standard of living to
which the aggrieved person is accustomed to. Magistrate
can order a lump sum amount also. On failure of
respondent to make payments, Magistrate shall order
employer or a debtor of the respondent to directly pay the
aggrieved person or to deposit in the Court a portion of the
salaries or wages due to the respondent. Magistrate can
order a lump sum amount also.
CUSTODY ORDERS :
Under section 21 aggrieved person may apply to
the Magistrate to seek custody of the child. After inquiry
Magistrate can grant temporary custody of any child or
children to the aggrieved person or to the person making
application on her behalf and specify the arrangements for
visit of such child by the respondent. Magistrate can refuse
such visits of the respondent in such case, if it is harmful to
the interests of the child.
that, "In determining the question as to who should given
custody of minor child, the paramount consideration is the
welfare of child and not the rights of the parents".
COMPENSATION ORDERS :
When aggrieved person suffers any act of
domestic violence committed against her then she may apply
to the Magistrate for compensation orders. This valuable
right is provided under section 22 of the Act. After holding
inquiry the Magistrate may pass an order directing the
respondent to pay compensation to the petitioner for the
injuries including mental torture and emotional distress
caused by the domestic violence committed by the
respondent.
INTERIM ORDER
The Magistrate under Section 23, in any
proceeding under this Act, can grant an interim order and
42
also may pass an exparte order on the basis of affidavit given
by the aggrieved person.
NATURE OF THE RELIEFS UNDER THIS ACT
The relief granted under The Act is civil in
nature to enforce the rights of aggrieved person. This Act
provide a remedy for the Domestic Violence by providing
easy way to justice by simplicity of procedure and urging
upon expeditious hearing.
In Dr. Vinod Parashar...Vrs...State of Uttar
Pradesh [2008 Cri.L.J. 837] Hon'ble Apex Court held that,
"Proceeding under Domestic Violence Act is civil in nature
and it is only for the purpose of cutting down the procedural
delay, power is conferred on Judicial Magistrate".
JURISDICTION
As per Section 27, the Magistrate within the
local limits of whose jurisdiction the aggrieved person
permanently or temporarily resides or carries on business or
is employed or the respondent resides or carries on business
or is employed or the cause of action has arose shall be
competent Magistrate to grant protection order and other
orders and to try the offences under this Act. Sub clause 2
provides that, any other made under this Act shall be
enforceable throughout the India.
C OPIES OF ORDER
In view of Sec. 24 it is mandatory for the
Magistrate to furnish the copies of order to the parties as
well as to the officer in charge of police station and service
provider, free of cost.
DURATION AND ALTERATION OF ORDER
Section 25 lays down that a protection order
44
APPEALS
As per Section 29 of the said Act appeal is
provided for both applicant and respondent. The forum for
preferring appeal against the Magistrate's Order is Sessions
Court. In the case of Abhijit Bhisaseth Auti...Vrs...State of
Maharashtra [2009 Cri.L.J. 889] it is held that, "all orders
under this Act are appealable be they interim or final".
grounds that the orders were illegal since the wife had filed
no separate interim application. Rejecting these arguments
in both cases, the Courts ruled that there was no need for a
separate application for interim reliefs, reiterating that the
technicalities of paperwork and applications should not
impede the quick delivery of justice to women facing
domestic violence.
All above orders passed by the Magistrate shall
be supplied free of costs to the parties concerned and Police
Officer and Service Provider. These are valuable rights
provided to the aggrieved person under the Protection of
Women from Domestic Violence Act, 2005.
Member
Workshop Committee,
Bhandara.
Date:
DISTRICT COURT: BHANDARA
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Questions for discussion in the Workshop to be
held on 25/03/2017.
Subject : Right under the protection of Woman
from Domestic Violence Act (Criminal).
Que. Questions
No.
1) Whether only married woman can claim relief under
the Domestic Violence Act, 2005 ?
Ans. As per Section 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;
As per Section 2(f) “Domestic Relationship” means a
relationship between two persons who live or have, at
any point of time, lived together in a shared
household, when they are related by consanguinity,
marriage, or through a relationship in the nature of
marriage, adoption or are family members living
together as joint family.
A reading of these definitions make it clear that
domestic relationship involves persons belonging to
both sexes and includes persons related by blood or
marriage. Hence, any aggrieved women is entitle to
claim relief under PWDV Act.
2) Whether a case can be filed only against married men
under the Domestic Violence Act, 2005 ?
Ans. Section 2(q) define “ Respondent ” means any adult
male person who is, or has been, in a domestic
relationship with the aggrieved person and against
whom the aggrieved person has sought any relief
under this Act :
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can be joined as respondent.
8) When two petitions filed before same court under
section 125 of Cr.P.C. and u/s. 12 of the Protection of
Women from domestic violence Act. In one
application claim for maintenance has decided finally,
whether that point should be discussed in another
petition for the same issue ?
Ans. While granting maintenance, the quantum of the
relief shall be Fair, Reasonable and Consistence with
the standard of living to which the aggrieved person is
accustomed. Order of maintenance can be passed
including the order under or in addition to an order of
maintenance passed U/Sec. 125 of Cr.P.C. or any other
law.
Thus while granting maintenance in later proceeding,
the order in existence has to be taken into
consideration for deciding the quantum.
9) Whether women can claim monetary relief under
PWDV Act from her fatherinlaw and motherinlaw
when her husband is dead ?
Ans. The definition of “domestic relationship” contained in
Section 2(f) is very wide one. It is a relationship
between a person who live or lived together in a
shared household and are related in any one of four
ways – blood, marriage or a relationship in the nature
of marriage, adoption, or family member of a joint
family. A reading of these definitions make it clear
that domestic relationship involves persons belonging
to both sexes and includes persons related by blood or
marriage.
10) Whether after filing of application by aggrieved
women under Act, DIR is required to be called ?
Ans. In the case of M.Palani vs Meenakshi (AIR 2008
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Madras 162) it is held that, “DIR is not mandatory for
grant of interim relief”.
In Nanadkishor Vinchurkar vs Kavita Vinchurkar
(2009 ALL.M.R 2628) it is held that, “ It is not
necessary in each and every case to obtain report of
Protection Officer”.
In Manoj Changani vs Prema Changani [2012
ALL.M.R.(Cri.) 1201] it is held that, “ Report of
Protection Officer is not mandatory in all cases U/Sec.
12 of PWDV Act. The word shall employed in Sec.12
cannot be allowed to defeat the scheme of the Act”.
11) Husband sentenced for failure to pay arrears of
maintenance amount. After completing his sentence,
when he is released, how the arrears of maintenance
should be recovered when he has no movable and
immovable property in his name ?
Ans. Subsection 3 of Section 125 of Cr.P.C. provides that
“If any person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying
fines, and may sentence such person, for the whole, or
any part of each month's allowance for the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be,
remaining unpaid after the execution of the warrant,
to imprisonment for a term which may extend to one
month or until payment if sooner made.”
12) Whether rights which are not provided under
protection of women from Domestic Violence Act, can
be granted under proceeding of PWDV Act ?
Ans. Section 26 of the Act provides that, any relief
available under section 18,19,20,21 and 22 may also
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be sought in any legal proceeding, before a civil court,
family court or a criminal court, affecting the
aggrieved person and the respondent, whether such
proceeding was initiated before or after
commencement of this Act.
Thus, a relief other than as provided in this act,
cannot be granted under the provisions of this Act.
13) Whether right under PWDV Act can be claimed by
motherinlaw against daughterinlaw or can old
aged mother claim against her son ?
Ans. A motherinlaw or sisterinlaw who is an aggrieved
person, the respondent can only be an “adult male
person” and since his relatives are not within the main
part of the definition of respondent in section 2(q),
residence order passed by the Magistrate U/Sec.
19(1)(c) against female relatives of such person
would be unenforceable as they cannot be made
parties to the peti51tion under the Act.
Under Sec. 20 Magistrate may direct the respondent
to pay monetary relief to the aggrieved person, of
various kinds, mentioned in the section. If the
respondent to be an “adult male person”, and the
money payable has to be as a result of domestic
violence, compensation due from a daughterin law
to a motherinlaw for domestic violence inflicted
would not be available. Old aged mother can claim
maintenance from her son under this Act.
14) Claiming right in property under PWDV Act, whether
it amounts to bypass of other laws and can that be
permitted ?
Ans. Provisions of PWDV Act are meant for immediate
relief to the aggrieved person. No exclusive right to
property can be granted in said proceeding and
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