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TEAM CODE: 62

3RD RGNUL NATIONAL MOOT COURT COMPETITION, 2014

IN THE HONBLE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS,


DISTRICT SINDUSTHAN
U/ 12 of the Protection of Women from Domestic Violence Act, 2005

Complaint No. _____ / 2010

IN THE MATTER OF
Smt. Vimla Devi & Anr. .APPLICANT
Versus
Hari Lal.RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
INDEX OF AUTHORITIES ................................................................................................. III
List Of Cases ........................................................................................................................ III
Statutes .................................................................................................................................IV
Books Referred ...................................................................................................................... V
Articles And Other Authorities ............................................................................................. V
STATEMENT OF JURISDICTION .................................................................................... VI
STATEMENT OF FACTS ................................................................................................... VII
ISSUES RAISED................................................................................................................. VIII
SUMMARY OF ARGUMENTS ........................................................................................... IX
ARGUMENTS ADVANCED .................................................................................................. 1
1.

THE PRESENT COMPLAINT IS MAINTAINABLE. ................................................................ 1


1.1.

DOMESTIC RELATIONSHIP WITHIN THE MEANING OF 2 (F), PWDVA,

2005 .................................................................................................................................... 1

2.

1.2.

NO BAR OF LIMITATION ....................................................................................... 2

1.3.

PWDVA, 2005 RETROSPECTIVE IN NATURE ..................................................... 3

1.4.

CONTINUING CAUSE OF ACTION AGAINST THE RESPONDENT ................. 4

1.5.

THE COURT CAN TAKE COGNIZANCE IN THE INTEREST OF JUSTICE ...... 5

THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE ................................ 6


2.1.

DOMESTIC VIOLENCE AGAINST THE APPLICANT ......................................... 6

2.1.1

Physical abuse:- ................................................................................................... 7

2.1.2

Emotional abuse:- ................................................................................................ 8

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2.1.3

Demand for dowry:- ............................................................................................. 8

2.1.4

Deprivation of all economic and financial resources .......................................... 9

2.1.5

Prohibition or Restriction to continued access of Resources .............................. 9

2.2.
3.

DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA ..................................... 10

THE PETITIONER IS ENTITLED TO THE MULTIFARIOUS RELIEF UNDER THE

PROVISIONS OF PWDVA, 2005 .............................................................................................. 11


3.1.

4.

SHARED HOUSEHOLD vis--vis RESIDENCE ORDER ..................................... 11

3.1.1.

Shared household ............................................................................................... 11

3.1.2.

Residence orders ................................................................................................ 12

3.2.

PROTECTION ORDER ........................................................................................... 13

3.3.

THE PETITIONER IS ENTITLED TO HER STRIDHAN ....................................... 14

3.4.

MONETARY RELIEF.............................................................................................. 14

3.5.

COMPENSATION ORDERS ................................................................................... 17

THE PRESENT COMPLAINT IS NOT BARRED BY PRINCIPLE OF ESTOPPEL ................... 18

PRAYER .................................................................................................................................. X

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INDEX OF AUTHORITIES

LIST OF CASES
A. Ashok Vardhan Reddy v. P. Savitha 2012 (3) ALT (Cri) 163 : 2012 Cri.L.J. 3462 : 2013
(2) Crimes 38 : 2012 (4) JCC 2417.......................................................................................... 12
Azimuddin v. State of U.P. 2009 (2) LRC 150 (All) : 2008 (2) All Cr. R 1953 ...................... 10
Bhagirath Kanoria v. State of M.P. (1984) 2 SCC 222 ........................................................... 10
Bhagirath v. State of M.P. AIR 1984 SC 1688 : (1984) 4 SCC 222 ....................................... 12
Bhai Sher Jang Singh v. Virinder Kaur, 1979 Cri.L.J. 493 ..................................................... 22
Bhandu Mukhti Morcha v. Union of India AIR 1984 SC 802 : (1984) 2 SCC 161 ................ 16
Chandra Kishore v. Nanak Chana, AIR 1975 Delhi 175 ........................................................ 24
Dennison Paulraj v. Mayawinola Paulraj 2009 (2) DMC 252 : 2008 (3) LRC 248 (Mad) ... 10
Gangadhar Pradhan v. Rashmibala Pradhan, 2012 Cri.L.J. 4106 ............................. 11, 13, 20
Gokak Patel v. Dundayya, (1991) 2 SCC 141 : 1991 AIR SCW 505 ..................................... 12
K. Ramaraju v. K. Lakshmi Pratima 2008 (2) ALD (Crl.) 1 (AP) .......................................... 12
Karim Khan v. State of Maharashtra, 2012 (1) JCC 764 ........................................................ 12
M.C. Mehta v. Union of India AIR 1987 SC 1086 .................................................................. 16
Mithu Devi v. Siya Chaudhary................................................................................................. 10
Mohankumar v. Santhamma, 2012 (5) LRC 369 (Ker) ........................................................... 12
Mohit Yadam v. State of Andhra Pradesh, 2010 (1) ALD (Cri.) 1 (AP) ................................. 12
Monika Garg v. Sanjay Garg 2012 (6) LRC 412 (P & H) ...................................................... 10
Natasha Kohli v. Mon Mohan Kohli, 2010 (119) DRJ 44 (Del).............................................. 20
Om Prakash v. State of Rajasthan AIR 2011 (NOC) 368 : 2012 (5) LRC 431 (Raj) ............. 14
Priya v. Shibu, 2009 MLR 274. ............................................................................................... 22
Rajesh Kurre v. Safurabai & Others, 2009 (1) MPHT 37 CHH ............................................. 23

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Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr, 2014 (1) RLW 26 (Raj.).
............................................................................................................................................ 25, 26
Saraswathy v. Babu, MANU/SC/1193/2013 ........................................................................... 11
Sikakollu Chandra Mohan v. Sikakollu Saraswathi Devi, 2010 (2) ALD (Crl.) 391 (AP) ..... 13
Smt. Rekha Sabharwal v. Jitendra Sabharwal 2010 (2) LRC 74 (Del) ................................... 10
Smt. Tripti Mandal v. Subhash Mandal Criminal Revision No.236 of 2008, Uttaranchal High
Court. ....................................................................................................................................... 27
State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908 : (1973) 2 SCC 890 ........................... 12
State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225 : (1977) 2 SCC 83 ............. 15
V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183 .......................................................... 9, 10, 11
Vajresh Venkataray Anvekar v. State of Kerala (2013) 3 SCC 462 ........................................ 19
Vandana v. Mrs. Jayanti Krishnamachari & Others, (2007) 6 MLJ 205 (Mad) .................... 19
Vandana v. T. Srikanth & Others, (2007) 6 MLJ 205 (Mad) .................................................. 20
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 ........................... 20
STATUTES
Code of Criminal Procedure, 1973 ................................................................................ 9, 12, 23
Hindu Adoption and Maintenance Act, 1956 .......................................................................... 24
Hindu Succession Act 1956 ..................................................................................................... 22
Indian Evidence Act, 1872 ....................................................................................................... 27
Protection of Women from Domestic Violence Act, 2005 .................................... 1, 5, 9, 14, 17
The Constitution of India, 1949 ............................................................................................... 15
The Dowry Prohibition Act, 1961 ........................................................................................... 17
The Indian Penal Code, 1860 ................................................................................................... 15
Universal Declaration of Human Rights, 1948 ........................................................................ 10

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BOOKS REFERRED
Dr. Sukanta K. Nanda, Women and Children, The law House, Orissa, 2012 ......................... 14
Indra Jaising, Handbook on Law of Domestic Violence, Lawyers Collective, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2011. .................................................................... 9, 10, 15, 17
Merriam-Websters Dictionary of Law, First Indian Edition, 2005, Goyal Publishers and
Distributors Pvt. Ltd................................................................................................................... 9
Takwani, Criminal Procedure, Lexis Nexis Butterworths Wadhwa, Nagpur, 3rd Edition
Reprint 2012, p. 403................................................................................................................. 10
ARTICLES AND OTHER AUTHORITIES
National Crime Records Bureau Statistics ............................................................................... 19
NFHS-3, The National Family Health Survey (NFHS) ........................................................... 18
Poornima Advani, Curbing domestic violence: Inching Forward, The Hindu, dated
27.06.2006................................................................................................................................ 15

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STATEMENT OF JURISDICTION

The present application is under 12 (1) of the Protection of Women from Domestic
Violence Act, 2005 (43 of 2005) read with 125 and 472 of the Code of Criminal
Procedure1.
The provisions of this act are in addition to, and not in derogation of the provisions of any
other law, for the time being in force.2 The Protection of Women from Domestic Violence
Act, 2005 supplements existing law pertaining to the protection of women from violence.

1
2

Continuing Cause of Action in certain cases.


36, The Protection of Women from Domestic Violence Act, 2005.

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STATEMENT OF FACTS

[1] Harilal married Vimla Devi in 1983 and after few months of marriage, he soon began to
neglect Vimla. Gradually, Harilal and his family members began to demand dowry from the
complainant and her parents. Physical violence and Verbal abuse by Harilal became a routine
in her life. Vimla was sent to her paternal home during her pregnancy by Harilal where she
gave birth to their daughter. Neither Harilal nor the any of his family member came to take
her away. When the child was two months old, the father and brother of Vimla brought her to
the house of Harilal. However, the incidents of ill-treatment, verbal, physical and emotional
abuse at the hands of Harilal aggravated. After a few days of stay at her matrimonial house,
Vimla was driven out by Harilal with her daughter in a cruel manner. [2] In 1994 Harilal
moved the court under Guardianship and Wards Act, seeking the custody of Dolly but the
action initiated by him failed and the court gave the custody of Dolly to Vimla. [3]In
1997, Vimla moved an application before the concerned Gram Panchayat for the provision of
maintenance for herself and her daughter and the Gram Panchayat ordered Hari to pay
maintenance of Rs. 500/- p.m. but not even a single payment was made by him as per this
order. [4]The family unit consisting of Vimla and her daughter lived separately from Harilal
and they were in the list of BPL as maintained with local authorities. [5]On the other hand,
Harilal has been working as a govt. employee and earning a salary of about Rs. 30,000/- p.m.
He had constructed a new house in Bhimpur and has been living there along with his brother.
[6]In 2010, when Dolly completed her education at college level, Vimla initiated an action
against Harilal under the Protection of Women form Domestic Violence Act, 2005 being an
aggrieved person within the definition of the said act.

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ISSUES RAISED

I.
II.
III.

WHETHER THE PRESENT COMPLAINT IS MAINTAINABLE OR NOT.


WHETHER THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE OR NOT.
WHETHER THE APPLICANT IS ENTITLED TO ANY RELIEF UNDER THE PROVISIONS OF
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 OR NOT.

IV.

WHETHER THE APPLICANT IS ESTOPPED FROM FILING THE PRESENT COMPLAINT OR


NOT.

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SUMMARY OF ARGUMENTS
I.

THE PRESENT COMPLAINT IS MAINTAINABLE.

The present complaint is maintainable as there is no bar of limitation to the present complaint
u/12 of the Domestic Violence Act. Moreover, the Act has a retrospective effect an
application by a women who has shared a household in the past but was no longer residing
with her husband and who was subjected to any act of domestic violence prior to coming into
force of the act is maintainable. Also, the applicant has a continuing cause of action against
the respondent herein. Hence, the present complaint is maintainable.
II.

THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE.

The applicant herein had been subjected to domestic violence soon after her marriage. The
respondent committed acts of verbal, emotional and physical abuse on the applicant and even
demanded dowry for her parents. The applicant was thrown out of the matrimonial household
in the year 1986 by the respondent and hence, was deprived of all her matrimonial rights,
therefore, subjected to Domestic Violence.
III. THE APPLICANT IS ENTITLED TO RELIEFS UNDER THE PROVISIONS OF THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.
The aggrieved person has been subject to Domestic Violence by her husband and also has
been deprived of her right of maintenance, right to use the shared household etc., therefore
entitled to multifarious reliefs under the benevolent legislation of PWDVA, 2005.
IV.

THE APPLICANT IS NOT ESTOPPED FROM FILING THE PRESENT COMPLAINT.

The principle of estopple does not apply to the present complaint as the doctrine of estopple
as envisaged under 300 of Cr.P.C. is applicable only in criminal proceedings, on the
contrary, the proceedings in present suit are civil in nature. Also, 115 of Evidence act is not
applicable to the present case.

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ARGUMENTS ADVANCED
1. THE PRESENT COMPLAINT IS MAINTAINABLE.
It is most respectfully submitted, that the present complaint is maintainable as there is no
prescribed period of limitation3 to the present complaint u/12 of the Protection of Women
from Domestic Violence Act, 2005 (herein after referred to as PWDVA). The PWDVA, 2005
is a retrospective4 piece of legislation, hence, an application by a women who has shared a
household in the past but was no longer residing with her husband or who was subjected to
any act of domestic violence prior to coming into force of the act is maintainable. 5 Further,
the applicant herein has a Continuing Cause of Action6 against the respondent as she had
remained economically deprived for want of maintenance and financial support from her
husband since all these years. Therefore, the present complaint is maintainable.
1.1.DOMESTIC RELATIONSHIP WITHIN THE MEANING OF 2 (F), PWDVA, 2005
The PWDVA governs domestic relationships7 and includes within its ambit the
relationships through marriage.8 In the present case, the marriage between parties took place
in the year 1983 and a child was born out of the wedlock in the year 1986.9 Therefore as per
2 (f) of the PWDVA, 2005 it constitutes a domestic relationship by Marriage. The family

A certain period limited by statute after which actions or prosecution cannot be brought into courts,
MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, 2005, Goyal Publishers and Distributors
Pvt. Ltd.
4
An enactment that attaches new disabilities with respect to acts and transactions completed before its
enactment, MERRIAM-WEBSTERS DICTIONARY OF LAW, First Indian Edition, 2005, Goyal Publishers and
Distributors Pvt. Ltd.
5
V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.
6
472 of the Code of Criminal Procedure, 1973.
7
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 a joint family.
8
Indra Jaising, Handbook on Law of Domestic Violence, Lawyers Collective, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.
9
1 Moot Proposition.

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is the natural and fundamental group unit of society and is entitled to protection by society
and the State.10
The applicant is entitled to claim protection as the Act requires only the relationship between
two persons who live or have, at any point of time lived together in a shared household, when
they are related by marriage.11 Since marriage between husband and wife still subsists, the
petitioner and her daughter are entitled to rights available to them under provisions of
Domestic Violence Act even in relation to acts or omissions and commissions on the part of
the respondent pertaining to the period prior to coming into force of the Act. 12 Moreover, it is
the moral and legal duty of the husband to look after his wife and child, which the respondent
has omitted to do in the present case.13
1.2.NO BAR OF LIMITATION
As a general rule, crime never dies and nullum tempus aut locus occurrit regi, i.e., the lapse
of time does not bar the right of the Crown or no time runs against the king.14 The PWDVA,
2005 prescribes no period of limitation in which an aggrieved person15 must bring her
claim.16 The Honble Supreme Court has held that absent an express provision in the statute,
beneficial legislation has no period of limitation.17 An aggrieved person may therefore
claim relief under the Act streaming from unlawful conduct occurring in the past, and
perhaps even the distant past.18

10

Article 16 of the Universal Declaration of Human Rights, 1948.


Azimuddin v. State of U.P. 2009 (2) LRC 150 (All) : 2008 (2) All Cr. R 1953.
12
Smt. Rekha Sabharwal v. Jitendra Sabharwal 2010 (2) LRC 74 (Del).
13
Monika Garg v. Sanjay Garg 2012 (6) LRC 412 (P & H).
14
Takwani, Criminal Procedure, Lexis Nexis Butterworths Wadhwa, Nagpur, 3rd Edition Reprint 2012, p. 403
15
Section 2 (a) of PWDVA: aggrieved person means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the
respondent.
16
Supra, note 8.
17
Bhagirath Kanoria v. State of M.P. (1984) 2 SCC 222; see also Mithu Devi v. Siya Chaudhary (no period of
limitation for maintenance claims).
18
Dennison Paulraj v. Mayawinola Paulraj 2009 (2) DMC 252 : 2008 (3) LRC 248 (Mad); Mohankumar v.
Santhamma 2012 (5) LRC 369 (Ker); V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.
11

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1.3.PWDVA, 2005 RETROSPECTIVE IN NATURE
The PWDVA, 2005 has a retrospective effect and the Honble Supreme Court and various
High Courts in a number of judgments have laid down that an application under 12 of
PWDVA, 2005 is maintainable for acts of the parties prior to coming into force of the act.19
The Honble Supreme Court in the case of V.D. Bhanot v. Savita Bhanot20 held that:
8. The PWDVA, 2005 has a retrospective effect and an application by a women who
has shared a household in the past but was no longer residing with her husband or who was
subjected to any act of domestic violence prior to coming into force of the act is
maintainable.
Again in Saraswathy v. Babu21, the same issue arose before the Apex court in 2013 where the
two judge bench said:
14. We agree with the view expressed by the High Court that in looking into a
complaint under 12 of the PWD Act, 2005, the conduct of the parties even prior to the
coming into force of the PWD Act, could be taken into consideration while passing an order
under 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that
even if a wife, who had shared a household in the past, but was no longer doing so when the
Act came into force, would still be entitled to the protection of the PWD Act, 2005
Furthermore, in Gangadhar Pradhan v. Rashmibala Pradhan22 the court ruled:
20. The plea of the petitioner that the petition filed by the opposite party under 12
of the Act, 2005 is not maintainable on the ground that the Act, 2005 applies only
prospectively, i.e., from the date of coming into force on 26th October, 2006 is totally
misconceived and not sustainable in law

19

Supra, note 5.
Ibid.
21
MANU/SC/1193/2013.
22
2012 Cri. L.J. 4106.
20

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The court has also held the same in Dennison Paulraj v. Mayawinola Paulraj23 ;
Mohankumar v. Santhamma24 ; Mohit Yadam v. State of Andhra Pradesh25. The list of above
cited cases is non-exhaustive and hence, this Honble court can take cognizance of the
present complaint u/12 of the PWDVA, 2005 for the conduct of parties even prior to the
enforcement of the Act of 2005.
1.4. CONTINUING CAUSE OF ACTION AGAINST THE RESPONDENT
A continuing offence is the one which continues from day to day and fresh offence is
committed by the offender so long as the act or omission continues.26 A non-continuing
offence is the one which is committed once for all.27 The respondent in the present case has
omitted his obligation to provide maintenance to his wife and daughter since more than two
decades which is a Continuing Offence under 472 of the Code of Criminal Procedure, 1973
(herein after referred to as CrPC). The continuing state of affairs between the parties since
the act has came into force, ex facie, entitle the petitioner to have the required cause of action
for pursuing a remedy under 12 of the Act for obtaining necessary orders or reliefs.28 Hence,
the applicant has a continuing cause of action against the respondent.
In the case of Karim Khan v. State of Maharashtra29, the justices of Honble High Court of
Bombay held:
8. We have no hesitation to hold that continued deprivation of economic or
Financial resources and continued prohibition or denial of access for the shared household
to the aggrieved person is a domestic violence and the protection under the Act of 2005 will
be available to the wife who was driven out from her husband's shared household prior to
23

2009 (2) DMC 252 : 2008 (3) LRC 248 (Mad).


2012 (5) LRC 369 (Ker).
25
2010 (1) ALD (Cri.) 1 (AP).
26
State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908 : (1973) 2 SCC 890 ; Bhagirath v. State of M.P. AIR
1984 SC 1688 : (1984) 4 SCC 222 ; Gokak Patel v. Dundayya, (1991) 2 SCC 141 : 1991 AIR SCW 505.
27
Bhagirath v. State of M.P. AIR 1984 SC 1688.
28
K. Ramaraju v. K. Lakshmi Pratima 2008 (2) ALD (Crl.) 1 (AP) cited in A. Ashok Vardhan Reddy v. P.
Savitha 2012 (3) ALT (Cri) 163 : 2012 Cri.L.J. 3462 : 2013 (2) Crimes 38 : 2012 (4) JCC 2417.
29
2012 (1) JCC 764.
24

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coming into effect of the Act of 2005, but the deprivation continued even after the Act came
into force.
11. Thus, even if the Woman was in the past in a relationship, she would be entitled to
invoke the provisions of the Act on the basis of continuing cause of action.
Furthermore, in Gangadhar Pradhan v. Rashmibala Pradhan30 the High Court of Orissa
held:
18. Till date of filing of the petition under 12, the petitioner (opp. party herein) was
not granted any of the reliefs sought for in her petition under 12 of the Act, 2005. Therefore,
it is a continuous act of deprivation of petitioner's right. Admittedly, she was not given her
share in joint family properties by the present petitioner. Thus, it is a continuous cause of
action for which the petition filed under 12 of Act
Also, in Sikakollu Chandra Mohan v. Sikakollu Saraswathi Devi31 The learned Judge
observed: even though separation between the parties was prior to the Act coming into
force, still economic abuse by way of deprivation of the aggrieved person, of right to
residence and right to maintenance etc., would continue both before and after the Act coming
into force and hence, it cannot be said that the mother has no cause of action to maintain the
domestic violence case after the Act coming into force.
1.5.THE COURT CAN TAKE COGNIZANCE IN THE INTEREST OF JUSTICE
According to 3 of the PWDVA, 2005 the court should look into the overall facts and
circumstances of each case.32 And the facts of the present case required that the court should
take cognizance of the matter in the interest of justice.
Emphasis is laid on 473 of the CrPC which stipulates the extension of period of limitation in
certain cases:

30

2012 Cri. L.J. 4106.


2010 (2) ALD (Crl.) 391 (AP).
32
Explanation II, 3.
31

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Notwithstanding anything contained in the foregoing provisions of this Chapter, any court
may make cognizance of an offence after the expiry of the period of limitations, if it is
satisfied on the facts and in the circumstances of the case that the delay has been properly
explained or that it is necessary so to do in the interests of justice
Hence the present complaint is maintainable.
2. THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE
The applicant in the present matter had been subjected to physical, verbal and emotional
abuse by the respondent soon after her marriage. The respondent herein demanded dowry
from the applicant and her parents several times after her marriage. Even after a child was
born to the wedlock, the respondent continued to commit acts of Domestic Violence on the
complainant. In the year 1986, he threw the applicant out of the matrimonial house and since
then she has been living on her own.33 The respondent has for years deprived the applicant of
resources or facilities which she is entitled to use or enjoy by virtue of the domestic
relationship subsisting between the parties.34 The respondent has deprived the applicant of
all economic and financial resources and her right of maintenance.35 Hence, this conduct of
the respondent amounts to domestic violence.
2.1.DOMESTIC VIOLENCE AGAINST THE APPLICANT
Domestic Violence in its wider sense means use of force upon any member of the family by
other members and thus includes all types of physical and mental cruelties. Domestic
Violence is more than a crime and it is a serious violation of Human Rights. 36 It has been
rightly remarked that domestic violence is pernicious because it is directed against women
who are supposed to carry the generations forward and goes against all cannons of civilized
behavior. It is insidious because it takes place within the closed walls of the home, which is

33

1 Moot Proposition.
Violation of 3 of Protection of Women from Domestic Violence Act, 2005.
35
Om Prakash v. State of Rajasthan AIR 2011 (NOC) 368 : 2012 (5) LRC 431 (Raj).
36
Dr. Sukanta K. Nanda, Women and Children, The law House, Orissa, 2012.
34

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supposed to be the safest sanctuary for its occupants.37 Hence, the courts should impose a
high penalty on the individuals who cause such a menace.
2.1.1 Physical abuse:Explanation I (i)38 defines physical abuse as provided in 3 (a) of the PWDVA, 2005. In
order to constitute physical abuse, the conduct must either: a) Cause bodily pain or harm; b)
Endanger life, limb, or health; or c) Impair the aggrieved persons health or development.39
a) Cause bodily pain or harm: Under the penal law, whoever causes bodily pain, disease or
infirmity to any person is said to cause hurt.40 The applicant had been subjected to
physical violence soon after her marriage by the respondent due to his unfulfilled dowry
demands.41
b) Endanger life, limb, or health: The Constitution of India provides right to life which
includes the right to health.42 The respondent continued to commit his acts of ill-treatment
even when the applicant returned home after the delivery of the child. A woman being
subjected to physical violence just after a few days of delivery of her child was an
atrocious, insensitive and dreadful act by the respondent.
c) Impair the aggrieved persons health or development: The right to life includes the right
to live with human dignity and right to a healthy environment. 43 The respondent in the
present case has deprived the applicant of a stable life, mental peace, and her right to use
the shared household.

37

Poornima Advani, Curbing domestic violence: Inching Forward, The Hindu, dated 27.06.2006.
Physical abuse: 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.
39
Supra, note 8.
40
319, Hurt defined, The Indian Penal Code, 1860.
41
1, Moot Proposition.
42
State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225 : (1977) 2 SCC 83.
43
M.C. Mehta v. Union of India AIR 1987 SC 1086 ; Bhandu Mukhti Morcha v. Union of India AIR 1984 SC
802 : (1984) 2 SCC 161.
38

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2.1.2 Emotional abuse44:The respondent has caused immense amount of mental torture and emotional abuse to the
respondent within 3 of the PWDVA.45 The respondent demanded dowry from the applicant
and her parents.46 Also, he threw the applicant out of the matrimonial household on a baseless
allegation that Dolly is not his child. Later on, he filed a suit to obtain the custody of
Dolly.47 These two contradictory acts on behalf of the respondent clearly indicate that his
intention was to cause distress and humiliation to the applicant herein due to his unfulfilled
dowry demands.
Furthermore, the applicant was sent to her matrimonial home during her pregnancy where she
gave birth to her child, neither the respondent nor any of his family members came to take her
away. This conduct signifies their cold and male-chauvinist attitude toward the applicant and
her daughter respectively. Similarly, there have been many circumstances when the applicant
has faced enormous amount of emotional trauma being the wife of the respondent.
2.1.3 Demand for dowry:Any act, omission or commission or conduct of the respondent shall constitute domestic
violence in case it 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.48 Demand of dowry from one party to a marriage to the
other party to the marriage is also an offence under The Dowry Prohibition Act, 1961. In the
present case, soon after the marriage between the parties the respondent and his family

44

Acts of emotional violence by the husband against the wife include: saying or doing something to humiliate
her in front of others, threatening to hurt or harm her or someone close to her, or insulting her or making her
feel bad about herself
45
1, Moot Proposition.
46
Ibid.
47
2, Moot Proposition.
48
3 (b), The Protection of Women from Domestic Violence Act, 2005.

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members began to demand dowry from the applicant and her parents.49 Hence, it constitutes
Domestic Violence u/3 (b) of the PWDVA, 2005.
2.1.4 Deprivation of all economic and financial resources
The legislature has simply signaled its understanding that economic abuse is visited upon the
women in many forms, and that regardless of the form; such abuse is not to be tolerated at
all.50 Explanation I51 of 3 of PWDVA, 2005 constitutes a non-exhaustive list of types of
economic abuse that constitute domestic violence. The heart of the matter is denial of basic
entitlements and necessities like: (i) Failing or refusing to provide money for maintaining the
women and children, (ii) Not providing food, clothes, medicines, or other necessities for the
women or for the children, (iii) Expelling the woman from the household, (iv) Forbidding the
use of clothes or general household articles.52
Economic abuse, refusal to provide maintenance, house accommodation or financial
resources or such other facilities as the applicant is entitled to from the husband without there
being any physical violence amounts to domestic violence within the said definition of
Domestic Violence under 3 of the Act of 2005.53
2.1.5 Prohibition or Restriction to continued access of Resources
The respondent has prohibited and restrained the applicant of continued access to the
resources or facilities which she was entitled to use by virtue of their domestic relationship
and hence, has committed an offence under 354 of the PWDVA, 2005.

49

1, Moot Proposition.
Statement of Object and Reasons, Protection of Women from Domestic Violence Act, 2005.
51
Economic abuse: 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.
52
Supra, note 8.
53
Karim khan v. State of Maharashtra 2012 (1) JCC 764.
54
3, Explanation I: 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.
50

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The applicant was driven out in a cruel manner from her matrimonial house after a few days
of her stay by the respondent in the year 1986 and since then she has been living on her own
with her daughter.55
Henceforth, it is vehemently contended that the respondent has committed an act of domestic
violence by depriving or prohibiting the applicant of continued access to shared household
and resources which she is entitled to use or enjoy by virtue of their domestic relationship.
2.2.DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA
Female feticides, domestic violence, sexual harassment and other forms of gender-based
violence constitute the reality of most girls and womens lives in India. The primary object
of the legislature was to enact a law keeping in view the rights guaranteed under Article 14,
15, 21 of the Constitution of India to provide for a remedy under the civil law which is
intended to protect the women from being victims of domestic violence and to prevent the
occurrence of domestic violence in the society.56
According to National Family Health Survey57 nearly two in five (37 percent) married
women have experienced some form of physical or sexual violence by their husband. Overall,
one-third of women age 15-49 have experienced physical violence and about 1 in 10 have
experienced sexual violence. This figure translates into millions of women who have
suffered, and continue to suffer, at the hands of husbands and other family members.58
According to a latest report prepared by Indias National Crime Records Bureau (NCRB), a
crime has been recorded against women in every three minutes in India. Every six hours, a
young married woman is found beaten to death, burnt or driven to suicide.
55

1 Moot Proposition.
Supra, note 5.
57
NFHS-3, The National Family Health Survey (NFHS) is a large-scale, multi-round survey conducted in a
representative sample of households throughout India.
58
Acts of physical violence by the husband against his wife include: pushing, shaking, throwing something at
her, slapping, arm twisting, hair pulling, punching, kicking, dragging, beating, trying to choke or burn her on
purpose, and threatening her or attacking her with a weapon. Acts of sexual violence by the husband include
physically forcing the wife against her will to have sex or perform other sexual acts that she did not want to
perform.
56

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There is a phenomenal rise in crimes against women and the protection granted to women
under the Constitution of India and other laws can only be meaningful if those who are
entrusted with doing justice are sensitized towards womens problems.59
3. THE PETITIONER IS ENTITLED TO THE MULTIFARIOUS RELIEF UNDER THE
PROVISIONS OF PWDVA, 2005
The aggrieved person has been subject to Domestic Violence by her husband and has been
economically deprived of her right of maintenance, therefore, entitled to different reliefs
under the benevolent legislation of PWDVA, 2005. The petitioner has, therefore, the right to
reside in a shared household under 17, protection orders under 18, residence orders under
19, monetary relief under 20 and compensation orders under 22 of the PWDVA, 2005.
3.1.SHARED HOUSEHOLD VIS--VIS RESIDENCE ORDER60
3.1.1. Shared household
In the case of Vandana v. Mrs. Jayanti Krishnamachari & Others61, the Madras HC
propounded that to be entitled to protection under 17, a woman will have to establish two
facts, namely:
(i) that her relationship with the opposite party is a domestic relationship and (ii) that
the house in respect of which she seeks to enforce the right is a shared household.
Under 17 (1)62, the petitioner have a right to reside in the shared household with the
respondent as she was in a domestic relationship with him. The significance of the right of a
wife to reside with her husband was expressed by the Supreme Court in the case of Vimlaben
Ajitbhai Patel v. Vatslaben Ashokbhai Patel63 , where it was held that the Act, 2005 provides

59

Vajresh Venkataray Anvekar v. State of Kerala (2013) 3 SCC 462.


17 and 19, PWDVA, 2005.
61
(2007) 6 MLJ 205 (Mad) Para 15.
62
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a
domestic relationship shall have the right to reside in the shared household, whether or not she has any right,
title or beneficial interest in the same.
63
(2008) 4 SCC 649, Para. 27. See also; Gangadhar Pradhan v. Rashmibala Pradhan 2012 Cri. L.J. 4106;
Natasha Kohli v. Mon Mohan Kohli, 2010 (119) DRJ 44 (Del).
60

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for a higher right in favour of the wife, who not only acquires a right to be maintained but
also there under acquires a right of residence which is a higher right.
Madras HC in Vandana vs. T. Srikanth & Others,64 held that for claiming the right it is not
necessary for a woman to establish her physical act of living in the shared household, either
at the time of institution of proceedings or as a thing of the past. Though the respondent has
moved out of the joint family house and constructed a new house does not in any way curtail
the petitioners right to have a shared household.
3.1.2. Residence orders65
These are orders passed to stop the woman from being dispossessed from the shared
household, and to stop or prevent any act that denies her the right of peaceful occupation in
the household. These orders detail the living arrangements of the aggrieved person and the
respondent, in such a way that the woman is not subjected to further acts of domestic
violence. The complainant had been subjected to verbal, physical and emotional abuse after
their marriage and the complainant has been driven out of her matrimonial house on many
occasions by the respondent. During applicants pregnancy she was sent to her parents house
where she gave birth to her daughter and when the daughter was two months old she came
back to her matrimonial house where the conduct of ill treatment continued upon her and
thereafter she was driven out of the matrimonial home by the respondent.
As there has been a history of subjecting the complainant to domestic violence and driving
her out of the shared household by the respondent, the court must pass an order of residence
restraining the respondent from dispossessing or in any other manner disturbing the
possession of the complainant from the shared household66, restraining the respondent or any
of his relatives from entering any portion of the shared household in which the complainant
64

(2007) 6 MLJ 205 (Mad).


19 of PWDVA, 2005.
66
19(1) (a). restraining the respondent from dispossessing or in any other manner disturbing the possession of
the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest
in the shared household.
65

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reside67 and restraining the respondent from alienating or disposing off the shared household
or encumbering the same68 so that she can enjoy her right to reside in a shared household
peacefully.
3.2.PROTECTION ORDER69
Protection order as under PWDVA, 2005 under 18 states:
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of
being heard and on being prima facie satisfied that domestic violence has taken place or is
likely to take place, pass a protection order in favour of the aggrieved person and prohibit
the respondent from-
18 states that when the court is satisfied prima facie domestic violence has taken place or is
likely to take place, a protection order may be passed, which means that the magistrate will
pass the protection order only when he feels that the domestic violence is taken place or
likely to take place. It must be brought to the notice of this Honble Court that whenever the
petitioner has resided with the respondent in a shared household, she has always been
subjected to violence and ill-treatment by him.70 As stated in the facts that soon after the
marriage, the petitioner was subjected to physical violence on the pretext of dowry demand.
The Supreme Court in V.D. Bhanot v. Savita Bhanot71, has held that, prior conduct of the
parties has to be taken into consideration while passing an order under 18, 19 and 20 of
the Act. As the respondent has a history of subjecting the petitioner to domestic violence
whenever she has resided with him, it is pertinent to pass order of protection under 18 of the
PWDVA, 2005.

67

19(1) (c). restraining the respondent or any of his relatives from entering any portion of the shared household
in which the aggrieved person resides.
68
19(1) (d). restraining the respondent from alienating or disposing off the shared household or encumbering
the same.
69
18, PWDVA, 2005.
70
1 Moot Proposition.
71
(2012) 3 SCC 183,Para. 8. See also, Dennison Paulraj v. Mrs. Mayawinola, 2008 (3) JCC 1577.

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Henceforth, she is entitled to security and protection order in her favor so that no further acts
of violence takes place and she is protected from the same.
3.3.THE PETITIONER IS ENTITLED TO HER STRIDHAN72
The word Stridhana is derived from Stri (woman) and dhana (property). Stridhana means
womans property, that is to say, properties over which a woman has got absolute power of
disposal.73 When an Indian woman is married, she comes to her husband's home with lots of
gifts including movable and immoveable property. All these things are considered to be the
srtidhan of the bride and she has absolute right over the same.
When the marriage took place between the petitioner and the respondent in the year 1983
there were certain articles and a certain amount of money which was given to the petitioner.
After the petitioner was driven out of the matrimonial house by Harilal, the stridhan was kept
by the respondent and he never returned the same. Till date, the stridhan remains in the
possession of the respondent. Punjab HC in Bhai Sher Jang Singh v. Virinder Kaur74 held
that the groom side is bound to return all the items including property, ornaments, money and
other belongings offered by the brides side at the time of marriage, if claimed.
19(8)75 of the Act empowers the magistrate to restore the stridhan of the petitioner.
Therefore it is vehemently contended that this Honble Court direct the respondent to pay the
amount of stridhan to which she has been deprived since years by the respondent.
3.4.MONETARY RELIEF76
Under 2077 of PWDVA, 2005, the aggrieved person is also entitled to get monetary relief to
meet the expenses incurred and loss suffered as a result of the domestic violence. The ambit
72

19(8), PWDVA, 2005.


14 (1) of the Hindu Succession Act 1956.
74
1979 Cri.L.J. 493. See also, Priya v. Shibu, 2009 MLR 274.
75
(8) The magistrate may direct the respondent to return the possession of the aggrieved person her stridhan or
any other property or valuable security to which she is entitled to
76
20, PWDVA, 2005.
77
(1) While disposing of an application under sub-section (1) of 12, the Magistrate may direct the respondent
to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child
of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited
73

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of 20 is very wide as the relief provided herein is not limited to the loss of earnings, medical
expenses, maintenance etc.
In the case of Rajesh Kurre v. Safurabai & Others78, the HC of Chhattisgarh observed;
The words of provisions under 20 of the Act are clear, plain and unambiguous. The
provisions are independent and are in addition to any other remedy available to the
aggrieved under any legal proceeding before the Civil Court, Criminal Court or Family
Court. The provisions are not dependent upon 125 of the CrPC or any other provisions of
the Family Courts Act, 1984 or any other Act related to award of maintenance.
First and foremost the respondent has been negligent and ignorant in discharging his duties as
a husband and a father. He has for years deprived the petitioner and her child, of their right to
maintenance. Therefore she is denied of her right of maintenance for which she is entitled to
get monetary relief under this law, as the economic abuse continues.
Secondly in the year 1994 Hari moved to the court to obtain the custody of Dolly under
Guardianship and Wards Act. As a consequence thereof the action was contested by Vimla
and being economically poor she incurred a lot of expenses to contest the same.
Thirdly, when Vimla moved an application before the Gram Panchayat of Bhimpur for the
provision of maintenance for herself and her daughter, the Gram Panchayat passed an order
directing the respondent to pay maintenance of Rs. 500/- per month. Not even a single
payment is made the respondent till date.
Furthermore, it becomes pertinent to note that the name of Vimla and her daughter was struck
off from the family registers maliciously by the respondent so that later on he can claim that
he bore no responsibility of the petitioner and their daughter and that it was the petitioner

to, (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved
person as well as her children, if any, including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
78
2009 (1) MPHT 37 CHH.

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who started living separately and not the respondent so as to escape the responsibility of
maintaining the petitioner and their daughter.
Daughter can claim maintenance from her parents so long as she is unmarried. Sub section
(3) of 2, Hindu Adoption and Maintenance Act gives statutory recognition to the rule under
the prior law that a Hindu male or female is under an obligation to maintain his or her
unmarried daughter regardless of age so long as she is not able to maintain herself.
In Chandra Kishore v. Nanak Chana79, Delhi HC has held that the obligation of a Hindu
father includes the obligation to maintain unmarried daughter not only for purpose of her day
to day expenses but also in respect of reasonable expenses of her marriage. Thus a Hindu is
obliged to meet marriage expenses of his daughter.
Moreover, Harilal has been working as government employee and earning a handsome salary
of Rs. 30,000/-. He has also constructed a new house which signifies his strong economical
condition.
In Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr.80 , court held that;
20 empowers the Magistrate to pass appropriate orders extending monetary relief to the
aggrieved person or any child of the aggrieved person to meet the expenses incurred or any
losses suffered as a result of domestic violence. Needless to say that even if the domestic
violence was committed prior to the coming into force of the Act, the cause of action accrued
to the aggrieved person to seek the relief under 20 of the Act, may persist.
Therefore it is contended that the this Honble Court keeping in mind the economical
conditions of both the parties pass the order of monetary relief for welfare of the petitioner
and her only child.

79
80

AIR 1975 Delhi 175.


2014 (1) RLW 26 (Raj.) : 2013 (4) WLN 306.

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3.5.COMPENSATION ORDERS81
PWDVA, 2005, empowers the magistrate to pass compensation orders under 2282 in favour
of the aggrieved person for the damages sustained as a result of any injury including mental
torture and emotional distress caused by the acts of domestic violence committed by the
respondent.
The petitioner has faced an immense amount of mental torture as she has been living alone
since a very long time. She has not led a normal life which a girl expects to have after her
marriage and have faced to a lot of hardship. She has not enjoyed the fruits of a peaceful
married life and was subjected to the devilish and inhuman attitude of her husband.
She has lived without a man for all these years and has molded her live in order to sustain
herself and her daughter. Its only because of her individual efforts and hard work that her
daughter is able to complete her higher education.
In Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr.83 , the Honble High
Court of Rajasthan observed:
It is pertinent to note that 22 makes the provision for grant of compensation and damages
to the aggrieved person for injuries including torture and emotional distress caused by the
act of domestic violence by the respondent. As observed hereinabove, any physical or sexual
abuse may be the cause of torture and emotional distress and that apart, the emotional abuse
may give rise to a recurring cause of action to the aggrieved person, for the reliefs specified
and therefore, the actual act of domestic violence being committed before or after the coming
into force of the Act and the subsisting domestic relationship between the parties, are hardly
of any relevance so far as grant of the relief as specified under 22 of the Act is concerned.

81

22, PWDVA, 2005.


Compensation order - In addition to other reliefs as may be granted under this Act, the Magistrate may on an
application being made by the aggrieved person, pass an order directing the respondent to pay compensation
and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic
violence committed by that respondent.
83
2014 (1) RLW 26 (Raj.) : 2013 (4) WLN 306.
82

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The court must take a note that it was the respondent lawful duty to fulfill the needs of his
family but he failed to do so and must compensate for the same.
4. THE PRESENT COMPLAINT IS NOT BARRED BY PRINCIPLE OF ESTOPPEL
The principle of estoppel cannot be applied in the present matter and the complainant cannot
be estopped from claiming the aforesaid reliefs under the PWDVA, 2005. The principle of
"autre fois acquit and autre fois convict" is applicable in the criminal proceedings, as
envisaged under 300 of the Cr.P.C. The ratio, as laid down by the Hon'ble Apex Court and
various High Courts, is healthy in its place where the question is to be determined for
acquittal or conviction of an accused after a retrial. The proceedings of PWDVA, 2005,
which are semi-civil in nature, cannot be equated with a criminal trial where the adjudication
is based upon a strict proof.
The present complaint is also not barred by the principle of estoppel as envisaged under 115
of the Indian Evidence Act, inasmuch, as the applicant seeks maintenance under PWDVA,
2005, in which the maintenance awarded would be included in or in addition to maintenance
already provided under other laws such as 125 Cr.P.C. and matrimonial laws. The earlier
order passed by the Gram Panchayat was also not complied by the respondent and not even a
single payment was made by him as per the order.
The principle of estoppel will not be applied to the fact that the respondent moved the Court
under Guardianship and Wards Act seeking custody of his daughter. But the applicant during
contesting for the same admitted in the Court that she will be able to fulfill the basic
requirements of dolly but she did not have enough income source to support her daughters
education on her own.
In the case of Smt. Tripti Mandal v. Subhash Mandal84, a similar situation arose, where the
respondent (wife) filed a petition under 125 Cr.P.C. and was awarded maintenance, against

84

Criminal Revision No.236 of 2008, Uttaranchal High Court.

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which a revision was sought by the husband. He contended that the petition is barred by
estoppel as she had earlier filed a case seeking maintenance and he entered into a
compromise out of court with the respondent granting a lump sum amount of Rs. 4000/- and
he also procured an undertaking from the respondent waiving to recover any amount further.
The court held that the principle of estoppel will not be applied and that it was the primary
responsibility of the revisionist to maintain the respondent, which he failed to do so and there
is nothing wrong, if being constrained to meet the both ends meal, she has filed the petition
u/125 Cr.P.C.

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PRAYER

Therefore in the light of the issues raised, arguments advanced, reasons given and authorities
cited, the Honble Court may be pleased:

I.
II.

TO HOLD THE PRESENT COMPLAINT IS MAINTAINABLE.


TO

PASS AN ORDER OF MAINTENANCE U/

125

OF CR.P.C.

IN

FAVOR OF THE

COMPLAINANT

III.

TO PASS AN ORDER OF RESIDENCE IN FAVOR OF THE COMPLAINANT.

IV.

TO GRANT MONETARY RELIEF AND COMPENSATION TO THE COMPLAINANT.

V.

TO

DIRECT THE RESPONDENT TO RESTORE THE STRIDHAN BELONGING TO THE

COMPLAINANT.

And pass any other relief that the Honble Court may be pleased to grant and for this act of
kindness the counsels for the appellant shall forever humbly pray.

All of which is Respectfully Submitted.

Sd/Counsels for the Applicant

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