The linked judgment below of Karnataka High Court below says that if the order under PWDVA (Protection of Women from Domestic Violence Act, 2005) is not an ex-parte order, then even to grant interim relief to the petitioner (wife), the court must conduct an inquiry as would be required in a CrPC summary trial, that is, summons case. This means that husband will be allowed to give his basic evidence etc and any order will be passed only after that.
The judgment is available only in scanned PDF format, so text cannot be extracted. Link to PDF below:
Krishna Murthy Nookula vs Y Savitha – Karnataka HC Judgment (PDF)
Case Number: CRL.RP 815/2009
Judge(s): JAWAD RAHIM
Petitioners: KRISHNAMURTHY NOOKULA
Respondents: SAVITHA Y
Date of Judgment: 9-Dec-2009
Bench: Bangalore
The order was based on reading of Section 23 and Section 28 of PWDVA given below. Sec 23 (2) allows the grant of ex-parte order based on affidavit of petitioner.
Section 28(1) clearly says that all proceedings under DV Act will be as per Code of Criminal Procedure (CrPC). It also allows the court to lay down its own procedure but only for sub-section 23(2) which relates to grant of ex-parte order. So court cannot create its own procedure for grant of relief if notice to respondent/husband is already issued.
So if you have received a notice under DV Act, then file your statement/objection and use this judgment to make sure that orders for relief are passed only after your evidence is taken up by court.
In Karnataka, this judgment has to be followed by all the lower courts. In other states, it is not mandatory but this judgment can be shown as a precedent of another high court to get similar relief.
23. Power to grant interim and ex parte orders.—
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
Read my maintenance book (DV and CrPC 125) if you want to save HARD EARNED money (Kindle eBook version) (Print Paperback version)
Download my free PDF eBook Surviving the Legal Jungle
Don't be a lone ranger... JOIN our Facebook group to connect
Read this FREE eBook written by fathers involved in child custody issues(PDF book)
Section 28 – Procedure.
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
In DV case a JMFC passed an interim order against husband to provide jewelry to his wife(applicant) without any inquiry or documentary proof, and wife(applicant) putted an execution application to the same JMFG, but the fact and actual thing is *That particular item jewelry is not in the possession of husband(Non-application) , his wife(Applicant)has already taken that jewelry at the time of deserting her husband 2 years back* What to do… 1) interim order date was :- april 2016 and the execution application date is july 2017, i also lost the date of appeal…. PLEASE HELP ME FOR THAT….
For such delay/lapses in reply to their DV complaint, you have to go via advocate. As to the reason why you didn’t add this fact in WS, you yourself to answer to court.
can adismissed D.V. case be restored under section 25 of D.V. act ?
To my knowledge, it is only for alteration of existing orders
Thanks for sharing this, but am I the only one who is unable to read the PDF in the link? It appears all jumbled up and undecipherable.
Can you also answer this query for me please – for interim maintenance purposes in a DV case, can the wife demand the husband to submit his income proof – like salary payslip etc? Any similar cases you can point me to would be highly appreciated.
the PDF is as it is so I can’t help more than that. For such queries, you can join the groups; and best way to connect with others on similar case too.
Hlo sir, please help me
I have got married on 26 Nov 2015. One the next night of marriage she demanding me to give 4 lacs for her family, when I denied to give she started to abuse me and my family very worst language. Even she also slapped me on same night .we did not make any physical relation also. she went away in morning to her home.and on 28 nov 2015 she made a false FIR. That we are demanding 20 lacs dowry.now she also file a case of domestic violence sec 20 nd 12 against me and dowry demand also. She also made same case in caw cell. She is demanding 20,000 rs per month. Sir I m very simple and belong to middle class family.
Please suggest.me …please .
>> Sir I m very simple and belong to middle class family.
Maybe it’s time stop believing in this “I’m simple/middle-class, so police/courts will trust me and help me get me out of this…”. You have both DV case and probably criminal case on the way against, so your status is that of an accused, which doesn’t mean guilty though.
To reduce/deny maintenance, you may want to read my book: http://www.amazon.in/dp/B00VCA7YDS/ref=nosim?tag=menrigind-cm_mnt-21
For criminal /CAW, you have to deny all false allegations, and don’t give in to any pressure/compromise/bring-wife-back-things-may-sort-out-this-time type of drama etc.
you can Join the groups
Hi,
I got married in September 2014. She never cooperated for consummation of marriage saying she has back pain for 3 months. She went home in jan 2015 and told her parents I’m Impotent. Immediately they came to us saying she will not live with me and started demanding lot of money. They were never ready to listen to us. After trying to mediate for a couple of months we filed RCR in family court in April 2015. Immediately after a week My wife has filed a false domestic violence case against me which she is demanding rs 30,000 pm interim maintenance and also a compensation of 50 lakhs. After one counselling in family court they filed annulment of marriage owing to impotency of respondent again demanding permanent alimony of 50 lack in family court also. Hearings are going to start in family court next month.
Meanwhile we got summons for the DV case hearing next month. She is not working but has an bachelor of engineering degree. My lawyer in the Dv case is suggesting mention my salary as 25k though it is 50K. I some how feel it can be easily disproved( she knows where I work and how much I earn).
Can you please suggest on showing fake income in my counter to her DV case and how to handle both these cases ( she is separately demanding 50 lac in both the cases amounting to 1 crore!!!)?
It’s difficult to give ‘useful tips’ when you don’t have the basics right. Suggest to read my maintenance book (see link on right sidebar). 50 lakh or 50 crore — doesn’t matter if you fight well. Courts are not there to fulfill your wife’s daydreams.
Keeping RCR open could mean you are condoning her past behaviour.
Annulment possible only if filed before 1 year. Read my divorce book in case you have doubts
this is my son’s case. 2.7.2001 marriage. August 2001 went to USA. (boy & girl) twins Jan 2004 in USA. Obtained USA citizenship. daughter-in-law and children came to India April 2010 and children admitted in school. Son returned Sep.2010 and worked in Chennai for 10 months. d-in-law, children and my son all living together in one house since June 2011. Due to certain abnormal behaviour of our d-in-law we called her parents on 13.1.2012. They came 18.1.2012 and took her to their place for 10days. 27.1.2012 they brought her and left with us. Though it was mutually agreed that they would take her and give treatment and then send her back. But they did not do that. when repeatedly asking for reasons they just took her to their place saying they would provide treatment. within 3 weeks they said treatment was over and they would bring her back. when we asked about doctors’ report they could not give us but they said that they are not sending her back to our house. After 13 months d-in-law filed D.V. case on 14.3.2013 and got ex-parte order for interim maintenance. we were not aware of this till 31st march 2013 when they filed 498a and police called us. we went to session court who directed the magistrate court to conduct trial and decide the interim maintenance. and kept the order passed by magistrate was kept aside. d-in-law went to appeal in High court and high court also upheld session court order. Again magistrate court without referring our written reply passed the order with 10% more in July 2015. Please advise me how to go ahead from here?
If I understand correctly, your contention is that magistrate court is passing orders against session and HC orders, so basically magistrate court is in contempt of higher courts’ ordrers. You can check with lawyers on how to proceed, maybe they can suggest some action against judge.
On the other hand, giving maintenance to wife and 2 children doesn’t seem so bad on humanitarian grounds, maybe that’s what the judge is thinking.
बहुत ही उपयोगी विधिक जानकारी उचित रुप मे तत्काल मिल रही हे!
You are right. I haven’t seen another citation for interim maintenance under DV without any other riders. Thank you.
For your reference (since I can’t upload citation) no interim maintenance for wife who was working in the past is the closest I could come; first by Metropolitan Magistrate then Delhi HC.
DV no interim – IN THE COURT OF MS. POOJA TALWAR METROPOLITAN MAGISTRATE – Damanpreet Kaur vs Indermeet Juneja
DV no interim – Delhi HC 2012- Damanpreet Kaur vs Indermeet Juneja
There are many such judgments to disallow maintenance to working wife, or one who worked in the past, though those are rarer.
However many husbands do not produce the right evidence, or at the right time, or with full force, thereby losing out and end up paying (high) maintenance to parasitic wives. Instead they keep searching for some citation which will guarantee no maintenance to wife! Cases are won based on evidence, not citations.
Children are with me. d-in-law was working before marriage and at the time when she was filing 498a on 31.3.2013 she had given affidavit to police stating she is working and before magistrate also her advocate confirmed that she is working and earning Rs.18,000/- per month but magistrate did not mention in his order. though she had submitted doctor’s certificate stating she had under gone treatment and from June 2012 she has no problem. but magistrate mention in his order the interim maintenance inclusive of medical expenses. now what to do?
Thanks a lot. It’s a good citation. But still the money he deposited in court was allowed to be withdrawn by the wife (respondent). Do you have other citations which says no interim maintenance at all until DV is proven. In my case no kids and she is BE and MBA in HR. Was working in the past but not now.
Money to be withdrawn maybe this specific case, that doesn’t distract from the main point that no interim order without enquiry into DV allegations. The order does not say that enquiry into DV allegations will need to be done ONLY IF money deposited by respondent. That’s just specifics of this case, we don’t know the previous case history.
This judgment clarifies a point about DV law by plain reading of the statute, so I don’t see need of collecting 10 similar citations because they will all be the same as this. But I am not aware of anything like this from another HC. Either wait for citation or create it in your state.
One the main thing every husband accused under DV Act should do during first appearance in front of the Magistrate is to obtain the petition copy that is served. Then carefully check if the petition is just the Form II affidavit or does it also include Form I and Form III along with it. Form I is domestic incident report (DIR similar to FIR for Criminal cases) and Form III is an affidavit from wife saying she is under immediate threat to her life and needs protection and ex-parte interim order for maintenance. Without Form III the Magistrate by law is NOT AUTHORISED to grant ex-parte order. Form I is where the exact date, time, place, and person causing DV is documented. This is usually filled by a Protection Officer (public official appointed by State Govt) and it must be filled usually within 24 hours of an incident being reported. The PO must sign this form and send a copy of this form to local police station, magistrate and service providers. If this was not done or PO never signed a Form I for the alleged incident, then wife CANNOT file Form III and Magistrate therefore CANNOT issue ex-parte interim maintenance order simply based on Form II affidavit of domestic violence complaint. Cooking up this form in future with old dates is very difficult due to lack of witness support and often neighbours where incident is alleged to have happened will say otherwise in support of husband’s family. So its a risk for PO or Magistrate to cook this up later – they can loose they jobs. Also Form I and III forces wife to actually declare the exact address and dates of shared household relationship and in cases where there were many changes some contradiction is bound to surface to your advantage.
A certified copy of the petition with all forms can be obtained from the court clerk or section officer as its required for any future Stay or Quash petitions. This protection in Form I and III are carefully built into the DV act but due to ignorance of the public and lawyers at large and given the “settlement culture” most have no experience of having gone this far in litigation.
If Form I or III are missing or Form II claims by wife/woman DOES NOT match Form I or III claims, then immediately apply for a Stay order of interim order or DV case itself in Sessions or High Court. Most High Court filing section staff will insist on Form I, II and III coming together while filing for Stay or Quash of DV cases.
Once Magistrate or wife’s lawyer learns about High Court asking for Form I and III and they did not review it before getting the ex-parte interim order passed, you will usually see panic as they know the game is up and they will soon get caught and will be willing to settle the case or even get it dismissed with prejudice. Its usually a good idea to goto the section officer on first hearing date and get him/her to give in writing if Form I or III is missing. Use your Smartphone, switch on video recording or have someone do it and record that entire conversation with you mentioning the date and time and place where you are somewhere in the conversation – “example: is this the XX Metropolitan Magistrate’s Court Section office – today DD-MMM-YYYY we had case no: xx of 2015 hearing and we want to get the forms and documents certified copy of the case filed”. If those Forms were never submitted and Magistrate played along with the woman’s lawyer, an admission by the section officer or court clerk that forms are missing or are not on file will be your first proof of malpractice or corruption in the DV case proceedings. In such a scenario apply for stay order in court above this court and order the case file to be submitted as court clerk has admitted to missing forms. If forms appear magically later on you can allege afterthought.
Human Rights can you please mention the source from where you got this information/Citation of any source
Mr lost somewhere, If you learn how to click on the hyperlink to the PDF of judgment, maybe you will find the source like many others have before you.