IN THE COURT OF SHRI S.K.SARVARIA ADDITIONAL SESSIONS JUDGE01/SOUTH NEW DELHI [CASE NUMBER] Mrs. [ENTITY] W/o Lt. Col. [ENTITY] (Retd.) R/o [SECTION]/2, Pratap Park, Mathura Cantt. (U.P.) Presently at: C/o Sh. P D Bakshi 243, RPS Flats, Shiekh Sarai - I, New Delhi1[SECTION]0017 Appellant Versus Lt. Col. [ENTITY] (Retd) D279, Nirman Vihar, Delhi 1[SECTION]092 Also at: C/o H. No. 14[SECTION], Sector - 19, Faridabad (Haryana) Also at: C/o A. Maitri, Advocates P57, NDSE PartII New Delhi 1[SECTION]049 Respondent Date of Institution 20/05/09 Date when arguments were heard/Written arguments filed [SECTION]/07/09, 31/7/09, 4/09/09 Date of order 1[SECTION]/09/09 JUDGMENT
The present appeal preferred under [SECTION] of the [ACT] assails order dated 11/5/2009 passed by the Ld. Metropolitan Magistrate, Mahila Court (South), Patiala House Courts, New Delhi.
The brief facts of the case relevant for deciding the present appeal are as under:
On 23/[SECTION]/19[SECTION]0 the marriage of the appellant complainant was solemnized with the accused. However the complainant was driven out of the matrimonial home at Mathura Cantt. by the respondent on 4/7/2005. As per para 7 of appeal during September 2005 - November 2006, due to conduct of respondent the appellant could not stay at matrimonial home in Mathura Cantt. On 29/11/2006 the appellant filed complaint under [SECTION] of the [ACT] seeking various relief. Vide order dated [SECTION]/12/2006, the Ld. Metropolitan Magistrate granted interim relief of Rs. 6,000/ pm to the appellant complainant. Vide order dated 17/2/2007 the Ld. Metropolitan Magistrate granted protection/ residence order and allowed the appellant wife to go and live at Mathura in her matrimonial home. In the meanwhile on 21/2/2007 the respondent accused filed a divorce petition under [SECTION] of [ACT] on the grounds of desertion and cruelty. Vide order dated 22/2/2007, the Hon'ble Delhi High Court dismissed the application for stay against order dated 17/2/2007 passed by Ld. Metropolitan Magistrate on 6/12/2007 the respondent retired from army services at Mathura Cantt. Area and on 26/2/200[SECTION] the respondent filed an application for eviction of the appellant wife from the Government accommodation in Mathura Cantt. But refused to divulge his address where he was residing after retirement and on papers showed that he is putting up with his uncle, Retd. Maj. [ENTITY] at Faridabad. The appellant wanted to vacate the said govt. accommodation and move into the permanent matrimonial home at Delhi, where parents of the respondent are residing but the respondent was unwilling for the same. Accordingly, vide orders dated 11/6/200[SECTION] Ld. Metropolitan Magistrate directed respondent to locate an alternative accommodation to the liking of the appellant. Vide order dated 20/3/200[SECTION], on the application of the appellant for maintenance pendent lite granted interim maintenance at Rs. [SECTION],000/ pm in the divorce petition filed by the respondent. The appellant has sought enhancement of the said interim relief since after the th recommendations of VI Pay Commission, his income has increased. On 30/3/2009, the appellant received eviction notice from Military authorities, Mathura Cantt giving a deadline for vacating the house by 6/4/2009. On an urgent application against the said eviction notice, the Ld. Metropolitan Magistrate vide order dated 11/5/2009 gave certain directions. Aggrieved with the said order dated 11/5/2009, the present appeal is preferred by the appellant complainant.
The contention of counsel for the appellant is that the house property bearing no. D279, Nirman Vihar, Delhi - 1[SECTION]092 is the permanent matrimonial home of the appellant and the respondent since 19[SECTION]0 and in his official documents, the respondent has been declaring the aforesaid address as his permanent address. It is submission on behalf of the appellant that the house property bearing no. D279, Nirman Vihar, Delhi - 1[SECTION]092 is a shared household/joint family accommodation, thus, the appellant has a right to stay there and she is willing to live there. The counsel points out that the Ld. Metropolitan Magistrate erred in noting that even the Hon'ble High Court has vide order dated 22/2/2007 held that the wife has the right to stay in the matrimonial home. The counsel avers that the appellant cannot be excluded from her matrimonial home and same is violative of [SECTION] of the [ACT] (in short Act), therefore, order dated 11/5/2009 passed by Ld. Metropolitan Magistrate is contrary to express provisions of law. The counsel urges that the Ld. trial court erred in not considering that the respondent had made an arrangement with his father to stay at the aforesaid matrimonial home post retirement and had contributed towards the construction of the said home but as a counter blast to the various cases pending between them is denying that the aforesaid property is their matrimonial home. The counsel submits that the trial court erred in ignoring that the said property has four generations as its incumbents and thus, is a 'shared household' within the meaning of [SECTION] of the Act. The counsel contends that the trial court has erred in over looking provisions of various statutes, viz. [SECTION], [SECTION], [SECTION] & [SECTION] of [ACT]; [SECTION] of [ACT]; [SECTION] & [SECTION] of [ACT]; [SECTION] of [ACT] & [SECTION] &115 of the [ACT], while passing the said order dated 11/5/2009. The counsel urges that there is no provision under the of the Act under which the Ld. trial court cold give option to the respondent of paying Rs. [SECTION],000/ to the appellant for making arrangements for her accommodation. The counsel also points out that the trial court erred in not giving directions as regards packing and shifting of household from Mathura Cantt, where appellant is under eviction notice due to conduct of the respondent. The appellant prays for setting aside of the three options given to the respondent by the Ld. Metropolitan Magistrate vide order dated 11/5/2009 and direct respondent husband to make arrangements for living of the appellant at permanent matrimonial home at D279, Nirman Vihar, Delhi - 1[SECTION]092 or in the alternative to direct respondent to make appropriate arrangements for an alternate matrimonial home. The counsel for the appellant relied on decision in [PRECEDENT] in support of her contentions.
Refuting the said contentions of counsel for the appellant, counsel for the respondent contends that the present appeal filed by the appellant is liable to be dismissed forthwith as it is groundless and baseless. The counsel submits that the appellant has deliberately made false statement that house property bearing no. D279, Nirman Vihar, Delhi - 1[SECTION]092 is the matrimonial home. The counsel avers that the said address was given by the respondent for correspondence purpose as his was a transferable job. The said house does not even belong to the respondent. The counsel contends that the appellant is misusing process of law and trying to humiliate, harass and insult the respondent and his father. The counsel submits that the appellant has been filing applications one after the other and trying to delay the matter. The counsel is drawing support in support of his contentions from the decisions in S.R. Batra vs. Taruna Batra
- AIR 2007 SC 111[SECTION]; [PRECEDENT]. in CM (M) No. [SECTION]5/2006, decided on 30/9/200[SECTION] (Delhi High Court);
[PRECEDENT]; Abha Arora vs. Angela Sharma - 200[SECTION] (14[SECTION]) DLT 506; [PRECEDENT]. - in Crl. M. C. No. 323/200[SECTION] and Crl. M.A. No. 11[SECTION]6/200[SECTION] decided on 30/1/200[SECTION] (Delhi High Court); Ashish Gupta vs. Nalini Gupta in CM (M) No. 59[SECTION]/200[SECTION] decided on [SECTION]/4/2009 (Delhi High Court) etc. I have heard Ld. Counsel for the parties and perused the record and have gone through the judgments cited by counsel for the parties.
The first impediment in the claim of interim relief of appellant is that she as per her own admission has lived in the matrimonial home at Mathura Cantt. Up to 4.7.2005. But the Act which was passed by Parliament in 2005 was made effective with effect from 26/[SECTION]/2006. The question arises can we give retrospective effect to the provisions of the Act?
Any new law that is made should ordinarily affect future transactions, nor past ones. Hence, unless there be something in the language, context, or object of an Act showing a contrary intention, the duty and practice of courts of justice is to presume that the legislature enacts prospectively and not retrospectively. { See Tika Sao Vs. Harilal (1940) ILR 19 Pat 752, AIR 1940 Pat 3[SECTION]5; Maloji Narsing Rao Vs. Shankar Saran AIR 195[SECTION] All 775; [PRECEDENT] } It is a familiar rule that no statute shall be construed to be of retrospective operation unless the terms of the statute expressly state that it is retrospective or such a construction arises by necessary implication. The rule is based on the presumption that the legislature does not intend what is unjust or that transactions which have already vested title to property should be reopened or thrown into doubt. { See Kusum Kumari Devi Vs. Custodian, Evacuee Properly AIR 1954 Pat 2[SECTION][SECTION] } According to the Supreme Court, all laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they effect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective effect is intended. Hence, the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the court has to decide whether in the light of the surrounding circumstance retrospective effect should be given to it or not. {See Punjab Tin Supply Co Vs. Central Government AIR 19[SECTION]4 SC [SECTION]7, (19[SECTION]4) 1 SCC 206 } Even in cases where the two views are possible with regard to the retrospective or prospective application of the Act the law is if an enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. { See Daulat Singh Vs. State AIR 1950 MB 112[SECTION]; Henry Hunter Vs. Basanti Devi (193[SECTION]) ILR [SECTION] Luck 317, AIR 1937 Oudh 24142; [PRECEDENT]; Gorden Vs. Lucas [1[SECTION]7[SECTION]] 3 AC 5[SECTION]2,p 601; Kempiah Vs Girigamma AIR 1966 Mys 1[SECTION]9; [PRECEDENT] } The family is universally regarded as the primary unit of society. When the stability, faith and confidence of the members of the family are threatened by a dispute, the law is invoked. Any dispute can become bitter and vigorously fought but none more than matrimonial disputes. The effects of this type of dispute can be devastating and it is imperative this is remedied as quickly and fairly as possible for the good of all involved. In this regard the Hon'ble Apex Court has observed as under in [PRECEDENT] :
"12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.
The [ACT] is a piece of legislation brought in by the Parliament as the Parliament felt that the civil law does not provide reliefs to a victim woman subjected to domestic violence. It is in these circumstances, to provide for a remedy under the civil law for protection of women from being victims of domestic violence that the [ACT] was brought in by the Parliament. It will be apposite to take note of the fact that though it is a piece of civil law, evidently in the interests of expedition and to cut down procedural delays, the forum provided for enforcement of rights under [ACT] is that of the Magistrate Courts constituted under the provisions of the [ACT] The Act seeks to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption; in addition relationship 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 get legal protection under the Act.
The preamble of the statute, The [ACT], is worth referring to and is reproduced as under:
'An Act to provide for more effective protection of the rights of women guaranteed under the [ACT] who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto' From the aforesaid it is manifest that the Act provides protection from violence and any kind of violence has penal consequences. The provisions of the Act are to be implemented and in adjudicated by criminal courts and the noncompliance of the order passed by learned Metropolitan Magistrate has the criminal consequences to give parity of provisions of Act with provisions of criminal statutes. Ordinarily, a canon of interpretation of penal legislation does not permit penal provisions to have retrospective effect. { See Nag Po Ngwe Vs. Emperor (1929) ILR 7 Rang 355, AIR Rang 27[SECTION]; [PRECEDENT]; [PRECEDENT] } It is well settled that a penal statute which create new offences is always prospective and a person can be punished for an offence committed by him in accordance with law as it existed on the date on which an offence was committed. (See: [PRECEDENT]"
and 2004 SUPREME COURT 260[SECTION] "Dayal Singh v. State of Rajasthan") In AIR 200[SECTION] SUPREME COURT 2276 "State of Punjab v. Bhajan Kaur", the Hon'ble Apex Court while dealing with the concept of interpretation of statutes, vizaviz retrospective operation of a statute observed as under:
21. In Zile Singh v. State of Haryana [(2004) [SECTION] SCC 1], a ThreeJudge Bench of this Court, stated the law, thus : 2004 AIR SCW 5[SECTION]42 "17. [ENTITY] states in his work on Interpretation of Statutes (12th Edn.) that the rule against retrospective operation is a presumption only, and as such it "may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it" (p. 225). If the dominant intention of the legislature can be clearly and doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of doubtful applicability as the "inhibition of the rule" is a matter of degree which would "vary secundum materiam" (p. 226). Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act (p.
231)."
The [ACT], came into force w.e.f. from 26/[SECTION]/2006 vide S.O. 1776 (E), dated 17th October 2006, published in the Gazette of India, Extra., Pt. II, Sec. 3 (ii), dated 17/[SECTION]/2006. There is nothing in the statute to interpret it in a manner to give it a retrospective effect. As regards prospectivity of the of Women from [ACT], the Hon'ble Andhra Pradesh High Court observed as under in [PRECEDENT]. In CRL. P. NO :
3714 of 2007 decided on 2nd DAY OF AUGUST, 2007:
On the face of the allegations in the complaint, the de facto complainant is not residing with the petitioners. She is residing in House No.2361, Near M.G. Petrol, Yemmiganur, whereas petitioners 1 and 2 have been residing in House No. 3/31, Uppara street, Yemmiganur, 3rd petitioner is residing in Mahaboobnagar, 4th petitioner is residing at H.No.S/2267, Laxmipeta, Yemmiganur and 5th petitioner is residing at: H. N o: 3/31, Tippata Street, Yemmiganur. Admittedly, the de facto complainant filed a suit in [CASE NUMBER], which is pending. She also filed a case in [CASE NUMBER] under [SECTION] [ACT], which is pending trial before the Judl.
st Magistrate of 1 Class, Yemmiganur. The domestic incident report does not disclose any of the acts of violence that were reported by the complainant after 26[SECTION]2006. There is no dispute that the Act came into effect when the Central Government appoints 26 [SECTION]2006 as the date on which the Act was came into force.
For acts of violence, certain penal provisions are incorporated.
Therefore, "It is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26[SECTION]2006. Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court". Accordingly, the Criminal Petition is allowed quashing the proceedings in [CASE NUMBER] on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District. In the light of the above discussion, it is clear that the words," any woman who is, or has been in domestic relationship with the respondent" used in clause (a) and the words," who live or have, at any point of time, lived together in a shared household" in [SECTION] of the Act mean such a relationship or living together on 26/[SECTION]/2006 and after that. Therefore, the claim of a woman on the strength of domestic relationship or living together with the respondents in the shared household prior to 26/[SECTION]/2006 cannot be entertained to give her relief of residence in the shared household as the provisions of the Act have no retrospective application.
Before this court delves into the rival contentions of the parties it is essential do see whether the cause of action in the instant case arose on or after 26/[SECTION]/2006, the date when the Act, came into force.
Coming to the case at hand, the appellant herein has herself admitted that on 4/7/2005, due to conduct of the respondent she was forced to leave her matrimonial home at Mathura Cantt. And during September 2005 - November 2006 she did not stay with her husband and finally on 29/11/2006, she filed application under [SECTION] of the Act.
Clearly, the cause of action in the present case, arose prior to the coming into force of the [ACT], therefore, there is no occasion for this court to delve on the merits of the case.
In view of the aforesaid discussion, this court need not go into the merits of the case and thus the contentions of the counsel for the parties and the judgments relied upon them are not required to be dealt with, more so, when these do not deal with the retrospective or prospective application of the Act.
In view of the appeal has no merit. The appeal is dismissed.
The trial court record be returned alongwith copy of this order. The judgment be sent to the server (www delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open ([ENTITY] ) court on 1[SECTION]/09/09 Addl. Sessions Judge : 01 : South New Delhi