Delhi HC PWDVA – No Domestic relationship of Bahu if she, husband live separate from his parents
A woman cannot book her in-laws under the Domestic Violence Act if she, along with her husband, had stayed abroad at the time of matrimonial dispute, the Delhi High Court held.
“There can be no domestic relationship of the wife of the son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when the son, along with the wife, is living abroad, maintaining a family there and children are born abroad…,” said Justice Shiv Narayan Dhingra.
“In order to constitute a family and domestic relationship, it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separately, then they are not a family but they are relatives related by blood or consanguinity to each other…,” said Justice Dhingra in a judgement.
“Once a son grows up and he starts earning, marries, makes his separate home and sires (fathers) children, the burden of his wife cannot be put on to the shoulders of his father or brother on an estrangement between husband and wife….” the court said.
The Court also pulled up a family court judge for directing the in-laws, who stay in India, to pay jointly Rs 50,000 towards the monthly maintenance to their daughter-in -law, Payal Malik.
“I am surprised that the court below did not give weight to the judgment of New Jersy, USA, court where parties lived for seven and half years but assumed jurisdiction under the Domestic Violence(DV) Act because of the pure temporary residence of the wife in Delhi who is otherwise a resident of Hissar…,” said the court and set aside the lower court’s July 27, 2009, order to pay maintenance to the woman.
The Court’s ruling came on an appeal filed by Harbans Lal Malik, father-in-law, Neelam (mother-in-law) and Varun Malik, brother-in-law besides Nagesh Malik, the husband, challenging the lower court’s order.
In fact this is very unfortunate for the women’s of India are being deprived from the immediate relief in spite of the provided law such as DV act. Even our High Courts are taking the matter seriously due to which the much needed women get relief after a big battle and loosing long time. The much darker side of the fact is that most of the ladies give up before this lengthy fight.
As a matter of fact on perusal of the facts of the case in the matter of Payal Malik Vs Nagesh Malik the decision given by the high court is absolutely not tenable because the case from the side of Malik family is that she was not good to her brother in law and father in law. The Honorable court in its own order said if the families are living “under one roof” are part of the family but much contrary to that in this case he allowed the revisionist to go free. Not only that further he commented that the court below should have considered the foreign court decrees of divorce which is absolutely against the orders of the Supreme Court Of India.
Now the fact is that the matter was for the revision of order passed by the learned high court hence the trail court twas not called for. Passing such orders much contrary to the facts on record is just because the order is passed without the trail court record and will be set a side by the Supreme Court.
But the main question arises what will happen to that hapless lady who was given relief by the lower court in June 2009 but till date she has got nothing. Now this order will further complicate the matter causing unnecessary delay in getting relief to the lady.
Why my comments are not being accepted
The decision given by the High Court is a landmark decision. Even Supreme court of India has noticed misuse of DV law. In accordance to Section 13 of IPC any foreign decree is tenable in India if the foreign court has a jurisdiction and it does not violates any of the Indian Laws. In the case of Payal Malik VS Nagesh Malik the NJ court had the proper jurisdiction as both of them have resided in New Jersey, USA for over seven year.
Divorce was granted on Cruelty, which is one of the grounds of Divorce in India.
It is also evidentiary that Payal Malik may have misguided the court through her statement that she has signed blank papers. Also her counsel has only urged on the monitory relief and to tangle the old parents of the Boy who had nothing to do with this matter. It is a shame that our courts are not able to understand the wicked motive behind this, but with the High Court decision, it will provide a better guidance on how to handle such disputes. Good Work Justice Shiv Narayan Dhingra !!
punkaj is wrong here. She must proceed against her husband for any releif if not grated by the foreign court.