MUMBAI: The Bombay HC on Saturday held the Domestic Violence Act could not be applied retrospectively. Justice Abhay Oka, however, said for acts of violence occurring prior to 2005, the courts grant a restraining order. The penal provisions come into play only if order is violated.
The court was hearing a petition filed by an IFS officer, Prakash Joshi who had challenged the orders passed by two Pune courts. On an plea filed by his wife Arundhati in February 2006, the magistrate’s court permitted her to stay in his flat.
The sessions court set aside this order, but upheld the decision asking Joshi to pay Arundhati more maintenance.
Advocate Nitin Deshpande, Joshi’s counsel, said the couple had separated since 2000. “The Act cannot be used against alleged acts committed prior to the enactment of the law in 2005,” he said.
Women, however, cannot seek respite for shared premises as it cannot to be interpreted as matrimonial home
The Protection of Women from Domestic Violence Act 2005 (DV Act) was given a broader definition by the Bombay High Court on Saturday. In a significant judgment, the HC ruled that the act will be operational retrospectively, since it envisages protection of women from violence at their homes and gives them additional rights
Deciding a petition filed by Dr Prakash Joshi, 60, a retired IFS (Indian Foreign Services) officer and former Indian diplomat to Morocco, Muscat, Kuwait and Trinidad, the HC clarified that the retrospective effect would be applicable while settling disputes in case of shared premises.
Taking a larger view of the term shared premises, Justice Abhay Oka observed: However, woman cannot seek respite for a shared premise as it cannot to be interpreted as matrimonial home
The DV Act has wider scope as it envisages protection to women in live-in relationships.
The court, while rejecting the appeal filed by Dr Joshi who now lives at Pune, observed that although the Act came into force from September 13, 2005, it can be applicable retrospectively. Meaning, a woman harassed by her husband, in-laws or relatives can seek action against them even if the alleged harassment caused to her was prior to 2005.
The magistrate court and sessions court had passed orders against Joshi based on applications made by his wife Anuradha, 58, alleging mental and physical harassment. They separated in 2001.
Anuradha, a housewife, delivered their first child in 1980, when they were posted in Muscat.
The wife had accused her husband of ignoring and being careless towards their son, who was suffering from motor dysfunctionality (a kid who cannot assimilate things surrounding him like a normal child does), argued Shekhar Jagtap, the petitioners advocate.
Joshi had challenged the order passed by the sessions Judge, Pune, in September 2008.
The court had directed him to secure a flat for Anuradha at Kothrud, or alternatively pay Rs 7,000 towards rent.Since the Act came into effect in 2005, the lower courts could not grant relief to her for the alleged offence in the earlier years,argued Joshi’s counsel Nitin Deshpande.
Sir, Normally in a complaint of Domestic Violence, the allegation against the respondent is enormous and false.
Though the Act doesn’t have retrospective effect, the abuser before the Act cannot take out a stand, that the alleged occurrence has taken place before the enactment of the Act,
The retrospective effect of the cases should be given to the Petitioners, who are really and extremely suffered in the hands of the respondent, in rarest of rare cases.
In case of a false Complaint , the court has to impose heavy compensation to the Petitioner, who are coming up with baseless allegations and wasting the time of the Court and further to order heavy penalty to the Petitioner.
The retrospective effect of the case is to be considered not on the basis of all Petitions, but on the basis of the submission of records , reality and the facts and circumstances of the case. Otherwise, the Petition has to be sumararily dismissed or returned without appeal provision.
Applying DV act retrospectively under ANY circumstances is consummate perversion of Justice under any norms of Jurisprudence. The courts and the society are driven by a false sense of patriarchal protective instinct towards fairer sex. This instinct is also exacerbated by the constant propaganda from the feminist machinery that women are always victims, even when they are the victimizers. Often this patriarchal instinct coupled with feminst propaganda blinds the Judges who are expected to be impartial upholders of Law to subvert the very law they are given to uphold causing greatest injustice to Men and their families.
This practice must stop. Laws cannot be and should not be retrospectively applied under any circumstance.
THE SUPREME COURT OF INDIA HAS STAYED THE JUDGEMENT OF JUSTICE JAIN OF DELHI HIGH COURT IN SLP NOS 3988 AND 3916 SO NOW THE SUPREME COURT OF INDIA IS GOING TO RESIDE THE MATTER
there is nothing wrong in applying dva restropectively because the act is enacted to set an example so that maximum women can get justice by filing litigation of semi civil nature even in criminal court
Our constitution does not allow any court to act as a law-giver, the supreme court and high courts can interpret the law in best way by giving good reason.
The H’ble supreme court observed in various judgements that every Act has prospective effect unless provision is being made to that effect. if any amendments or any enactments in the main Act have retrospective effect.
now D.V. Act is completely new Act with penal provisions hence this Act should not have any retrospective effect,