In an order of its kinds, a local court in Jammu and Kashmir has remarked that the Protection of Women from Domestic Violence Act, 2005 (DV Act) was enacted to protect women from violence and not to harass the spouse or aggravate marital discord.
The Court has also imposed a cost of Rs 10 lakh on the wife who after procuring orders under the DV Act to throw her husband out of his house, had eventually decided to withdraw her petition.
It is quite obvious that the object of Protection of Women (from Domestic Violence) Act, is to give protection to women from violence which takes place when they live in such domestic relation. This is to protect legitimate and genuine cases where the aggrieved person does not indulge in acts which defeats the purpose and object of the legislation.
Domestic Violence Act has not been enacted to cause harassment to the other spouse or to further aggravate the matrimonial discord to the extent of throwing the respondent out of his own house.
Case:
The petitioner wife had filed a domestic violence case against her husband in February 2019. An exparte order was passed on the same day directing the concerned SHO to file a report and then in terms of order dated 23.03.2019, the husband was restrained from entering into his own residential house.
Under the garb of said order the petitioner with the help of her relatives threw the respondent out from his own residential house and then used the police agency to further harass the respondent husband. Effectively man who constructed the house, with his own hard earned money, became homeless.
The order dated 23.03.2019 passed by this Hon’ble Court came to be modified in terms of order dated 29.04.2019 thereby providing that both the parties shall accommodate each other in a cordial and friendly relation in the house where the parties were residing before the dispute and the wife Shamshada Akhter shall provide accommodation of two rooms to the husband Aijaz Parvaiz Shah in the said house.
Wife Appealed
The wife appealed in Supreme Court against this order, however, lost. The respondent husband thus filed a plea before the Court seeking implementation of its April 29, 2019 order.
On November 15, 2021 the Court in that plea directed the concerned SHO to implement the order of April 29, 2019 in letter and spirit.
The wife took a U turn and filed the present plea seeking withdrawal of her petition.
Arguments By Wife
The counsel for the wife Advocate Ishtiyaq Ahmad Khan contended that it is her choice to proceed with or withdraw the petition and the other side cannot raise any objection if the case is withdrawn.
He argued that even if the wife has challenged the order dated April 2019 passed by this Court where both were directed to accommodate each other in a cordial and freely relation in the house, that will not preclude her to withdraw the petition in which such order was passed even after High Court and Supreme Court has dismissed the appeal.
Submission By Husband
The husband’s lawyer Shabir Ahmad Bhat argued that the intention of the wife is not to withdraw the petition but to frustrate the order dated April 2019 order which was not passed in her favour and avoid its implementation.
Jammu & Kashmir Court
The Court allowed the wife to withdraw the case filed in the year 2019, however, ordered her to pay Rs 10 lakh to the respondent husband as compensation, since he was deprived of shelter and accommodation in his own house during the pendency of the petition.
The Court in its order, also observed that a law which is disproportionate when it comes to the level of protection it affords, can also be counter productive and instead of giving protection to the legitimate cases of domestic violence, it may have the potential to destroy marital institution. The judge remarked,
Therefore, it is important to sift and weigh cases to preserve the efficacy of the Domestic Violence Act for legitimate and genuine cases.
Adding further, the Court said that this case was one such glaring example of an abuse of the process of law, where the applicant has protracted the proceedings up to its “maximum capacity of elasticity”. The court opined that the case was dragged right up to the Supreme Court with the wife ensuring that the husband remains deprived of the shared-household even though it was owned by him. The court said,
The applicant appears to have chosen a short-cut to withdraw from the proceedings to ensure that order dated April 29, 2019 passed by the court is not implemented and the respondent, who was restrained from entering his own house continues to be deprived of shared-household though it is admitted that both the parties have lived together as husband and wife for more than 30 years.
Wife Permitted To Withdraw DV Case With Costs
The Court did permit the wife to withdraw the petition. However, the court said it has to be conscious of the fact that after putting the husband on trial not only before various forums, the wife has withdrawn from the proceedings and therefore, the other side has to be compensated for the pain, agony and inconvenience including the cost of the litigation suffered.
Thus, while allowing the application for withdrawal, the Court ordered payment of Rs 10 lakh compensation to her husband. The order read:
The petitioner/AP shall pay cost of Rs 10 lakh to the respondent who has been deprived of shelter and accommodation from his own house under the garb of order obtained in the instant petition. Besides, both the parties are directed to restore the same position with respect to possession of the shared-household as existed on the date of the institution of the present petition.
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