1

TRIAL ADVOCACY 2019

IN THE HONBLE COURT OF SESSIONS JUDGE AT RANCHI

CR. CASE NO. _____OF 2018

IN THE MATTER OF

MR. ANAND CHATERJEE ___________COMPLAINENT

VS.

NAKUL KHANNA & ORS. ___________ACCUSED

UNDER SEC 302,304B, 498A, 34,109,120B OF Cr.P.C.

MEMORANDUM ON BEHALF OF THE COMPLAINENT

 2

TABLE OF CONTENTS

LIST OF ABBREVIATIONS

LIST OF AUTHORITIES

BOOKS

LEGISLATION/CODES/STATUTES

LEGAL DATABASE

LIST OF CASES

STATEMENT OF JURISDICTION

STATEMNET OF FACTS

ISSUES RAISED

SUMMARY OF AGRUMENT

ARGUMENTS ADVANCED

1. THE PRESENT COMPLAINT IS MAINTAINABLE

1.1. DOMESTIC RELATIONSHIP WITHIN THE MEANING OF SEC 2(F), PWDA,2005

1.2. THE COURT CAN TAKE COGNIZANCE IN THE INTEREST OF JUSTICE

2. THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE

2.1. PHYSICAL ABUSE

2.2. EMOTIONAL ABUSE

2.3. DEMAND FOR DOWRY

3. DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA.

PRAYER
 3

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Art. Article

CA Criminal Appeal

CIT Commissioner of Income Tax

CrLJ Criminal Law Journal

Cr. PC Code of Criminal Procedure

DV Domestic Violence

DW Defense Witness

FIR First Information Report

HC High Court

IPC Indian Penal Code

IEA Indian Evidence Act

Ors Others

PC Privy Council

PW Prosecution Witness

PMR Post Mortem Report

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Record

UOI Union of India

V. versus
 4

BOOKS

1. dr.sukanta k. nanda, women and children , the law house , Orissa, 2012

2. Butterworth’s wadhwa, Nagpur,2011

3. takwani , criminal procedure , lexis nexis Butterworth’s wadhwa, Nagpur, 3rd edition reprint 2012

LEGISLATIONS/CODES/STATUTES

1. Code of criminal procedure, 1973

2. Indian evidence act 1872

3. Protection of women from domestic violence act 2005

4. The constitution of India 1949

5. The Indian penal code 1860

LEGAL DATABASE

1. www.scconline.com

2. www.manupatra.com

3. www.lexisnexis.com

4. www.judis.nic.in

5. www.supremecourtcaselaw. Com

LIST OF CASES

A. Ashok vardhan reddy v. p. savitha 2012

azimuddin v. state of u.p. 2009

bhagirath v. state of m.p.1984

bhagirath v. state of m.p. AIR 1984

bhai sher jang singh v. virinder kaur,1979

bhandu mukthi morcha v. u.o.i AIR 1984

Chandra kishore v. nanak chana, AIR 1985

 5

STATEMENT OF JURISDICTION

The present application is under sec 12(1) of the protection of women from domestic violence act, 2005
read with sec 125 and 472 of the code of criminal procedure.

The provisions of this act are in addition to, and not in derogation of the provisions of any other law, for
the time being in force. The protection of women from domestic violence act 2005 supplements existing
law pertaining to the protection of women from violence.
 6

STATEMENT OF FACTS

Aashima d/o of Anand chatterjee was a bright student since her nursery to her university. She managed to
get placed at IIM, lehmadabad for her masters in business admission in the year 2012. Nakul was her
batch mate, initially in the first year they were very good friends. Since Nakul too was Ranchi so the same
city factor contributed a lot towards their bonding. However the bonding between the two took a different
turn and in the final year they fell in love with each other. Nakul comes from one of the most reputed and
wealthy families of Ranchi. In the final year Aashima received a placement of package 28lacs.on 25th of
January 2015 Aashima and Nakul got married. Nakul’s family strictly asked Aashima not to go ahead
with the job that she was offered while in IIM, lehamadabad. With a very heavy heart, Aashima left with
no other option than to concede to their conservative demands .whenever Aashima talks to her parents she
used to sound very depressed and troubled. On 1st November 2016 Aashima called her father and asked
about the loan he took for her studies and marriage, that she cried her heart out and wept bitterly. in the
year 2016 Nakul’s family is putting pressure on het to conceive a baby for which she is not ready as she
wanted to pursue her PhD. Nakul’s family even curse her for bringing bad luck to the family as their
family business suffered a huge loss after their marriage. On 18th November 2016 when things became
unbearable to Aashima her father called to Nakul’s father to request him to take care of his daughter,
Nakul’s father sounded so rude and retaliate him to stop interfering in their family issues. On 19th
November 2016 Aashima absolutely sounded normal on a phone call with her father. On 1st January 2017
she even said to her father that they are going out for dinner with friends. On 17th Feb. 2017 around 3.30
Nakul’s father called Aashima’s father to their place saying that she was critically ill. As soon as
Aashima’s father entered the room his daughter is lying on the bed and there was blood all over the pillow
and on her saree. After this Aashima’s father filed a complaint at udyog vihar police station.
 7

ISSUES RAISED

1. WHETHER THE PRESENT COMPLAINT IS MAINTAINABLE OR NOT

2. WHETHER THE APPLICANT HAS BEEN SUBJECTED TO DEMOSTIC VIOLENCE OR

NOT

3. WHETHER THE APPLICANT IS ESTOPPED FROM FILING THE PRESENT COMPLAINT

OR NOT.
 8

SUMMARY OF ARUMENTS

1. THE PRESENT COMPLAINT IS MAINTAINABLE.

The present complaint is maintainable as there is no bar of limitation to the present complaint u/sec 12 of
the domestic violence act. moreover the act has a retrospective effect an application by a women who has
shared a household in the past but was no longer residing with her husband and who was subjected to any
act of domestic violence prior to coming into force of the act is maintainable. Also the applicant has a
continuing cause of action against the respondent herein. Hence the present complaint is maintainable.

2. THE APPLICANT HAS BEEN SUBJECTED TO DEMOSTIC VIOLENCE.

The applicant herein had been subjected to domestic violence soon after her marriage. The respondent
committed acts of verbal, emotional and physical abuse on the applicant and even demanded dowry for
her parents. The applicant was harassed by the respondents since many years based on her emotional
crises.

3. THE APPLICANT IS NOT ESTOPPED FROM FILING THE PRESENT COMPLAINT.

The principle of estoppels does apply to the present complaint as the doctrine of estoppels as envisaged
under sec 300 of cr.p.c is applicable only in criminal proceedings.
 9

ARGUMENTS ADVANCED

1. THE PRESNT COMPLAINT IS MAINABLE.

if is most respectfully submitted, that the present complaint is maintainable as there is no prescribed
period of limitation to the present complaint under sec 12 of protection of women from domestic violence
act 200d. the PWDVA,2005 is a retrospective piece of legislation hence an application by father of the
deceased women who has shared a household in the past but was no longer with a good relation with her
in-laws or who was subjected to any act of domestic violence prior to coming into force of the act is
maintainable. Therefore the present complaint is maintainable.

1.1. DOMESTIC RELATIONSHIP WITHIN THE MEANING OF SEC 2 (F), PWDA, 2005.

The definition of domestic violence is well written and wide-ranging and holistic. It covers, mental as well
as physical abuse, and also threats to do the same. Any form of harassment, coercion, and harm to health,
safety, limb or well-being is covered. Additionally, there are specific definitions for the following:

Physical abuse: Defined as act or conduct that is of such a nature as to cause bodily pain, harm, or danger
to life, limb or health or impair the health or development of the aggrieved person’. Physical abuse also
includes assault, criminal intimidation and criminal force.

Sexual abuse: The legislation defines this as conduct of “sexual nature” that ‘abuses, humiliates, degrades
or otherwise violates the dignity of a woman.’

Verbal and emotional abuse: Insults/ ridicule of any form, including those with regard to inability to have
a male child, as well as repeated threats.

Economic abuse: Categorized as including deprivation of financial resources required for survival of the
victim and her children, the disposing of any assets which the victim has an interest/stake in and
prohibition/restriction of financial resources which the victim is used to while in the domestic relationship.

The definition of ‘domestic relationship’ is broad enough to cover all sorts of household arrangements; for
example, live-in relationships when the couple is not married. The inclusion of this, as well as relationships
which fall under categories of fraudulent or bigamous, was a pioneering step. With regard to live-in
relationships itself, in a distinctive judgment passed in the case of Bharata Matha & Ors v. R. Vijaya
Renganathan & Ors, it was decided that a child born out of a live-in relationship is entitled to property (the
property owned by the parents, but not ancestral property). This means that a woman and her child in a live-
 10

in relationship cannot be threatened with economic abuse. Of course, although this has more relevance to
property ownership and the Hindu Marriage Act, it is gratifying to know that children born out relationships
which are not akin to marriage can also have property rights.

Furthermore, the Act also provides relief to domestic violence committed by both male and female relatives
of the husband or male partner (which would aid in situations where family members harass the wife etc.).
Additionally, the definition of “child” is also inclusive of foster, adopted and stepchildren.

The respondent has a duty to pay the victim compensation and not cut off financial resources, and this
protects the victim from not only violence but also protects her interests. The definition of “shared
household” specifies that regardless of whether or not the victim has legal rights/equity over the household;
if she has inhabited the house with the respondent, and he has been violent with her, then the respondent is
liable under the Act. This means that even if she does not have legal or financial stake in the house, the
respondent cannot evict her.

The protection orders are inclusive of most instances where the respondent could have possibly taken
advantage of the victim, and again is not limited to that definition alone. Finally, the orders issued by the
law should be given free of cost to the victim as proof.

One of the most contested points of the Act is very obviously the definitions of “aggrieved person” and
“respondent”; and how only women’s rights against domestic violence are covered in the Act. It is also
important to understand that the act provides quasi-criminal or civil remedies to women given that need
there is a particular social context in which domestic violence takes place in India. Not only do women
form a higher proportion of domestic violence victims, but combined with lower political-social and
economic decision-making power it is harder from them to exit the abusive domestic relationships.

One issue which seems to have been ignored entirely are queer relationships. Even though there is no
specific statement of the same in the Act, in the judgment of S. Khushboo Vs. Kanniammal & Anr., the
Supreme Court specified that a live-in relationship is permissible only in unmarried persons of major age
in heterogeneous relationship

1.2. THE COURT CAN TAKE CONGNIZANCE IN THE INTEREST OF JUSTICE.

 11

According to sec 3 of the PWDVA, 2005 the court should look into the overall facts and circumstances of

each case. And the facts of the present case required that the court should take cognizance of the matter in

the interest of justice.

emphasis is laid on sec 473 of the cr.p.c which stipulates the extension of period of limitation in certain
cases: “notwithstanding anything contained in the foregoing provisions of this chapter, any court may
make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and
in the circumstances of the case that the delay has been properly explained or that it is necessary so to do
in the interests of justice.”Hence the present complaint is maintainable.

2. THE APPLICANT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE.

The applicant in the present matter had been subjected to physical, verbal and emotional abuse by the
respondent soon after her marriage. The respondent herein demanded dowry. The respondent continued to
commit acts of domestic violence on her even on the matter of child. Hence this conduct of the
respondent amounts to domestic violence.

2.1. PHYSICAL ABUSE

Physical abuse as provided in sec 3 (a) of the PWDA 2005. In order to constitute physical abuse , the
conduct must either: a) cause bodily pain or human ; b) endanger life , limb or health; or c) impair the
aggrieved persons health or development.

a) Cause bodily pain or harm: under the penal law, whoever causes bodily pain, disease or infirmity
to any person is said to cause hurt. The applicant had been subjected to physical violence soon
after her marriage by the respondent due to his unfulfilled dowry demands.

b) Endanger life, limb, or health: the constitution of India provides right to life which includes the
right to health. The respondent continued to commit his act of ill-treatment on the bases of child.
a women being subjected to physical violence regarding the birth of the child was an atrocious,
insensitive and dreadful act by the respondent.

c) Impair the aggrieved persons health or development: the right of life includes the right to live
with human dignity and right to healthy environment. The respondent in the present case has
deprived the applicant of a stable life, mental peace, and her right to freedom and liberty.

2.2. EMOTIONAL ABUSE:

 12

The respondent has caused immense amount of mental torture and emotional abuse to the respondent
within sec 3 of the PWDVA. The respondent demanded dowry from the applicant and her parents.
Also emotional abuse regarding bringing bad luck to their family as their family business was fallen
after marriage. These two contradictory acts on behalf of the respondent clearly indicate that his
intention was to cause distress and humiliation to the applicant herein due to his unfulfilled dowry
demands.

Furthermore, the applicant was even abused reading her pregnancy and not having a child this
conduct signifies their cold and male-chauvinist attitude toward the applicant and her dignity
respectively. Similarly, there have been many circumstances when the applicant has faced enormous
amount of emotional trauma being the wife of the respondent.

2.3. DEMAND FOR DOWRY:

Any act, omission or commission or conduct of the respondent shall constitute domestic violence in
case it harasses, harsh, injure or endangers the aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful demand for any dowry or other property or valuable
security. Demand of dowry from one party to a marriage to the other party to the marriage is also an
offence under the dowry prohibition act 1961. In the present case soon after marriage between parties
the respondent and his family members began to demand dowry from applicant and her parents.
Hence it constitutes domestic violence u/sec 3(B) of the PWDVA 2005.

3. DOMESTIV VIOLENCE AGAINST WOMEN IN INDIA.

Domestic violence (DV) is prevalent among women in India and has been associated with poor
mental and physical health. We performed a systematic review of 137 quantitative studies
published in the prior decade that directly evaluated the DV experiences of Indian women to
summaries the breadth of recent work and identify gaps in the literature. Among studies
surveying at least two forms of abuse, a median 41% of women reported experiencing DV during
their lifetime and 30% in the past year. We noted substantial inter-study variance in DV
prevalence estimates, attributable in part to different study populations and settings, but also to a
lack of standardization, validation, and cultural adaptation of DV survey instruments. There was
paucity of studies evaluating the DV experiences of women over age 50, residing in live-in
relationships, same-sex relationships, tribal villages, and of women from the northern regions of
India. Additionally, our review highlighted a gap in research evaluating the impact of DV on
physical health. We conclude with a research agenda calling for additional qualitative and
 13

longitudinal quantitative studies to explore the DV correlates proposed by this quantitative

literature to inform the development of a culturally tailored DV scale and prevention strategies.

Female feticides, domestic violence, sexual harassment and other forms of gender based violence
constitute the reality of most girls and women lives in India. The primary object of the legislature
was to enact a law keeping in view the rights guaranteed under art 14, 15, 21 of the constitution
of India to provide for a remedy under the civil law which is intended to protect the women from
being victims of domestic violence and to prevent the occurrence of domestic violence in the
society.

According to national family health survey nearly two in five married women have experienced
some form of physical or sexual violence by their husband. Overall, one- third of women age 15-
49 have experienced physical violence and about 1 in 10 has experienced sexual violence. This
figure translates into millions of women who have suffered and continue to suffer at the hands of
husbands and other family members. According to a latest report prepared by Indians national
crime records bureau (NCRB), a crime has been recorded against women in every three minutes
in India. Every six hours, a young married woman is found beaten to death or driven to suicide.

There is a phenomenal rise in crime against women and the protection granted to women under
the constitution of India and other laws can only be meaningful if those who are entrusted with
doing justice are sensitized towards women’s problems.

In the present case the applicant receive all the provided clause of domestic violence in India.
Through this applicant request court to take proper outcome so that no other women should face
this problem.
 14

PRAYER

Therefore in the light of issues raised, arguments advanced, reasons given and authorities cited,
the hon’ble court may be pleased:

1. TO HOLD THE PRESNT COMPLAINT IS MAINTAINBLE.

2. TO PASS AN OREDR OF MAINTENCE U/S 125 OF THE CR.P.C. IN FAVOUR OF

THE COMPLAINANT

3. TO PASS AN OREDR OF RESIDENCE IN FAVOUR OF THE COMPLANINT.

4. TO GRANT MONETRY RELIEF AND COMPENSATION TO THE COMPLAINANT.

And pass any other relief that the hon’ble court may be pleased to grant and for this act of
kindness the counsels for the appellant shall forever humbly pray.

All of which is respectfully submitted.

sd/-

Counsels for the applicant