APPELLANT 1. Whether the PWDV Act has retrospective compensation sustained prior to the enactment PWDV Act, 2005?

The PWDV Act was passed in 2005/6 to protect victim women from domestic violence and to prevent further violence. This act was enacted to provide for more effective protection and to guarantee the rights provided under Art. 14, 15 and 21 of the Constitution of India. This act protects the women who are or have been in a relationship with the abuser where both the parties have lived together in a shared household and are related by consanguinity, marriage or through relationships in the nature of marriage or adoption. Under this Act, not only wife but also sisters, widows, mothers and single women are covered under the purview of the said Act. This act ensures protection of women and/or her relatives from domestic violence which covers physical, sexual, verbal or economic harassment of women. This Act also takes in to consideration other aspects like secured housing, residence in matrimonial home or shared household, protection and so on. It is humbly submitted that when the object behind framing/enactment of this act was too broad and not restricted, does the question about Retrospective Effect makes sense?, when in the present case it is very much transparent that Nazma was sometimes not provided food, sometimes locked in the room and once she was beaten mercilessly that caused abortion when she was pregnant that has been proved that the offence of domestic violence has been committed. By excluding retrospective effect of this Act, your lordships, arent we permitting and providing means to escape from the responsibilities and liabilities of the wrongful act done prior to enactment of the Act? Your lordships, in PWDV Act nothing has been specified whether the said Act will have applicability with prospective effect or retrospective effect. Generally, presumption is made that after the enactment of the law, it is

enforced and comes in practice but, this act, when it is having foremost and paramount object of securing and protecting women against domestic violence, it should consider and cover the offences even prior to enactment of the act. In this way, this Act has its retrospective effect within its purview. Hyderabad,Nov. 23: The Andhra Pradesh High Court has ruled that victims can make use of the provisions of the Protection of Women from Domestic Violence (DV) Act even retrospectively. While delivering a verdict, Justice K.C. Bhanu said husbands could not offer the defence that they were separated from their wives when the Act came into force if they had been cruel to them earlier. Narender Kumar Singh, the petitioner, had moved the sessions court contending the alleged incidents of violence narrated by his ex-wife, who had obtained divorce from him last December on the ground of fraud and deception, related to the time when the Act had not been enforced and hence, he could not be prosecuted under the its provisions. Requesting the court to reverse the order passed by the magistrate, Singh said the Act was to be construed prospectively and the complaint of his wife, a practicing lawyer at Delhi courts and the daughter of a retired joint commissioner of Delhi Police, was not maintainable in the eye of the law. Victims of domestic violence that have happened even before the Act came into force can now heave a sign of relief as the Bombay High Court on Saturday held that provisions of the Protection of Women against Domestic Violence (DV) Act, 2005, will apply retrospectively. Where the legislature has not explicitly mentioned whether the Act was to be given retrospective or prospective effect, it was for courts to decide keeping in view the interest of the society as a whole. In a case J. Parveen Kumar held every legislation, the intention and the objects of

the parliament were to be construed intangibly so as to give it the right meaning. Further he contended, a perusal of objects and reasons of the Act shows that it has been enacted for the benefit of individuals and the community as a whole and the general scope of the Act is to further the protection against the indiscrimination, which otherwise has also been guaranteed under the Constitution, but has not been purely addressed by providing Civil remedy. retrospective effect. Justice Bhanu, AP H.C. said, husbands could not offer the defence that they were separated from their wives when the Act came into force if they had been cruel to them earlier. The Hble judge dismissed the petition. Rs. 15,000/- for maintenance wife and her daughter. The judge upheld the decision of the lower court which granted the interim relief of wife. SUSHMA V/S MOHIT 2. H.C. AP He concluded and held that PWDV Act has

Can complaint be filed against mother in law under PWDV Act? In the PWDV Act, S. 2 (q) speaks respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this act; Your lordships, I am no one to challenge on this definition of Respondent but my humble submission is, on one side we are expanding the definition of domestic violence by extending aid not only to wife but also to sisters, widows, mothers and single women while, on the other hand, we are precisely excluding all these from the definition of Respondent merely on the ground that they are Females and we presume that they are incapable of committing any offence which is punishable under this PWDV Act. Your lordships, in the present case, my client namely Nazma is living with her FAMILY in shared household with his husband and his family members which includes two females; one his sister and second his mother. On 303-2006 my client, Nazma has been beaten mercilessly by mother in law and her husband and driven out from matrimonial home merely on the ground that she accepted a lift from her classmate. Further more, since inception of marriage my client Nazma is suffering mental and physical pain, agony and shocks under the different heads like demand for money

and later immediately after six months demand for car was made by the family of Respondents (i.e. husband and his family members). Your lordship to what extent this is acceptable when there are two females and one of them herself is engaged in cruelty and domestic violence? It clearly shows that females are also capable of committing cruelty/crime and this Act is specifically meant to protect females against such domestic violence. So I am of the opinion that no one should be barred from falling within the definition of Respondent. Your lordship in my respectful submission, in the present case, if we allow mother in law to escape from the purview of this act, there is gross error of interpretation. 3. Can custody of the Child be denied to Muslim women under the Act on the ground of personal law?

S. 21 of PWDV, Act reads as under: Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. Your lordships, this section itself suggests that temporary custody of child may be granted to the aggrieved person at any stage of hearing. Therefore, in my humble submission, Nazma is entitled to have custody of her child. Your lordships, in Muslim Law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody, then logically we should try to expand and interpret that the same law also suggests the custody of the legitimate child should be with his mother. Right of custody and care of a child by mother during the period laid down in Muslim Law is called Hizanat. Mothers right of hizanat over her son terminates on the latters completing the age of seven years. It is pertinent to mention here your lordships that while decision should be made keeping in mind the welfare of the child which is of paramount consideration. Socially it is well settled rule that a mother can take much more care of her child than the father. Right from feeding, it becomes social responsibility of a mother to act for upbringing of a child. Hazin is disqualified from custody of the child as he lacks morals and respect for heavenly blessed life. When husband can beat her wife so mercilessly having no control over his mind and if child does anything childlike, who guarantees that he will behave in prudent and rational manner and how can he rear his child? 4. Can Nazma claim Residence Orders in the matrimonial home which is owned by mother in law?

A shared household means a household where the woman aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the woman and the respondent or owned or tenanted by either of them in respect of

which either the woman or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the woman has any right, title or interest in the shared household. Under Section 17 of the Domestic Violence Act 2005, every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. This Section overrides anything contained in any other law for the time being in force. The woman cannot be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. DV ACT BOOK Pg. 36 1). While disposing of an application under Sub-section (1) of S. 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order a). restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; 2) the Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect o r to provide for the safety of the aggrieved person or any child of such aggrieved person.

6) while making an order under Sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments having regard to the financial needs and resources of the parties.

Respondent 1. Whether the PWDV Act has retrospective compensation sustained prior to the enactment PWDV Act, 2005? PWDV Act, shall come into force on the 26th day of Oct. 2006. It does not throw any light on having retrospective effect of this Act. Therefore, to have debate on question of Retrospective Effect of this Act is meaningless. In Ashma v/s Asfar, it was observed that the alleged domestic violence happened in 1997 while PWDV Act came in to force in 2005 and therefore it was held that the application is not maintable under PWDV Act. Hble AP H.C. in U.U.Thimmanna and Ors. v/s Smt. U.U. Sandhya Anr., has held There is no dispute that the Act came into effect when the Central Government appoints 26-10-2006 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 26-10-2006. 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 DVC No.1 of 2007 on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District. The Hble Madras High Court, in the matter of Dennison Paul Raj & Ors Vs Mrs. Mayawinola, considered the PWDVA, 2005 only from one perspective (i.e. no penal provisions) whereas it is cardinal principle of construction that every statute (irrespective of whether it has penal consequences or not) is prima facie prospective, unless it is expressly or by necessary implication, made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.

Article 20 grants protection in respect of conviction for offences by providing that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence. As per this Article, when a certain act is not an offence according to law in force at the time when the act is done, the person who does that act must not be held guilty of an offence merely because subsequently a law is made making such act an offence. When the petitioner is alleged to have committed the offences under various sections of the Domestic Violence Act, which is not in force on the date of such acts, then the charge framed under the said sections would not be maintainable in view of Art. 20(1) of the Constitution as the said penal provisions were not in existence when the alleged offences were committed. In fact, there was no law in force at the time when the petitioner allegedly committed these acts and, therefore, would be entitled to the protection of Art.20(1) of the Constitution. 2. Can complaint be filed against mother in law under PWDV Act? Complaint under PWDV may be filed merely by making an affidavit also having no proof for domestic violence. no use in this case. PWDV Act defines respondent as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; 3. Can custody of the Child be denied to Muslim women under the Act on the ground of personal law? S. 21 of the PWDV Act speaks Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this act grant temporary custody of any child or children to the aggrieved person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit. However, Personal Law enlightens this point in detail. Under Personal Law the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim Law is not recognized as a guardian, natural or otherwise, even after the death of the father. The fathers right

of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children. (Imambandi v/s Mutsaddi, (1918) 45 Cal 887). Your lordships, further, for Custody of the child, Muslim Law makes it crystal clear that of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she can not be deprived of her right so long as she is not found guilty of misconduct. The mothers right of hizanat i.e. custodial right of mother, is solely recognized in the interest of children, and in no sense, it is an absolute right. If she is not found suitable to bring up the child, or her custody is not conductive to the physical, moral and intellectual welfare of the child, she can be deprived of it. Your lordships, in the present case, Nazma accepted lift from his classmate friend and this was witnessed by her brother in law. Now when she accepted lift from her classmate chances are very bright that she might be having some other relations with him. When the character of wife is such that can lead to extra marital affairs which her in laws and husband are not aware about, how far it is acceptable in the society? It proves a great misconduct on the part of Nazma. Additionally, courts observe welfare of child while deciding dispute of Custody of a child. Allahabad H.C., in Salamat Ali v/s Majjo Begum, observed that under the personal law, if mother is entitled to custody of a minor child, she should normally get it, but the court should also consider whether in doing so, it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody. The court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child. Further, your lordships, following disentitle Hazina (female custody holder) to enjoy custody right over her child: Hazina should be; i) of sound mind, ii) of good moral character, iii) living at such a place where there is no risk, morally or physically, to the child, and iv) of such an age which would qualify her to bestow on the child the care it may need this will not apply to mother. Even if we have a reason to believe that Nazma is entitled to have custody of a child then, Muslim Law specifically provides for that, the mother is entitled to the custody of her son until he is weaned i.e. has completed the age of two years. On the completion of the age of two by the son, the mothers right of custody terminates. Your lordships, in the case on hand, Nazma gave birth to a baby in 2001 and the time has elapsed more then 2 years. So in any case, Nazma is not entitled to have custodial orders of her child. Further, because of her grave misconduct, she was driven out of the home, she has no shelter and she has no means to survive and to

pull on her livelihood. In such a case, it is impossible to maintain her child when he is not dependent on feeding/breast milk. Looking to the financial and family situation also, Nazma should not get custody orders. 4. Can Nazma claim Residence Orders in the matrimonial home which is owned by mother in law?

SCI, on dismissing the petition preferred by Taruna Batra held that the shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to husband nor it was taken on rent by him nor is a joint property of which husband is a member and it is the exclusive property of mother in law of Nazma. Hence, it can not be called a shared household.