TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1404
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....against the petitioner and others, for the following reliefs: (1) To pay maintenance at the rate of Rs. 10,000/- each, towards medical expenses and clothing, under Section 20(1)(d) of the Act, (2) To pay Rs. 20,00,000/- for educational expenses, under Section 20(2) of the Act, which includes Rs. 5,00,000/- already spent by the Wife, (3) To pay Rs. 10,00,000/- under Section 20 of the Act, (4) For an order to protect the right to reside in the share household, under Section 17 of the Act, (5) For protection order, under Section 17(e) of the Act, not to alienate or encumber the property. 2. Before the learned Judicial Magistrate No. 1, Coimbatore, Wife has contended that marriage between herself and the petitioner was solemnized on 22.08.1993. Son was born on 13.03.1995. At the time of filing of DVA No. 34 of 2010, Son was in Standard 11th in Vithya Vikash School, Thiruchengode. From 9th Standard, Wife was incurring educational expenses. At the time of marriage, the petitioner, his parents, brother and sister, demanded 60 sovereigns of gold jewels and Rs. 1,00,000/- Cash, as dowry. It was agreed to, by both the parties, to have 30 sovereigns of gold jewels, for the Wife and....
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....petitioner. With that amount, he put up first floor, in the building at Edayarpalayam. While Wife and Son continued to live in the first floor, Husband stayed at Trichy. Now and then, he visited them at Coimbatore. Without any reason, the petitioner used harsh words against his Wife. Her parents were also not spared. Though the respondent-Wife initially was not able to understand the behavior of Husband gradually, from experience, she found that the activities of her Husband, such as, walk, speech, conduct, showed increase in feminine activities. He was more interested in being like a girl and not showing any interest in consortium. Gradually, Wife came to understand the actual reason, for his indifferent attitude and behavior, as to why, he had avoided consortium and others have supported him. Husband and in-laws threatened her that if she does not seek for divorce, on her own accord, properties, which stood in the name of the petitioner, would be settled, in favour of others, and without a penny, Wife and Son, would have to suffer. Considering dignity of the family and also future of the Son, she did not agree for the proposal of the husband for divorce, to be made by her. 7. Th....
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....ur Police Station. There are many properties in the name of the Husband. Thus, citing various instances, Wife has alleged domestic violence, against the Husband and in-laws and prayed for the reliefs, stated supra, in the application filed under Section 12 of the Act, numbered as D.V.A. No. 34 of 2010, on the file of the learned Judicial Magistrate No. 1, Coimbatore. 11. Pending disposal of D.V.A. No. 34 of 2010, on the file of the Judicial Magistrate No. 1, Coimbatore, respondents have filed C.M.P. No. 2112 of 2012, under Section 23(1) of the Act, praying for an interim maintenance of Rs. 10,000/- each, and a sum of Rs. 15,00,000/- towards educational expenses. Respondents have further contended that till the date of filing of the Miscellaneous Petition No. 2112 of 2012, on the advice of his relatives, petitioner has paid only the 1st term fees for Standard 8th. Despite her request, the petitioner refused to bear the educational expenses. In the School, he shouted at the Wife, threatened her to vacate the shared household. Subsequently, a Police Complaint was lodged and on the advice of the Police and relatives, he remitted the fees, for Standards 11th and 12th. Due to the consta....
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.... get admission in the Engineering College. Compliance report and for filing counter in other respect call on 25.06.2013." 14. From the material on record, it could be seen that on 25.06.2012, the Husband was not present and no counter affidavit has been filed. Subsequently, a counter affidavit is stated to have been filed in the main application in D.V.A. No. 34 of 2010 on 08.03.2012. The learned Judicial Magistrate No. 1, Coimbatore, directed the petitioner-Husband to pay Rs. 5,00,000/- towards the educational expenses. 15. Being aggrieved by the interim directions to pay a sum of Rs. 5,00,000/-, to the Son, towards the educational expenses, for admission in the Engineering College, the petitioner has filed an appeal, in Criminal Appeal No. 180 of 2012, on the file of the First Additional District and Sessions Judge, Coimbatore. After hearing both the parties, vide judgment, dated 21.08.2012, the appellate Court has ordered as follows: "In the result, the 1st respondent is required to furnish the proof of admission in VLB College or any other college and also to furnish the complete fees structure to be paid for this year along with the proof of capitation fees, if any, befo....
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....rotection or other orders, to be considered, under Sections 18 to 23 of the Act, and when the respondents have not chosen to seek for any interim ex-parte order, in 2010, when they filed DVA. No. 34 of 2010, under Section 12 of the Act, directions to pay lumpsum payment of 50% of the capitation fees, upon filing the proof of fees structure, before the trial Court and also to pay a sum of Rs. 50,000/- to the son, are wholly untenable and erroneous. According to the learned counsel for the petitioner-Husband, lumpsum payment can be ordered only under Section 12 of the Act. 19. It is his further contention that the interim order granted in C.M.P. No. 2112 of 2012 in D.V.A. No. 34 of 2012, dated 15.06.2012, would have the effect of granting the main relief, sought for, under Section 12 of the Act. He further submitted that it is the Wife, who had caused all the matrimonial problems. The petitioner had incurred educational expenses for the Son and that the Wife was also collecting rent from the dwelling place. Besides, she was also earning. Therefore, there was absolutely no reason to contend that there was any cause for neglect or non-payment of maintenance to them. According to him, ....
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.... No. 2112 of 2012 in D.V.A. No. 34 of 2012, ought to have been rejected. It is also his submission that when the petitioner has filed a counter affidavit to D.V.A. No. 34 of 2012, as early as on 08.03.2012, the learned Judicial Magistrate could have very well taken D.V.A. No. 34 of 2010, for final disposal, instead of entertaining C.M.P. No. 2112 of 2012 in D.V.A. No. 34 of 2010, and passing orders thereon. For the reasons, stated supra, he prayed to set aside the impugned order. 24. Responding to the submissions and referring to the definitions, "Domestic Violence", "Monetary Relief, "Economic Abuse", as defined under Sections 2(g) and (k) and 3(d)(iv), respectively and Sections 12, 18, 19, 22 and 23 and also explaining the scope of the Protection of Women from Protection of Women from Domestic Violence Act, 2005, need to pass interim orders, directing monetary reliefs, to meet the expenses incurred, loss suffered, as a result of domestic violence and further contending that such monetary relief can be claimed at any stage of the proceedings, Mr. K. Thilageswaran, learned counsel for the respondents submitted that C.M.P. No. 2112 of 2012 in D.V.A. No. 34 of 2010, has been rightly....
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.... learned Judicial Magistrate is empowered to pass suitable ex parte interim order, as he deems, just and proper, depending upon the necessity, and that there is no embargo to pass a direction, to pay the lumpsum amount to meet the educational expenses. He also invited the attention of this Court to the expression, "lumpsum payment" in Section 20(2) of the Act. 30. As regards filing of an affidavit, referring to Section 28(2) of the Act, learned counsel for the respondents submitted that statute empowers the Court to lay down its own procedure for disposal of an application under Section 12 or under sub-Section (2) of Section 23. He also submitted that the plea of not filing an affidavit, has not been specifically raised in the memorandum of grounds of revision and therefore, prayed to reject the same. 31. According to the learned counsel for the respondents, at the time of filing C.M.P. No. 2112 of 2012, a prayer to treat the averments in DVA. No. 34 of 2010, as part and parcel of the Miscellaneous Petition has been made and therefore, considering the object of the Act, enabling the Court of competent jurisdiction to grant ex parte interim orders, prayed this Court to ignore the ....
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....rate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence. 38. Section 3(d)(iv) of the Act, defines, "economic abuse", as follows: "(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other proper....
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....sehold, whether or not she has any right, title or beneficial interest in the same. The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 41. Sections 18, 19, 20, 21 and 22, deal with protection orders, residence orders, monetary reliefs, custody orders and compensation orders, respectively and the said sections are extracted hereunder: "18. Protection Orders: The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from- (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or elect....
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....(3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (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. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to. 20. Monetary reliefs: 20. (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but n....
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....ng made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent." 42. As per Section 23 of the Act, the Magistrate has got powers to grant interim ex parte orders, as he deems just and proper, if he is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order, on the basis of an affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 43. In exercise of the powers, under Section 37 of the Act 43 of 2005, the Central Government have made the Protection of Women from Domestic Violence Rules, 2006. Rule 2(d) defines "Form", which means a form appended to these rules. Rule 7 deals with an affidavit for obtaining ex-parte orders of Magistrate and it states that every affidavit for obtaining ex-par....
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....ief is sought in the accompanying application. 9. That the Respondent has threatened the Applicant that ............................................ ...................................................... 10. That the reliefs claimed in the accompanying application are urgent in as much as the applicant would face great financial hardship and would be forced to live under threat of repetition/escalation of acts of domestic violence complained of in the accompanying application by the Respondent(s) if the said reliefs are not granted on an ex-parte ad-interim basis. 11. That the facts mentioned herein are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom. DEPONENT VERIFICATION Verified at ....... on this ......... day of ............ 20. ................ That the contents of the above affidavit are correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. DEPONENT 44. One of the contentions raised before this Court, by the petitioner, is that the learned Judicial Magistrate has no power to grant lumpsum payment, under Section 23 of the Act. It is....
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.... can be granted. The above instances are only illustrative. In any event, interim orders granted in the proceedings are subject to the outcome of the trial. Even the interim order of injunction granted can be vacated at the time of final disposal of the proceedings. For the abovesaid reasons, both the judgments relied on by the learned counsel for the petitioner would not lend any support to the facts of this case. 47. In Rajesh Kurre v. Safurabai AIR 2009 (NOC) 813 (CHH.) : 2009 (1) MPHT 37 (CG), the appellant therein challenged the illegality and propriety of judgment, modifying the amount of monthly maintenance awarded to the non-applicants therein, under the provisions of Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005. Question raised by the appellant therein was that at the time of awarding any monetary relief, in terms of Section 20(1)(d) of the Act, whether the Court was required to take into consideration, the liability and entitlement of maintenance, in terms of Section 125 of the Code of Criminal Procedure. The appellant therein has contended that for claiming any monetary relief, under Section 20(1)(d) of the Act, the aggrieved party is req....
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....o maintain the applicants. But in case of domestic violence, the Court is empowered to grant such relief if the person is aggrieved as a result of the domestic violence and may grant monetary relief in terms of maintenance which would be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved party is accustomed and also empowered to grant lump sum or monthly maintenance or to direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries. However, the Magistrate is not empowered to grant relief in such form in accordance with Section 125 of the Code." 48. It is worthwhile to extract the judgments relating to interpretation of statutes, considered in the abovesaid judgment. "10. In the matter of J.P. Bansal v. State of Rajasthan and Another AIR 2003 SC 1405 the Apex Court has held that "When the words of a Statute are clear, plain or unambiguous i.e. they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. The intention of the Legislature is primarily to be gathered from ....
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....rim application, for a direction to the Husband to pay some reasonable amount, by way of maintenance. The learned Judicial Magistrate, declined to make an interim order, on the grounds that there was no express provision in the Code, enabling the Magistrate to pass such an order. Being aggrieved by the same, Wife filed a Special Leave Petition before the Supreme Court. While answering the issue, in favour of the Wife, the Supreme Court, held as follows: "In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It 18 quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under....
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....is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to there pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family Courts constituted under the said Act." Thus, in the above reported judgment, the Apex Court held that the Magistrate has the power to pass an interim order, for maintenance, pending disposal of the main application, filed under Section 125 of the Code. In the case on hand, The Protection of Women From Domestic Violence Act, 2005, is a special enactment. It empowers th....
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....n 23(2) as importing a requirement that a separate application must be filed to claim the relief of an interim order under Section 23. Doubts, if any, on this aspect pale into insignificance when we consider that Section 23 only insists on an affidavit in such form as may be prescribed to justify the claim for an interim order and ad interim order under Section 23. Rules prescribe the form of affidavit also. From the plain language employed by the statute in Section 23, it is impossible to spell out an insistence that a separate application under Section 23 must be filed in order to clothe the court with the requisite jurisdictional competence and the claimant with a right to claim the relief of an interim order under Section 23. I do not agree with such interpretation, which is sought to be placed on the provisions of Section 23(2) by the learned counsel for the petitioner." 54. On the same aspect, in Vishal Damodar Patil v. Vishakha Vishal Patil 2009 Crl.L.J. 107 : LNIND 2008 BOM 853, the Bombay High Court, at Paragraph 6, held as follows: "6. There are rules framed by the central Government in exercise of power conferred by section 37 of the said Act. The said rules are known....
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....n Latin "Affidare" means to pledge one's faith and a written statement sworn before a person having authority to administer an oath. 56. As per Black's Law Dictionary, 7th Edition, "Affidavit" is a voluntary declaration of facts written down and sworn to by the declaration before an officer author zed to administer oaths of great deal of evidence is submitted by affidavit. 57. "Affidavit" is defined in Section 3(3) of the General Clauses Act, 1897, which include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. 58. In M. Veerabhadra Rao v. Tek Chand AIR 1985 SC 28 : LNIND 1984 SC 290, the Supreme Court explained the word, "affidavit" as follows: "The expression 'affidavit' has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-cl. (3) of Sec. 3 of the General Clauses Act, 1897 to include 'affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing.' The essential ingredients of an affidavit are that the statements or de....
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....nd in Anderson's Law Dictionary as 'probable, reasonable'. Kinneys's Law Dictionary defines the word 'just' as 'fair, adequate, probable, reasonable', and justa causa as 'a just cause; lawful ground.' (Bergman v. Kress 81 NYS 1072 (1073), 83 App. Div. 1). Proper. Natural; suitably; correct; just; right; becoming. The word is also used in the sense of 'own'. The Law Lexicon - P. Ramanatha Aiyar: Just. As an adjective fair; adequate; reasonable; probable; right in accordance with law and justice; right in law or ethics; rightful, legitimate, well founded; comfortable to laws; conforming to the requirements of right or positive law; conformed to rules or principle of justice, 2 Bom. LR 845. As an adverb of time the word "just" is equivalent to "at this moment" or the least possible time since" (Ame. Cyc.) 61. The words, "in any proceedings before him under this Act" in Section 23 of the Act, reflects the manifest intention of the Legislature that if the Magistrate is satisfied, he may grant an ex parte order, if an application, prima facie discloses that the respondent is committing, or has committed act of domestic violence or th....
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....falls sick or if there is any accident, wife or the child, may require medical expenses and it cannot be said that she has to wait till the fins 1 disposal of the application, filed under Section 12 of the Act. 66. In yet another instance, Wife may have some earnings, at the time of filing of the petition, under Section 12 of the Act, which may or may not be sufficient to meet the expenditure, towards basic amenities, including education of the child/children. 67. Wife, may even be financially supported by her father or brother or any near relative. With the sources available, the supporting relative may not be in a position to extend the same, continuously. Considering the cost of living, inflation, the financial assistance given by the parents or near relative, may not be adequate. After the filing of an application, under Section 12 of the Act, there may be a situation, where the Wife, losing her employment. 68. In a given case, the child may be studying in a good school. Due to deprivation of economic or financial assistance, Wife may not be in a position to provide the same standard of education. When the parties lived together and when there was no domestic violence, the c....
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....by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Monetary relief granted under Section 20 of the Act, shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. 71. Monetary relief is defined under Section 2(k), which means, the compensation which the Magistrate may 'order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence. The expression "at any stage", during hearing of an application, seeking any relief, under this Act, read with the definition of "economic abuse", where there is deprivation of an aggrieved person, out of necessity, should mean to include educational expenses, to be incurred by the pare....
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....me words used in the same section, and even the same sentence, have to be construed differently. Indeed the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided." (iv) In Poppatlal Shah v. State of Madras AIR 1953 SC 274 : LNIND 1953 SC 38 : (1953) 1 MLJ 739, the Supreme Court held that, "ft is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase and sentence is to be considered in the light of the general purpose and object of the Act itself." (v) In Rao Shive Bahadur Singh v. State, AIR 1953 SC 394 : LNIND 1953 SC 68, the Supreme Court held that, "While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute, and imply a right of appeal, it is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application." (vi) In Rananjaya Singh v. Baji Nath Singh AIR 1954 SC 749 : LNIND 1954 SC 119 : (1954) 2 MLJ 714, the Apex Court held t....
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....thentic repository of the legislative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is not to resile. It has to abide by the maxim, "ut res magis valiat quam pereat", lest the intention of the legislature may go in vain or be left to evaporate into thin air." (xi) In C.I.T., Madras v. T. Sundram Iyengar (P) Ltd., (1976) 1 SCC 77 : LNIND 1975 SC 586, the Supreme Court held that, if the language of the statute is clear and unambiguous and if two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used, in order to meet a possible injustice. (xii) If the words are precise and unambiguous, then it should be accepted, as declaring the express intention of the legislature. In Ku. Sonia Bhatia v. State of U.P. and Others AIR 1981 SC 1274 : (1981) (2) SCC 585 : LNIND 1981 SC 170, the Supreme Court held that a legislature does not waste words, without any intention and every word that is used by the legislature must be given its due import and significance. (xiii) In Oswal Agro Mills Ltd. v. Collector of Central Excise and Others AIR 1993 SC 2288 : 19....
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....ression "shall or may" is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character." (xvi) In Easland Combines, Coimbatore v. Collector of Central Excise AIR 2003 SC 843 : (2003) 3 SCC 410 : LNIND 2003 SC 18, the Apex Court held that, "It is well settled law that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is also to be remembered that the Courts are not concerned with the legislative policy or with the result, whether injuries or otherwise, by giving effect to the language used nor is it the function of the Court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the Courts in interpreting a particular provision of law to ascertain the meaning and intendment of the Legislature and in doing so, they should presume that the provision was designed to ....
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.... full and fair application of particular statutory language to particular facts as found. It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. A construction which would leave without effect any part of the language of a statute will normally be rejected." (xx) In Narendra H. Khzurana v. Commissioner of Police 2004 (2) Mh.L.R. 72 : LNIND 2003 Bom. 949, it is held that it must be noted the proper course in interpreting a statute in the first instance is to examine its language and then ask what is the natural meaning uninfluenced by the considerations derived from previous state of law and then assume that it was property intended to leave unaltered. It is settled legal position, therefore, that the Courts must try to discover the real intent by keeping the direction of the statute intact. (xxi) In Nathi Devi v. Radha Devi Gupta AIR 2005 SC 648 : (2005) 2 SCC 271 : LNIND 2004 SC 1268, the Apex Court held that, "The interpretation function of the Court is to discover the true legislative int....
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....clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making. 14. Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language..... 15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinct....
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....e Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions" (xxvi) In Adamji Lookmanji and Co. v. State of Maharashtra AIR 2007 Bom. 56, the Bombay High Court held that, when the words of status are clear, plain or unambiguous, and reasonably susceptible to only meaning, Courts are bound to give effect to that meaning irrespective of the consequences. The intention of the legislature is primarily to be gathered from the language used. Attention should be paid to what has been said in the statute, as also to what has not been said. (xxvii) In State of Haryana v. Suresh 2007 (3) KLT 213 : AIR 2007 SC 2245 : (2007) 15 SCC 186 : LNIND 2007 SC 784 : (2008) 1 MLJ (Crl.) 1057, the Supreme Court held that, "One of the basic principles of Interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary, to or inconsistent with any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended ....
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....not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute." (xxxi) In Suresh Khullar v. Vijay Khullar AIR 2008 Del. 1 : LNIND 2007 DEL 906, the Court held that, "Where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation the Court should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.'' (xxxii) In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR 2008 SC 1921 : (2008) 4 SCC 755 : LNIND 2008 SC 681 : (2008) 4 MLJ 573, the Supreme Court, at Paragraphs 52, 54, 55 and 56, held as follows: "52. No doubt ordinarily the literal rule o....
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....etation which can be resorted to by the courts is that such was the intention of the legislature and that the provision was consciously enacted in that manner." (xxxv) In Satheedevi v. Prasanna AIR 2010 SC 2777 : (2010) 5 SCC 622 : LNIND 2010 SC 476 : (2010) 5 MLJ 153, the Supreme Court held as follows: "12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise--Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907. 13. The other important rule of interpretation is that the co....
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....er said that in understanding the meaning of the provision, the Court must take into consideration "not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy." (All ER p. 53 I) 57. These principles have been followed by this Court in its Constitution Bench decision in Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193. At SCC p. 240, Bhagwati, J. as His Lordship then was, in a concurring opinion held that words in a statute cannot be read in isolation, their colour and content are derived from their context and every word in a statute is to be examined in its context. His Lordship explained that the word context has to be taken in its widest sense and expressly quoted the formulations of Lord Viscount Simonds, set out above (see para 54, p. 241 of the Report). 72. In Section 20 of the Act, the Legislature has used the expression, "but is not limited to". In other words, the inference that could be safely drawn, is that apart from what is specifically mentioned in Section 20 of ....
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.... therein. We are unable to agree. A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word 'means' indicates that "definition is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in definition." (See: Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, at p. 717). The word 'includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words 'means and includes', on the other hand, indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." (See: Dilworth v. Commissioner of Stamps, 1899 AC 99 at pp. 105-106 (Lord Watson); Mahalakshmi Oil Mills v. State of Andhra Pradesh, (1989) 1 SCC 164, at p. 169 : (AIR 1989 SC 335 at p. ....
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....e context. The resort of the word 'includes' by the Legislature often shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word 'includes' may have been designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for interpretation of word 'includes' for the purposes of such enactment." 73. Economic abuse means deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom. It is: customary that father is morally bound to maintain his Wife and child, by providing basic amenities like, food, shelter and clothing. He is also bound to provide health and education. Protection of Women from Domestic Violence Act, 2005, is intended to provide for more effective protection of the rights of women guaranteed under the Constitution. 74. Eventualities and necessity to seek for just and proper orders, cannot be visualised, at the time, when Section 12 application is filed. That is why, the Legislature has defined the words, "economic abuse", as including, ....
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....) SC109 : 2003 (9) SCALE 713, Ashok Leyland v. State of Tamil Nadu and Another 2004 (1) SCALE 224, State of West Bengal and Others v. Sujit Kumar Rana 2004 (1) SCALE 641, Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd. Baroda 2004 (3) SCALE 546 and Secretary, Department of Excise and Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another (2004) 3 SCC 185). 56. The object underlying the statute is required to be given effect to by applying the principles of purposive construction. 57. Francis Bennion in his treatise 'Statutory Interpretation' at page 810 described purposive construction in the following manner:- "A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction). 64. In Mahadeo Oil Mills and Others v. Sub-Divisional Magistrat....
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.... or series of statutes relating to the subject-matter." 11. The Court has adopted the same rule in M. Pentiah v. Muddala Veeramallappa AIR 1961 SC 1107; Gammon India Ltd. v. Union of India (1974) 1 SCC 596, Mysore SRTC v. Mirja Khasim Ali Beg (1977) 2 SCC 457, V. Tulasamma v. Sesha Reddy (1977) 3 SCC 99, Punjab Beverages (P) Ltd. v. Suresh Chand (1978) 2 SCC 144, CIT v. National Taj Traders (1980) 1 SCC 370, Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. AIR 1962 SC 1044 and J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1170. This rule of construction which is also spoken of as "ex visceribus actus" helps in avoiding any inconsistency either within a section or between two different sections or provisions of the same statute." (v) In National Insurance Co. Ltd., v. Laxmi Narain Dhut AIR 2007 SC 3079 : (2007) 3 SCC 700 : LNIND 2007 SC 275 : (2007) 4 MLJ 257, the Supreme Court, considered the golden rule of interpretation and purposive construction and at Paragraphs 27 to 36, held as follows: "27. Golden Rule" of interpretation of statutes is that statutes are to be interpreted according to grammatical and ordinary sense of the word in grammat....
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....ok at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place. 31. In Dikshitulu's case (supra) a Constitution Bench of this Court observed as under: "The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (Code). Normally, such intent is gathered from the language of the provision. If the language of the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true me....
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.... the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of c....
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....on that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably." 75. At this juncture, this Court deems it fit to remind the parties, as what our Great Thiruvalluvar has about the duties of a father and education. The good which a father can do to his son, is to prepare him, For a prominent role in the assembly of the learned. One's learning alone is one's indestructible and outstanding wealth, Nothing else possesses this special value." 76. Family is one of the most cherished facet of any human being. Father has an obligation to provide love and affection, righteousness basic amenities and the most important among others, health and education and the necessities of life. He has a unique role in the family. Protection intended in the Act is exhaustive. He is legally and morally obligated to provide all material needs and responsible to provide means of livelihood in all forms. His role is not stopped on the child attaining majority. 77. As per Section ....
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....etitioner that the child is not entitled to maintenance or educational expenses, on attaining majority, is accepted, then the expression, "in addition to", employed in Section in Section 20(1)(d) would be otiose. As per Section 2(k), the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person, as a result of the domestic violence. 83. Expressions used in the statute have a material bearing on the facts of this case. It is well known that while interpreting the words or expression used in a statute, Courts have to consider the objects of the Act and the intention of the Legislature. The Protection of Women from Protection of Women from Domestic Violence Act, 2005,, 2005 (Act 43 of 2005), is enacted to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. 84. At this juncture this Court deems it fit to extract the Stateme....
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....al, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. (iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate. (iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence. (v) It provides for appointment of Protection Officers and registration of nongovernmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe, shelter....
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....g or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment was brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act, but the Courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation. Vide Sri Ram Saha v. State of W.B., (2004) 11 SCC 497." 88. In R. Sridharan v. Presiding Officer LNIND 2008 MAD 2681 : (2008) 6 MLJ 1181, at Paragraph 41, this Court has held that, "41. Interpretation of a Statutory provision should be to find out the intention....
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....preting such a statute. 92. An order under Section 20(d) is not limited to maintenance for the aggrieved person, as well as the children and it includes, an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. Manifest intention of the Legislature, conferring power on the Magistrate, to direct the respondent to pay monetary relief, to meet the expenses incurred and the loss suffered by the aggrieved person, is abundantly clear. If the Legislature has intended to restrict an order under Section 20(d), only for maintenance, then there is no need for the usage of the expression, "but is not limited to". Section 20(d) of the Act makes it clear that in addition to the maintenance, under section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force, the Magistrate is empowered to pass an order, granting monetary reliefs. The expressions, "but is not limited to" in Section 20(1) of the Act and "in addition to maintenance", have wide connotation and amplitude and the power of the Magistrate is not circumscribed to only (a) the loss of earnings; (b....
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....4th respondent herein. Therefore, when necessity has arisen for the respondents to bear the educational expenses and maintenance, Miscellaneous Application in C.M.P. No. 2] 12 of 2012, has been filed in the year 2012 For the reasons, stated supra, merely because an application was filed in the year 2012, under Section 23 of the Act, the contention that such application ought not to have been entertained, deserves to be rejected. 97. As stated supra, monetary compensation can be directed, at any stage of the proceedings. As per the Memorandum filed by Sri Krishna College of Engineering, Coimbatore, Son has completed the first two years in B. Tech IT course. College fees to the tune of Rs. 2,11,200/- is payable for the 3rd and 4th years. For non-payment of fees, Son has been sent out of the college. 98. Keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India, and to provide a remedy, under the Civil Law, the Protection of Women from Domestic Violence Act, 2005, has been enacted with a clear intention to provide the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Intention is man....
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....struction. A construction which would defeat the rights of the have-not and the underdog and which would lead to injustice should always be avoided." (iii) In Madan Singh Shekhawat v. Union of India AIR 1999 SC 3378 : (1999) 6 SCC 459 : LNIND 1999 SC 704, on the aspect, as to how, Court should interpret the provision, specially beneficial provision, the Supreme Court, at Paragraph 15, held as follows: "It is the duty of the Court to interpret a provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the Rule." The Apex Court has considered the view of Lord Denning (as he then was) in Seaford Court Estates Ltd. v. Asher 1949 2 All ER 155, which is extracted hereunder: "When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament. and then he must supplement the written word so as to give "force and life" to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, t....
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...., AIR 2004 SC 2107; Maruti Udyog Ltd. v. Ramlal and Others, AIR 2005 SC 851; Oriental Insurance Co. Ltd. v. Brij Mohan and Others, AIR 2007 SC 1971; and Karnataka State Financial Corporation v. N. Narasimahaiah and Others, AIR 2008 SC 1797)." 99. The Protection of Women from Domestic Violence Act, 2005, is to rectify the causus omission in the ordinary civil law. The expression, "Causus Omissus", as explained in various decisions, means (1) Omitted case, (2) What a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a Causus Omissus. 100. In a given case, Wife would not have made any claim for maintenance under Section 125 of the Code of Criminal Procedure, or any other law, for the time being in force. However, under Section 23 of the Act, she can make a claim for maintenance. In such circumstances, the Magistrate has the power to order monthly payment of maintenance, under Section 20(3) of the Act. Though the words, "appropriate lumpsum payment" in Section 20(3) of the Act, may suggest to mean that it is a permanent alimony, yet fro....
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....fficer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person. (a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one stick order under this Act; (b) of the availability of services of service providers; (c) of the availability of services of the Protection Officers; (d) of her right to free legal services under the Legal Services Authorities Act, 1987; (e) of her right to file a complaint under section 498A of the Indian Penal Code, wherever relevant: Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence. 6. Duties of shelter homes: If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelt....
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....scribed. (2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act. 10. Service providers: (1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 or a company registered under the Companies Act, 1956 or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act. (2) A service provider registered under sub-section (1) shall have the power to- (a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place; (b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within ....
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....sions Judge, Coimbatore and consequentially, prayed to confirm the order passed by learned Judicial Magistrate No. 1, Coimbatore in C.M.P. No. 2112 of 2012 dated 15.06.2012. 108. As stated supra, the learned Magistrate has directed the petitioner to make payment of Rs. 5,00,000/- to the son towards educational expenses for getting admission in Engineering Course. Though, a prayer for maintenance for Rs. 10,000/- each, has been made in CMP No. 2112 of 2012 in D.V.A. No. 34 of 2010, the learned Magistrate has not passed any order of maintenance. 109. Wife and son have not filed any appeal against the denial of maintenance. But the petitioner has filed Crl. A. No. 180 of 2012 against the directions to pay Rs. 5,00,000/- towards the educational expenses to son. The appellate Court has modified the same, to the extent directing wife to furnish proof of admission in VLB College or any other college, and also to furnish complete fee structure to be paid, for the year 2012, alongwith the proof of capitation fees, if any, before the trial Court and further directed the petitioner to pay 50% of the capitation fees within two days of filing the proof of fees structure before the trial Court....
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....ech Course in Shri Krishna College of Technology, Kovaipudur, Coimbatore and as per the memorandum dated 15.12.2014 filed, by Shri Krishna College of Technology, Kovaipudur, Coimbatore, a sum of Rs. 2,11,200/- has to be paid for the 3rd and 4th year of study. 113. As per Section 2(k) of Protection of Women From Domestic Violence Act, "Monetary relief, means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage of hearing of an application seeking relief under the Act for meeting the expenses incurred and also the losses suffered by the aggrieved person, as a result of Domestic Violence. Economic abuse is a domestic violence, as per Explanation No. 4 to Section 3(1) of the Act. 114. Statement of Objects and Reasons to the Act extracted supra makes it abundantly clear that Act is enacted, keeping in view of the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India, to provide for a remedy and the intention is to protect the women from being victims of domestic violence and also to prevent the occurrence of domestic violence in the society, which means further economic abuse. 115. The Act empowers the Magis....