The question that was argued upon can be set aside only if it is per-versed. The Delhi High Court in its single judge bench of Justice Yogesh Khanna laid down the conditions that must be met in order to invoke section 19 and 23 of the Domestic Violence Act in the matter of Sara Carrierre Dubey v Ashish Dubey, [CRL.M.C. 574/2020, CRL.M.A. 2364/2020, CRL.M.A. 2365/2020, CRL.M.A. 4751/2020, CRL.M.A. 7150/2020, AND CRL.M.A.No.13177/2020]. The court cleared the question stating that once the Court had exercised its power under Section 19(1)(f) and if the order was a reasoned one, then can such an order be set aside under Section 482 Cr.P.C. simply because the High Court believes there could be some other possibility.
In the present case, the petitioner (wife) and the respondent (husband) were married and had 2 children from the wedlock. They also owned property, jointly to the extent of 50% each. The wife alleged the husband of cruelty, domestic violence and infidelity. According to her, the husband projected violent behavior on her and the children because of which she left the house and went to a hotel to live in. since she could not afford to live in a hotel for a long period of time, she along with her children moved to the lady’s friend’s house and were at the friend’s mercy thereafter. The wife also alleged that her husband was in a relationship with another lady named Ruchika Dua from Dubai. When the wife went back to her matrimonial home, which she jointly owned, she saw Ruchika Dua in her bedroom and clicked photos of her in order to produce it as evidence. The petitioner also produced evidence in the form of hospital bills proving injuries caused to her by her husband.
Based on these allegations, the magistrate ordered the respondent to provide the petitioner and the children with a housing facility in the neighborhood which the petitioner herself declined on a continuous basis. The respondent did not refrain from accepting that he was a friend of Ruchika Dua but denied the allegations of infidelity. Thus, the respondent prayed for the quashing of the petition.
It was held that, “To invoke the jurisdiction of this Act (DV Act) the petitioner/wife must prima facie disclose the husband/respondent has committed or is committing or there is likelihood of committing domestic violence. What Section 19 and 23 requires to pass is an interim order, upon satisfaction of the learned Magistrate, where the application prima facie discloses the respondent having committed or is committing the acts of domestic violence or there is likelihood he may commit any act of domestic violence.
Though the learned counsel for respondent argued the learned MM in Samir’s case (supra) had rather formed a prima facie opinion of violence because of affidavits of respondent’s daughters supporting their mother, but here too the learned MM had gone through the allegations made in early hearing application and otherwise, to form such an opinion and thus per Section 23(2) of the Act had passed a removal order considering likelihood of violence. Thus, on facts the order of learned MM was not a perverse order to be set aside by the impugned order”.
The matter was set aside stating that “The respondent is given ten days’ time from today to remove himself from the property in dispute. Needless to say in case of any failure on the part of the respondent, the learned MM shall proceed in accordance with law. The respective right(s) in the subject property and/or disputes interse qua harassment etc, may be raised before the appropriate forum. The observations made above shall not influence the Courts below and allegations/counter allegations be dealt purely on merits”.
