When judgement preceded law
A Ludhiana court invoked the Domestic Violence Act 12 days before it became law on Oct 26, reports Amit Sharma.india Updated: Nov 01, 2006 18:15 IST
Ever since the Domestic Violence Act (DVA), 2005, came into force last Thursday, there are many firsts being reported regarding the law, but this judgment clearly beats all – it came nearly two weeks before the Act became a law.
A Ludhiana court invoked the Act 12 days before it was notified on October 26, allowing a woman petitioner the right to live in the house of a deceased industrialist, who she said was the “husband” of her sister.
The court of SS Dhaliwal, Additional Chief Judicial Magistrate (ACJM), Ludhiana, passed interim orders on October 14 while invoking sections and clauses of an Act that had no legal and constitutional sanctity at that time, as it was yet to be notified. But acting swiftly, the petitioner took possession of the property two days later and locked the house, revealed HT enquiries. The Act, which came into force only a couple of days ago, is meant, among other things, to provide protection to a wife or woman in a live-in relationship from violence at the hands of her husband/partner.
Referring to a property in city’s posh locality on Rani Jhansi Road, petitioner Surjit Kaur approached court on September 30 while contending that she along with her family had been residing in the house of Prem Nath Devgan, the owner of Mefa Needles. Devgan was found murdered on November 27, 2005, under mysterious circumstances and the local police found during the investigations that he had two wives — Nirmala Devi and Kulwant Kaur. The latter’s sister, who happens to be the petitioner in the case, claimed that the disputed house was purchased by her mother Harbans Kaur in the name of Devgan.
She alleged that till the time Devgan was alive they continued to reside in his house but after his death in November, last, his two sons resisted her entry into house and removed her belongings too. Pleading for invocation of Protection of Women from domestic Violence Act, 2005, Surjit Kaur prayed that she be allowed to live in the house and sought court’s direction for the police to put her in possession of the property.
Interestingly, registering the petition under the Act, which was yet to be notified, the ACJM in his interim orders summoned Devgan’s two sons for appearance on November 4, 2006 and directed them to allow the petitioner to reside in the house, failing which police force shall be used by the court to proceed under section 19(7) of the Act directing the concerned police station to assist in implementation of court order.
Meanwhile, the orders have stirred a controversy within legal fraternity with senior lawyers and Bar Council Chairman raising questions over the “legal sanctity” of the ACJM’s directions. “How can any order or directions be made invoking the clauses and sections of an Act which is yet to be notified for its enforcement”, said Chairman, Bar Council of Punjab and Haryana, Harish Rai Dhanda. He said the interim orders passed by Ludhiana ACJM were “irrational and incorrect” and directions, if implemented, may amount to “miscarriage of justice”.
Interestingly, Surjit Kaur’s lawyer Gursharan Singh Johar too alienated himself from the controversy. “My job is just to file a petition and plead it before judge. So do not expect me to educate the learned judge about the legal or constitutional sanction to the Acts”, Johar told HT.