SAMPLE DVC Appeal written arguments

IN THE COURT OF THE HON’BLE DISTRICT AND SESSIONS JUDGE, NELLORE.

C.RLA.NO:        xx     /2023

IN

D.V.C. NO         yy /2016

Between

Mr.Handsome

Nellore.                                                —— Appellant/Respondent

AND

1)Mrs. surpanaka

Nellore.

2)Kalki

Rep.by her mother R1 and

 address as mentioned as above.

————– Respondents/ Aggrieved persons

Memorandum Of Written Arguments  Filed On Behalf Of Appellant/Respondent

That the Appellant herein is the husband of Respondent no1.and father of Respondent no.2 .

Brief Facts Of Case

• That the case of the Respondent no.1/aggrieved person is that she is the legally wedded wife of the respondent, and that the Respondent No.2/ Petitioner No.2 is their daughter. That the marriage of the  Respondent No.1/Petitioner  1, was performed at  T.T.D. Kalyana Mandapam, Gudur, S.P.S.R Nellore District, on 30.05.2010 according to hindu religious rites and customs and at the time of marriage, the parents of the petitioner gave cash of Rs 4,50,000/- as dowry to the appellant/Respondent on his demand further parents of the repsondent / No.1 presented 25 sovereigns of gold ornaments to her toward her stridhana. And further her parents spent Rs 200,000/- towards marriage expenses, and that they set up family at nellore and at that time  the parents of the respondent/aggrieved person No.1 spent Rs  60,000/- and provided furniture to said house. During the wedlock she was blessed with aggrieved person No.2 Kalki

• That the Respondent/aggrieved person was subjected to domestic violence and she filed a petition U/S 12 of Domestic Violence Act, seeking reliefs under sections 18,19,20 and 22 of D.V.Act for granting monetary relief directing the respondent to pay monthly maintenance of Rs.10,000/- to each of the petitioners/ Aggrieved persons towards food, cloth and day to day needs from the date of filing of the petition and to direct the 1^st respondent to pay educational expenses to a tune of Rs 3,000/- per month to the 2^nd petitioner, for granting residential order directing the 1^st respondent not to commit any type of domestic violence, directing the 1^st respondent to return her cash Rs 4,50,000/- which was given as dowry, 25 sovereigns of gold, Rs 60,000/- worth of house hold articles, Rs 2,00,000/- towards marriage expenses and also to return her valuable sarees and wearing apparels, and for granting compensation and to direct the repsondent to pay Rs 5,00,000/- compensation for mental torture, Physical and economical, emotional distress caused by the acts of domestic violence, directing the respondent to pay Rs 10 lakhs towards marriage expenses  and welfare of the 2^nd petitioner

• That the Appellant/Respondent filed his counter denying all the allegations.

• That the petitioner to prove her case examined herself as Pw1 and one kanchi Ananda reddy as Pw2, and got marked Exs. P1 to P5.

• That the respondent on his behalf examined himself as Rw1 and got marked Exs.R1 and R2.

Exhibits Filed On Behalf Of the Respondent/ Aggrieved Persons.

          Exhibits Filed On Behalf Of the Appellant/ Respondent

Lower court granted the following reliefs.

1. The lower court affirmed the interim maintenance order granted by the court and gave an order that 10,000/- per month may be paid as maintenance.
2. The court assumed that the marriage expenses of the Pw1 to the tune of Rs 100,000/- and awarded the same towards her marriage expenses.
3. That the court awarded a compensation of Rs 200,000/- towards compensation for the acts of domestic violence.
4. That the court ordered the payment of arrears of interim maintenance of Rs 1,90,000/-.
5. The court ordered an amount of Rs 4000/- towards alternate accommodation.
6. That the court granted a garnishee order to attach the arrears of interim maintenance and accommodation of Rs 80,000/-and Rs 2,70,000/- I.e., total Rs 3,50,000/- from the salary of the respondent.

 APPEAL arguments.

Being Aggrieved by the judgment the appellant is preferring the instant appeal on the following among other grounds

1)The lower court passed the erroneous order without considering facts and evidences submitted to them.

2)The Respondent/aggrieved person no.1 did not follow the best evidence rule but instead relied on a hearsay witness to corroborate her evidence.

The relevant statements of the witnesses are replicated below for brevity.

In Paragraph no 7, lines  19 to 26 the statement of the respondent/ aggrieved person No.1 is as follows.

‘ whenever the parents of the Petitioner went to Nellore to see the family life of the petitioner, 1^st respondent in their presence abused the petitioner in filthy and vulgar language and beat her by saying as NUVVU NANNU VADALI VELLIPO LEDANTE DABBU THECHHI KATTAMANU having no other go parents of the petitioner tried to convince the 1^st Respondent some period to pay the additional amount.

If at all the Respondent no.1 was abused and bet before her parents her parents being the natural and eye witness, would have supported her case by appearing before the court and deposing as witness, but they failed to do so, despite staying in Nellore along with her .There is  no any   plea of the Respondent No.1/Aggrieved Person No.1  that her parents are no more or that they are not in a position that they cannot leave the home.

Sec 60 of Indian evidence act states that

Oral evidence must be direct .oral evidence in all cases whatever be direct  that is to say if it refers to fact which could be see it must be the evidence if the witness who says he saw it. Evidence shall be produced who directly saw, hear and perceived by their senses.

From above statements even though  Respondent no.1/aggrieved person living with her parents they were not examined who are direct witness to alleged acts of domestic violence .

Sec 114(g) of Indian Evidence Act states that

The court may presume

The evidence which could be and is not produced be unfavourable to the person who withholds it.

Thus from sec 60 & 114(g)of Indian Evidence Act it is clear that there is no acts of alleged domestic violence so that she not produced her parents as witness .

HEARSAY EVIDENCE

It is settled principles of law that Hearsay evidence is inadmissible in law.Hearsay evidence is the testimony based on what a witness has heard from another person rather than on direct personal knowledge or experience.Exception to the rules of Hearsay evidence doesn’t apply in the instant case.In the instant case kanchi Anand reddy  PW2 is a hearsay witness.

That the statements of PW2 kanchi Ananda reddy is replicated below for brevity.

In  Paragraph No.4 of his chief affidavit it is stated as follows

‘I was informed that the Respondent demanded to get additional dowry from the parents of the aggrieved party and when she refused to comply the demands of the respondents, the respondent used to beat her. Further I was informed that the respondent picked up quarrel with  me some pretext or other intentionally and used to come home late.”

The deposition of the said kanchi Ananda reddy PW2 in his cross examination is replicated below

In line 13 of page 2 of his deposition                                                

‘I came to know the demand of additional dowry by the respondent through father of aggrieved person.”

It is submitted that from above statements of PW2 is Hearsay evidence.

In general HEARSAY EVIDENCE  is in admissible in law.Hearsay evidence is no evidence.

In judgement  page no.19,lines of 15 to 19

“ But in the case on hand the Respondent /aggrieved person no.1  in her deposition as PW1 stated she has been subjected to acts of domestic violence in the hands of respondent and same is corroborated by the evidence of Pw2 and hence it cannot be said that pw1 is not subjected to domestic violence by the respondent.”

The lower court passed the order erroneously based on Hearsay evidence.

CONTRADICTORY STATEMENTS OF PW1 &PW2

4)It is submitted that the deposition and the affidavit  of  both the witness is laden with contradictions and the same are replicated below for brevity.

From the above statements in the petition,chief examination of PW1 she stated that she was necked out from the house whereas in her cross examination she admitted that Appellant/respondent left the home and after that she stayed in the said house for a period of six months. Hence by this contradictory statements it is proved that PW1 is misleading the court in the instant case with her blatant lies.Hence PW1 is not creditworthy witness.

It is submitted that  statements of PW2 is replicated below as he is a planted witness in terms of Mediation and hearsay evidence.

It is submitted that the allegation regarding the mediation by kanchi ananda reddy I.e., pw2 is nothing but a false statement and the same can be elicited by a perusal of the table below

From the above statements it is submitted that PW1 didn’t mentioned kanchi Anand reddy PW2 as mediator in her petition and chief affidavit but kanchi Anandreddy stated he had done mediation .This shows that Pw2 is not creditworthy witness.

It is further pertinent to submit that even on thorough perusal of the evidence filed by the PW1, there is no reference to the PW2 I.e., the said kanchi Ananda Reddy except for a reference about the marriage she didn’t mentioned his name in list of  mediators while PW2 stated that he did mediation between them, which elucidates that PW2 is planted witness and not Trustworthy .Hence PW2 is planted witness that too hearsay.

• NO MENTAL ABUSE

It is submitted that the allegation of mental cruelty by the Respondents/Aggrieved Person, doesn’t have any credibility and to support this contention the appellant is relying on the demeanor and lies of the appellant and the same are replicated below for brevity.

In Paragraph No.8,of the petition

‘ Further the 1^st Respondent developed illegal contacts with his colleague teacher by name swarna, who is a married woman having two children. Then the 1^st Respondent leading adulterous life with her secretly and came to the house with late nights.

That on several occasions the 1^st respondent openly told the petitioner that he got illegal intimacy with said swarna.

The 1^st Respondent stated to develop some suspicion towards the petitioner and attributed unnecessary intimacies and used to harass her physically and mentally.

It is submitted that the Respondent no.1/Aggrieved person never stated the name with whom she was attributed illegal intimacies which is nothing but a blatant lie.

In Paragraph  No. 10 of the petition ,11^th line

“ further when there is no other go, the petitioner gave a report to women police station, Nellore, Who registered a case as in Cr. No 86/2012, on 16.11.2012, against the 1^st and 2^nd respondents U/S 498A I.P.C and 34 IPC & Sec 3 and 4 of D.P.Act including the concubine of the 1^st Respondent by name swarna.

In Paragraph No. 12, line 1

The petitioners further submits that instead of take care of his legally wedded wife and his daughter, the 1^st respondent approached this honble court and filed a petition  for grant of divorce from the petitioner under F.C.O.P No. 79/2013 with false allegations and the same is also pending before the Honble family court along with F.C.O.P No. 11/2014 as it was filed U/S 9 of Hindu Marriage Act restitution of conjugal rights.

In Paragraph No.13,9^th line

The 1^st Respondent is with the ardent desire of his concubine swarna, even the petitioner waiting and expecting that the 1^st Respondent will be known the truth and ardent desire of his concubine Swarna is only temporary and permanent love and affection with the legally wedded wife  and his child only, but he did not turn up so far. All the efforts were went in vain and when there is no other alternative go, she approaching the honble court for render justice through the petition under F.C.O.P.No 11/2014 for restore conjugal relations and the same is pending before the family court, Nellore.

Pw 1 chief Affidavit

In Paragraph no.4 of the  chief affidavit.

I Further submit that my  developed illegal contacts with his colleague teacher by name swarna, who is a married woman having two children. Then my husband leading adulterous life with her secretly and came to the house with late nights.

That on several occasions the 1^st respondent openly told the petitioner that he got illegal intimacy with said swarna.

The 1^st Respondent stated to develop some suspicion towards the petitioner and attributed unnecessary intimacies and used to harass her physically and mentally.

Cross examination of PW1,2^rd page,7 th line.

Respondent is working as a school teacher and he have illegal intimacy with another teacher who is working in same school and also police arrested them two times. I have documentary proof with regard to the arrest  of the respondent and the said teacher.

The RespondentNO.1/Aggrieved person didn’t produced any document regarding adultery and arrest of the Appellant and swarna collegue teacher to this court as it is  a blatant lie .

It is submitted that the law is very clear in respect of I.P.C 498a and I.P.C 497,

Regarding IPC 498a  for someone to be named an accused in IPC 498a the person charged should be a relative of the accused, and the so called Concubine of the Appellant/Respondent is not a relative of the accused, and hence she cannot be named as an accused and as such cannot be arrested.

Regarding IPC 497, it is well settled law that a woman is never an accused, not even an abettor, and hence she cannot be arrested.

It is submitted that the above arguments would show that the allegation regarding adultery is nothing but a blatant lie.

It is submitted that to support his contention the appellant is relying on the ratio laid down by the apex court In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, where it was held that

‘Mental cruelty in Section 13(1)(i-a) of HMA can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party’

Whereas in this case, the RespondentNO.1/Aggrieved person filed a petition  seeking restitution of conjugal rights,meaning that she wants to live with the Appellant/respondent and hence, in the above facts and circumstances, it is proven that there is no adultery, no mental cruelty and no suspicion to cover up the adultery.

• NO PHYSICAL ABUSE

It is submitted that the averment regarding physical cruelty, doesn’t have legs to stand on, for reasons mentioned below

It is submitted that the averment regarding physical cruelty, doesn’t have legs to stand on, for reasons mentioned below

In Paragraph No.7 of the Petition,4^th line

‘  During the 8 th month of her pregnancy and one occasion 1^st respondnet demanded to bring Rs 3,00,000/- from her parents, when she refused to comply the demands of the respondents, the 1^st respondent used to beat the 1^st petitioner.

In Paragraph No.8,8^th line

‘ When the petitioner questioned him about his ill behaviour and illegal contacts of said swarna, then the 1^st respondent harassing the petitioner physically and mentally, and demanding the additional dowry of  Rs 3,00,000/-.

In Paragraph No .9,13^th line

The 1^st Respondent brutally kicked the petitioner with legs and threatens here with dire consequences and necked out of the house.

She filed her chief examination affidavit reiterating the contents in the petition.

It is submitted that the Respondent No.1/ Aggrieved Person failed to lead any cogent evidence to support her plea of physical abuse, like an injury report, instances of physical violence without any date or year, and an unexplained delay of more than one year  in lodging the F.I.R, combined with the fact that her own parents who are the  eye witness to the alleged physical violence have not supported her case would show that the Respondent No.1/Aggrieved per son No.1’s, plea of physical violence is not trust worthy and she cannot be believed .

.

Sec 103 Indian Evidence Act

Burden of proof as to any particular fact

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence,unless it is provided by any law that proof of the fact shall lie on any particular person.

The Respondent no.1/Aggrieved person no.1 failed to produce evidence for the alleged acts of domestic violence except Hearsay evidence.Mere bold statement of witness is not enough unless same is substantiated by legal evidence.To support her contention the appellant  relying on following decisions of Gauhathi High court.

1) Samiran Nessa vs Aynal Hoque where it was held that

‘The material discrepancy in evidence of petitioner contradicting her own case, exaggeration and decoration, has destroyed the credibility of evidence of the petitioner.Mere bold statement of a witness is not enough, unless the same is substantiated by legal evidence’.

2)The High Court of Himachal Pradesh, Anil Kumar vs Shashi Bala, it was  held that ‘if there is no evidence with regard to maltreatment or violence, no  order of maintenance can be granted invoking the provisions of the Domestic Violence. For also to return her valuable sarees and wearing apparels, and for granting compensation and to direct the respondent to pay Rs 5,00,000/- compensation for mental torture, Physical and economical, emotional distress caused by the acts of domestic violence, directing the respondent to pay Rs 10 lakhs towards marriage expenses  and welfare of the 2^nd petitioner.

Hence  from about facts and circumstances there is no physical abuse,

• NO SEXUAL ABUSE

It is submitted that there are no averments of sexual abuse.

10)NO ECONOMIC ABUSE

It is submitted that the averments regarding economic abuse are negated on the following grounds.

In paragraph No.6 of the petition,5^th line

At the time of marriage, the parents of the petitioner gave cash of Rs 4,50,000/- as dowry to the 1^st respondent on his demand and handed over in the presence of Prakash Reddy, Ananda Reddy, Umashankar Reddy and Amarendar Reddy. Further the parents of the petitioner presented 25 sovereigns of gold ornaments to the petitioner towards her stridhana and presented a gold ring to the 1^st respondent. The parents of the petitioner spent Rs 2,00,000/- to perform the mariage celebration.

In Pargraph No. 11 of the petition,6^th line

Since the maintenance of the petitioner and her daughter became pathetic and the 1^st respondent did not provide any amount for their maintenance and when there is no other alternative go, she totally depending on the mercy of her relatives. On that pathetic situation, facts and circumstances, she sufficiently waited for getting maintenance from the 1^st respondent, but in vain and hence she filed a petition for grant of maintenenace under F.C.OP No 37/2012, along with her minor child on the file of the Honble court and the said petition was allowed, but so far the respondent No.1 did not comply the orders of the honble family court.

Cross Examination of PW1

In Page No. 2, line 4 of the cross examination of Pw1

‘ It is true to suggest that as per the orders of Honble family court Nellore, Vide FCOP No 37/2013 and order was passed on 12.03.2016. It is true to suggest that as per the orders of honble family court Vide FCOP No 37/2013, maintenance was granted for an amount of Rs 5000/- to me and Rs 2000/- to my daughter and the respondent paid an amount of Rs 2,75,000/- and due an amount of Rs 17,000/-. As the respondent did not paid but the amount and amount paid by honble family court vide FCOP No 37/2013, is less one, at the time of filing of this case against the respondent  as such I claimed maintenance in this case. It is true to suggest that respondent  depositing an amount of  Rs 7,000/- in my bank account.

It is submitted that if at all her parents would have given dowry, they would have  come to the court to depose  and would have lead evidence in support of the same. It is also the finding of the trial court that she was not able to adduce any cogent evidence regarding dowry and hence the honble court was pleased not to grant any reliefs regarding the return of dowry as sought by her.It is further submitted that if at all the Respondent/ Aggrieved person was not happy with the maintenance amount granted she should have gone on appeal, but instead she choose to file the instant case, and seeking  enhancement of maintenance is not a ground for filing a domestic violence case. .

As the appellant paying monthly maintainence of RS. 7,000 /- towards the respondent which is granted in Maintenance case.she admitted in her cross examination that he is paying the amount also.The Respondent no.1/Aggrieved no.1 also working as private school teacher and she can maintain herself.

It is submitted that from the above  from the pleadings and deposition of the Respondentno.1/ Aggrieved Person No.1, it is well established that  there was no economic Abuse.

13)It is submitted that when there is no domestic violence, the  reliefs under section 20 and 22 of domestic violence, that too in the absence of any cogent evidence for  injuries, mental torture and emotional distress.

14)It is submitted that the relief in section 19 of domestic seeking alternative accomodation is granted only when there is domestic violence and when it is well established  that there is no domestic violence in the above facts and circumstances, the Respondent no.1/ Aggrieved person no.1 is not  entitled to the relief of alternative accomodation.

15) It is submitted that in the above facts and circumstances it is well established that there is no domestic violence and when there is no domestic violence then the Respondent no.1/Aggrieved Person no.1 is not entitled to any of the releifs sought by her under Secs 18,19,20, and 22 of the Domestic violence act.

Errors on the Part of The Trial Court

16 )In Paragraph No 15 (C) line 16 of judgement

Petitioner/Aggrieved Person in her deposition as Pw1 stated that she has been subjected to domestic violence in the hands of the respondent and the same is also corroborated by the evidence of PW2 and hence it cannot be said that PW1 is not subjected to domestic violence by the respondent.

Since the  lower court passed the orders based on HEARSAY EVIDENCE  it is not valid  at law.Hence there are no acts of domestic violence.

17)In Paragraph No. 16 of judgement

1. b) But With Regard To Marriage Expenses to tune of Rs 2,00,000/- it can be understood from the exhibits of PW1 and the evidence of PW2 that some amount was spent towards marriage by the parents of PW1 and hence an amount of Rs 1,00,000/- is granted towards marriage expenses.

It is submitted that there is no provision in law for refund of marriage expenses and hence the trial court wrongly  granted marriage expenses.

18)In  paragraph16(c) of judgement

An Amount of Rs 2,00,000/- is granted as compensation to Pw1 for the acts of domestic violence committed by RW1 to her.

It is submitted that section 22 of domestic violence act is replicated below  for

22. Compensation orders

.In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being 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.

It is submitted that when there is no domestic violence, the  reliefs under section 20 and 22 of domestic violence, that too in the absence of any cogent evidence for  injuries, mental torture and emotional distress cannot be granted and hence lower court passed erroneous orders without considering domestic violence laws.

19)I n paragraph  16 (h) of judgement

Granted an amount  of Rs 4,000/- for alternative accommodation. It is submitted that the relief in section 19 of domestice seeking alternative accomodation is granted only when there is domestic violence and when it is well established  that there is no domestic violence in the above facts and circumstances, the Respondent/ Aggrieved person is not  entitled to the relief of alternative accomodation.

20)It is submitted that the other reliefs under various crl.m.p.s shall be granted only when  the acts of domestic violence are established .The Appellant /respondent was harassed by the Respondent no.1/aggrieved persons  due to this litigations and now being suffering from heart disease.Inorder to harass the appellant family members with whom she has no shared  household that too handicapped person made as party who is none other than  brother of appellant kalavakuru Chandrasekhar Reddy Later his name was deleted from the case.

21)It is submitted that the present case is nothing but counter blast for the issuance of legal notice dt 5-8-2012 by Appellant/Respndent  to Respondent no.1/Aggrieved person for ambicable settlement.It is further submitted that the Respondentno.1 /Aggrieved person used to harass the  Appellant/respondent  with sharp pin pointed words with which cannot be specifically stated as they are beyond the dignity of courts.It is submitted that Respondent no1./aggrieved person no.1 always harassed the Appellant with grave suspicion that he has affair with collegue teacher who is married and having two children.The Appellant lost his dignity in school, at relatives and at higher authorities and by being vexed with her behavior he left the home and sent legal notice for ambicable settlement.It is submitted that respondet no.1/aggrieved person no.1 made his life hell by defaming him with her suspicion and wrote letter to higher authorities on false allegations which is marked as EX.R2.It is further submitted if the allegations are true why authorities kept quiet without taking any action against him which shows that the allegation are baseless.Still the appellant working as Govt. school teacher .

For a respectable person dishonor is as same as death.

Due to the mental trauma caused by her he suffered heart disease and medical report was marked as Ex.R1.unfortunately there are no domestic violence laws for men. The present case is bare example of MISUSE OF PROTECTION LAWS OF WOMAN.

21)The mere intention of the Domestic violence act is  to give protection for really aggrieved persons but not for those who filed fake cases inorder to harass the Appellant.If there is domestic violence Respondentno.1/Aggrieved person shall not file restitution of conjugal rights petition to rejoin her husband. Filing sec 498A,Restitution of conjugal rights ,blowing hot and cold at the same time. The respondent no.1/Aggrieved personno.1 is misleading the courts.

It is submitted that from the above facts and circumstances there is no acts of Domestic violence. Hence the lower court passed the orders erroneously based on Hearsay evidence which is inadmissible in law so it is to be set aside.

Hence the Hon’ble court may be pleased to

1)set aside the lower court orders.

2)Grant costs

3)Other orders which are deemed to be fit and proper in the circumstances of the case.

Date:

Place:                                                                Advocate for Appellant.

IN THE HON’BLE FAMILY

                                                                      COURT JUDGE,NELLORE

Cr.la.no.xx/2023

In

Dvc.no.yy/2016

Written arguments filed  On Behalf of Appellant/respondent

ADDRESS FOR SERVICE 

xxx

ADVOCATE,NELLORE.

Ph.no.720xxxxxx

,