The Interlopes of Domestic Violence: Case of Varun Malik vs Payal Malik

Introduction:

Domestic violence means the type of violence or abuse that is done within the boundaries of a domestic setting. It is not true that domestic violence is only physical but any behaviour or action that is expressed to control the individual or gain power over the individual constitutes domestic violence. For example, threatening an individual is domestic violence because it affects the individual mentally and emotionally. Research backs up that there is an evident direct relationship between gender equality and domestic violence rates. Places that report higher rates of domestic violence also have less gender equality at their place. It a major global issue for all genders. It is false to say that this type of violence is only present in heterosexual relationships, it is present in all kinds of relationships and is not limited to a certain type of relationships. Other examples of domestic violence are physical abuse like beating, choking, throwing of acid and verbal forms of abuse.

Facts of the Case

The parties involved in the case Varun Malik vs Payal Malik are Varun Malik the defendant, Payal Malik, the petitioner. The facts of the case are that Payal Malik, resident of Hissar before marriage, married Mr Nagesh Malik resident of Panipat. Nagesh Malik had a job in the USA and after marriage, both of them shifted to the USA. In 2002, they both had a child there, named Vanshika. Both the parties lived there till 2008, however throughout their marriage they had differences between them and on 6 August 2008 the husband, Nagesh Malik filed for divorce. They both signed a postnuptial agreement with each other’s consent and agreed that they will stick to the agreement and obtain a divorce from each other. Later, the wife disagreed that the agreement was signed voluntarily by her and was taken out by her husband from the USA on 22 August 2008. To which the husband denied and said that the plaintiff herself left the country and did not join in for the court session for the divorce at hand. The divorce suit was served on her and granted by the court on 4th December 2008. Post this on 13 January 2008, the plaintiff filed a complaint in Hissar before CWS cell against the in-laws and the husband, the inspector did not move ahead with the complaint as the plaintiff thought the allegations were false. To which the wife filed a case in the court of MM at Delhi.[1]

Plaintiff filed the case against Harbans Lal Malik, her husband Nagesh Malik and Varun Malik (brother in law), under domestic violence. According to the plaintiff, she suffered maltreatment after returning from the USA and her husband had made scandalous allegations against her and she moved to Delhi to pursue her career.[2]

Issues Raised

The issues raised in this case was whether the protection demanded by her could be granted and the charges against the family under domestic violence.

Rule of Law

Section 12 in the Protection of Women from Domestic violence 2005 says that the aggrieved person or anyone on her behalf can make the report to the Magistrate for any of the reliefs considering the fact that the Magistrate is known of the domestic incident that has taken place. The complaint has to be filed by the Protection Officer or the service provider. [3]

Section 18 in the Protection of Women from Domestic Violence of 2005 lays down the ability of the magistrate to grant a protection order to the aggrieved person. It allows the magistrate after hearing the aggrieved person prohibit the respondent from doing:

1. Any act of domestic violence
2. Aiding the commission of the same
3. Entering the place of employment
4. Communicate or attempt to communicate to the aggrieved person
5. Taking away the assets held jointly by the parties without the permission of the magistrate
6. Causing violence to any other person related to the aggrieved person.[4]

Section 19 in the Protection of Women from Domestic Violence of 2005 mentions the parameters of the residence order, that is the conditions given by the magistrate to the respondents related to the residence.[5]

Section 22 in the Protection of Women from Domestic Violence of 2005 states that the Magistrate can order more compensation to the aggrieved person from the respondents for the mental or emotional torture due to the domestic violence that has taken place.[6]

Section 23 in the Protection of Women from Domestic Violence of 2005 states that the magistrate can give interim or ex parte order based on the affidavit filed by the aggrieved person.[7]

Section 125 in the code of criminal proceedings deals with the maintenance order to the wives or children and parents. It lays down the conditions and punishment for the maintenance.[8]

Judgement Analysis

Throughout the case, numerous questions arose. The first question at hand was the question of applicability of section 12 in this case. Section 12 mentions that this can be applied against the respondent who has had or has a domestic relationship with the aggrieved person in the case. Domestic relationship as specified in section f of this act suggests that a domestic relationship comes in form only when the parties have lived together or have at any point in time. In this case, Varun Malik, the brother of the husband of Payal Malik has not lived under the same roof as Payal Malik as they shifted to the USA post marriage. Therefore, the brother of the husband merely by relation cannot be asked to pay maintenance to her. In addition to this, the domestic relation should be at present not as a relationship of the past and so the boundaries of domestic violence do not apply in this case.

The couple lived in the USA for the longest time, 7.5 years and the girl and her parents were well aware of this fact. Adding on to this the family of the husband was not financially dependent on the groom and therefore posed no interference with their lives. If they were not involved in their life, then how can they be blamed for the failure of their marriage. Henceforth, the applicability section 12 does not exist and such an order should not be entertained. 

Another interesting aspect of this case is how they did not live in a family and their relationship cannot be considered under family or domestic relationship. To form a domestic relationship they should be living under the same roof which in this case they did not. Adding on to this, there was no dependency in this case which makes the brother of her husband a mere relative. Therefore the allegations and the order to pay the amount cannot be executed because of lack of domestic relation.

In addition to this, domestic violence charges cannot be placed on the family member post the divorce. The wife can seek maintenance but not have an order for protection due to the domestic violence suffered as it is only when they are still married and living under the same roof. Therefore the allegations for the same cannot be entertained. The aggrieved person could not prove any legal issue in the judgement of divorce granted in the court of New jersey which points out to the fact that because the case of divorce was under the jurisdiction of the court of New Jersey and there is no legal issue in the judgement which makes it binding over both of them, proving that the plaintiff is a divorced wife. 

Keeping in mind the depths of these facts the judgement was passed that the family of the husband cannot be held for domestic violence and therefore no sort of order will be charged on them. Throughout this case, the session court has done an in-depth understanding of the facts unlike the Court of MM. The judgement passed by the session court is based on rule of law and is highly based on the legality of the laws and not their interpretations. The rationale behind holding this judgement was that the charges cannot be placed considering the fact that there has been no involvement between the families and the circumstances of the case. Once the couple shifted to the USA, the involvement of her brother in law was not present and therefore there is no need for the groom’s family to pay for the end of their relationship. The judgement was passed considering all the aspects of the facts of the case and the laws at hand.

Conclusion

In conclusion, the entire case is interesting. It raises questions on the treatment of women and the effects of domestic violence and the legal aspects of the same. It is not unusual to find such cases where the family suffers because of false charges against them. The act was designed keeping in mind the possible hardships suffered by women in a marriage. If the judgement was passed in the favour of the aggrieved person then the entire purpose of the act would have been lost. In this case, the protection asked by the aggrieved person relied on baseless facts and allegations and therefore could not be taken into account. Section 12 allows the aggrieved or any other person to file for protection. The entire crux of this section would have been wrong in the judgement was something else apart from this considering the fact that the family would have to bear the consequences even though there was no involvement in their marriage. This case is very different from the usual cases of domestic violence and is one of the important precedents for a lot of cases.

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References:

[1] Varun Malik vs Payal Malik, 2011(1) Crimes Del 496

[2] Id.

[3] Ss. 12, The Protection Of Women From Domestic Violence, 2005.

[4] Ss. 18, The Protection Of Women From Domestic Violence, 2005.

[5] Ss. 19, The Protection Of Women From Domestic Violence, 2005.

[6] Ss. 22, The Protection Of Women From Domestic Violence, 2005.

[7] Ss. 23, The Protection Of Women From Domestic Violence, 2005.

[8] Ss. 125, The Protection Of Women From Domestic Violence, 2005.