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INTRODUCTION: –

 Choosing between a declarative suit and an injunction suit can often be confusing, as these remedies serve distinct purposes and also differ in their scope and impact.

 A declarative suit seeks a formal declaration from the court regarding the legal rights and obligations of the parties involved. It is not intended to grant damages or enforce any particular course of action. Rather, it clarifies the existing legal relationship, bringing certainty and preventing misunderstandings in the near future. This clarity can avoid the need for lengthy and potentially expensive litigation, saving time and money.

In contrast, an injunction suit seeks a court order to direct a party to either perform or refrain from performing a specific act. It is a proactive remedy, temporary or permanent in nature, intended to prevent ongoing or imminent harm. Compared to declaratory judgment, injunction is often seen as more powerful remedy but its success depends on proving the potential for immediate and irreparable harm.

METHOD

The method used in this research paper is by reviewing a case by the Honorable Supreme Court of India, Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors dated 2005 March, 2008, (2008) 4 SCC 594.

CASE FINDINGS

In Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors the Honorable Supreme Court observed the following regarding Bare Injunction, Possession and declaratory reliefs.

In the para11 of the above referred judgment the Honorable Supreme Court held as follows

The general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/ or possession, with injunction as a consequential relief, are well settled. We may refer to them briefly:

1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

• Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

• Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

In para17 of the above referred judgment the Honorable Supreme Court summarizes its findings and held that:

1. Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

• As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

• But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

• Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

The court however clarifies that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title by the defendants or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

CONCLUSION

The chosen case review provides us a great example of how the courts have distinguished between these remedies and assessed their suitability in the specific context. Choosing between a declaratory suit and an injunction suit requires careful consideration of the desired outcomes and the available evidence. Declaratory suits offer the clarity of a formal declaration of rights and obligations, removing uncertainty and paving the way for future action. They are particularly effective in a dispute where the legal relationships are unclear or  in the case of contested titles. However, they lack the immediate action or protection of an injunction. Injunction suits, on the other hand, are potent tools for preventing imminent harm or preserving the status quo. They can swiftly halt ongoing interference or potential future disturbances. However, in order for them to be successful they must make a convincing argument for immediate or irreversible injury. Ultimately, the choice rests on understanding the specific legal issue and the desired result.

REFERENCES

• SCC Online

Authored by

THOMAS K JOSEPH

SLCU, CHRIST DEEMED TO BE UNIVERSITY

Intern

MENTO ASSOCIATES

INTRODUCTION

The weaponization of domestic abuse allegations for one’s own benefit casts a shadow over the court system in India. The Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as ‘Act’) is considered to be one of the most important legislations designed to protect women. It provides legal protection not only from physical abuse but also from emotional, sexual and economic abuse within their matrimonial homes. However, there have been concerns emerging regarding the misuse of the Act, leading to innocent people facing dire consequences from false accusations.

METHOD

This research uses both qualitative and quantitative approach. The qualitative analysis was done through an examination of Supreme Court judgments, High Court judgment, legal documents and scholarly articles and the quantitative analysis was done by referring to government reports and NGO on the misuse of the Act.

RESULTS

The quantitative analysis shows that since the law’s passage, the number of DVA claims submitted has significantly increased, but there has also been a rise in the number of cases that have been dismissed for lack of proof or misuse. According to estimates, between 5% and 10% of cases are rejected because of misuse. The misuse of the Domestic Violence Act by women was reported by various NGOs and conviction rate was around 2% in 2014, this was later informed to the Rajya Sabha by the Government stating that “Sometimes ” provisions of the Domestic Violence Acts were misused. The Madras High court Bench also observed that the Act suffers from inherent flaws which tempt women to misuse its provisions,  resulting in men to dread being prosecuted under the law without any reason or wrong. Recently the Bombay High court also raised its concern regarding the rise in trend of women misusing the Act in order to build pressure on their estranged husbands.

The Qualitative analysis was done by reviewing case laws and documents related to the Act. Various courts after looking at the misuse of the Act issued few guidelines to be followed by magistrates while dealing with cases that fall under this Act. The Punjab and Haryana HC declared in the case Jaspal Kaur v State of Punjab (2011 SCC Online P&H 14859) that it is not necessary to send notice to all the respondents under section 13 of DV Act especially when it comes to distant relatives, In such cases the Magistrate is expected to carefully think about and consider all the information in regards with the case and then decide whether to send a notice to them or not. In the case of Mohd. Hussain v Shabnam Ara (CRM(M) No.714/2022) wherein the High court of J and K declared that if the magistrate feels the evidence is insufficient then the Magistrate can dismiss the proceedings of the case. In a recent case of the High court of Karnataka (Pramod R S v Lakshmi M R, Criminal Petition No.1511 of 2023), the court declared that if a DV case is filed by the wife after the filing of divorce by the husband in such a scenario the DV case won’t be of much importance but dismissing it would lead to the defeat of the Act. So in order to prevent injustice the DV case will be allowed to proceed but only based on the facts and circumstances of the case. In a similar case by the High court of Karnataka (Nagesh Gunddayal v State of Karnataka, Criminal Petition No. 1511 of 2023) it was stated that the case would lose its significance due to fact that the complaint is made, after receiving the divorce notice from her husband.

CONCLUSION

The Protection of Women from Domestic Violence Act (PWDVA), 2005, is a landmark legislation in India created with the sole purpose of shielding women from domestic abuse. The Act includes verbal, economic, emotional, and physical abuse in its broad definition of domestic violence. It offers a number of remedies, such as monetary compensation, residency orders and protection orders. However, since its inception, the Act has faced a number of objections and challenges, raising concerns about its validity and legitimacy. Due to personal motivations, this has resulted in instances when women use false charges, severely harming the wrongfully accused both financially and emotionally. Although the Act was created with the goal of protecting women, it is sometimes utilized to harm innocent people.

It’s time to stand up for those falsely accused under domestic violence laws. Those who make false claims, fueled by malicious intent, must face consequences. Amending the Act to include specific penalties for false accusations is crucial. We need to hold the misusers of these laws accountable for the financial and emotional damage they inflict on the wrongly accused.

It’s not uncommon for petitioners to include the husband’s entire family in their complaints, solely to inflict pain and suffering. To combat this unnecessary litigation and protect the accused, time-bound trials should be made mandatory under all domestic violence laws. This will provide much-needed relief to those wrongly accused and prevent them from enduring prolonged torment.

Let’s ensure justice for all. Let’s protect the wrongly accused by holding the false accusers accountable.

REFERENCES

• Live Law
• The Hindu
• SCC Online
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4768593/
• Swapan Kumar Das v. State of W.B., 2023 SCC Online Cal 242
• Bare Text of The Protection of Women from Domestic Violence Act, 2005
• High court of Karnataka
  
  

Authored by

THOMAS K JOSEPH

II Year SLCU

Intern

MENTO ASSOCIATES

• Adoption of child under Juvenile Justice Act 2015:

1. First obtain Adoption order issued by the District Magistrate.

2. The birth certificate will be issued within 5 working days on the receipt of application by registration authorities in the state, from the specialized adoption agency or adoptive parents after the receipt of order issued by the District Magistrate Court.

• Adoption of child under Hindu Adoption and Maintenance Act 1956:

1. Adoption is valid based on registered adoption deed executed and registered by both the parties’ i.e. biological parents and adoptive parents.

2. The birth certificate will be issued on the receipt of application by registration authorities in the state to issue birth certificate from adoptive parents after the receipt of registered adoption deed.

3. Exception: In case of adopted child is more than one year old and his /her birth is not found registered earlier, then as per prescribed procedure of section 13(3) of the Registration of Birth and Death Act, 1969 (amended in 2023), an order of District Magistrate or Sub-Divisional Magistrate or by an Executive magistrate authorised by the District Magistrate should also be obtained before filing an application to registration authorities in the state to issue birth certificate.

• Ref: Circular bearing No. 2037376/2023/CARA dated 03-11-2023 issued by Ministry of Home Affairs, Govt. Of India.

Authored by:

Adv. Shirin Yusuf

FOR MENTO ASSOCIATES

Advocates