Important Judgments on Domestic Violence Act, 2005

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February 11, 2019

Domestic Violence has been an age-old societal concern and women at home have been tormented and tortured by her own family members since time immemorial. However, a special legislation addressing the issue was formulated by the Parliament only in the year 2005. 

The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Domestic Violence Act) drafted for women empowerment and for protection of women against acts of violence in India came into force in the year 2005. The scope of this piece of legislation has been expounded in plethora of judgments by the High Courts and the Supreme Court in India.

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What is a Shared Household?

Case name: S.R. Batra vs. Smt. Taruna Batra

In this case, the Supreme Court with reference to definition of shared household under Section 2(s) of the Domestic Violence Act stated that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.

The Court held that under Section 17(1) of the Act wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. In the case, the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which the husband was a member. It was the exclusive property of mother of husband and not a shared household.

Women in Live-in Relationships Protected under the Domestic Violence Act

Case name: D. Veluswamy v. D. Patchaiammal

In this Supreme Court verdict, a wider meaning to an “aggrieved person” under Section 2(a) of the Domestic Violence Act was conferred by the Supreme Court, wherein the Court enumerated five ingredients of a live in relationship as follows:

  1. Both the parties must behave as husband and wife and are recognized as husband and wife in front of society
  2. They must be of a valid legal age of marriage
  3. They should qualify to enter into marriage eg. None of the partner should have a souse living at the time of entering into relationship.
  4. They must have voluntarily cohabited for a significant period of time
  5. They must have lived together in a shared household

The Supreme Court also observed that not all live-­in­-relationships   will   amount   to   a relationship in the nature of marriage to get the benefit of Domestic Violence Act. To get such benefit the conditions mentioned above shall be fulfilled and this has to be proved by evidence.

Status of a Keep- The Court in the case further stated that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or a servant it would not be a relationship in the nature of marriage.

In this case, the Court also referred to the term “palimony” which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying and is then deserted by him.

Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic Violence Act- Supreme Court

Case name: Lalita Toppo v. State of Jharkhand & anr.

In this recent case, the Supreme Court has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.

The Bench explained that the provisions contained in Section 3(a) of the Domestic Violence Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.

Not all Live-in-Relationships are Covered under the Domestic Violence Act- Bombay HC

Case name: Reshma Begum v. State of Maharashtra & anr.

In the case, the issue that fell for consideration before the High Court of Bombay was the interpretation of provision of Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act).

With reference to the interpretation of the term “relationship” under Section 2(f) of the Domestic Violence Act, the Court noted that the interpretation put on the definition and particularly the words ‘relationship in the nature of marriage’ by the Supreme Court in Veluswamy’s case means:

  • The couple must hold themselves out to society as being akin to spouses.
  • They must be of legal age of marry.
  • They must be otherwise qualified to enter into a legal marriage;
  • They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time

In view of the aforesaid, the High Court opined that it was abundantly clear that not all the live in relationships are covered under the provision of Section 2(f) of the Domestic Violence Act. It is only those which qualify to be the relationship in the nature of marriage are governed by that provision.

In order to constitute such relationship, a legal marriage between the two must be possible.

The entire case can be accessed here.

Against whom can the Complaint be Filed under the Domestic Violence Act?

Case name: Sandhya Wankhede vs. Manoj Bhimrao Wankhede

This issue has often remained a controversial one as Section 2(q) of the Domestic Violence Act defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

In view of the definition of the term respondent covering adult male person, the judiciary has time and again been confronted with the argument that an aggrieved person can file complain under the Domestic Violence Act against an adult male person only and not against the female relatives of the husband i.e. mother-in-law, sister-in-law.

However, the Supreme Court in the aforementioned case put to rest the issue by holding that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person but also the female relative of such adult male.

Wife cannot implicate one and all in the Family

Case name: Ashish Dixit vs. State of UP & Anr.

In this case, the Supreme Court has held that a wife cannot implicate one and all in a Domestic violence case. In this case, the complainant apart from arraying the husband and in-­laws in the complaint, had also included all and sundry as parties to the case, of which the complainant didn’t even know names.

Supreme Court on Duty of Courts while deciding Cases under Domestic Violence Act

Case name: Krishna Bhatacharjee v. Sarathi Choudhury and Another

The Apex Court while elucidating on the duty of courts while deciding complaints under the Domestic Violence Act stated that:

  • It is the duty of the Court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct.
  • The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The Court of Law is bound to uphold the truth which sparkles when justice is done.
  • Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

Husband’s Obligation to Maintain Wife under Domestic Violence Act

Case name: Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors.

It was held in this case, that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property.

Maintenance of Mother under the Domestic Violence Act

Case    name: Ganesh   S/o.   Rajendra   Kapratwar,   Abhijeet Vs. The State   of   Maharashtra  

The   Bombay   High   Court   in   an   application  preferred by the mother for maintenance and medical expenses under the and medical expenses under  the Domestic Violence Act and the Hindu Adoptions and Maintenance  Act, 1956 against her son and grandsons has held that:

“Grandsons   would   have   been   liable   to   pay   maintenance   to   grandmother   under Sections 22(1) of the Hindu Adoptions and Maintenance Act, 1956,   provided   their   father   had   not   been   alive and not   capable   of   paying   maintenance.”

Retrospective application of the Domestic Violence Act

Case name: V.D.   Bhanot   Vs.   Savita   Bhanot

In the case, the Apex Court upheld the Delhi High Court’s view that ­ “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act”.

Hence, the Domestic Violence Act entitles the aggrieved person to file an Application under the Act even for the acts which have been committed prior to the commencement of the Domestic Violence Act.

Also read Filing domestic violence case is not an act of cruelty

Also read Who can claim relief under the Protection of Women from Domestic Violence Act 2005

Right of Women to Reside in her Matrimonial Home

Case name: Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari

The Bombay High Court elaborated on the right of women to reside in her matrimonial home or shared household. The Court observed that the ‘Statement of Objects and Reasons’ of the Act makes it clear that, this Domestic Violence Act is enacted to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the question ‘whether she has any right, title or interest in the said household or not’.

It is also irrelevant whether the Respondent has a legal or equitable interest in the shared household. The moment it is proved that it was a shared household, as both of them had, in their matrimonial relationship, i.e. domestic relationship, resided together there and in this case, upto the disputes arose, it follows that the Petitioner-wife gets right to reside therein and, therefore, to get the order of interim injunction, restraining Respondent-husband from dispossessing her, or, in any other manner, disturbing her possession from the said flat.

Can order be passed directing respondent to remove himself from the Shared household?

Case name: Sabita Mark Burges vs Mark Lionel Burges

Yes, under Section 19(1) (b) of Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.

In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.

Object behind enactment of Section 19 of Domestic Violence Act – In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as-

It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietory rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.

Order directing husband to remove himself from shared household to be exercised sparingly

Case name: Manju Sharma vs. Ramesh Sharma

The District Court of Delhi while substantiating on Section 19(1)(b) of Domestic Violence Act opined that the law empowers the court to direct the removal of respondent from the shared household, however, such power is to be exercised sparingly and in exceptional circumstances.

In this aforementioned case, the wife was awarded interim protection and respondent was restrained from perpetrating any kind of domestic violence on the aggrieved person during the proceedings. However, the respondent breached the said order on two occasions. He continued perpetrating domestic violence on the aggrieved person despite the protection order granted in favour of the aggrieved person. Hence, considering the facts of the case, the Court passed directed the respondent husband to remove himself from the shared household under Section 19(1)(b) of Domestic Violence Act.

Whether women members of the Family can be removed from shared household u/Section 19(1)(b) of DV Act?

Case name: Meenavathi vs Senthamarai Selvi

No, the Proviso to Section 19 clearly states that no order under Section 19(1)(b) of Domestic Violence Act can be passed against any person who is a woman.

In this case it was held that in the guise of passing an order under Section 19(1)(b) of Domestic Violence Act, such women members of the family cannot be directed to be removed from the shared household.

A similar observation was made by the High Court of Madras in the case of Uma Narayanan vs Mrs. Priya Krishna Prasad, wherein the Court observed that under Section 19(1)(b) of Domestic Violence Act, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19(1)(b) of Domestic Violence Act and with particular reference to the direction that could be issued under  Section 19(1)(b) of Domestic Violence Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.

Provision of Alternate Accommodation u/ Section 19 of Domestic Violence Act

Case name: Ajay Kumar Jain v. Baljit Kaur Jain

Section 19(1)(f) of Domestic Violence Act states that the respondent can be directed to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household.

In the aforesaid casethe Court observed that a wife cannot have right to live in a particular property and the same cannot become a clog on the property denying the right of the husband to deal with the property when he is willing to provide an alternative matrimonial home to her. It was also held that she cannot insist on residing in the suit property alone when the husband had offered a suitable alternative arrangement for her.

Residence Order u/Domestic Violence Act- If Property is Sold, Daughter-in-law is Entitled to Alternate Residence and Compensation

Case name: Shachi Mahajan vs Santosh Mahajan

In this very recent case of 2019, the Daughter-in-law had secured protection order of residence under Section 19 of Protection of Women against Domestic Violence Act, 2005 of property in her Mother-in-law’s name (hereinafter referred to as the subject property). However, in a subsequent development, the subject property was sold by the Mother-in-law to a third party by a registered sale deed. In view of the same, the Mother-in-Law contended that as the subject property was sold, the daughter-in-law could not enforce her rights of residence in the shared household.

However, the High Court of Delhi directed the Mother-in-law to provide an alternate residence to the Daughter-in-law and also pay compensation.

The Court noted that action of the Mother-in-Law in selling the subject property, though not strictly illegal, had caused loss to the Daughter- in-Law. Accordingly, one would also have balance the corresponding rights of the parties. In this context, the Court made reference to Section 19(1)(f) of the Domestic Violence Act which stipulates that the Magistrate shall secure same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or direct payment of rent for the same, if the circumstances so require.

Can Husband Initiate Proceedings against Wife u/Domestic Violence Act?

Case name: Mohd. Zakir v. Shabana & Ors.

In this very interesting case of 2018, High Court of Karnataka held that a petition under the Domestic Violence Act by the husband or an adult male can be entertained. To arrive at its decision, the High Court placed reliance on Supreme Court’s judgment in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora, wherein the Supreme Court while striking down a portion of Section 2(a) of the Act (defining “aggrieved person”) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) of the Act stood deleted.

In view of the aforesaid ruling of Apex Court, the High Court opined that If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women.

However, the aforesaid verdict of High Court passed by Justice Anand Byrareddy was later on withdrawn by him when an Advocate opposed the verdict alleging that the Supreme Court’s verdict in the Hirala Harsora case had been wrongly interpreted by the Judge.

Not Providing Maintenance is Continuing Offence-Wife not Debarred from Seeking Maintenance u/Domestic Violence Act even after 3 Years

Case name: Anthony Jose v. State of NCT f Delhi & ors.

In a recent case, the High Court of Delhi analyzed the issue of quashing of FIR/Complaint on the grounds of limitation in matrimonial offences. The Court was of the view that in such cases the victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. Thus, courts while considering the question of limitation for an offence under Section 498-A should be careful and take into consider the interests of justice.

The High Court reiterated Supreme Court’s view in Arun Vyas Vs. Anita Vyas, wherein it was held that the essence of the offence in Section 498-A is cruelty and is a continuing offence and on each occasion on which the respondent was subjected to cruelty a new starting point of limitation arises.

In view of the aforesaid observations, the Court in the instant case refused to quash the FIR on the grounds of limitation.

Quashing of complaint under Section 12 of Domestic Violence Act

Case name: Anthony Jose v. State of NCT of Delhi

In the case, application under Section 12 of the Domestic Violence Act primarily related to grant of maintenance to respondent and the minor child. In this context, the High Court opined that non- providing of maintenance is a continuous cause of action and even if for three years the respondent did not claim the maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 of the Domestic Violence Act and the complaint thereon cannot be dismissed being barred by limitation.

The entire case can be accessed here.

Residence Order u/Domestic Violence Act- Magistrate can Pass Order for Property Situated Outside State

Case name: Ajay Kaul & ors. v. State of J&K

The law involved in the case pertained to Section 27 of the Domestic Violence Act which deals with the Jurisdictional power of the Magistrate and opined that according to the statutory provision only such courts are competent to entertain a complaint where the aggrieved person/respondent permanently or temporarily resides or carries on business or is employed, or where cause of action arises.

While elucidating on the expression “temporarily resides” used in Section 27, the High Court remarked that it means more than a causal stay and implies some concrete intention to stay at a particular place. The temporary residence means where an aggrieved person is compelled to take shelter or to take job or do some business, in view of domestic violence within her matrimonial home. Temporary residence so includes a place where an aggrieved person was compelled to reside in view of commission of domestic violence.

Thus, the High Court in the case held that there is nothing which debars the magistrate to pass such order with regard to property situated outside State.

The entire case can be accessed here.

  1. Mere vague allegation that respondents are family members not  sufficient to maintain complaint

In a case titled KAMLESH DEVI vs JAIPAL & ORS. The Supreme Court has held that a mere vague allegation is not sufficient to bring the case within the domestic violence act.

Facts: The petitioner claimed that she and respondents are the family members of the same family and have been living in the same premises. Husband of the petitioner is retired from BSF and she has three daughters, namely, Urmila, Anusaya and Gaytri. Anusaya and Gaytri are unmarried daughters of the petitioner and have been going to Krishna Nagar College for their study.Further respondents have made a gang and are quarrelsome persons and whenever daughters of petitioner i.e. Anusaya and Gaytri went to their college, respondents Jaipal, Krishan Kumar and Sandeep followed them and teased them and also did obscene activities.

Husband of the petitioner Sube Singh also made a complaint to Sarpanch of Village Gaud against the respondents then in the presence of respectable persons of the village, the respondents also apologized in writing on 5.8.2008.Thereafter, they remained normal for some time but afterwards again started those obscene activities. Hence, finding no other alternative for protection from domestic violence, the complaint has been filed.

Trial Court after discussing the provisions of the Act found that none of the witnesses on record has established any fact to the effect that the respondents and the petitioner have been living in a shared household and the respondents have caused domestic violence upon them. The trial court also held that no violence whatsoever has been alleged of any kind within the premises of the shared household. Ld. Magistrate dismissed the case. Appeal filed before the High Court also got dismissed.  

Left with no alternative, the petitioner approached the Supreme Court which also declined to give any relief observing:

“The High Court has rightly found in effect that the ingredients of domestic violence are wholly absent in this case. The petitioner and the respondents are not persons living together in a shared household. There is a vague allegation that the respondents are family members. There is not a whisper of the respondents with the petitioner. They appear to be neighbours. The special leave petition is dismissed”.

  1. Proceedings under Domestic Violence under Act and Section 125 CrPC are independent proceedings

In a case titled P Rajkumar & Anr. Vs. Yoga @ Yogalaxmi,  the Supreme Court has made following noteworthy observations:

“We are of the considered opinion that the present appeal can be disposed of on a very short point. Admittedly, the respondent was denied any monetary compensation under section 20 of the Act by the learned Magistrate.

Once the learned Magistrate declined to grant maintenance for reasons specified, it was not open for him to assume jurisdiction in a proceeding under section 125 of the Cr.P.C. which was not pending before him and was a completely independent proceeding to direct grant of maintenance under the same.The two being independent proceedings, the learned Magistrate wrongly assumed jurisdiction under Section 125 Cr.P.C in a proceeding under the Act.

In effect, what the magistrate directly declined to the respondent, he granted indirectly by observing that till the proceedings under section 125 of Cr.P.C. is not decided, the appellants shall pay maintenance at a rate of Rs.2,000/- per month to the respondent.The order is without jurisdiction and therefore wholly unjustified and unsustainable. The respondent never challenged the order of the learned Magistrate declining monetary relief under section 20 of the Act”.

  1. Qualification and capacity to earn, no ground to deny interim maintenance

The High Court of Delhi in a case titled BINITA DASS vs UTTAM KUMAR  has held that “Magistrate cannot deny interim maintenance to a wife only because she has earning capacity or is a qualified person”. 

Facts: Petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with the application had filed an interim application under Section 23 seeking interim maintenance. Said application has been rejected by the Trial Court by order solely on the ground that the petitioner and respondent are equally qualified and petitioner was previously employed and has not disclosed any cogent explanation or disability on her part so as to disable her to earn her living.

 The High Court observed “Clearly both the Trial Court as well as the Appellate Court have erred in not appreciating the judgments of this Court wherein it has specifically been held that capacity to earn and actually earning are two different things”.

 The High Court then observed and held “It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning………. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income”.

  1. Husband has to pay maintenance even if wife is well educated

SC in a case titled MEGHA KHANDELWAL vs  RAJAT KHANDELWAL enhanced substantially an interim maintenance for wife in a domestic violence case despite the fact that the wife was well educated. 

Wife filed a domestic violence case. The Trial Court awarded her an interim maintenance of Rs. 5000/- per month. Wife was not satisfied with the same. She challenged the order before Sessions Court.

Sessions Court enhanced the maintenance amount to Rs.9000/- per month. Dissatisfied, the wife approached the High Court challenging the maintenance amount.

The High Court found that the wife was well educated (having a degree in M.Sc. Biotech and preparing for PHD). The High Court also observed that courts below were of the opinion that without evidence being led in the matter, income could not be ascertained but for meeting day to day expenses interim maintenance was granted. The High Court then dismissed the petition of the wife.

Dissatisfied again, the wife this time approached the Supreme Court. Supreme Court held “After having considered rival submission and taking into account the relevant documents placed before us, we deem it appropriate to enhance the interim maintenance amount to Rs.25,000/- (Twenty Five Thousand) per month to be paid to the Petitioner by the respondent with effect from 01.05.2019 until the final decision in the main proceedings, which is pending before the concerned Court. The amount shall be paid on a regular basis on or before 10th of every English calendar month”.

  1. Compensation Determination to be rational and not product of speculations

In a case titled as Smt. Haimanti Mal vs. The State of West Bengal, the court held that in a domestic violence proceeding, the magistrate had allowed certain compensation to the wife but sessions judge overturned the decision against the wife whereby she approached the High Court.

The High Court observed “Compensation is awarded for the loss or injury suffered by the person due to the act of the opposite party. Section 22 speaks about compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent”.

The High Court further observed “The determination of compensation has to be rational, to be done by a judicious approach and it should not be an outcome of guesses on arbitrariness. At the same time, it should be remembered that in absence of any evidence or materials on record the grant of compensation cannot be justified. Compensation for mental or physical shock, pain, suffering, frustration, mental stress, etc. can be given if there is sufficient evidence on record in this regard”.

The High Court also observed “No doubt that the wife/petitioner has definitely suffered pain and mental agony due to the conduct of her husband”.

The High Court then directed “Under the above facts and circumstances, I think that some reasonable amount can be awarded as just and proper compensation for the mental pain and agony of the wife. It is very difficult to assess the actual compensation for mental pain and agony. Considering all aspects, I think a lump sum of Rs.1,00,000/- (Rupees One Lakh) would be sufficient in this regard”.

  1. With annual turnover of very high income, husband pleads less income, HC refused and enhanced maintenance awarded 

In a case titled Manju Sharma vs Vipin, the court held that in a domestic violence case, by the impugned order, the trial court held that respondent had not clearly disclosed his income and the assertion that he was earning only Rs. 12,000/- per month was unbelievable and
accordingly prima facie assessed his income at Rs. 30,000/- and awarded Rs. 10,000/- to the petitioner and her daughter. 

The appellate court by the impugned order found no infirmity in the view taken by the trial court and dismissed the appeal filed by the petitioner seeking enhancement.

High Court, observed “Clearly, the appellate court has erred in placing the burden of proof on the petitioner and has erred in holding that she has not placed the details of contract with regard to the RO Water business of the respondent. The listings which are placed on various websites by the respondent prima facie show a turnover of Rs. 50 lakhs to Rs. One Crore per annum. Further the website listings placed on record prima facie show that the respondent is also engaged in the business of sale and purchase of second- hand cars. Even the father of the respondent had stated that he was engaged in jewelry business along with the respondent, though the business is stated to be closed today. At the stage of assessment of interim maintenance, the court has to only form a prima facie opinion”.

The High Court enhanced the maintenance by saying “In my view the trial court as well as the appellate court had erred in assessing the income of the respondent and fixing interim maintenance on a very lower scale. Keeping in mind the requirement of the petitioner and her daughter, the interim maintenance needs to be enhanced. In view of the material placed by the petitioner on record and the expenditure required to be incurred, I am of the view that the interim maintenance should be enhanced to Rs. 30,000/- per month”.

  1. Wife living separately cannot file case against parents-in law 

Madhya Pradesh High Court has held that if wife and husband lives the share households to establish their own household, the domestic relationship comes to an end in respect of parents and therefore complaint under DV Act cannot be maintained against them.

 

In a case titled Kuldeep Singh Vs. Rekha, the court held that after the marriage, the wife came to her matrimonial house situated at Gwalior and resided with the family members of her husband. It is stated that in the year 2011 her husband got a job at Treasure Island, Indore and in the year 2012 her husband moved to Delhi and they started living there. When they were living at Indore and Delhi, applicant No.2 and 3 came there and demanded Rs.22,000,00/- and harassed her. It is alleged that the applicant No.2 and 3 used to visit at Indore and Delhi and they reiterated the respondent No.1 with regard to dowry. Wife filed a complaint under Domestic Violence Act against several persons including her husband and his mother & father.

When the matter reached the High Court, it observed “The aforesaid documents clearly established that after sometime of the marriage, respondent No.1 and her husband moved out joint family and established their own households at Indore and Delhi”.

It further observed “In this regard the provision of Domestic Violence Act is to be taken into account. Under the Domestic Violence Act the first per-condition is that the applicant must be an aggrieved person is a person defined in Section 2(a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act”.

Finally the High Court quashed the case against parents-in-law by saying “This Court has carefully gone through the complaint preferred under Section 12 of the DV Act, and in the considered opinion of this Court, that in the present case, after sometime of the marriage the respondent goes with her husband leaves the share households to establish their own households at Indore and Delhi, and as a result domestic relationship comes to an end, therefore proceedings based upon the complaint initiated in the matter pending before the Judicial Magistrate, First Class- Indore is not maintainable against the applicant No.2 to 8 and deserves to be quashed”.

  1. Aggrieved wife may lodge complaint against relative of husband or male partner 

The Supreme Court in the case titled Ajay Kumar v. Lata alias Sharuti , stated that in accordance with the proviso to the section 2(q) of the Protection of Women from Domestic Violence Act, 2005, indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be. 

Section 12(1) provides that an aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. Under the provisions of section 20 (1), the magistrate while dealing with an application under sub-section (1) of section 12 is empowered to direct the respondent(s) to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence. This may include but is not limited to an order of maintenance of the aggrieved person as well as her children, if any, including an order under or in addition to an order for maintenance under section 125 of the Cr.P.C. or any other law for the time being in force.

  1. A Divorcee not entitled benefit of Domestic Violence Act

The Bombay High Court in a case titled Sadhana vs Hemant has held that if at the time of filing of petition, the wife had already been divorced, there cannot be any domestic relationship and as such, the divorced wife cannot be entitled for protection under Domestic Violence Act.

 

Facts: The applicant got married with respondent/husband on 15th July, 1999. She delivered two children out of the said wedlock. The respondent had filed a petition for restitution of conjugal rights before the family Court. The matter was amicably settled and they started living together on a trial basis. Respondent converted the petition for restitution of conjugal rights into divorce petition under Section 13 of the Hindu Marriage Act. Family Court allowed the said petition and granted divorce on 30th June, 2008. In the year 2009, the application under Sections 12 and 18 of the DV Act was filed by the applicant alleging domestic violence on the part of the respondent/ husband. The said application was resisted by the respondent on the ground that at the time of filing the application, there was no domestic relation. She was not residing with him. She was not a wife in view of the divorce granted on 30th June, 2008 and, therefore, her application is liable to be rejected. JMFC, dismissed the said application by judgment. In appeal, the learned  Additional Sessions Judge, recorded his findings that there was no domestic relationship and, therefore, the applicant is not entitled for relief under the DV Act.

Held: Wife challenged the order before the High Court. The High Court noted the facts as “In the present case, the applicant is not the wife from the date of decree of divorce i.e. from 30th June, 2008 and, therefore, there is no relationship as husband and wife between them at the time of filing of the application”.

The High Court further noted “In the present case, there was no domestic relation on the date of filing of application under the DV Act and, therefore, the applicant/wife is not entitled for any protection under the said Act”.

The High Court then held “In the present case, divorce was granted by the family Court vide order dated 30th June, 2008. Application under DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct”.

  1. Order of maintenance set aside in absence of any act of Domestic Violence committed

In a case titled Vijayanand Dattaram Naik v. Vishranti Vijayanand Naik, Goa Bench of Bombay High Court  allowed a petition filed by the husband and quashed trial court’s order whereby it had partly allowed the wifes’ application filed under Section 20 of the Protection of Women from Domestic Violence Act, 2005.

The wife filed a domestic violence petition against the husband. By its order, the trial court partly granted the application in terms of Section 20 directing the husband to pay a monthly maintenance of Rs 5,000.

Subsequently, the wife appealed to the additional sessions judge who partly allowed the appeal by enhancing the maintenance. Aggrieved, thereby the husband filed the revision petition.

 It is submitted on behalf of the petitioner that there is no finding of any act of domestic violence being committed by the petitioner against the first respondent. The learned counsel has taken through the points framed by the trial court in impugned judgment, wherein the point nos. 1 to 5, 8, 9 and 10 have all been answered in the negative and the point nos. 6, 7 and 11 are partly answered in the affirmative. It is submitted that the finding about the wife (original complainant) being subjected to any act of domestic violence is a sine qua non for the magistrate to grant any relief under the Act and in the absence of any such finding the Courts below were in error in granting the relief. Reliance on behalf of the petitioner is placed on the decision of this Court in the case of Koushik S/o Anil Gharami v. Sau. Sangeeta Koushik Gharami 2014 ALL MR (Cri) 2398 and Mr. Gurudas Sanvalo Naik v. Mrs. Saanvi Gurudas Naik, 2018 ALL MR (Cri) 2375.

Mr. Bhobe, the learned counsel for the first respondent in all fairness did not dispute that there is no finding of any act of domestic violence being committed by the petitioner. He, therefore, submitted that the appropriate order may be passed. He submitted that the first respondent shall take recourse to any other remedy as may be available in law.

Mr. Agha, the learned counsel for the petitioner, on instructions, submits that the petitioner shall continue to pay the maintenance of Rs. 5000/- per month for a limited period to the first respondent for herself and for the minor son and this shall be without prejudice to the rival contentions of the parties.

While allowing the petition, the court quashed the impugned order. However, it was left open for the wife to take recourse to any other remedy as may be available under law. The husband was directed to pay a monthly sum of Rs 5,000 for a period of six months as there was no act of violence committed.

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