23 Jun 2023 3:54 AM GMT
The Bombay High Court recently held that a Muslim woman can seek relief under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even after divorce.Justice GA Sanap of the Nagpur bench dismissed a man’s revision application against sessions court order enhancing maintenance to his wife in a domestic violence case.“...even if it is assumed for the sake of argument that...
The Bombay High Court recently held that a Muslim woman can seek relief under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even after divorce.
Justice GA Sanap of the Nagpur bench dismissed a man’s revision application against sessions court order enhancing maintenance to his wife in a domestic violence case.
“...even if it is assumed for the sake of argument that the non-applicant has given divorce (Talaq) to the applicant, she cannot be denied maintenance in the proceeding initiated under Section 12 of the D.V. Act.”, the court held.
The complainant went to Saudi Arabia in 2006 with her husband. There was a dispute between her relatives and her husband's relatives who were residing in the same building. She alleged that due to this dispute, her husband ill-treated her. Ultimately in 2012, she came back to India with her husband and their children and stayed at her husband's house.
She alleged that she was pressurized to lodge complaint against her relatives and when she refused she was beaten and her husband's relatives tried to kill her. She went to her parents’ house with her younger son and filed complaint against her husband and his relatives. Her husband went back to Saudi Arabia. She alleged that he did not make any provision for maintenance and filed an application for maintenance, shared household, compensation.
The husband opposed her application and denied the allegations. He alleged that she used to quarrel with him due to the dispute between their families and when she left the house he tried his level best to bring her back. When all his efforts failed he gave talaq to his wife which was properly communicated by registered post, he claimed.
The magistrate awarded maintenance of Rs. 7500/- per month to the complainant and Rs. 2500/- per month to their son. The magistrate also awarded Rs. 2000/- per month as rent. Further, the magistrate awarded compensation of Rs. 50,000/- to the complainant.
Both the parties appealed against this order. The sessions judge allowed the wife’s appeal and enhanced the maintenance to Rs. 16,000/- per month. Thus, the husband filed the present petition.
The husband contended that the domestic violence allegation was made more than a year after their separation. Thus, on the date of filing of application, there was no domestic relationship between them and the complainant is not an aggrieved person under the DV Act, he said. As a divorced Muslim woman, she is not entitled to maintenance as per sections 4 and 5 of the Muslim Women (Protection Of Rights On Divorce) Act and this will be applicable to the proceedings initiated under DV Act as well, he argued.
The court noted that both the magistrate and the sessions judge after scrutinising evidence recorded a finding that the complainant was subjected to domestic violence by her husband.
The court referred to Shabana Bano v. Imran Khan in which the Apex Court held that a divorced Muslim woman is entitled to maintenance as long as she does not re-marry, as Section 125 of the CrPC is a beneficial legislation whose benefit must accrue to divorced Muslim women.
In the present case, the court followed this reasoning and said that even if it is assumed that the husband gave talaq, the wife cannot be denied maintenance in the proceedings under section 12 of the DV Act.
The court reiterated that subsequent decree of divorce will not absolve the husband's liability from offence of domestic violence or deny the benefit to the aggrieved person.
The court relied on Apex Court judgment in Bharati Naik v. Ravi Ramnath holding that an aggrieved person includes a woman who has been in a domestic relationship with the respondent and these words are used to cover past relationship as well.
Therefore, in the present case, the complainant applicant is an aggrieved person and can seek maintenance even after a year of separation, the court held.
The court noted that the husband suppressed his actual income but admitted in the cross examination that he is a chemical engineer in Saudi Arabia since 2005 and has 14 years’ experience. His monthly income is approximately 20,000 Riyals along with benefits which is equal to approximately Rs. 3,50,000/-, the court noted.
The court said that the wife is entitled to maintain the lifestyle and standard which she was accustomed to while staying with her husband. The husband cannot be allowed to question the wife on such count, the court said.
The court observed that the maintenance awarded by the sessions judge would satisfy the bare minimum needs of the applicant and dismissed the husband’s criminal revision petition.
Case no. – Criminal Revision Application No. 131 Of 2022
Case Title – ABC v. XYZ
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