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Domestic Violence Act: 'Divorced Wife' Entitled To Execute Orders Granted Prior To Decree Of Divorce: Calcutta HC [Read Judgment]

Ashok Kini
29 Jun 2019 4:56 AM GMT
Domestic Violence Act: Divorced Wife Entitled To Execute Orders Granted Prior To Decree Of Divorce: Calcutta HC [Read Judgment]
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"Decree of divorce does not deprive the wife from the relief granted in her favour under the provisions of the Domestic Violence Act"
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The Calcutta High Court has held that a divorced wife who got an order of maintenance and other relief under Domestic Violence Act [DV Act] prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.

In Krishnendu Das Thakur vs. State of West Bengal, Justice Madhumati Mitra considered these two important legal issues

  • Whether the wife is required to be continued in domestic relationship to execute an order of maintenance already granted in her favour under the provision of the Protection of Women from Domestic Violence Act, 2005.[DV Act]?
  • Whether change of marital status of the wife by a decree of divorce can be considered to be a change in circumstances as mentioned in Section 25(2) of the Act?

The contention put forth in this case was that, after the decree of the divorce, the wife ceased to be an aggrieved person as envisaged in the provisions of Section 2(a) of the Domestic Violence Act. After the decree of the divorce the opposite party cannot be considered to be an aggrieved person or in domestic relationship with the 'husband', it was argued.

Rejecting the said contention, the court observed that decree of divorce does not deprive the wife from the relief granted in her favour under the provisions of the Domestic Violence Act. The Court also noted that Section 25(2) of the DV Act speaks about 'change in circumstances', but the term 'change in circumstances' has not been defined in the Act. Further, it was observed that, in both the Code of Criminal Procedure and the Protection of Women from Domestic Violence Act, 2005, the words 'change in circumstances' are used in connection with alteration of an order of maintenance. The bench said:

"In view of Explanation (b) to Sub-Section (1) Section 125 of the Code of Criminal Procedure a woman divorced, by her husband under the Hindu Marriage Act, continues to enjoy the status of a wife for the purpose of claiming maintenance allowances from her ex-husband, if she is unable to maintain herself and she has not remarried."

Holding that the Decree of divorce does not deprive the wife from the relief granted in her favour under the provisions of the DV Act, the Court said:

"Moreover, our law recognises the right of a divorced wife to get maintenance till her remarriage. This Act of 2005 provides additional rights and remedies to the aggrieved person. If the contention of the petitioner is accepted then the wife will be forced to approach before the Magistrate to get maintenance under Section 125 of the Code of Criminal Procedure. What is needed is that the existence of domestic relationship as defined in the Act is necessary to bring an action and to get relief under the Act of 2005. Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons." 

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