The Bombay High Court has held that once a decree of divorce has been granted, relief cannot be sought by the wife under the Domestic Violence Act.
Justice MG Giratkar was hearing a criminal revision application filed by a 42-year-old woman from Nagpur who challenged a judgment of the Judicial Magistrate First Class dated August 20, 2015. In the said judgment, the applicant wife's application under Sections 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was rejected.
The applicant got married to respondent husband on July 15, 1999. The couple had two children, but the respondent husband filed a petition for restitution of conjugal rights before the family court. However, the matter was amicably settled and they started living together again.
Thereafter, the respondent converted the petition for restitution of conjugal rights into a divorce petition under Section 13 of the Hindu Marriage Act. Family Court allowed the said petition and granted divorce on June 30, 2008.
In 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 application, there was no domestic relation. She was not residing with him. She was not a wife in view of the divorce granted, therefore, her application is liable to be rejected.
The JMFC, Nagpur, dismissed the said application by judgment dated August 20, 2015. Then an appeal was filed before the Additional Sessions Judge, Nagpur, who also recorded in his findings that there was no domestic relationship and, therefore, the applicant is not entitled to relief under the DV Act.
Adv AA Ghonge appeared on behalf of the applicant and Adv RN Sen appeared for the respondent husband.
Ghonge submitted that even though her client is a divorcee, she is entitled to relief under the said Act. She placed heavy reliance on the judgment of the Supreme Court in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Anr.
However, the court clarified that the said judgment had been looked at by another bench of the Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab and Anr, the apex court had found that in the said case, domestic violence took place and an FIR was registered under S.498A and 406 of IPC against the husband and his relatives. Then the wife obtained an ex parte "khula" (divorce) under the Muslim Personal Law from the Mufti and filed a petition under S. 12 of the DV Act, hence. The apex court held that the wife's petition is maintainable.
In the present instance, the court observed-
"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."
After examining a few other judgments of the high court, Justice Giratkar noted-
"There is no dispute that the applicant/wife is no more wife from the decision of family Court in dated 30th June, 2008. The said decision is not set aside by the appellate Court till date. Therefore, it is clear that at the time of filing of petition under the provisions of DV Act in the year 2009, the applicant was not the wife and, therefore, the petition itself was not maintainable."
Finally, referring to a judgment of the Delhi High Court in the case of Harbans Lal Malik vs Payal Malik, the court said-
"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."
In the said judgment, the Delhi High Court had observed-
"It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act."
Thus, the revision application was dismissed.
Read the Judgment Here