Denial Of Economic Support To Wife & Minor Son Amounts To 'Domestic Violence' Even If Parties Aren't Residing In Shared Household: Calcutta High Court

The Calcutta High Court on Thursday observed that denial of economic support to the wife and the minor son constitutes 'domestic violence' under Section 3 of the Protection of Women from Domestic Violence Act, 2005 (DV Act, 2005) and that it is immaterial whether the parties are still residing in a shared household or not. 

Section 3 defines domestic violence and includes physical, sexual, verbal, emotional and economic abuse.

Justice Ajoy Kumar Mukherjee was adjudicating upon a plea seeking quashing of criminal proceedings against the petitioner under Section 12 of the DV Act pending before the concerned Judicial Magistrate. 

In the instant case, the petitioner and his wife (opposite party no. 2) were married according to the Muslim Shariat Law on November 20, 2011 and it was alleged that few days after marriage the wife had started to misbehave with the petitioner without any reason. Thereafter, on February 15, the opposite party with her minor child voluntarily left her matrimonial home. 

Ultimately, on January 19, 2016, the petitioner divorced his wife through Talaknama as per provision of Muslim Personal Law and the same was accepted by the wife. However, it was alleged that after receiving a copy of the Talaknama, the opposite party no. 2 had initiated a criminal case on false charges. She had also filed a civil suit praying for a declaration that the dissolution of marriage by Talaq dated January 19, 2016, is a nullity and non-est in the eye of law and has not been made in accordance with Muslim Law along with a further prayer for permanent injunction restraining defendant from giving effect to such dissolution of marriage through Talaknama. 

Pursuant to a perusal of the rival submissions, the Court noted that the opposite party no. 2 had prayed for passing of various orders under Sections 18, 19, 20, 21, 22 of the D.V. Act, 2005 and had also prayed for passing interim order under section 23 for monetary relief for herself and their son.

Opining that denial of economic support would constitute domestic violence, the Court underscored, 

"Denial of economic support to petitioner as well as their minor son, who has been brought up by the opposite party no. 2 may amount to "economic abuse" as per definition of "domestic violence" under the Act and for that purpose it is not material whether parties are still residing jointly in a shared household or not. In such case, even if opposite party No.2, might have been a working lady, even then whether her earning is adequate, fair and consistent with the living up bringing of their son to which the parties are accustomed is also to be looked into to decide the issue of economic abuse."

The Court further noted that domestic violence in the form of economic abuse continues even after alleged Talaq, on a day to day basis which is reflected from the prayer for interim relief made by opposite party no.2 for upbringing of their son. 

Dismissing the contention of the petitioner that the instant application is barred by limitation under Section 468 of the CrPC , the Court observed that the limitation will apply if there is any offence committed in terms of the provisions of D.V. Act, 2005 and not in respect of an application filed under Section 12 of the said Act. Reliance in this regard was placed on the Supreme Court judgment in Kamatchi v. Lakshmi Narayanan. 

Accordingly, the Court refused to quash the criminal proceedings against the petitioner by observing, 

"Having considered the facts and circumstances of the case and that prayer for the cancellation of Talak is still sub-judice and not yet finalised and also considering the fact that under Section 3 of DV Act, 2005, "domestic violence" includes emotional abuse as well as economic abuse, it can hardly be said at this stage that even though both the parties are residing separately the opposite party no. 2 cannot be categorised as "aggrieved person".

Case Title: Md. Safique Mallick v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 256

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