(In The High Court of Bombay At Nagpur) | 02-02-2018
In this case, Bombay High court stated that the power to grant maintenance under Section 20(1)(d) of the D.V. Act conferred upon the Magistrate is in the nature of monetary relief and is directly related to suffering of the losses by the aggrieved person and any child of the aggrieved person as a result of domestic violence. Therefore, unless it is shown that the aggrieved person and/or her child has suffered such a loss, no order of maintenance can be passed under Section 20(1)(d) of the D.V. Act. In a given case, the aggrieved person has in her hand an order of maintenance granted in her favour under Section 125 of Cr.P.C. or any other law for the time being in force, still, maintenance can be granted to the aggrieved person or a child or both by invoking power under Section 20(1)(d) of the D.V. Act. But, in such a case, the order of maintenance to be granted would be in addition to the maintenance already granted to the aggrieved person or a child under the other law and that in order to be entitled to receive such additional maintenance, the aggrieved person or a child would have to establish that subsequent to the order of maintenance passed under the other law, there were fresh circumstances amounting to domestic violence leading to suffering of loss by her or her child. If no such circumstances are pleaded and proved, the power of granting maintenance under Section 20(1)(d) of the D.V. Act cannot be exercised by the Magistrate in such a case.
This court referred the case of B. Prakash vs. Deepa & Anr., reported in 2016 ALLMR (CRI)168, in which learned Single Judge of Madras High Court taking the same view, has held that the maintenance which could be granted under Section 20(1)(d) of the D.V. Act is in the nature of mandatory relief and such mandatory relief cannot be granted unless two conditions are fulfilled i.e. sufferance of domestic violence by the aggrieved person at the hands of her husband as contemplated under Section 3 of the D.V. Act and incurring of expenses and/or suffering of losses by the aggrieved person or her child as a result of such domestic violence.
The court further observed as follows:-
“8. The learned Magistrate has gone on record saying that filing of divorce petition by the respondent against the petitioner after 23 years of marriage itself amounted to domestic violence. The remark is outlandish and, if I may say so, is alien to the known jurisprudential concepts. If this is the way how the applications filed under Section 12 of the D.V. Act are decided, as has been done in the present case by the learned Magistrate, as rightly submitted by the learned Counsel for the respondents, all the provisions of law, be they be from Hindu Code Bill or Family Courts Act or D.V. Act, creating rights and obligations of parties while maintaining a fine balance between the competing interests of both sides, would be rendered nugatory and a party would dither to initiate a proceeding for assertion of his right, for the fear of being labelled as merchant of domestic violence. The learned Magistrate shall do well to avoid making such remarks without giving any thought to rights and obligations of parties under the law.”
(High Court Of Gujarat At Ahmedabad) | 09-01-2018
In this case grievance of the applicant was that both the courts below have failed to consider that there was mental cruelty against him by his wife and that there was no proof regarding Domestic Violence Act, and that wife has not prayed protection against domestic violence, so there cannot be a straitjacket order of maintenance in absence of domestic violence.
The High Court of Gujarat remanded the matter to the trial court to decide the matter afresh by observing as follows:
“It is quite clear and obvious that though trial Court is empowered to award maintenance for the aggrieved person as well as the children, if any, including an order under or in addition to an order of maintenance u/s.125 of the Code of Criminal Procedure, 1973 or any other law for time being in force, while disposing an application u/s.12(1) of the Domestic Violence Act, such reliefs is to be granted to meet with the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence and not otherwise. Therefore, there is material difference so far as right to claim maintenance is concerned in all different provisions viz. u/s.125 of the Cr.P.C. – wherein maintenance is payable when husband neglects to maintain the wife and minor child, who are unable to maintain themselves; u/s.24
of the Hindu Marriage Act – maintenance during pendency of litigation; u/s.26 of the Hindu Marriage Act – maintenance is granted in case of divorce between the parties; and Section 18 of the Hindu Adoption and Maintenance Act – wherein maintenance is payable when wife has been deserted and when husband is having sufficient properties. Thereby, it is a maintenance based upon the civil dispute between the parties; whereas, under the Domestic Violence Act, Section 20 makes it clear that monetary relief to meet the expenses incurred and losses suffered, may be directed to be paid when aggrieved person suffers such loss as a result of domestic violence. Therefore, if there is no need of protection against domestic violence because the parties are residing separately and thereby, when there is no proper proof of domestic violence at the time of filing such application, which seems to be filed at a belated stage i.e. after 18 years of marriage, it would be appropriate for the trial Court to re- examine the evidence and to decide the matter afresh so as to avoid any injustice to either side.”
(High Court of Judicature at Bombay) | 04-05-2018
In this case Bombay High court stated that though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an “aggrieved person”. It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family.
The Matter was remanded to Family Court to decide the entitlement of maintenance of the wife under Section 20 of the D.V. Act and following observation was made by the court:-
“However, at the same time it is to be noted that the reliefs mentioned under Section 12 are available to “Aggrieved person” and the reliefs which may be availed by invoking Section 17, 18, 19, 20, 21 and 22 are dependent on one important aspect namely the said relief is available to an “aggrieved person” who alleges to have been subjected to any act of domestic violence by the respondent. The object of D.V. Act 2005, being to protect the rights of women who are offended by the act of domestic violence committed by the respondent which
may include any adult male person or with whom the aggrieved person is in domestic relationship. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act, omission and commission or conduct of the respondent shall constitute domestic violence in case it :
(a) harms or injuries or endangers the health, safety, life, limp or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any lawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
12. Thus, in order to claim relief under Section-12 of the Act which permits an “aggrieved person” to present an application to the magistrate seeking one or more reliefs under the Act, levelling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the respondent. Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.
13. Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of “aggrieved person” who would have been entitled for the benefits flowing under Section-12 including to the benefits under Section-20 of the D.V. Act 2005. The applicant in the
application preferred on 16th February 2013 do not give a single instance of domestic violence and the application has been simply preferred under the caption as an application under Section20 of the D.V. Act 2005 praying for following reliefs.”
(Before The Madurai Bench of Madras High Court) | 15-10-2015
In this case Madras High court upheld the decision of the lower court of denial of Maintenance as allegation of domestic violence was not proved and highlighted that mere registration of a complaint will not amount to proof of cruelty, as registration of the First Information Report is towards the first step to investigate and to find out whether the allegation stated in the complaint is true or not. Further court held as follows:
“35. From the provisions of Section 20(1)(d) of the P.W.D.V. Act, it is clear that the grant of maintenance under this Act is in addition to the amount awarded under any other enactment providing for maintenance. Therefore, even though the revision petitioners is not granted any maintenance, it is open to her to work out her remedy before any other law if found eligible.”