Women Governed By Muslim Personal Law Can Invoke Provisions Of DV Act And Seek Relief: Bombay HC

Introduction

Let me begin at the very beginning by first and foremost pointing out that in a latest landmark judgment by the Bombay High Court titled Mr Ali Abbas Daruwala v/s Mrs Shehnaz Daruwala (Writ Petition No. 114 of 2018 with Civil Application No. 518 of 2018) which was pronounced on May 4, 2018, the Bombay High Court has held that merely because parties are governed by the Muslim Personal Law, it should not be an impediment in the wife invoking provisions of the Domestic Violence Act. In other words it implies that the wife even if governed by the Muslim Personal Law is fully entitled to invoke the provisions of the Domestic Violence (DV) Act whenever she finds it necessary to do so. Justice Smt Bharati H Dangre who was hearing the case held in no uncertain terms that there is no embargo on a court to grant relief to a woman who is an “aggrieved person” within the meaning of the DV Act, merely because she is a Muslim. Very rightly so!

Case Background

While craving for the exclusive indulgence of my esteemed readers, let me inform here that the Bombay High Court was hearing a writ petition filed by one Ali Abbas Daruwala who had challenged a judgment delivered by the Family Court of Bandra dated June 22, 2017, wherein the wife’s application for maintenance was allowed. The Family Court of Bandra in its judgment had directed Ali Abbas to pay Rs 25,000 per month to the wife and Rs 20,000 per month each for both their kids towards maintenance. Ali Abbas then decided to appeal to the Bombay High Court against this judgment. Ali Abbas who is the petitioner and who is aggrieved by the said order prays for quashing and setting aside the said order on the ground that the Family Court has exceeded its jurisdiction in passing the said order.

For my esteemed readers exclusive indulgence, let me also inform them that in 2015, Shehnaz filed a petition for divorce under the Dissolution of Marriage Act, 1939 before the Family Court in Bandra. She prayed for getting the custody of their children, maintenance and accommodation. She also filed a separate application for maintenance and accommodation which was opposed by Ali Abbas in an application under Order 7 Rule 11(a) of the Civil Procedure Code.

Truth be told, this application was rejected and the wife again filed an application for maintenance and accommodation on May 20, 2016. Thereafter, it was claimed by the husband that he gave her a talaq on March 29, 2017 considering how she was asking for a divorce before the family court. He also stated that Shehnaz initially accepted the amount of Mehar that was returned, only to give it back in May. In June 2017, the respondent-wife filed an application under Sections 12, 18, 19, 20, 22 and 23 of the Domestic Violence Act, 2005.

Submissions Made

Be it noted, the petitioner’s advocate Anagha N Nimbkar submitted before the Court that both parties are governed by the Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. She submitted that the divorce in the said case is sought under the Dissolution of Muslim Marriage Act by way of a ‘Khula’, which is divorce by consent at the instance of the wife in which she gives or aggrieves to give a consideration to the husband for release from marriage. Nimbkar further submitted that the divorce was sought exclusively under the Dissolution of Muslim Marriage Act, which does not have provisions for ancillary reliefs, unlike the Domestic Violence Act.    

It would be pertinent to mention here that while appearing for the respondent-wife, Tanbon E Irani submitted that the provisions of the Protection of Domestic Violence Act do not create any restriction on the wife to invoke the provisions of the Protection of Domestic Violence Act do not create any restriction on the wife to invoke the provisions of the said enactment on the ground that she is governed by Muslim Personal Law. She also submitted that the talaqnama was not accepted by her client and relied on the judgment of the Apex Court in Shayra Bano v Union of India & Ors to prove that talaqnama is not valid.   

It is noteworthy that though the learned counsel for the petitioner had vehemently argued that the parties are governed by Muslim Personal Laws and therefore the provisions of the Domestic Violence Act cannot be invoked. But Mrs Tanbon Irani submitted that there is no intention of the legislature to restrict the provisions of Protection of Women from Domestic Violence Act, 2005 to a particular category of women to specifically exclude the women belonging to the Muslim religion.

Judgment Delivered

As it turned out, on the applicability of the Domestic Violence Act in this case, the Bombay High Court noted that, “The scheme of the enactment does not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however, the rights conferred under the said enactments can in no way curtail the operation or protection granted under the Protection of Women from Domestic Violence Act.”

Going forward, the Bombay High Court also concluded that if both parties are governed by Muslim Personal Law, it is not an impediment in the wife invoking the jurisdiction of the court under the provisions of the Domestic Violence Act and there is no embargo of the said court to confer the relief on the woman, who is an “aggrieved person” within the scope and meaning of the Act, merely because she belongs to Muslim religion. It also held categorically in para 8 of its landmark judgment that, “Perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women guaranteed under the Indian Constitution who are the victims of the violence. The enactment no way intends to restrict its application to any particular category of women but it intends to protect the women aggrieved, who are victims of Domestic Violence.”

It was also held in the same para that, “The definition and connotation of “Domestic Violence” under Section-3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section-36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the scheme of the enactment do not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however the rights conferred under the said enactments can in no way curtail the operation or protection granted under the Protection of Women from Domestic Violence Act.”

It also cannot be lost on us that in para 10 of this landmark judgment by the Bombay High Court, it was specifically held that, “The purpose of any provision of law which is beneficial to a woman is to provide some solace to a woman during the subsistence of the marriage or even after she is divorced out of the said marriage and since the Domestic Violence Act is an enactment to provide effective protection of rights of woman, who are victims of violence, the respondent-wife cannot be denied the umbrella of the said legislation.”  

Thus, we find that the husband’s challenge to order directing him to provide maintenance was dismissed. The court also noted that wife has no shelter, has been subjected to vagrancy and is unable to maintain herself and her children and in such circumstances the impugned order cannot be faulted with and their appears to be no illegality or perversity in the said order which would warrant any interference at the instance of this order. The impugned order was thus upheld!

Conclusion

All said and done, it is an excellent judgment which must be emulated by all the courts in India. It specifically provides for protection of Muslim women from the domestic violence. It also makes it clear that just like any other woman, a Muslim woman who is governed by provisions of Muslim Personal Law can also invoke the provisions of the Domestic Violence Act wherever genuine and seek relief. It is made absolutely clear by the Bombay High Court that she is not barred in any way from seeking relief in such genuine cases!