Date of Judgment:
18th April 2019.
Bench:
Mr. M.G. GIRATKAR, J.
Parties:
Applicant – Smt. Sadhana.
Respondents – Hemant.
Subject
The Hon’ble High Court(hereinafter referred to as ‘Hon’ble High Court’ or ‘the Court’), in the present instance,has held that when a couple divorces, their domestic connection ends, and the woman cannot seek protection under the Domestic Violence Act. This provides a balance and ensures that the laws are not abused.
Legal Provisions
Protection of Women From Domestic Violence Act, 2005
- Section 12 –statesan aggrieved person, a Protection Officer, or any other person acting on the aggrieved person's behalf may apply to the Magistrate for one or more of the following reliefs under this Act.
- Section 18 – states that after hearing both the aggrieved person and the respondent, the Magistrate may issue a protection order in favor of the aggrieved person if he or she is prima facie convinced that domestic violence has occurred or is likely to occur.
Hindu Marriage Act, 1955
- Section 13 – states that any marriage that has been solemnized, whether before or after the start of this Act, may be dissolved b a judgment of divorce on a petition brought by either the husband or the wife, because the other party has committed adultery.
BRIEF FACTS
- In this instant petition where the applicant was married to the respondent/husband, and out of the said wedlock two children’s born subsequently at the husband's request, the family court issued a divorce order under Section 13 of the Hindu Marriage Act, 1955 in 2008, the petitioner applied under the DV Act in 2009.
- Furthermore, it was noted by the Court that the respondents had filed a petition for restitution of conjugal rights before the Family Court, but when the matter at hand was settled amicable and the contending parties started living together on a trial basis, the respondents converted the said petition for restitution of conjugal rights into a divorce petition U/s. 13 of the Hindu Marriage Act, 2005.
- Likewise, the Learned Family Court allowed the said petition and granted divorce to both husband and the wife respectively.
- On the other hand the applicant/wife, after one year of the passage of the decree dated 30th June 2008 for the grant of divorce had filed an application alleging domestic violence U/s. 12 and 18 of the DV Act.
- Likewise the respondent/husband contended that the same application is not sustainable before the Hon’ble Court because there subsisted no domestic relationship between the husband and the wife at the time of grant of divorce, the respondents argued that since the applicant was not the wife of the respondent given the divorce granted on 30th June 2008 and her application is liable to dispose of.
- Subsequently, following the grant of divorce the respondent objected to the application because they did not have a "domestic relationship" and hence any action under the DV Act could not be maintained, following which the application was denied by both the Judicial Magistrate and the Sessions Judge. As a result, the applicant filed the current revised application.
- The learned counsels appearing on behalf of the applicants has contended that the applicant is entitled to the relief even though she is a divorcee, the learned counsel placed reliance on the case of Inderjit Singh Grewal v. the State of Punjab and another, and the Apex Court has considered Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another, in which the FIR U/s. 498A and 406 of the Indian Penal Code were lodged by the wife against her husband and his relatives, and in this instance, the Court accepted under the Muslim Personal Law from the Mufti, thus the petition so filed U/s. 12 of the DV Act is maintainable.
ISSUES RAISED
- Whether the application filed under Sections 12 and 18 of the Domestic Violence Act, 2005 maintainable or not?
ANALYSIS BY THE COURT
- The Hon’ble High Court noted that the evidence presented by the wife, including the record of phone conversations, pictures were taken while attending a wedding together, and her autographs in the child's school journal, cannot be considered as long as the Civil Court's verdict and decree remain in effect.
- Additionally, the Hon’ble Court was of the viewthe applicant's counsel's argument that even after the divorce decision, they continued to live together as husband and wife and so the complaint under the Act 2005 is maintainable is not worth accepting at this juncture.
- Likewise, the Court stated that for a complaint to be accepted under the aforesaid provisions of the DV, Act there must be an actual relationship subsisting between the husband and the wife and since in the present instance the applicant is no more the wife of the respondent then the said petition cannot be maintainable.
- Per contra, the learned counsel placed its reliance on the case of Aradhana Walkade v. Chandrashekar Vaidya and Anr, wherein it was held that Existing relationships, as well as previous relationships, are included under the notion of 'domestic relationship.' As a result, a divorced woman has the option to commence procedures under the Act.
- The Hon’ble High Court placed its reliance on the case of Dhananjay Ramkrishna Gaikwad and others v. Sunanda Dhananjay Gaikwad and others, to substantiate when can a suit under the Domestic Violence Act, can be maintainable, it was held that though the wife was living separately, no decree of divorce was passed by any Court of law, thus she can apply the provisions of the DV Act.
CONCLUSION
Dismissing the revision petition the court cited that since there was an absence of a domestic relationship between the applicant/wife and respondent/husband, thus the proceedings under the DV Act were not maintainable and were filed to harass the spouse and his family, hence the order passed by the learned JMFC was upheld by the Hon’ble High Court stating that there were no perversity or illegality in the impugned orders, and the existence of no merit in the revision the same was dismissed with no costs.
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