Protection of Women from Domestic Violence Act, 2005 - In case of divorcee wife, the complaint by the divorcee wife under the provisions of the Act, 2005 shall be maintainable so far it relates to divorced husband for lawful responsibilities arising out of the marriage that existed between them at one point of time.
HIGH COURT OF CHHATTISGARH, BILASPUR
Hon'ble Shri Justice Rajendra Chandra Singh Samant
19/07/2017
CR.M.P. No. 387 of 2016
1. Ajay Kumar Reddy, S/o. Parmanand Reddy, Aged
About 46 Years. 2. Parmanand Reddy, S/o. Shrinivas Reddy, Aged About 82 Years, 3.
Smt. Geeta Devi Reddy, W/o. Parmanand Reddy, Aged About 72 Years, R/o. Sector
01, Devendra Nagar, Police Station - Devendra Nagar, Raipur, Civil &
Revenue District - Raipur Chhattisgarh..---- Petitioners Versus 1. State Of Chhattisgarh, Through : Distt. Magistrate- Durg,
Police Station, Civil & Revenue District – Durg, Chhattisgarh 2. Smt.
Rajshree, D/o. Brahama Raj Naidu, Aged About 43 Years, Present R/o. 01 A, Street
36, Sector 08, Bhilai, Tahsil & Civil & Revenue District – Durg,
Chhattisgarh -----Respondents For Petitioners : Mr. Manoj Paranjpe, Advocate For
State/respondent No.1 : Mr. Anil S. Pandey, Govt. Advocate For respondent No.2
: Mr. Raj Kamal Singh, Advocate
Order
Heard.
1. This petition under Section 482 of Cr.P.C. has been filed with
prayer to exercise inherent jurisdiction for quashing the impugned order passed
by the learned Additional Sessions Judge, Durg in Criminal Appeal No.98/2015
dated 16.11.2015 maintaining the order dated 04.09.2015, passed by the Court of
J.M.F.C., Durg in dismissing the preliminary objection raised by the
petitioners.
2. Petitioners have raised the question, whether the protection provided
under Protection of Women from Domestic Violence Act, 2005 (herein after
referred to as 'the Act of 2005') is available to a divorcee wife.
3. It is submitted that marriage of petitioner no.1 and respondent
No.2 was solemnized on 25.06.1994 and due to differences between them,
respondent No.2 left her matrimonial house on 20.10.2006 and thereafter a
decree of divorce was granted by the competent Court on 15.04.2010, which is an
admitted fact.
4. Respondent No.2 filed an application on 10.12.2014 before the Court
of Judicial Magistrate First Class, Durg under the provisions of Section 12,
16, 18, 19, 20 and 22 of the Act of 2005 submitting that after the decree of
divorce dated 15.04.2010, respondent No.2 along with her children is residing
in the house, which was purchased by the petitioner No.1 in the year 2002 from
Bhilai Steel Plant. During her residence in this house in question, petitioner along
with other unsocial elements is regularly disturbing the peace by using abusive
words and interfering in the affairs of the house in possession of the
respondent No.2, which has resulted in complaint lodged by both the sides in
police Station Sector-6, Bhilai. It was also stated that petitioner No.1 is not
making any arrangement for education and maintenance of children and Stridhan
of respondent No.2 has not been returned by petitioner No.1. On this ground it was
prayed that order be passed for return of Stridhan and a protection order be
passed for non-interference in the affairs of respondent No.2, order be passed
to compensate the expenses made by the respondent No.2, order be passed for
monthly maintenance of Rs.15,000/- for maintenance and education of children in
custody of respondent No.2 and also prayed for compensation of Rs.10,00,000/-
from the petitioners.
5. Preliminary objection was raised by the petitioner No.1 that
decree of divorce has been granted in favour of the petitioner no.1 by the judgment
dated 15.04.2010 by Additional Principal Judge, Family Court, Durg and this
decree was appealed by the respondent No.2 before the High Court and that
appeal has been dismissed. Consequent to this situation, the respondent No.2 can not be regarded
to be in any domestic relationship as it is defined in Section 2(f) of the Act
of 2005. For this reason, respondent No.2 can not be regarded as entitled to
file a complaint under the Act of 2005. Hence, the complaint filed by the
respondent No.2 before the Court of Judicial Magistrate First Class, Durg is
not maintainable.
6. It is submitted by the counsel for the respondent No.2 that decree
of divorce in this case had not been on the basis of mutual consent of the
parties. Status of wife in a case for divorce which is contested stands
differently. Wife is defined in Section 125 of Cr.P.C. is applicable to the
proceeding under the Act of 2005. Hence this petition is not maintainable.
7. Counsel for the respondent No.1 duly assisted the Court.
8. The petitioner has placed reliance on the judgment passed in case of
Inderjit Singh
Grewal Vs. State of Punjab and another, reported in (2011) 12 Supreme Court Cases 588, in which it was held that in a proceeding by wife
under the Act of 2005, challenge to the decree of divorce can not be
entertained. Reliance has also been placed in Para-18 of judgment passed in
case of Krishna Bhatacharjee Vs. Sarathi Choudhury and Anr. reported in (2016) 2 SCC 705, which reads as under :-
“18. The core issue that is
requisite to be addressed is whether the appellant has ceased to be an “aggrieved
person” because of the decree of judicial separation. Once the decree of
divorce is passed, the status of the parties becomes different, but that is not
so when there is a decree for judicial separation. A three-Judge Bench in Jeet
Singh and Others Vs. State of U.P. and Others, 1993 1 SCC 325 though in a
different context, adverted to the concept of judicial separation and ruled
that the judicial separation creates rights and obligations. A decree or an
order for judicial separation permits the parties to live apart. There would be
no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are
suspended. The decree however, does not sever or dissolve the marriage. It
affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a
ground for divorce, it is not necessary and the parties are not bound to have recourse
to that remedy and the parties can live keeping their status as wife and
husband till their lifetime.”
9. Reliance has also been placed in case of Juveria Abdul Majid
Patni Vs. Atif Iqbal Mansoori & Anr. reported in (2014) 10 SCC 736 referring to para 30 of the judgment, which reads as under :-
“30.
An act of domestic violence once committed, subsequent decree of divorce will
not absolve the liability of the respondent from the offence committed or to
deny the benefit to which the aggrieved person is entitled under the Domestic Violence
Act, 2005 including monetary relief under Section 20, child custody under
Section 21, compensation under Section 22 and interim or ex parte order under
Section 23 of the Domestic Violence Act, 2005.”
10. It is submitted that it is
clear from the ratio laid down by the Supreme Court the act of domestic
violence was committed, decree of divorce was passed subsequent to that,
whereas, in this case, the decree of divorce as has been passed earlier in the
year 2010, whereas the application under the provision of Protection of Women from
Domestic Violence Act have been brought in the year 2014.
11. Heard the parties and perused the material on record.
12. The question before this Court is with respect to the
applicability of the provisions of the Act of 2005. In the circumstances of
this case, the parties stand as divorced husband and wife, their marital relationship
has been sheared off and the decree has attained the finality. In the situation,
whether the compliant can be made under the Act of 2005 by a divorced wife
seeking reliefs.
13. Definition under Section 2(a) of the Act of 2005 is as under :-
“2(a)
“aggrieved person” means any women who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any
act of domestic violence by the respondent;”
14. Further the definition of
domestic relationship under Section 2(f) of the Act of 2005 is as under :-
“2(f)
“domestic relationship” means a relationship between two persons who live or
have, at any point of time, lived together in a shared household, when they are
related by consanguinity, marriage or through a relationship in the nature of
marriage, adoption or are family members living together as a joint family;”
15.
In the context of the facts of this case, definition of shared household under
Section 2(s) under the Act of 2005 is also relevant, which is as under :-
“2(s)
“shared household” means a household where the person aggrieved lives or at any
stage has lived in a domestic relationship either singly or along with the
respondent and includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or the respondent
or both jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint family of which the
respondent is a member, irrespective of whether the respondent or the aggrieved
person has any right, title or interest in the shared household;”
16. It shall
not be out of the scope of consideration in this case to refer to the judgment
of Hon'ble Supreme Court passed in case of Krishna Bhatacharjee (supra) in para -31, which is as under :-
“31. Regard being
had to the aforesaid statement of law, we have to see whether retention of
stridhan by the husband or any other family members is a continuing offence or
not. There can be no dispute that wife can file a suit for realization of the
stridhan but it does not debar her to lodge a criminal complaint for criminal
breach of trust. We must state that was the situation before the 2005 Act came
into force. In the 2005 Act, the definition of “aggrieved person” clearly
postulates about the status of any woman who has been subjected to domestic
violence as defined under Section 3 of the said Act. “Economic abuse” as it has
been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced herein
before, provides for procedure for obtaining orders of reliefs. It has been
held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal
Procedure applies to the said case under the 2005 Act as envisaged under Sections
28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from
Domestic Violence Rules, 2006. We need not advert to the same as we are of the
considered opinion that as long as the status of the aggrieved person remains and
stridhan remains in the custody of the husband, the wife can always put forth
her claim under Section 12 of the 2005 Act. We are disposed to think so as the
status between the parties is not severed because of the decree of dissolution
of marriage. The concept of “continuing offence” gets attracted from the date
of deprivation of stridhan, for neither the husband nor any other family members
can have any right over the stridhan and they remain the custodians. For the
purpose of the 2005 Act, she can submit an application to the Protection
Officer for one or more of the reliefs under the 2005 Act. In the present case,
the wife had submitted the application on 22.05.2010 and the said authority had
forwarded the same on 01.06.2010. In the application, the wife had mentioned
that the husband had stopped payment of monthly maintenance from January 2010
and, therefore, she had been compelled to file the application for stridhan.
Regard being had to the said concept of “continuing offence” and the demands
made, we are disposed to think that the application was not barred by
limitation and the courts below as well as the High Court had fallen into a
grave error by dismissing the application being barred by limitation.”
17. The
Hon'ble Supreme Court in case of A. Ashok Vardhan Reddy & Others Vs
Smt. P. Savitha & Another, reported
in 2012 Cr.L.J. 3462 has
reiterated the view expressed in case of D. Velusamy Vs. D. Patchaiammal reported in (2010) 10 SCC 469 and examined the provisions of the Act and noted
that the expression 'domestic relationship' includes not only the relationship
of marriage but also a relationship 'in the nature of marriage' to be akin to
common law marriage and directed the Family Court to decide whether the man and
woman had lived together for a reasonably long period of time in a relationship
which was in the nature of marriage. The Supreme Court specifically noted the
term 'wife' to be including, under Section 125 of the Code of Criminal
Procedure, a woman who has been divorced by a husband or who has obtained a
divorce from her husband and has not remarried. A woman not having the legal status
of a wife was noted to have been, thus, brought within the inclusive definition
of the term 'wife' consistent with the objective. The principles laid down by the Apex Court also may be in tune
with the understanding of the word 'wife' as inclusive of a woman who has been
a wife.
18. In the matter before this High Court in case of Santoshi Bai Vs. Gangaram & Ors., reported in 2015 Cr.L.J. 3600, this Court has held at Para -10 11, which is quoted
as here under :-
“10. The aforesaid scheme of the Act is clearly intended to
come to the aid and protection of an "aggrieved person” defined under
Section 2 (a) to mean any woman who is, or has been, in a domestic relationship
with the respondent and who alleges to have been subjected to any act of
domestic violence by the non-applicant.
"Domestic relationship" has also been defined under Section
2 (f) of the Act of 2005 and being relevant for the purposes of the present
case is extracted hereinbelow
"2 (f) – "domestic relationship"
means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption
or are family members living together as a joint family.
11. A logical and fair reading of the aforesaid definition of domestic
relationship reveals that the legislation, in its wisdom, intended to protect a
woman as an aggrieved person having domestic relationship of a very wide import
and not merely confined to legally wedded wife. This is clear from the plain
language of the provision aforesaid where domestic relationship would include
those who live or have, at any point of time, lived together in a shared
household when they are related by consanguinity, marriage or through
relationship in the nature of marriage or adoption or are family members living
together as a joint family.
The aforesaid wide definition of domestic relationship, as manifested,
not only includes a woman validly married but also includes one who lives or
have lived at any point of time together in a shared household through a
relationship in the nature of marriage. Therefore, while seeking protection by
a woman claiming to be an aggrieved person i.e. one who alleges to have been
subjected to any act of domestic violence by the non-applicant, the beneficent
provisions of the Act will come to her aid, if she is able to establish
"domestic relationship as defined and meant under Section 2 (f) of the Act
of 2005.”
19. In case of Sunil Kumar V. Sumitra Panda, reported in 2014 Cri.L.J. 1293, (Orissa High Court), at Para 9, 10, 11 12 has held as as under :-
“9. A
similar question arose before the Bombay High Court. A Single Judge of Goa
Bench of the Bombay High Court in Smt. Bharati Naik v. Ravi Ramnath Halarnkar
and another, 2011 Crl. Law Journal 3572 has held as follows :
"8. In my
view, the definition of the "aggrieved person" and the
"Respondent" are the defining definitions in so far as the issue that
arises for consideration in the present petition is concerned. The definition of
"aggrieved person" postulates a woman who is, or "has been"
in a domestic relationship with the Respondent and the Respondent means any
adult male person who is, or "has been" in a domestic relationship
with the aggrieved person. Since a domestic relationship is a sine qua non for invoking the
provisions of the said Act. Section
2(f) also becomes material, Section 2(f) as can be seen from a reading of the said provision means a
domestic relationship between two persons who live or "have", at any
point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family. Therefore, the
aforesaid three definitions take in their sweep even a past relationship as the
words "has been" or "have lived" have been used in the said
definitions. The said words therefore have been used purposefully as the said
Act has been enacted to protect a woman from domestic violence and, therefore,
there cannot be any fetter which can come in the way by interpreting the provisions
in a manner to mean that unless the domestic relationship continues on the date
of the application, the provisions of the Act cannot be invoked. The words
"has been" and the words "have lived" have been used for
the purpose of showing the past relationship or experience between the concerned
parties. To interpret the said provisions so as to mean that only subsisting
domestic relationship are covered would result in turning the provisions of the
said Act otiose. As is well settled by the judgments of the Apex Court in cases
of beneficent Legislations, an interpretation which furthers its purpose must
be preferred to the one which obstructs the object and paralyses the purpose of
the Act. Reference could be made to the judgment of the Apex Court reported in
(2009) 14 SCC 546: (AIR 2010 SC 1253: 2010 Lab IC 1104) the matter of Union of India v. Devendra Kumar Pant and others. Apart from that a literal construction
of the provisions would show that even if the woman was in the past in a relationship
she would be entitled to invoke the provisions of the said Act. The words "has
been" or "have lived" appearing in the definitions are plain and
clear and therefore effect would have to be given to them. In the instant case,
the petitioner who is the aggrieved person and the Respondent no.1 had lived
together in the shared household when they were related by marriage. The petitioner
though divorced continued to stay in the shared household till she was allegedly
forcefully evicted by the Respondent no.1, she would therefore be entitled to
invoke the provisions of the said Act, as the petitioner and the Respondent no.1
are squarely covered by the provisions of the said Act."
10. Observing
thus, the Single Judge of Goa Bench of the Bombay High Court held that in so
far as the application filed by the divorcee for residing in the shared
household on an interpretation of the provisions of the said Act, it would have
to be held that even a divorced wife is entitled to invoke the provisions of the
said Act, whether she is entitled to protection or not in a given fact
situation, would be for the concerned Court to decide.
11. Similar question arose before a Division Bench of the Rajasthan
High Court in the case of Smt. Sabana @ Chand Bai and another Vs. Mohd. Talib Ali and another, in Criminal Revision Petition No. 362 of
2011. 2014 CRI.L.J. 866. The specific question that arose for determination in
that case is as hereunder.
"Whether the Protection of Women from Domestic Violence Act, 2005 can be applied retrospectively specially where the
aggrieved party (wife) was divorced by the respondent (husband) prior to the Act
coming into force on October 26, 2006 or not ?"
12. Thus, there are two
questions which have been decided in the said unreported case. The first question
is, whether the Act is to be applied retrospectively and secondly, whether a
divorceewife can claim relief under Section 12 of
the Act. After discussing various provisions of the Act, the Division Bench
of the Rajasthan High Court held that it is not necessary that an applicant-
woman should have a marriage or relationship in the nature of marriage existing
and subsisting with the respondent as on the date of coming into force of the
Act or at the time of filing of the application under Section 12 of the Act before the Magistrate for one or more reliefs as
provided for under the Act. In other words, the aggrieved person, who had been
in domestic relationship with the respondent at any point of time even prior to
coming into force of the Act and was subjected to domestic violence, is
entitled to invoke the remedial measures provided for under the Act. It,
therefore, appears on the face of the two cases that there is conflicting views
on the point. However, the view taken by the Division Bench of the Rajasthan
High Court at Jodhpur appears to be more acceptable than the other views.
In that view of the matter, this Court comes to the conclusion that
the view taken by the Rajasthan High Court and the Goa Bench of the Bombay High
Court is the correct approach and an application is maintainable even by a
divorced wife.
20. Considering the view of the Division Bench of Rajasthan High Court
in case of Smt. Sabana @ Chand Bai and another Vs. Mohd. Talib Ali and another, reported in 2014 CRI.L.J. 866, that so far nothing has been brought to the notice
of this Court with respect to any ratio of law laid down by the Supreme Court,
this Court shall be bound by the view expressed by the Division Bench as it is
binding precedent according to view expressed by the Supreme Court in case of Tribhovandas
Purshottamdas Thakkar Vs. Ratilal Motilal Patel & Others, reported in AIR 1968 SC 372.
21. In view of the judgment discussed herein above, it appears that
for present, the aggrieved person defined in Section 2(a) of the Act, 2005,
shall include a divorcee wife so far it concerns to her claim which are related
to and are connected with marriage, which has been dissolved by a decree of
divorce. Wide scope definition has been given by the Supreme Court in case of D. Velusamy v. D. Patchaiammal (Supra). Hence for these reasons, the question raised in this petition is
answered that in case of divorcee wife, the complaint by the divorcee wife
under the provisions of the Act, 2005 shall be maintainable so far it relates
to divorced husband for lawful responsibilities arising out of the marriage
that existed between them at one point of time.
22. In view of the forgoing discussions and on the basis of observations
made herein above, this petition is dismissed accordingly.