Thus, definition of "Economic abuse" means that if a woman is deprived of any economic or financial resources to which she is entitled reliefs under the law, or custom whether payable under the order of the Court or otherwise, to her as an aggrieved person out of necessity can be granted. The definition further has mentioned the word "maintenance". Therefore, if there is an order of the Court to pay maintenance to the "aggrieved person" then if such maintenance is stopped or aggrieved person is deprived of such maintenance, it can be considered as an economic abuse. Maintenance also relates back to past matrimonial relationship. Thus this section also fortifies the interpretation of "domestic relationship." extending to the past relationship. The word "otherwise" used after the order of the Court is again broad and can be stretched for a proper legal interpretation. Thus, the obligation to look after the children can be taken in the sweep of word "otherwise". Therefore, in the present case, the order of the Sessions Court is illegal and needs to be interfered with and hence is set aside. The view given by the JMFC is found to be correct and the said order is maintained by this order.
IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)
Decided On: 13.02.2014
Appellants: Aradhana Walkade
Vs.
Respondent: Chandrashekar Vaidya
Vs.
Respondent: Chandrashekar Vaidya
Hon'ble Judges/Coram:Mridula R. Bhatkar , J.
1. Rule. Made returnable forthwith. Heard finally at the stage of admission by consent. This Criminal Writ petition involves a question of law as to whether subsistence of marriage is sine qua non for maintainability of a complaint under section 12 of the offence under the Protection of Women from Domestic Violence Act, 2005? The petitioner and the respondent got married on 8/8/2001. They had a daughter out of the wedlock. However, unfortunately, the parties were divorced by the order of the Court dated 24/2/2010 passed in Matrimonial Petition No. 43/2009/A by the Civil Judge Senior Division, Panaji. At the time of granting decree of divorce, the learned Judge did not pass any order of maintenance, as it was not prayed for at the relevant time. However, after the decree of divorce, the respondent/husband out of love and concern was paying the amount of Rs. 25,000/- for the daughter to the petitioner August 2011. Thereafter, the respondent/husband stopped paying the said amount, from August 2011, the petitioner filed application under section 12 of the Protection of Women from Domestic Violence (D.V. Act, for short) in the Court of J.M.F.C., Mapusa, as her child was deprived of maintenance and she thereby suffered economic abuse. This case was registered as Criminal Case No. OA./166/DVA/2012/E. And entertained by the J.M.F.C., Mapusa.
2. The respondent appeared in the said matter and he filed reply resisting the question of maintainability of the said criminal case under the D.V. Act. The challenge was given on the sole ground that the divorce between the parties has taken place on 24/2/2010 and as the parties are not legally wedded husband and wife and not sharing the household and therefore provisions of D.V. Act cannot be attracted. The said application challenging maintainability of the provisions of the D.V. Act was contested before the J.M.F.C. and was dismissed by the Learned J.M.F.C. by its order dated 31/7/2010. The respondent husband thereafter challenged the said order by filing criminal revision before the Addl. Sessions Judge, Mapusa, which was registered as Criminal revision Application No. 87/2012/E. The said Criminal Revision application was allowed and the order passed by the learned JMFC upholding maintainability of the complaint under the D.V. Act was quashed and set aside.
3. Being aggrieved by the said order, the petitioner/wife has filed this criminal writ petition before this Court.
4. The issue directly goes to the interpretation of the relevant provisions of the D.V. Act. Learned Counsel for the petitioner and the respondent both made legal submissions on the basis of findings given by the learned Sessions Judge relying on the provisions of the D.V. Act. Learned Senior Counsel for the petitioner has submitted that the learned Sessions Judge has committed an error in reading and interpreting the judgment of the Hon'ble Supreme Court in the case of (Inderjit Singh Grewal Vs. State of Punjab & another), MANU/SC/0988/2011 : 2011 B.C.I., (soft) 449(S.C.): (2011)12 S.C.C. 588. The learned JMFC in fact has rightly placed reliance on the judgment of the Bombay High Court in the case of (Smt. Bharati Naik Vs. Shri Ravi Ramnath Halarnkar), MANU/MH/2048/2010 : 2010(3) Bom. C.R.(Cri.) 871(P.B.) : 2011 All. M.R.(Cri.) 224. Learned Counsel submitted that the ratio laid down in the judgment of the learned Single Judge is identical and direct. The learned JMFC has rightly distinguished the case of the "Inderjit Singh Grewal" (supra) and has considered the Bombay High Court judgment in proper prospective. Learned Counsel submitted that the learned Sessions Judge ought to have relied on the judgment of the Bombay High Court and also the provisions of the D.V. Act. He took me to the various provisions under the D.V. Act, specially to the defining clauses under sections 2 and 3 of the Act.
5. Per Contra, the learned Senior Counsel for the respondent husband submitted that the order passed by the Sessions Judge is correct and should be maintained. Learned Counsel submitted that the ratio laid down in the case of "Inderjit Singh Grewal" is applicable to the present case and the learned Sessions Judge has rightly applied the same. He further argued that in the definition of "domestic relationship" which is covered under sub-clause 2(f) of the Act, wherein the relationship between the parties should be in existence. He argued that when the relationship between the applicant and the respondent as wife and husband does not subsist and their relationship has come to an end, the D.V. Act cannot be attracted.
6. Under section 2 of the Act, various terms under the Act are defined. For the purpose of understanding of the present case, the term "domestic relationship" under section 2(f) and 2(g) of the D.V. Act are reproduced herein:
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.2(g) "domestic violence" has the same meaning as assigned to it in section 3.
7. The definition "domestic relationship" includes the relation between the two persons which should be either blood relationship or by marriage or through relationship in the nature of marriage, adoption or it should be as a member of joint family. The defining clause suggests that persons who "live" or " have at any point of time lived together in shared household (emphasis supplied). Thus, in the sub-clause present as well as the past tense of the verb live is used. If the parties tied with nuptial relationship have stayed together, then despite the dissolution of the marriage their relationship has to be taken into account as domestic relationship under the Act In the second part of the clause reads as follows: when they are related by consanguinity, marriage......The word "are" is used. The verb "are" indicates the present tense i.e. existence of a relationship. The verb "are" restricts the first portion of this sub section or whether by, virtue of this verb "are", the relationship is expected to be in continuation or existing and thereby the earlier phrase used, indicating the past tense about the relationship is rendered nugatory or not, is required to be examined on the basis of other sections. The Act itself provides internal aid for interpretation of sections, which can be analyzed together.
8. In the case of "Smt. Bharati Naik Vs. Shri Ravi Ramnath Halarnkar" (supra), the same issue was raised before the learned Single Judge of this Court and while answering the said question, the learned Judge had considered extensively the definition of "domestic relationship" under section 2(f) and also the phrase used thereunder especially the term "live or have, at any point of time, lived together in a shared household". It was held that the relationship by consanguinity, marriage etc. would be applicable to both the existing relationship as well as the past relationship and cannot be restricted to existing relationship. For the definition of "domestic violence" sections 2(g) while defining the term "domestic violence" refers to section 3 of the Chapter II of the Act which is captioned as "Domestic violence". The first portion of this section is reproduced, as it is very much relevant and useful.
3. Definition of domestic violence-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-(a) harms or injures or endangers the health, safety, life limb or well-being, 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;
9. For understanding of term "respondent" in section 3 one has to read definition of respondent under section 2(q) of the Act, which reads as follows:
2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act, Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a compliant against the relative of the husband or the male partner.(emphasis placed)
10. Section 2(q) is required to be analyzed threadbare. Under the Act, respondent is never a female but always an adult male. It states that the respondent, who is or who has been in domestic relationship with an aggrieved person. Thus, section 2(q) also refers to the relationship which is in existence, that is, in the present or which was in the past. Thus, section 2(q) is in consonance with the terms and phrases used in first half of section 2(f)of the Act. The verb used in section 2(f) in the subsequent portion that "when they are related in consanguinity......", though indicates present tense, the entire section as a whole is to be read in context with section 2(q) and also 3 -Explanation a(i). Then it is amply clear that legislators while enacting those provisions intended to take account of the present domestic relationship as well as the past domestic relationship. In legislative wisdom on considering the ground realities of the life and the matrimonial relationship and further the responsibility which is required to be shouldered by a woman, the concept of domestic relationship is given wider meaning and thus, relationship which is in existence so also the matrimonial relationship which was in the past both are covered within the purport of section 2(f) and 2(q).
11. Learned Senior Counsel for the petitioner has rightly pointed out the proviso to section 2(q) which also enlightens and clarifies this position of law. The section reads as follows:
2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act;Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against the relative of the husband or the male partner.
In the proviso of section 2(q), the word "aggrieved wife" is used. Learned Senior Counsel has rightly pointed out that no where in the definitions under section 2, the word "wife" is used except in the proviso of section 2(q). After careful reading of the proviso, it is found that it can be construed that the proviso which is a rider to the main section has extended its scope against whom action can be taken and at the same time restricts the scope of a person who can take such action. Under sub section 2(q) the law makers have deliberately used the word "aggrieved person" and who can take action against the respondent but in the proviso instead of using the term "aggrieved person", the term as "aggrieved wife" is substituted. Thus, the proviso carves out a class of aggrieved persons, that is, (i) an aggrieved wife (ii) female living in relationship. This class of aggrieved persons may also file the complaint against a particular class of respondent which is specified in the proviso, that is, a relative of husband or a male partner. Thus, this provision enables an aggrieved wife or female in relationship to take action under the D.V. Act against relatives of the husband or the male partner. The specific use of the word "aggrieved wife" and further phrases, female living in relationship necessarily refers to a present tense. In the proviso the term an "ex-wife" or an "aggrieved person" is not used, which is found in the principal section of 2(q). Thus, the proviso enables to remove the ambiguity in respect of past matrimonial relationship as it is an exception to the main section and adds more and further remedy to a particular class of an aggrieved person against persons who fall in a specific category i.e. relations of the husband. Thus, an ex-wife has no remedy available against the relatives of the ex husband. By virtue of the proviso she is not an aggrieved person, though otherwise she is under the Act for taking action against the husband only. Thus, there is no doubt that within the purport of "domestic violence" a woman who is a divorcee has remedy available to initiate the proceedings.
12. In the case of " Inderjit Singh Grewal", the husband and wife have obtained divorce by mutual consent by playing fraud on the Court as the husband wanted to take citizenship of United States by registering the marriage of convenience with some US citizen. After the divorce, both the husband and wife continued to stay together and thereafter, a child was born. Thereafter, she filed a proceeding under the D.V. Act before the Magistrate and thereby prayed that decree of divorce was obtained by fraud and therefore the substantial question of law before the Supreme Court was as to whether the judgment and decree of a competent civil court can be declared null and void in collateral proceeding, that too, criminal proceeding. The Judges of the Supreme Court answered it in the negative and it was held that in the backdrop of the factual matrix permitting the Court to proceed with the complaint would be travesty of justice and the Supreme Court allowed the appeal filed by the husband. Thus, the factual situation in the case of "Inderjit Singh Grewal" is totally different and the issue raised before the Supreme Court in the said case and considered by the Supreme Court is distinguishable on facts and as well as on law.
13. The application is filed under section 12 of the D.V. Act. Section 3 of the said Act covers different types of domestic violence which is physical abuse, sexual abuse, emotional abuse and so also various types of harassment threats, endangering lives verbal and emotional abuse etc. In the Explanation (I).
14. For the purpose of 3(iv) "Economic abuse" is defined in sub-sections (a), (b) and (c). Sub-clause (a) is relevant for the present case and therefore it is reproduced as follows
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to shared household and maintenance,(emphasis placed)
15. Thus, definition of "Economic abuse" means that if a woman is deprived of any economic or financial resources to which she is entitled reliefs under the law, or custom whether payable under the order of the Court or otherwise, to her as an aggrieved person out of necessity can be granted. The definition further has mentioned the word "maintenance". Therefore, if there is an order of the Court to pay maintenance to the "aggrieved person" then if such maintenance is stopped or aggrieved person is deprived of such maintenance, it can be considered as an economic abuse. Maintenance also relates back to past matrimonial relationship. Thus this section also fortifies the interpretation of "domestic relationship." extending to the past relationship. The word "otherwise" used after the order of the Court is again broad and can be stretched for a proper legal interpretation. Thus, the obligation to look after the children can be taken in the sweep of word "otherwise". Therefore, in the present case, the order of the Sessions Court is illegal and needs to be interfered with and hence is set aside. The view given by the JMFC is found to be correct and the said order is maintained by this order. Today both the parties are present before the Court. On instructions, learned Counsel for the respondent husband makes a statement that the respondent husband by way of his obligation as a father is ready to pay Rs. 25,000/- (Rupees Twenty Five thousand only) per month from January, 2014 during the pendency of the proceeding. The statement is accepted. The parties to go before the J.M.F.C., as they have different monetary claims and they want to lead their evidence and agitate their claims.
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