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 v. Mohd. Talib Ali and another, in Criminal Revision Petition No. 362 of 2011. 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 ?"
Orissa High Court
Orissa High Court : Cuttack vs Sumitra Panda ... Opposite Party on 6 January, 2014
Date of judgment - 06.01.2014
Citation; 2014(3) crimes 454 Orissa
S.K.Mishra, J. The following questions arise for determination in this case:
(i) Whether a divorced wife can maintain an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred as the "Act" for brevity, and seek relief under the Act ?
(ii) Whether a divorced wife, who has sought some relief before this Court in a pending proceeding in view of Section 26 of the Act, can pray for identical relief before a Magistrate under Section 27 of the Act ?
2. The opposite party is the divorced wife of the petitioner. Their marriage was solemnized on 16.03.1998 and out of the wedlock twin sons were born on 03.03.2000. The petitioner and the opposite party were serving in the Indian Railways and they are living separately since September, 2010. The opposite party-wife filed Civil Proceeding No.989 of 2010 before the Judge, Family Court, Cuttack for a decree of divorce and judicial separation. She has also filed another petition bearing Civil Proceeding No.990 of 2010 before the Judge, Family Court, Cuttack for custody of minor twin sons.
3. The learned Judge, Family Court, Cuttack allowed the divorce petition i.e. Civil Proceeding No.989 of 2010 filed by the opposite party-wife on 20.10.2011 and dissolved the marriage between the parties by a decree of divorce. By the common order dated 29.10.2011, the Civil Proceeding No.990 of 2010 filed by the opposite party-wife was dismissed and direction was given to the opposite party-wife to hand over the minor son Luv Kumar to the petitioner.
4. In the Civil Proceeding bearing No.989 of 2010, the Judge, Family court, Cuttack, inter alia, held that the opposite party-wife was leading an adulterous life and, therefore, she has challenged the finding before this Court in MATA No. 99 of 2011, which is subjudiced. Similarly, she has filed another appeal i.e. MATA No. 98 of 2011 against the judgment and order passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 990 of 2010 and for a direction for custody of the two minor children in her favour. The second appeal is also subjudiced. When the matter stood thus, the opposite party filed an application before the learned S.D.J.M., Sadar, Cuttack, inter alia, on the ground that the claim of opposite party-wife does not come within the purview of the Act and she has already been divorced and there is non-availability of the report of the Protection Officer.
5. The opposite party-wife filed her objection to the maintainability of the petition filed by the petitioner and the learned S.D.J.M., Sadar, Cuttack, which was dismissed by the learned Sessions Judge, Cuttack in Criminal Appeal No.18 of 2013 The opposite party-wife has filed an application bearing Misc. Case No. 55 of 2012 before this Court in MATA No. 98 of 2012 with a prayer to allow her to stay in the Mahanadi Bihar Apartment and also for a direction to the petitioner-husband not to create any disturbance during her stay. Such petition is still pending for adjudication. The petitioner assails the order passed by the learned J.M.F.C., Cuttack in Criminal Misc. Case No. 353 of 2012, which has been confirmed by the learned District Judge, Cuttack in Criminal Appeal No. 18 of 2013 as per his judgment dated 17th July, 2013.
6. In course of hearing, the learned counsel appearing for the petitioner relies upon the reported case of Harbans Lal Malik v. Payal Malik, 2011 (1) Crimes 496; wherein a Single Judge Bench of the High Court of Delhi held that an application under Section 12 of the Act is not maintainable by a divorcee-wife. The learned counsel has also relied upon the reported case of Abdul Haque (MD.) v. Jesmina Begum Choudhury and another, I (2013) DMC 384; wherein a Single Judge Bench of the Gauhati High Court has taken the same view as that of the Delhi High Court.
7. The Delhi High Court in the case of Harbans Lal Malik v. Payal Malik (supra) has held that the definition of domestic relationship as defined under Section 2(f) of the Act speaks of living together at any point of time. However, it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent, but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The learned Single Judge of the Delhi High Court further held that the domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under the Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. At paragraph 19 of the judgment, the learned Single Judge of the Delhi High Court held that the definition of "wife" as available under Section 125 of the Code of Criminal Procedure, 1973, hereinafter referred as the "Code" for brevity, could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 of the Code and if Legislature intended, it would have defined "wife" as in Section 125 of the Code in Domestic Violence Act as well. On such grounds the Delhi High Court held that a divorced wife cannot claim maintenance under Section 12 of the Act.
8. In Abdul Haque (MD.) v. Jesmina Begum Choudhury and another (supra), the Single Bench of Gauhati High Court held that the definition of "aggrieved person" is couched in present-indefinite tense in perfect infinitive sense. Unlike Section 125 of the Code, it does not admit a 'divorcee' within the meaning of "aggrieved person". It is further held that in this way most of the reliefs that can be granted on the basis of an application under Section 12 of the Act can be granted only if an "aggrieved person" is in domestic relationship with the respondent. Though the definition of "domestic relationship" gives an indication that to obtain certain reliefs under Chapter IV of the Act, the "aggrieved person" need not be in continuing relationship with her husband and in-laws it also does not admit a divorcee. The learned Single Judge further held that however, a wife or a woman in "domestic relationship" can seek reliefs provided under Chapter-IV though she may be living separately at the time of filing of application under Section 12 of the Act. It is further held that keeping in mind the definition of "aggrieved person" and domestic relationship", it can be held that though the Act is prospective, reliefs can still be granted to the "aggrieved person" if the domestic relationship between the aggrieved person and the respondent continues to exist. The learned Single Judge has, therefore, held that an application under Section 12 of the Act of a divorcee is not maintainable.
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. De- vendra 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 v. Mohd. Talib Ali and another, in Criminal Revision Petition No. 362 of 2011. 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 divorcee-wife 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.
13. Section 2(a) of the Act provides as follows :
"2. Definitions - In this Act, unless the context otherwise requires -
"(a) "aggrieved person" means 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 respondent;"
14. Learned counsel for the petitioner emphasizing on the expression "or has been" appearing in Sub-clause (a) of Section 2 of the Act, argues that it is in the present perfect continuous tense. Therefore, there has to be a continuing relationship between the parties. However, an examination of the definition on domestic relationship indicates otherwise. It reads as follows:
"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;" (emphasis supplied) This expression, "who live or have, at any point of time, lived together in a shared household is a domestic relationship" shows that subsisting relationship between the parties, i.e. the aggrieved person and a respondent is not a sign qua non for filing an application for seeking relief under Section 12 of the Act. This view is supported by decision rendered by the Division Bench of the Rajasthan High Court. 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.
15. As far as the second question is concerned, it is admitted that the maintainability of the application before the Magistrate in view of the provision of sub-section 26 of the Act has not been raised before the learned Magistrate or before the learned Sessions Judge. So, this Court refrains from taking into consideration any point not agitated before the original and appellate court. Hence, no decision is rendered on the same.
16. On the basis of the aforesaid reasoning, this Court comes to the conclusion that the order passed by the learned Magistrate in rejecting the petition filed by the petitioner, which has been confirmed by the learned District Judge, Cuttack in Appeal is correct. Hence, the Revision Application is dismissed at the stage of admission.
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