Law Web: Whether a woman who has accepted alimony under Customary divorce is entitled to get maintenance under Domestic violence Act?

As far as the ground of customary divorce and the

divorce granted to the respondent by a competent Court of

Law is concerned, the Law is well settled that the divorce

which has been granted under Hindu Marriage Act is only legal

and valid. Only in certain circumstances where the custom

exists and is observed continuously then the customary divorce

may be considered. For claiming any customary right, the

parties claiming such right are bound to prove that the customs

of their caste or race still exist and the community at large is

regularly observing such customs. Since the applicant

approached the Civil Court for divorce, it can safely be held

that the customary divorce was not in existence in their caste.

Therefore, the respondent cannot claim that after the

customary divorce, the domestic relationship ceased, and the

applicant is not entitled to the reliefs under D.V. Act. {Para 17}

18. As far as the effect of subsequent legal and valid divorce

is concerned, after or during the pendency of D.V. Act is

concerned, the said issue was dealt with by the Hon'ble Apex

Court in the case of V. D. Bhanot Vs. Savita Bhanot, (2012) 3

SCC 183, which was subsequently followed in the case of

Juveria Abdul (cited supra). The Hon'ble Supreme Court laid

down the Law that where an act of domestic violence is once

committed then subsequent decree of divorce will not absolved

the liability of the respondent from the offence committed or

deny the benefit to which the aggrieved person is entitled to.

19. The facts of the case, as discussed above, reveal that the

decree of divorce was passed by the competent Civil Court of

Law after filing the application under the D.V. Act would not

disentitle the aggrieved person to apply for the reliefs under

the said Act. In view of the Law laid down by the Hon'ble Apex

Court as regards the entitlement of the reliefs under D.V. Act to

the aggrieved person, there appears no force in the arguments

advanced by the learned counsel for the respondent that since

the applicant is divorced, she cannot claim the reliefs under

D.V. Act.

20. The last material point that the learned counsel for the

respondent raised was that since the lumpsum alimony was

accepted, the wife is not entitled to maintenance. To bolster his

argument, he relied on the case of Vitthal (cited supra). It was

a case under Section 125 of the Criminal Procedure, and this

Court observed in the said case that in view of the agreement

and acceptance of the lumpsum alimony, at least the said

document would have to be treated as a document indicating

mutual consent to live separately as contemplated by

provisions of Sub Section 4 of Section 125 of the Code of

Criminal Procedure, 1973. On the basis of this material, the

wife was refused maintenance under Section 125 of the Cr.P.C.

21. The Law is well settled that the person aggrieved may

take recourse under various Laws if the right exists. Since

maintenance is allowed under Section 125 of the Cr.P.C., the

Law does not bar the person entitled to claim the relief under

D.V. Act. Section 36 of D.V. Act provides that the D.V. Act is not

in derogation of any other law. It is an additional provision of

Law not affecting the other provisions of Law available for

similar relief. The inquiry under the D.V. Act is independent

and has an object to provide for more effective protection of

the rights of a woman who are victims of violence of any kind

occurring within the family and for matters connected

therewith or incidental thereto. Since the proceeding under

D.V. Act is independent, the ratio laid down in the case of

Vitthal (cited supra) would not assist the applicant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.290 OF 2018

Gajanan S/o Parashram Rathod Vs Surekha Gajanan Rathod,

CORAM : S. G. MEHARE, J.

PRONOUNCED ON : 24.01.2023.

Citation: 2023 Lawweb (Bom HC ) 7.

1. Rule. Rule made returnable forthwith and heard finally

by consent of the parties.

2. The applicant/husband has preferred this criminal

revision application against the order of the learned Additional

Sessions Judge, Basmathnagar passed in Criminal Appeal No.3

of 2014, dated 26.07.2018.

3. The 'petitioner' would be referred to as the 'respondent'

and the 'respondent' would be referred to as the 'applicant'

hereinafter.

4. The applicant got married respondent on 09.05.2007.

However, their marital relations turned bitter. Therefore, a

customary divorce was executed on 01.02.2012, accepting the

lumpsum alimony of Rs.1,75,000/-. Then, the

respondent/husband filed a divorce petition on 17.04.2012 on

the ground of cruelty. The petitioner/wife filed an application

under the Protection of Women from Domestic Violence Act,

2005 (for short "D.V. Act"), before the learned Judicial

Magistrate First Class, Aundha Nagnath, on 14.08.2012, i.e.

after the divorce petition of respondent. The learned Judicial

Magistrate, therefore, recorded the reasons whether the

domestic violence was committed are not fall under the

shadow of doubt and accordingly held that there was no

domestic violence against the applicant and refused the relief

to the petitioner under D.V. Act.

5. Dissatisfied with the order of the learned Magistrate, the

applicant had preferred an appeal before the Additional

Sessions Judge, Basmathnagar.

6. Analyzing the various provisions of the D.V.Act, the

learned Additional Sessions Judge arrived at the conclusion

that there was domestic violence and allowed the appeal

granting the relief of providing adequate rented

accommodation. Till accommodation, the respondent was

directed to pay Rs.1500/- towards the rent. The maintenance

of Rs.3,500/- per month was also awarded. The lump sum

amount of alimony received at the time of the customary

divorce was directed to be adjusted towards the arrears of

maintenance.

7. Heard the learned counsel for the applicant and the

learned counsel for the respondent at length.

8. Learned counsel for the respondent has vehemently

argued that since the domestic relationship did not exist on the

day of filing the application, the applicant is not entitled to any

relief under D.V.Act. He also argued that the divorcee is not

entitled to claim the reliefs as the applicant claimed. Since

02,02.2012, she has been residing with her parents. During the

pendency of her application, the Civil Court granted a decree

of divorce. Therefore, the relationship between them did not

exist. He would also argue that once the wife accepted the

lumpsum alimony through the customary divorce, she was not

entitled to maintenance under Section 125 of the Cr.P.C.

9. To bolster his argument, he relied on the cases of (i)

Inderjit Singh Grewal Vs. State of Punjab and another,

Criminal Appeal No.1635 of 2011 (Arising out of SLP (Cri.)

No.7787 of 2010) SC, dated 23.08.2011, (ii) Criminal Writ

Petition No.259 of 2009, Jayesh Uttamrao Khairnar and others

Vs. State of Maharashtra and others, Bombay High Court,

Aurangabad Bench, decided on 07.09.2009, (iii) Criminal Writ

Petition No.1014 of 2017, Anita W/o Anand Tambe, Vs. Anand

S/o Eknath Tambe, Bombay High Court, Nagpur Bench

decided on 28.02.2018, (iv) Criminal Revision Application

(Rev.) No.121 of 2018, Smt. Sadhana W/o Hemant Walwatkar

Vs. Hemant Shalikramji Walwatkar, decided by this Court at

Nagpur Bench on 18.04.2019. He also relied on the case of

Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another,

2003 (2) Bombay C.R. (Cri.) 1455. Based on the above case

laws and facts, he prayed to allow the criminal revision

application and set aside the impugned order.

10. Per contra, the learned counsel for the applicant

vehemently argued that the domestic relation subsisted on the

date of filing the application. The customary divorce was not

valid. Domestic violence was committed against the victim. The

domestic violence report of the Protection Officer was available

to the learned Magistrate, but he discarded it without any legal

and valid reason. The learned Magistrate did not consider it

when it was legally binding for the Court to consider the said

report. He would argue that the divorce decree was passed

subsequent to the dismissal of the applicant's application filed

on 14.08.2012. At the time of filling the application, she had

suffered domestic violence; therefore, she was entitled to claim

relief under the D.V. Act. The respondent nowhere denied that

before she was forced to leave home under the garb of

customary divorce, she was residing in domestic relationship

and living together in a shared household. The Law is well

settled that a subsequent decree of divorce does not debar the

woman from the reliefs under the D.V. Act to which she is

entitled.

11. To bolster his argument, he relied on the case of Juveria

Abdul Majid Patni Vs. Atif Iqbal Mansoori and another, (2014)

10 SCC 736. The unreported judgment of this Court delivered

in Criminal Revision Application No.286 of 2018, pronounced

on 05.11.2019 in the case of Atmaram Narayan Sanap Vs.

Sangita W/o Aatmaram Sanap and others . He also relied on

the case of Ramchandra Laxman Kambale Vs. Shobha

Ramchandra Kambale and another, 2018 SCC Online Bombay

7039. On the basis of the legal position settled by the Hon'ble

Supreme Court on the grounds raised by the respondent, he

would argue that the order impugned before this Court is legal,

proper and correct.

12. The first question the respondent raised was that there

was no domestic relationship. Therefore, she is not entitled to

any relief. It is not in dispute that the applicant has filed an

application under D.V. Act after filing a divorce petition. The

divorce petition was decided on 22.09.2016.

13. In view of the point raised, the legal answers may be

given first. The Hon'ble Apex Court in the case of Prabha Tyagi

Vs. Kamlesh Devi, (2022) 8 Supreme Court Cases 90.

Discussed the various provisions of D.V. Act and framed the

following points in paragraph No.23 in the said judgment.

"(i) Whether the consideration of Domestic Incident Report is

mandatory before initiating the proceedings under D.V. Act, in

order to invoke substantive provisions of Sections 18 to 20 and

22 of the said Act?

(ii) Whether it is mandatory for the aggrieved person to reside

with those persons against whom the allegations have been

levelled at the point of commission of violence ?

(iii) Whether there should be a subsisting domestic relationship

between the aggrieved person and the person against whom

the relief is claimed ?"

14. As far as the facts are concerned, it is not in dispute that

the victim was residing with the respondent when the alleged

domestic violence was committed.

15. Hon'ble Apex Court in the Prabha Tyagi (cited supra)

held that there should be a subsisting domestic relationship

between the aggrieved person and the person against whom

the relief claimed vis-a-vis allegations of domestic violence.

However, it is not necessary that at the time of filing an

application by an aggrieved person, domestic relationship

should be subsisting. In other words, even if an aggrieved

person is not in a domestic relationship with the respondent in

a shared household at the time of filing of an application under

Section 12 of the D.V. Act but has at any point of time leave or

had the right to leave and has been subjected to domestic

violence or is later subjected to domestic violence on account

of a domestic relationship is entitled to file an application

under Section 12 of the D.V. Act. The Hon'ble Supreme Court,

in clear words, answered that even if a person is not in a

domestic relationship with the respondent in a shared

household at the time of filing of the application under

Section 12, but has at any point in time, he would so or had

the right to live has been subjected to domestic violence is

entitled to file an application under Section 12 of the D.V. Act.

In view of the ratio laid down by the Hon'ble Court, the Court

does not find any substance in the arguments raised by the

respondent that she was not living in a domestic relationship at

the time of filing of an application under D.V. Act.

16. Hon'ble Apex Court, in the case of Prabha Tyagi (supra),

has also held that Section 12 does not make it mandatory for

the Magistrate to consider a domestic report filed by a

Protection Officer before passing any order under the D.V. Act.

It was clarified that even in the absence of a domestic incident

report, a Magistrate is empowered to pass both ex-parte or

interim as well as final order under the Provisions of D.V. Act.

Here in the case, the applicant has come with specific

allegations of domestic violence, and she was forced to execute

a divorce.

17. As far as the ground of customary divorce and the