In my opinion, in the above words, the Supreme Court has recognized that the scope of DV Act, 2005 is quite wide. The statement of object and reasons which finds place at the top of any particular enactment may be of utility while interpreting the provisions of law. The objective of enacting this Act has been worded as below:-
“An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matter connected therewith or incidental thereto.” {Para 12}
13. In my view the legislature, while enacting this Act had this realisation in mind that though existing provision of law provide for rights of maintenance to eligible persons, however the procedural delays defeat the very purpose. The enactment seeks to grant a quicker relief where the aggrieved woman has been subjected to domestic violence and was in a domestic relationship with the respondent. This explains the use of words “more effective protection to women”, hence it is being held that where a sufferer has a right to obtain maintenance as provided in criminal law or in civil law or personal law and that she has been subjected to domestic
violence from a person who stood in domestic relationship, she may
resort to quicker method of obtaining reliefs under section 12 of the
Protection of Women from Domestic Violence Act, 2005.
14. From perusal of the judgments as have been referred to earlier, there remains no doubt that unmarried daughter, whether Hindu or Muslim has a right to obtain maintenance, irrespective of her age. This is made clear again that the courts have to look for other laws applicable when the question pertains to right to be maintained. However, where issue does not pertain to mere maintenance, the independent rights are available to an aggrieved under section 20 of the DV Act itself.
ALLAHABAD HIGH COURT
MATTERS UNDER ARTICLE 227 No. - 3046 of 2023
Naimullah Sheikh And Another Vs State Of U.P. And 3 Others
Author; Hon'ble Mrs. Jyotsna Sharma,J.
Delivered on 10.01.2024.
Neutral Citation No. - 2024:AHC:4853
1. Heard Sri Khurshed Alam, learned counsel for the petitioners, Sri
Mohd. Warish Khan, learned counsel for the respondent nos. 2, 3 and 4
and learned AGA for the State.
2. This petition under Article 227 of the Constitution of India has been
filed by parents of three daughters who are respondent nos. 2, 3 and 4,
challenging the order dated 30.05.2022 passed by the Judicial Magistrate,
F.T.C., Court No. 2, Deoria in Case no. 4782 of 2020 (Hina and Others
vs. Naimullah and Another) filed under the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) and
further to challenge the order dated 08.12.2022 passed in Criminal
Appeal No. 40 of 2022, by which the order of the trial court was
affirmed.
3. The facts relevant for the purpose of this petition are as below:-
(i) Km. Hina, Km. Tabassum and Km. Tarannum filed a case under
section 12 of the DV Act, claiming maintenance with the submissions in
brief that their real mother Naseema Khatun died in February 2015 and
that their father married another woman during the life time of their
deceased mother and that now their father and step-mother have been
mistreating, physically assaulting them and have also stopped them from
pursuing their education;
(ii) The applicants filed an application for grant of interim maintenance.
The opposite side gave written objection, in which in essence, it was
submitted that the O.Ps has been facing financial difficulties and that his
daughters are healthy and have been earning independently and that they
have been staying with him also and he has been bearing all their
expenses;
(iii) The learned trial court heard both the sides and directed the O.Ps to
pay Rs. 3,000/- per head, every month as interim maintenance
allowance;
(iv) Aggrieved by the aforesaid order, O.Ps preferred an appeal in which,
besides other averments, it was submitted that his daughters are major,
aged about 25 years, 22 years and 20 years respectively and this fact was
completely ignored by the trial court, while granting interim
maintenance;
(v) The appellate court passed a detailed order, dismissing the appeal.
4. It is submitted on behalf of the petitioners that the learned court below
failed to consider the fact that their father is an old and infirm person,
having no source of income and that he has already been maintaining the
respondents and that the application for grant of maintenance under the
Protection of Women from Domestic Violence Act, was filed at the
behest of their maternal uncle. Since the death of his wife, his daughters
were staying with him and the expenses were being borne by him only
and that they are educated and have been earning by taking tuitions. The
most important contention from the petitioners is that his daughters are
major and therefore they cannot claim any maintenance.
5. The Protection of Women from Domestic Violence Act, 2005 has been
enacted with an object to provide for ‘more effective protection to
women’, guaranteed under the Constitution, who are the victims of
violence of any kind occurring within the family and for matters
connected therewith or incidental thereto. The use of the word ‘more’
before the phrase ‘effective protection of rights of woman’ is not an
insignificant addition. The matter shall be further elaborated at
appropriate places in the judgment.
6. Under the aforesaid Act of 2005, any aggrieved person may apply to
the Magistrate for seeking one or more relief under the Act. Broadly the
reliefs available under the Act are titled as “Right to reside in a shared
household under section 17, Protection orders under section 18,
Residence orders under section 19, Monetary reliefs under section 20,
Custody orders under section 21 and Compensation orders under section
22.”
Section 20 under which monetary relief may be granted to an aggrieved
person has been worded as below:-
(1) While disposing of an application under sub-section (1) of section
12, the Magistrate may direct the respondent to pay monetary relief to
meet the expenses incurred and losses suffered by the aggrieved
person and any child of the aggrieved person as a result of the
domestic violence and such relief may include but is not limited to—
(a)the loss of earnings;
(b) the medical expenses;
(c)the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children,
if any, including an order under or in addition to an order of
maintenance under section 125 of the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate,
fair and reasonable and consistent with the standard of living to which
the aggrieved person is accustomed
(3) The Magistrate shall have the power to order an appropriate lump
sum payment or monthly payments of maintenance, as the nature and
circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief
made under sub-section (1) to the parties to the application and to the
in-charge of the police station within the local limits of whose
jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the
aggrieved person within the period specified in the order under
sub-section (1).
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(6) Upon the failure on the part of the respondent to make payment in
terms of the order under sub-section (1), the Magistrate may direct the
employer or a debtor of the respondent, to directly pay to the aggrieved
person or to deposit with the court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent, which amount
may be adjusted towards the monetary relief payable by the
respondent.”
7. Perusal of the above provision demonstrates that any aggrieved person
including any child of the aggrieved person, who has been subjected to
domestic violence, may claim monetary relief to meet the expenses
incurred and losses suffered as a result of domestic violence and also
monetary relief for such incidental matters like monetary relief for loss of
earnings, medical expenses, loss of any property and also for
maintenance. This provision of law further provides that such reliefs of
monetary nature can also be claimed which do not fall under the
categories enumerated above as the provisions clearly lay down that
reliefs need not be limited to reliefs as described under section 20(1),
20(1)(a), 20(1)(b), 20(1)(c) and 20(1)(d). Section 20(1)(d) of the DV Act
further expands the scope of monetary relief for maintenance. For better
understanding I am reproducing section 20(1)(d) again as below:-
“(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition to an order
of maintenance under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law for the time being in
force.”
This part of the provision of law says that not only the aggrieved persons
but also her children, if any, may claim maintenance ‘under’ and ‘in
addition’ to order of maintenance under section 125 Cr.P.C. And further
that the maintenance can be claimed under or in addition to any other law
for the time being in force. The way provision has been worded, gives a
clear indication that section 12 of the DV Act is essentially a procedural
law, which can be resorted to by any aggrieved person, who draws a
substantive right for maintenance from any other law, whether under
section 125 Cr.P.C. or personal law applicable to the parties or any other
law for the time being in force. Thus law is quite clear to the extent that
maintenance can be claimed under any law which provides for the same.
Further that even if maintenance has already been granted under one law,
the aggrieved person can ask for monetary relief for maintenance under
any other law in addition, under the provisions of the DV Act. Thus this
law seeks to avoid multiplicity of proceedings. Now a question may arise
that when rights have been provided for elsewhere, why such enactment
was needed at all? In my opinion the legislature has, keeping up with the
objective of this enactment, has cut down the procedural formalities and
facilitated grant of quicker reliefs.
Section 20(2) of the DV Act says that the monetary relief granted under
this section shall be adequate, fair, reasonable and consistent with the
standard of living to which the aggrieved person is accustomed. The
scope for grant of particular kind of monetary relief that is “maintenance”
is further widened in section 20(3) of the DV Act which says that an
appropriate lump-sum may be ordered to be paid as maintenance in the
nature of circumstances of a particular case. In my opinion, if the
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provisions of section 20(1)(d) of the DV Act are interpreted in harmony
with rights given to an aggrieved person under any other law, it appears
that the substantive right to receive maintenance may emanate from other
laws, however quick and shorter procedure to obtain the same, has been
provided in the the DV Act, 2005. The rights which the parties may have
under other laws whether civil or criminal, have been given a cutting
edge by the Act. In my view, this explains the use of words “more
effective protection to women” in the foreword which described the
reasons behind this enactment.
8. Having said that, now I come to some other provisions in the DV Act
which strengthen and fortify the above view regarding giving more
effective protection to women. Section 2(a) of the DV Act defines
“aggrieved person” as 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. The woman who has
been in domestic relationship with the respondent and who has been
subjected to any domestic violence, is entitled for relief under the Act,
irrespective of her minority or majority. The rights of an aggrieved person
flow from the fact that she has been subjected to violence which may be
of physical, mental, sexual, verbal and emotional nature and may even in
the nature of the economic abuse. The other essential requirement is that
the aggrieved person has been living in a shared household or had, at any
point of time lived together in a shared household with the respondent,
who is related to her by marriage, adoption, consanguinity or living
together, in a joint family as a family member.
9. Now an important question is whether an independent substantive right
for monetary relief flows from section 20 of the DV Act or whether
section 20 read with section 12 of the DV Act, 2005 merely provides for
procedure and no more?
10. I examined the provisions as given under section 20 of the DV Act.
Section 20(1) of the DV Act (first part) speaks of expenses incurred and
losses suffered consequent upon domestic violence. From reading this
part, this impression gains ground that irrespective of other factors like
dependency, age or marital status etc (which may be relevant in or under
any other law) the aggrieved person has an independent right to obtain
monetary relief for expenses incurred and losses suffered because of
domestic violence. In my view principles of law of torts have found a
statutory recognition here. All monetary reliefs under section 20 of the
DV Act are in the nature of expenses or losses suffered as a result of
domestic violence. However, the grant of maintenance forms altogether a
different branch of law though domestic violence remains the triggering
factor here as well. The law as regard grant of maintenance even, if it is
to be granted under the DV Act has to be seen in a different perspective.
11. With the above perspective in mind, lets go through some of the
judgments of the Supreme Court and the High Court as below:-
In Noor Saba Khatoon vs. Mohd. Quasim; (1997) 6 SCC 233, before the
Supreme Court, a Muslim woman claimed maintenance from her
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husband for herself and her three minor children under section 125
Cr.P.C. The trial court allowed the application and directed the OP (her
husband) to pay maintenance to his wife as well as his children till
attaining the age of majority. The respondent divorced her wife and
thereafter filed an application seeking modification of the order dated
19.01.1993 in view of the provisions of the Muslim Women (protection
of Rights on Divorce) Act, 1986 (hereinafter referred to as ‘the Act of
1986’). The trial court modified the order on the ground that after
divorce, she was entitled for maintenance for 3 months only i.e. period of
‘iddat’, as per the provisions of the aforesaid Act of 1986, while
maintaining the maintenance order for children. The respondent
thereupon filed a petition before the High Court and the High Court,
accepting his plea held that the Muslim woman was entitled to claim
maintenance from her previous husband, for her minor children only up
to the period of 2 years. However the Supreme Court held that the
children of Muslim parents have an independent right to claim
maintenance under section 125 Cr.P.C. and that the right cannot be
allowed to be defeated except through clear provisions of a statutes. The
Muslim father’s obligation, like a Hindu father to maintain his minor
children, as contained in section 125 Cr.P.C. is absolute and is not at all
affected by section 3(1)(b) of the Act of 1986.
In para no. 10, it was held as below:-
“10. Thus, both under the personal law and the statutory law (Sec.
125 Cr. P. C.) the obligation of a muslim father, having sufficient
means, to maintain his minor children, unable to maintain
themselves, till they attain majority and in case of females till they
get married, is absolute, notwithstanding the fact that the minor
children are living with the divorced wife.”
In Jagdish Jugtawat vs. Manju Lata and Others; (2002) 5 SCC 422,
the Supreme Court applied the law laid down in Noor Saba Khatoon vs.
Mohd. Quasim (supra) and drawing force from the aforesaid judgments
held that the right of a minor girl to obtain maintenance from the
appellants even after attaining majority till her marriage, is recognized in
Section 20(3) in the Hindu Adoptions and Maintenance Act, 1956 and
therefore the order for granting maintenance was right.
The relevant portion is as below:-
“3. In view of the finding recorded and the observations made by the
learned Single Judge of the High Court, the only question that arises
for consideration is whether the order calls for interference. A similar
question came up for consideration by this Court in the case of Noor
Saba Khatoon v. Mohd. Quasim , AIR 1997 SC 3280 : 1997 (6) SCC
233 : 1997 SCC (Cri) 924 relating to the claim of a Muslim divorced
woman for maintenance from her husband for herself and her minor
children. This Court while accepting the position that Section 125,
CrPC does not fix liability of parents to maintain children beyond
attainment of majority, read the said provision and Section 3(l)(b) of
the Muslim Women (Protection of Rights on Divorce) Act together
and held that under the latter statutory provision liability of
providing maintenance extends beyond attainment of majority of a
dependent girl.
4. Applying the principle to the facts and circumstances of the case in
hand, it is manifest that the right of a minor girl for maintenance
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from parents after attaining majority till her marriage is recognized
in Section 20(3) of the Hindu Adoptions and Maintenance Act.
Therefore, no exception can be taken to the judgment/order passed
by the learned Single Judge for maintaining the order passed by the
Family Court which is based on a combined reading of Section 125
CrPC and Section 20(3) of the Hindu Adoptions and Maintenance
Act. For the reasons aforesated we are of the view that on facts and
in the circumstances of the case no interference with the impugned
judgment/order of the High Court is called for.”
The High Court of Andhra Pradesh in Menti Trinadha Venkata Ramana
vs. Menti Lakshmi and Others; 2021 SCC Online AP 2860, observed in
para nos. 4 and 5 as below:-
“4. While dealing with a similar issue in Jagdish Jugtawat v.
Manju Lata and others1, a three Judge Bench of the Hon'ble Apex
Court held though a girl, on attaining majority, may not be entitled
to maintenance from her parents under Section 125 of Cr.P.C.,
such right can be traced to Section 20(3) of the Hindu Adoptions
and Maintenance Act, 1956 (for short, 'the Act of 1956') and on a
combined reading of the two provisions, the Family Court is
entitled to grant maintenance to an un-married daughter even after
attaining majority, provided she is unable to maintain herself.
However, the aforesaid observations in Jagdish Jugtawat (supra)
were recently clarified by another three Judge Bench of the
Hon'ble Apex Court in Abhilasha v. Parkash and others2, wherein
the Bench inter alia observed though a Family Court is entitled to
grant maintenance to a major un-married girl by combining the
liabilities under Section 125 Cr.P.C. and Section 20(3) of the Act of
1956, a Magistrate exercising powers under Section 125 of Cr.P.C.
is not authorized to do so.
5. However, it may be apposite to note that the Magistrate is entitled
to entertain an application under the Protection of Women from
Domestic Violence Act, 2005 (for short, 'the DV Act’) and grant
monetary relief i.e., to meet the expenses incurred and losses
suffered by an aggrieved person under Section 20 of the DV Act, in
the event of domestic violence by way of economic abuse is
established. A conjoint reading of Section 2(a) and 2(f) of the DV
Act would show that a daughter, who is or was living with her
father in a domestic relationship by way of consanguinity, is
entitled to seek reliefs including monetary relief on her own right
as an aggrieved person under Section 2(a) of the DV Act
irrespective of the fact whether she is a minor or major. In the
present case, the relationship between the parties as father and
daughter is admitted and they had stayed together in a shared
household. In view of the fact that the petitioner neglected to
maintain the 1st respondent-wife and 2nd respondent-daughter,
proceedings under section 125 Cr.P.C. came to be instituted and
maintenance was awarded to respondents including to the 2nd
respondent. As the award was not paid, the learned Magistrate
issued the impugned order, dated 14.03.2012, directing recovery of
maintenance to the tune of Rs. 22,000/- for a period of 11 months
from 17.12.2009 to 16.11.2010. In the aforesaid facts, the order of
learned Magistrate may be traced to his powers to grant monetary
relief under the DV Act and by a combined reading of the
provisions of Section 125 of Cr.P.C. and Section 20 of the DV Act,
the said order cannot be said to be illegal on the mere ground that
the 2nd respondent had become a major. I am further fortified to
arrive at such finding as the relief under the DV Act can be granted
in addition to other reliefs available to the aggrieved person as
envisaged under Section 26(2) of the DV Act.”
The Allahabad High Court in Mustakim vs. State of U.P. and Another;
2015 (3) ADJ 693, has observed in para nos. 10, 11 and 12 as below:-
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“10. Now a look at the judgment of this Court in the case of Amod
Kumar Srivastava v. State of U.P. and others, 2008 (62) ACC 591.
This judgment takes a view that upon attaining majority an
illegitimate/legitimate child including an unmarried daughter, is not
entitled to claim maintenance, but it does not take into
consideration the judgments of the Apex Court in the cases of Noor
Saba Khatoon and Jagdish Jugtawat (both supra), wherein it has
been held that notwithstanding the ineligibility of a major
unmarried daughter to claim maintenance under Section 125
Cr.P.C, yet an order granting maintenance to such a daughter is not
liable to be interfered with a view to avoid multiplicity of
proceedings provided she has a right to claim maintenance from her
father under the personal law.
11. The Apex Court in the case of Noor Saba Khatoon (supra), after
examining the personal law of muslims, has already held that a
muslim father is liable to maintain his major daughter till such time
she is not married. It is not disputed that O.P. No.2 is major and that
she is not yet married.
12. It is held that notwithstanding the ineligibility of a muslim
major unmarried daughter to claim maintenance under Section 125
Cr.P.C, yet an order granting maintenance to her is not liable to be
interfered, with a view to avoid the multiplicity of proceedings, as
such a daughter, who is unable to maintain herself can claim
maintenance from her father under the personal law.”
The Supreme Court in Ajay Kumar vs. Lata @ Sharuti & Others; 2019
0 Supreme (SC) 612, in the light of the provisions of section 12 and
section 20(1) of the DV Act held that the monetary relief may include but
is not limited to an order of maintenance of the aggrieved persons as well
as his children, if any, including an order under or in addition to order of
maintenance under section 125 Cr.P.C. or any other law for the time
being in force. The Supreme Court thereafter alluded to the definition of
‘respondent’ as given in section 2(q) of the DV Act, definition of
‘domestic relationship’ as given in section 2(f) of the DV Act and
definition of ‘shared household’ as given in section 2(s) of the DV Act
and went on to observe in para no. 15 as below:-
“15. All these definitions indicate the width and amplitude of the
intent of Parliament in creating both an obligation and a remedy in
the terms of the enactment.”
12. In my opinion, in the above words, the Supreme Court has recognized that the scope of DV Act, 2005 is quite wide. The statement of object and reasons which finds place at the top of any particular enactment may be of utility while interpreting the provisions of law. The objective of enacting this Act has been worded as below:-
“An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matter connected therewith or incidental thereto.”
13. In my view the legislature, while enacting this Act had this realisation in mind that though existing provision of law provide for rights of maintenance to eligible persons, however the procedural delays defeat the very purpose. The enactment seeks to grant a quicker relief where the aggrieved woman has been subjected to domestic violence and was in a domestic relationship with the respondent. This explains the use of words “more effective protection to women”, hence it is being held that where a sufferer has a right to obtain maintenance as provided in criminal law or in civil law or personal law and that she has been subjected to domestic
violence from a person who stood in domestic relationship, she may
resort to quicker method of obtaining reliefs under section 12 of the
Protection of Women from Domestic Violence Act, 2005.
14. From perusal of the judgments as have been referred to earlier, there remains no doubt that unmarried daughter, whether Hindu or Muslim has a right to obtain maintenance, irrespective of her age. This is made clear again that the courts have to look for other laws applicable when the question pertains to right to be maintained. However, where issue does not pertain to mere maintenance, the independent rights are available to an aggrieved under section 20 of the DV Act itself.
15. Hence, I do not find any good ground to interfere in the impugned
orders in exercise of powers under Article 227 of the Constitution of
India, therefore, this revision is dismissed.
16. Let a copy of the order be immediately transmitted to the court
concerned.
Order Date :- 10.01.2024
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