The Bombay High Court upheld the order passed by an Additional Sessions Judge who granted maintenance to the wife under the Protection of Women from Domestic Violence Act, 2005 ( "D.V. Act"). A single judge bench of this Court comprising Hon’ble Justice S.G. Mehare held that the wife is entitled to claim the maintenance under the DV act even after accepting lumpsum alimony through the customary divorce.
Brief Facts:
The applicant/husband got married to Respondent/wife 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 Applicant filed a divorce petition on 17.04.2012 on the ground of cruelty. The Respondent filed an application under the DV act, after the Applicant filed for divorce before the learned Judicial Magistrate First Class, who held that there was no domestic violence against the wife and refused the relief to the petitioner under D.V. Act. She preferred an appeal before the Additional Sessions Judge, who arrived at the conclusion that there was domestic violence and allowed the appeal granting the relief of providing adequate rented accommodation. Till accommodation, the Applicant was directed to pay Rs.1500/- towards the rent. The maintenance of Rs.3,500/- per month was also awarded.
The Applicant had filed 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.
Contentions of the Applicant:
The learned Counsel for the Applicant argued that since the domestic relationship did not exist on the day of filing the application, the Respondent is not entitled to any relief under D.V.Act. He informed this Court that during the pendency of her application, the Civil Court granted a decree of divorce. Therefore, the relationship between them did not exist. He further argued 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.
Contentions of the Respondent:
The learned Counsel for the Respondent argued that the domestic relationship subsisted on the date of filing the application and that the customary divorce was not valid. He also argued that the divorce decree was passed after the Respondent’s application was dismissed 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. He relied on several judgments to show that 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.
Observations of the Court:
After perusal of the judgments cited by both parties, this Court observed that 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 Applicant cannot claim that after the customary divorce, the domestic relationship ceased, and the Respondent is not entitled to the reliefs under D.V. Act. This Court found 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. The Court held that the decree of divorce was passed after filing the application under the D.V. Act. Therefore, it would not disentitle the aggrieved person from applying for relief under the DV Act.
In regard to the point that since the lumpsum alimony was accepted, the wife is not entitled to maintenance, this Court held that 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. It is an additional provision of Law not affecting the other provisions of Law available for similar relief. Therefore, the Court came to the view that the impugned order is free from flaws, legally correct, and proper.
The decision of the Court:
The Bombay High Court dismissed the criminal revision application and held that wife is entitled to maintenance even after accepting alimony under ‘customary divorce’.
Case Title: Gajanan v. Surekha
Coram: Hon’ble Justice S.G. Mehare
Case no.: CRIMINAL REVISION APPLICATION NO.290 OF 2018
Advocate for the Applicant: Mr. Sachin S. Deshmukh
Advocate for the Respondent: Mr. Amol B. Chalak
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