The Bombay High Court recently made it clear that the provision of maintenance provided under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) is distinct from what is provided under Section 125 of the Code of Criminal Procedure.
A single judge bench of this Court stated that the tests to prove domestic violence and refusal and neglect to maintain are different. There were no provisions in the Domestic Violence Act to test the refusal and neglect to maintain.
Brief Facts:
The respondent/wife had filed an application under Section 12 of the DV Act, making allegations that domestic violence was committed against her. She had made various allegations. However, the learned Judicial Magistrate, considering the material on record and appreciating the evidence, concluded that whatever she deposed before the Court was not pleaded in her application, and what she had pleaded, was not deposed before the Court.
However, the learned Additional Sessions Judge, Bhokar affirmed the finding of the learned Judicial Magistrate First Class for non-commission of domestic violence but considered the case as if it is an application under Section 125 of the Criminal Procedure Code. He held that the present applicant refused and neglected to maintain the respondent/wife and granted her the maintenance.
Contentions of the Applicant:
The learned Counsel for the Applicants submitted that the findings as regards the domestic violence are consistent. However, the finding recorded by the learned Additional Sessions Judge, Bhokar that the present applicant refused and neglected to maintain her is contrary to the law. No such issue was before the learned Judicial Magistrate.
Contentions for the Respondent:
The learned counsel for the respondent/wife argued that there was a communication gap between the lawyer and respondent no.2. The lawyer did not take instructions properly. However, there was a piece of evidence that she was ill-treated for the demand of dowry for the construction of the house. Hence, she has driven away from her house. This was sufficient to believe that domestic violence had been committed against her.
Observations of the Court:
This Court was of the view that a person having remedies under the various Acts may exercise them independently. The Domestic Violence Act is a law in addition to and not in derogation of the provisions of any other law, for the time being in force. The wife may simultaneously claim the reliefs under the Domestic Violence Act as well as under Section 125 of the Criminal Procedure Code.
The tests to prove domestic violence and refusal and neglect to maintain are different. There were no provisions in the Domestic Violence Act to test the refusal and neglect to maintain. The concept of domestic violence is specific as provided in D.V. Act. It could not be compared with the concept of Section 125 of the Criminal Procedure Code.
Further, it was observed that the wife never pleaded that the applicant/husband refused and neglected her. It was not also the issue before the trial Court. Therefore, this Court is of the view that the subordinate appellate Court cannot travel beyond the pleading and the laws involved in the case. Considering the concept of refusal and neglect and granting the maintenance to the wife in the D.V. Act case is out of jurisdiction and exaggeration. Therefore, the order of the learned Additional Sessions Judge, Bhokar was held illegal, erroneous and improper.
The decision of the Court:
The Bombay High Court, allowing the revision application, set aside the order 06.06.2018 passed by the learned Additional Sessions Judge.
Case Title: ABC vs State of Maharashtra
Coram: Hon’ble Justice S.G. Mehare
Case no.: CRIMINAL REVISION APPLICATION NO.233 OF 201
Advocate for the Applicant: Mr. Bhavthankar Vivek Vasantrao
Advocate for the Respondent: Mr. S.P. Deshmukh
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