READ ORDER | Wife Cannot Simply Invoke Domestic Violence Act To Claim Maintenance

This is a May 2018 Bombay High Court order where the court observed that the provisions of Domestic Violence Act cannot be invoked simply for claiming maintenance unless the party alleges an act of domestic violence and approach the court in the capacity as an “aggrieved person”.

The court said,

It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family.

Case:

The petitioner and respondent were married in 1997 as per Hindu rites and Customs. At the relevant time the petitioner husband was living in Houston, Texas, USA and the parties resided there till 2004. Two children were born to the couple – daughter in 1998 and son in 2004. At the time of this petition, the daughter was studying in USA and the son was staying with the wife.

The case of the petitioner­ husband was that the respondent ­wife lost interest in married life and she took away the children from their joint custody. The respondent­ wife instituted the Petition B No.2/2013 invoking Section 34, 37(2), 38 and 39 of the Specific Relief Act before the Family Court, Pune. In the said proceedings, the respondent ­wife prayed for a restrain order against the husband removing son from the custody of the petitioner­ husband and also from meeting his son out of Pune.

The respondent ­wife preferred an application in the said petition under Section 20 of the Protection of Domestic Violence Act praying for monetary relief of Rs 5 lakh per month and for reimbursement of school fees of the son to the tune of Rs 50,000. In the said application preferred under Section 20 of the Domestic Violence Act, the wife alleged that she is entitled for maintenance of Rs 5 lakh per month by taking into consideration the life style to which she is accustomed to and in the backdrop of the earning capacity of the husband.

In the said reply the petitioner­ husband categorically stated that he was catering to the needs of the wife and children and always arranging for their lodging and boarding and all other miscellaneous expenses.

Pune Family Court

The family court, in this case, directed the husband to pay maintenance of Rs 2 lakh to the wife under Section 20 of the Protection of Women from Domestic Violence Act, 2005. The husband subsequently moved the high court challenging the said order.

Bombay High Court

Justice Bharati H Dangre perused the application filed by the wife and observed that apart from making the allegations that the husband is well-off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence.

The bench observed that the reliefs contemplated under the Domestic Violence Act were available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any act of domestic violence by the respondent. The judge agreed with the submission that the provisions of DV Act cannot be invoked unless the party alleges an act of domestic violence and approach the court in the capacity as an “aggrieved person” and quoted,

Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.

Terming the family court order as ‘grossly erroneous’, the high court further observed:

Though the Family Court in the impugned order has noted the submissions advanced on behalf of the petitioner-husband that the preliminary requirement of the domestic violence has not been proved by the petitioner and therefore application is not maintainable, the Family Court did not pay any heed to the said submission and rather proceeded to decide the matter on its own merits.

The Court has merely noted that as per provision of Section-20 of the D.V. Act aggrieved by had claimed monetary relief for herself and her children however, a whether the applicant is an “aggrieved person” has not at all been considered by the Family Court. Though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an “aggrieved person”.

It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family.

The court finally remanded the matter to family court for it to decide the entitlement of maintenance of the wife under Section 20 of the Domestic Violence Act.

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