Monday, 25 April 2016

Whether unsuccessful divorce proceedings will adversely affect maintainability of application filed by wife under DV Act?

Having given anxious consideration to the relevant facts and materials

and on careful perusal of orders passed by learned Magistrate, Sessions Court

and the High Court and appreciating those orders in the light of the

submissions advanced before us, we have no hesitation in affirming the views

of the High Court. The unsuccessful divorce proceedings cannot adversely

affect the maintainability of application filed by the contesting respondents

under the Act.
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 320 OF 2016

[Arising out of S.L.P.(Crl.)No.4188 of 2013]

Prakash Nagardas Dubal-Shaha .....Appellant

Sou. Meena Prakash Dubal Shah & Ors. .....Respondents
Date : 22/04/2016 


SHIVA KIRTI SINGH, J.
Citation:2016 ALLMR(CRI)2675 SC

1. By the impugned judgment and order dated 24.1.2013 the learned Single

Judge of High Court of Judicature at Bombay has allowed Criminal Revision

Petition No. 79 of 2012 preferred by the respondents by reversing order of

learned Sessions Court and restoring that of learned Judicial Magistrate First

Class, Miraj passed in Criminal Miscellaneous Application No. 147/2011.

2. The facts relevant for adjudication of relevant issue arising in this appeal

lie within a narrow compass. Respondent no. 1 is wife of appellant, respondent

no. 2 is unmarried daughter and respondent no. 3 is minor son born out of

marriage between the appellant and respondent no. 1. The aforesaid three

contesting respondents initiated the present proceedings before the learned

Magistrate by preferring an application under Sections 12, 18, 19, 20, 21 and

22 of Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred to as “the Act”). Learned Magistrate noticed the case of rival parties



including undisputed facts such as solemnization of the marriage on

27.3.1986 as per Hindu rites. It is the case of contesting

respondents/applicants that the appellant has qualification of D. Pharmacy

and has a shop named Vijay Medical situated at a favourable location. Since

the wife is handicapped by right leg, not only the husband made uncharitable

remarks and meted out ill treatment but also neglected her by regularly

coming to home late. He also made demands for money which the parents of

the wife met from time to time. He defaulted in payment of instalments of a flat

situated at Grimar Complex, in the year 2001 and when the concerned bank

wanted to seize that property wife’s relation came to their help and paid the

loan on transfer of the property in the name of the wife. The wife has alleged

that the appellant had a girlfriend whom he subsequently married and from

that marriage also he has a son. It is also her case that due to mental and

physical abuse, she agreed to file an application for divorce by mutual consent

but the appellant did not fulfill the agreed term of paying her Rs. 5,00,000/- as

alimony. Hence the application for divorce ultimately got dismissed. The wife

claimed for maintenance for herself and children on the ground that the

appellant is living with the second wife and although he is earning Rs.

40,000/- from the shop, he is not paying anything towards their maintenance.

She claimed Rs. 10,000/- per month as maintenance for herself and same

amount for each of her children and also a compensation of Rs. 50,00,000/-.

3. The appellant denied all the allegations. He claimed that he has stopped

running his medicine shop and rented it out to another person. He alleged that

his wife had negative attitude and therefore she had made his life miserable.

He also denied the second marriage and claimed that after the flat was


transferred in the name of the wife he was driven out and therefore he is living

separately. According to him the wife is capable of maintaining herself and

children and the application was filed only to harass him.

4. After considering the case of both the parties and the materials produced

by them, the learned Magistrate held that the application filed by the wife was

maintainable and she was eligible to claim remedy under the Act because after

the rejection of divorce petition, she remained a lawfully wedded wife of

appellant. He also held that appellant committed act of domestic violence. The

defence of the appellant that he has rented out shop for a meagre amount of

Rs 3,000/- to one Rajashri Patil was rejected. The learned Magistrate

considered the birth certificate of son of the appellant from the alleged second

wife as well as the related circumstances and came to a finding that appellant

had performed second marriage, was living with the other woman and was

therefore guilty of domestic violence. Ultimately, by way of maintenance the

learned Magistrate fixed Rs. 5,000/- per month for the wife, same amount for

the daughter and Rs. 4,000/- for the minor son. Some education cost was also

allowed in favour of two children from the date of final disposal of the case but

maintenance was allowed from the date of filing of the application.

5. The appellant preferred Criminal Appeal No. 335 of 2011 before the

Additional Sessions Judge, Sangli who allowed the same by order dated

13.1.2012 mainly on the ground that since the husband wife had initiated

divorce proceedings at an earlier point of time, the Protection of Women from

Domestic Violence Act which came into force only later in 2005 was wrongly

invoked by the wife and her application was not maintainable. This reasoning



of the Sessions Court was not accepted by the High Court which has noted the

fact that the divorce proceeding did not result in divorce and hence the marital

relationship continued and in view of second marriage by the husband, cruelty

on the wife stood established. Such act would constitute mental domestic

violence and hence the wife was entitled to seek maintenance.

6. Having given anxious consideration to the relevant facts and materials

and on careful perusal of orders passed by learned Magistrate, Sessions Court

and the High Court and appreciating those orders in the light of the

submissions advanced before us, we have no hesitation in affirming the views

of the High Court. The unsuccessful divorce proceedings cannot adversely

affect the maintainability of application filed by the contesting respondents

under the Act. Even on merits of other issues the views taken by the learned

Magistrate are cogent and supported by relevant materials. Hence the High

Court rightly interfered with the order of the Sessions Court and confirmed

that of the learned Magistrate. We therefore find no good reasons to interfere.

The appeal is therefore dismissed.

............................................J.

[DIPAK MISRA]

............................................J.

[SHIVA KIRTI SINGH]


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