petitioner was that when the domestic relationship between parties
stood severed, any application of the divorced wife thereafter can
only be considered as a relief sought against a stranger and does
not fall within the ambit of a domestic violence. As mentioned
above, the scope of the Act is not confined within the limits of time
and space. Even though at blush, it may appear to be paradoxical to
argue that protection orders can be sought even after separation of
spouses, such a cause of action may not be rare, which arises
subsequent to the divorce, but relateable to the earlier matrimonial
relationship. It is not unusual that even after divorce, certain
obligations arising from past matrimonial relationship continue,
like, maintainance, custody of children, liability to pay amounts or
assets received, operation of bank accounts and personal safety of
divorced wife and children born in the wedlock. It will be illogical
and absurd to hold that the moment of divorce is granted, scope of
protection order also ceases. It cannot be confined within the
barriers of time and space. Further, the scope of section 18 which
is wide enough to take in any violence which is likely to take place
in the place of employment of aggrieved person, or if the aggrieved
person is a minor, its school or any place frequented by child or
attempting to communicate with the aggrieved person by any
means, including electronic media, indicates that domestic violence
may spread outside, even beyond the four walls of the matrimonial
home. Hence, any act of violence which satisfies the definition of
section 3 of the Act and has a rational nexus to the past matrimonial
relationship, or which arises therefrom or as a sequel to that
relationship, should conceptually fall within the provisions of
Domestic Violence Act. In the above circumstance, considering the
wide scope of the Act, the object of the Act, I find reason to hold
that the ratio in Priya's case (supra) will extend to section 18 of the
D.V Act and other reliefs also. Hence, even a divorced wife is
entitled to initiate proceedings under sections 18, 19, 20, 21 and 22
of D.V Act to seek appropriate reliefs.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE SUNIL THOMAS
13TH DAY OF OCTOBER 2016
Crl.MC.No. 2990 of 2016
BIPIN,
Vs
MEERA D.S.,
The short question that arises for consideration in this
case is whether subsistence of the matrimonial relationship is the
sine-qua-non for seeking reliefs under Protection of Women from
Domestic Violence Act, 2005 ('D.V Act' for brevity, hereinafter). To
be more precise, whether a legally divorced wife can seek reliefs
under the D.V Act.
2. Shorn of all unnecessary details, the brief facts of the
case is as follows. The petitioner in the Crl.M.C had married the
first respondent in 2011. Second respondent child was born to
them. The matrimonial relationship got strained thereafter and
hence the spouses moved family court with a joint petition for
divorce invoking section 13B of Hindu Marriage Act. After
compliance of statutory formalities, divorce was granted by the
Family Court in May 2015. Marriage stood dissolved with effect
from the date of judgment. Thereafter in August 2015, respondents
1 and 2 filed the present application before the magistrate court
seeking reliefs under sections 18, and 20 of the D.V. Act. The
reliefs sought were a protection order against domestic violence,
return of 75 sovereigns of gold ornaments of the first respondent
misappropriated by the petitioner or its value, order restraining him
from operating the bank locker in which the gold ornaments were
kept and for return of the passport of the first respondent, retained
by the petitioner.
3. The petitioner has sought to quash the above
proceedings, on the ground that the above application is an abuse of
the process of law. Three specific grounds were urged by the
petitioner. Firstly, divorce on mutual consent was sought by parties
on a specific, categoric agreement that wife will not claim money,
ornaments or maintenance against husband in future. Secondly
that, the reliefs sought can be granted only to a woman who is or
has a subsisting matrimonial relationship or a relationship in the
nature of a matrimonial relationship and not to a divorced wife.
Thirdly, at any rate, even if all other reliefs can be granted, a relief
in the nature of protection order cannot be granted to a divorced
wife and child born in such relationship, since the matrimonial
relationship was brought to an end factually and legally. Otherwise
such relief can be sought at any time during the entire life time of
wife and child, which was not contemplated by the Statute.
4. Before analysing the above contentions, it is essential to
bear in mind the significance of the D.V Act as a progressive and
beneficial piece of legislation, intended to protect women from
being subjected to domestic violence and to prevent the occurrence
of domestic violence in society. The object of the Statute provides
that it is to provide for more effective protection of rights of woman
guaranteed under the Constitution of India, who are victims of
violence of any kind occurring within the family. The wide
definition of "aggrieved person", "domestic relationship" and
"respondent" in sections 2(a), (f) and (q) and other provisions
testimony that they are of wide amplitude and the cause of action
for any relief under the Act is not confined to the factors of time and
space with regard to the matrimonial relationship, but extents
beyond their limits, if it has a rational nexus with the domestic
relationship, past or present.
5. Regarding the contention that parties have voluntarily
agreed to relinquish the various benefits and claims, I am unable to
agree. The joint application for divorce contains a unilateral
undertaking by the wife that she will not claim money, ornaments or
future maintenance. There is nothing to show that this was in
consideration for a mutually satisfactory settlement of all the
existing claims. In such circumstances, it can only be treated as
consent obtained from the wife either by coercion or obtained by
compulsion of circumstances or as a condition imposed on a
desperate wife by the husband for consenting to a divorce. Of
course, parties are free to enter into a satisfactory settlement of all
their claims, on mutually agreed terms. However, contracting out
of the statutory rights conferred on the wife under section 19 to 22
of D.V Act is against public policy and hence cannot be recognized,
unless it is proved that there was a mutually satisfactory settlement
of all claims. This view is fortified by the settled legal position
under section 3 of the Protection of Women from Domestic Violence
Act, 2005 and under section 125 of Code of Criminal Procedure [see
Sadasivan Pillai v. Vijayalakshmi (1987 Crl.L.J.765], Ranjit
kaur v. Pavittar Singh (1992 Cri.L.J.262) and Rajesh R. Nair
v. Meera Babu (2013(2) ILR (ker) 9).
6. The second contention was resisted by the respondents
on the premise that the present status of the applicant in a
proceeding under the D.V Act is irrelevant. The respondents herein
relied on the decision in Priya v. Shibu (2008(3) KLT 1) to
buttress the above argument. In that, this Court considered the
question whether an application for maintenance and return of the
amount paid in cash and gold ornaments under sections 19(8) and
20 of D.V Act was maintainable at the behest of a divorced wife.
The question formulated by the learned Judge was whether
applicant should continue to be in a domestic relationship with the
respondents on the date of preferring claim and whether the
persons who are related by consanguinity, marriage or any of the
relationship referred to in section 2(f) of the Act should continue to
be in that relationship as on the date of filing the petition. It was
contended that the employment of words "either live" or "who have
lived" in section 2(s) and correspondingly in section 2(a), 2(f) and
2(q), which were in present perfect continuous tense, rendered it
obligatory on the part of the applicant to be in a domestic
relationship on the date of preferring the application. Refuting the
above contention, the learned Judge held that the words "has lived"
and "have lived" are employed for the purpose of showing the past
relationship and they cannot be so construed as to mean that unless
the "domestic relationship" continues on the date of application, the
applicant will have no locus standi to move the magistrate. This
view is perfectly in consonance with the object of the Statute and is
the most logical and rational interpretation of the Statute. Same
principle is embodied in the decision of the Hon'ble Supreme Court
in Juveria Abdul Majid v. Alif Iqbal and Another (2014(2) KLD
693(SC)), though it deals with a case of spouses obtaining a decree
of divorce subsequent to the commission of domestic violence. In
the light of above decisions, the relief sought by the respondents
herein under section 20 of the Act is perfectly maintainable.
7. The third limb of argument of the learned counsel for the
petitioner was that when the domestic relationship between parties
stood severed, any application of the divorced wife thereafter can
only be considered as a relief sought against a stranger and does
not fall within the ambit of a domestic violence. As mentioned
above, the scope of the Act is not confined within the limits of time
and space. Even though at blush, it may appear to be paradoxical to
argue that protection orders can be sought even after separation of
spouses, such a cause of action may not be rare, which arises
subsequent to the divorce, but relateable to the earlier matrimonial
relationship. It is not unusual that even after divorce, certain
obligations arising from past matrimonial relationship continue,
like, maintainance, custody of children, liability to pay amounts or
assets received, operation of bank accounts and personal safety of
divorced wife and children born in the wedlock. It will be illogical
and absurd to hold that the moment of divorce is granted, scope of
protection order also ceases. It cannot be confined within the
barriers of time and space. Further, the scope of section 18 which
is wide enough to take in any violence which is likely to take place
in the place of employment of aggrieved person, or if the aggrieved
person is a minor, its school or any place frequented by child or
attempting to communicate with the aggrieved person by any
means, including electronic media, indicates that domestic violence
may spread outside, even beyond the four walls of the matrimonial
home. Hence, any act of violence which satisfies the definition of
section 3 of the Act and has a rational nexus to the past matrimonial
relationship, or which arises therefrom or as a sequel to that
relationship, should conceptually fall within the provisions of
Domestic Violence Act. In the above circumstance, considering the
wide scope of the Act, the object of the Act, I find reason to hold
that the ratio in Priya's case (supra) will extend to section 18 of the
D.V Act and other reliefs also. Hence, even a divorced wife is
entitled to initiate proceedings under sections 18, 19, 20, 21 and 22
of D.V Act to seek appropriate reliefs.
8. In the light of the above, the contention that the reliefs
sought before the court below is not maintainable is not legally
correct and not sustainable.
Crl.M.C fails and is accordingly dismissed.
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