Tuesday 28 March 2023

Can maintenance be granted under the Domestic Violence Act for neglect and refusal to maintain the wife?


Perused the judgment and order passed by the learned 
Judicial Magistrate. He has minutely scrutinized the evidence led by the respondent/wife and observed that whatever the allegations were levelled against the applicant by respondent in her application, she did not deposed on one hand and on the other hand whatever she deposed before the Court was not pleaded. The learned Additional Sessions Judge also affirmed the finding of the trial Court that there was no domestic violence. She is not entitled for monetary relief, house rent, refund of dowry and compensation.{Para 8}

9. The law is well settled that a person having remedies under the various Acts may exercise it 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 Domestic Violence Act as well as under Section 125 of Criminal Procedure Code. The tests to prove the 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 Criminal Procedure Code. She 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 wife in D.V. Act case is out of jurisdiction and exaggeration. The order of the learned Additional Sessions Judge, Bhokar is illegal, erroneous and improper and liable to be set aside. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.233 OF 2018

 Sunil  Vs Jayashri 

CORAM : S.G. MEHARE, J.

DATED : MARCH 16, 2023


1. Rule. Rule made returnable forthwith and heard finally

with the consent of parties.

2. Heard the respective parties at length.


3. The husband has preferred the revision against the order

of the Additional Sessions Judge, Bhokar in Criminal Appeal No.14 of

2016 dated 06.06.2018.

4. The respondent/wife had filed an application under

Section 12 of the Protection of Women From Domestic Violence Act,

2005 (for short ‘DV Act’) making allegations that the domestic

violence was committed with her. She had made various allegations.

However, the learned Judicial Magistrate considering the material on

record and appreciating the evidence came to the conclusion 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.

5. Learned counsel for the applicant reading both the

judgments has pointed out 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. Therefore, he has

committed a grave error of law in considering the provisions of other

law, which were not before the trial Court. Therefore, it is liable to be

set aside.

6. Learned counsel for the respondent/wife would argue

that there was a communication gap between the lawyer and

respondent no.2. The lawyer did not took instructions properly.

However, there was a evidence that she was ill-treated for demand of

dowry for construction of the house. Hence, she was driven away

from her house. This was sufficient to believe that the domestic

violence had been committed with her. However, she did not

preferred the revision before this Court dissatisfied with the impugned

judgments.

7. Domestic violence is sine qua non for the reliefs to be

granted to the aggrieved person under the D.V. Act. The term

‘domestic violence’ has been defined in the said Act. There are various

types of domestic violence i.e. physical, mental, sexual, verbal and

emotional and economic. The burden to prove domestic violence, lies

on the aggrieved person.

8. Perused the judgment and order passed by the learned

Judicial Magistrate. He has minutely scrutinized the evidence led by

the respondent/wife and observed that whatever the allegations were

levelled against the applicant by respondent in her application, she

did not deposed on one hand and on the other hand whatever she

deposed before the Court was not pleaded. The learned Additional

Sessions Judge also affirmed the finding of the trial Court that there

was no domestic violence. She is not entitled for monetary relief,

house rent, refund of dowry and compensation.

9. The law is well settled that a person having remedies

under the various Acts may exercise it 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 Domestic Violence Act as well

as under Section 125 of Criminal Procedure Code. The tests to prove

the 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 Criminal Procedure Code. She

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

wife in D.V. Act case is out of jurisdiction and exaggeration. The order

of the learned Additional Sessions Judge, Bhokar is illegal, erroneous

and improper and liable to be set aside. Hence, the following order :

ORDER

I) Revision application is allowed.

II) The order passed by the learned Additional Sessions Judge,

Bhokar in Criminal Appeal No.14 of 2016 dated 06.06.2018 is

quashed and set aside.

III) No order as to costs.

IV) Rule is made absolute in above terms.

(S.G. MEHARE, J.)


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