whether a legally divorced wife can seek reliefs under the D.V Act: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938

Crl.MC.No. 2990 of 2016 ()
—————————
AGAINST THE ORDER/JUDGMENT IN MC 51/2015 of J.M.F.C.-I,ATTINGAL

PETITIONER/RESPONDENT:
———————

BIPIN,
AGED 36 YEARS, CHANDRASENAN,
RESIDING AT T.C 50/365(3), PANACHAYIL,
KALADI, KARAMANA P.O.,
THIRUVANANTHAPURAM.

BY ADVS.SRI.M.RAMASWAMY PILLAI
SMT.PREETHY R. NAIR

RESPONDENT(S)/PETITIONER AND STATE:
———————————–

1. MEERA D.S.,
AGED 32 YEARS,
D/O.K. SUSHAMA DEVI,
MANU BHAVANAM, OPP. MUNICIPAL
BUILDING, ATTINGAL P.O.,
THIRUVANANTHAPURAM DISTRICT.

2. GOURAV M. BIPIN, AGED 21/2 YEARS,
REPRESENTED BY HIS NATURAL GUARDIAN MOTHER
MEERA D.S., AGED 32 YEARS, D/O.K. SUSHAMA DEVI,
MANU BHAVANAM, OPP. MUNICIPAL BUILDING,
ATTINGAL P.O., THIRUVANANTHAPURAM DISTRICT.

3. STATE OF KERALA, REPRESENTED BY ITS
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 & 2 BY ADV. SRI.SHAJIN S.HAMEED
BY PUBLIC PROSECUTOR:SMT BINDU GOPINATH

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

‘CR’

SUNIL THOMAS, J.
=================
Crl.M.C.No.2990 of 2016
=================
Dated this the 13th day of October, 2016

ORDER

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

Crl.M.C.2990/16
2
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.

Crl.M.C.2990/16
3
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

Crl.M.C.2990/16
4
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.

Crl.M.C.2990/16
5
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

Crl.M.C.2990/16
6
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

Crl.M.C.2990/16
7
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.

Sd/-
SUNIL THOMAS
Judge
Sbna/
True Copy /
P A to Judge
Back