No reliefs to Divorced wife under S.19 of PWDVA

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL

THURSDAY, THE 3RD DAY OF OCTOBER 2013/11TH ASWINA, 1935
Crl.Rev.Pet.No. 1881 of 2012
CRL.A 514/2010 of ADDL.DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-I), MAVELIKKARA MC 15/2009 of J.M.F.C., KAYAMKULAM

REVISION PETITIONER/APPELLANT/PETITIONER
SULAIMAN KUNJU
BY ADV. SRI.B.HARISH KUMAR

RESPONDENTS/RESPONDENT/RESPONDENT & STATE
1. NABEESA BEEVI, AGED 43 YEARS PALLIYAMBHI KIZHAKKATHIL VEEDU, KANNIMEL MURI VALLIKUNNAM P.O, VALLIKUNNAM VILLAGE MAVELIKKARA TALUK, ALAPPUZHA- 690 501.
2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM- 682 031.
R1 BY ADV. SRI.AJAYA KUMAR. G R2 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN.

O R D E R

The revision petitioner is the respondent in M.C.No.15/2009 on the files of the Judicial First Class Magistrate’s Court, Kayamkulam. The above M.C. was filed under

Section 12 of the Protection of Women from Domestic Violence Act, 2005

and sought for reliefs under Sections 17, 18, 19 and 20. The learned Magistrate passed an order restraining the revision petitioner from making any kind of obstruction to the peaceful living of the 1st respondent and her children in the shared household mentioned in the petition and also from committing any kind of domestic violence towards the 1st respondent. Further, the revision petitioner is directed to pay maintenance allowance at the rate of Rs.2,000/- to the 1st respondent and Rs.1,500/- each to her two children, per month from the date of the order. He was restrained from alienating or encumbering the property wherein the shared household is situated, without the leave of the court. This order is under challenge in this Revision Petition.

2. It is the case of the 1st respondent that she is the legally wedded wife of the revision petitioner and they have got two children in the wed-lock and they are aged 17 and 14 years respectively. At the time of marriage, she was given 15 sovereigns of gold and Rs.35,000/- in cash by her parents. In addition to that, the revision petitioner was given Rs.1,50,000/- by the father of the 1st respondent for his job in Gulf. The revision petitioner used to harass and manhandle the 1st respondent demanding more money towards dowry. Being fed up with the cruel treatment of the revision petitioner, the 1st respondent and her two children took refuge in her parental home. She had preferred a complaint before the Magistrate Court alleging the offences punishable under Sections 498A and 406 of the Indian Penal Code. But, at last, the entire disputes were settled in Adalath under which the revision petitioner agreed to pay maintenance to the children at the rate of Rs.500/- each per month. But, thereafter, the 1st respondent was again subjected to cruelty and she was not provided with sufficient means to maintain herself and her children. According to the 1st respondent, she has no job or income and she is unable to maintain herself and her two children, who are now residing in the parental house. Now she is depending upon her aged parents and close relatives. The revision petitioner is having an intention to marry another lady of better financial background after deserting the 1st respondent and her children. The 1st respondent and the two children do not have any place of abode other than the shared household and they are also running short of sufficient means to meet their day today requirements.

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3. The revision petitioner filed an objection admitting the marriage as well as the paternity, but denying the allegations of cruelty levelled against him. He denied the averments regarding the money and the gold ornaments, which are allegedly given to the 1st respondent and the revision petitioner at the time of marriage. The revision petitioner also admitted that the disputes were settled in Adalath. But the 1st respondent was not amenable to the settlement. According to him, he never attempted to oust the 1st respondent and her children from the house. He had not committed any cruelty towards the 1st respondent. The learned counsel for the revision petitioner advanced arguments challenging the impugned order.

4. Per contra, the learned counsel for the 1st respondent advanced arguments to justify the impugned order. I heard the learned counsel for the revision petitioner as well as the learned counsel for the 1st respondent.

5. In view of the rival contentions, the question to be considered is, whether there is any illegality or impropriety in the impugned order under challenge?

6. The learned counsel for the revision petitioner mainly canvassed the point that now the 1st respondent is a divorced wife only. In support of his argument, he has produced the common judgment passed in O.P.(H.M.) No. 387/2009 and O.P.(OS) No.851/2010 of the Family Court, Alappuzha. The judgment was pronounced on 18.4.2012 and no appeal had been filed by the 1st respondent challenging the above judgment. Thus, the above judgment has attained finality. So, in view of the above judgment, he pointed out that a divorced wife has no right to reside in the shared household.

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7. Per contra, the learned counsel for the 1st respondent submits that even after the divorce, the wife has a right to reside in the shared household, if she had resided in that house for any point of time before divorce. According to him, admittedly, she had resided in the shared household. Therefore, that right will continue even after the divorce, in view of the right provided under the D.V.Act.

8. In view of the above submission made at the Bar, the question to be considered is, whether the divorced wife has a right to claim the right of residence in the shared household after the divorce?

9. The learned counsel drew my attention to the decision of this Court reported in

Moideenkutty Vs. Nabeesa [2011 (3) KHC 164]

Going by the said decision, it could be seen that the said decision was held under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The learned counsel for the revision petitioner submits that though the above decision was held in the Act referred above, the same proposition is applicable to Protection of Women from Domestic Violence Act, 2005 also.

Going by Section 2(a) of the D.V. Act, it could be seen that an “aggrieved person” means a woman who is, or has been, in a domestic relationship with respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Similarly, Section 2(f) of the said Act defines domestic relationship. “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. On a close dissection of the above definition, it could be seen that the second limb of the definition of domestic relationship assumes much significance. The second limb of the definition specifically signifies that the first limb attracts when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Unless the claimant seeking residence order comes under any of the said relationship, she cannot claim a right to reside in the shared household. In short, the second limb is a condition requisite to make the first limb qualified.

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In the instant case, admittedly, the marriage was broken and severance of relationship was effected forever by the divorce decree obtained from the competent court. Therefore, the status of the 1st respondent is nothing other than a divorced wife. Consequently, in the absence of domestic relationship, the divorced wife would not come under the aggrieved person also. Needless to say, after the divorce, a wife cannot claim right under the marriage, except the right to maintenance provided under Section 125 of the Code of Criminal Procedure. Therefore, I find that, a divorced wife does not satisfy the second limb of the definition of the domestic relationship. It can be held that a divorced wife is not entitled to get any of the reliefs under Section 19 of the D.V. Act. Consequently, I am inclined to set aside the reliefs provided under Section 19 of the D.V. Act in the instant case and I do so.

10. Coming to the maintenance portion of the impugned order, the learned counsel for the revision petitioner submits that the children are major and they have attained majority after the pronouncement of the order under challenge. So, they are not entitled to get maintenance after attaining majority. The learned counsel for the 1st respondent also agrees with the said submission that now they have attained majority after the pronouncement of the impugned order and they are not claiming maintenance for a period after attaining majority. Therefore, I find that the children have no right to get maintenance allowance after attaining majority. But, regarding the right of the 1st respondent, I find that there is no reason to interfere with the said finding. The direction to pay Rs.2,000/- per month is just and proper when considering the standard of life and cost of living of a person. Therefore, the said direction does not call for any interference.

11. The learned counsel for the 1st respondent points out that the 1st respondent has a claim over the property, as the property was purchased using her money also. So, I make it clear that this order will not stand in the way of resorting to her remedies, if any, before the competent civil court.

The Revision Petition is allowed in part.

Sd/- (K.HARILAL, JUDGE)

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