Only “aggrieved persons” can claim maintenance under Domestic Violence Act, Bombay HC
News

Only “aggrieved persons” can claim maintenance under Domestic Violence Act, Bombay HC

Meera Emmanuel

The Bombay High Court recently emphasised that the Protection of Women from Domestic Violence Act, 2005 (DV Act) cannot be simply invoked to claim maintenance, when the claimant is not eligible as an “aggrieved person” within the definition of the Act.

While disposing of an appeal in a maintenance case, Justice Bharati H Dangre observed,

It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect the rights of women who are victims of violence of any kind occurring within the family.

The appeal in question had been filed by a husband against the ruling of a Family Court in Pune, which had ordered him to pay Rs 2 lakh as maintenance towards the expenses of his estranged wife and children.

This Family Court order was passed in a maintenance application made by the wife under Section 20 of the DV Act and relevant provisions of the Specific Relief Act, 1963.

The High Court, however, quashed the Family Court verdict, primarily on the ground that there was nothing to show that the applicant-wife was eligible as an “aggrieved person” for relief under the DV Act.

Imperative that only “aggrieved persons” invoke DV Act

The Court observed that in order to avail reliefs under the DV Act, there is a prerequisite that the “aggrieved” applicant should have been subjected to some form of domestic violence.

“…it is to be noted that the reliefs mentioned under Section 12 are available to ‘Aggrieved person’… [and] are dependent on one important aspect namely the said relief is available to an ‘aggrieved person’ who alleges to have been subjected to any act of domestic violence by the respondent…

Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection [of] Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.”

It was also noted that while an act of domestic violence may only be established after rendering evidence before the Court, it is required that the Court must at least be prima facie satisfied that the person approaching it is an “aggrieved person“.

However, in the instant case, the wife had not indicated that she had been subjected to domestic violence in any of her submissions.

Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of ‘aggrieved person’ who would have been entitled for the benefits flowing under Section 12…

…the application preferred…[does] not give a single instance of domestic violence…”

The Court found that,

Though the application filed by the applicant can be entertained in the pending proceedings under the Specific Relief Act, while entertaining an application which is filed… [under] Section 12, it is imperative that the person approaching the Court is an ‘aggrieved person’.

Court cannot order maintenance solely on assumptions 

It was noted that the Family Court had based its verdict primarily on the moral obligation of the husband to maintain his wife and children.

Whereas the High Court acknowledged that there may be such an obligation on the husband, the quantum of compensation payable should be based on some material on record.

On the contrary, the lower court had ordered payment of the maintenance amount, despite noted discrepancies in the wife’s submission of finances. In this regard, the Court remarked,

The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and the need of the wife and the children.

No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption and surmises…

On these broad grounds, the Court ruled that,

“…as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above.”

The High Court thus remanded the matter back to the Family Court for due consideration. It further directed both parties to submit appropriate material in order to justify the claim of maintenance, and the capability of the husband to pay the same.

The Court also directed the husband to deposit 25% of the maintenance ordered to be paid by the Family Court, within four weeks.

Advocate Seema Sarnaik appeared for the petitioner-husband, while Abhijit Sarwate represented the wife.

Read the judgment below:

Bombay-HC-DV-Maintenance-May-4-2018.pdf
Preview
Bar and Bench - Indian Legal news
www.barandbench.com