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Domestic Violence Act is retrospectively applicable, SC declines to interfere with Rajasthan HC verdict

Meera Emmanuel

The Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) is retrospectively applicable to provide relief to aggrieved women. The Supreme Court Bench of Justices Ranjan Gogoi, R Banumathi and Navin Sinha affirmed this position when it declined to interfere with an appeal against a Rajasthan High Court verdict passed in 2013.

In effect,  the DV Act can be invoked even if the alleged act of cruelty took place prior to the coming into force of the Act. Notably, it has been clarified that a woman can file a case for cruelty against her husband under the DV Act, even after divorce.

Dushyant Parashar appeared for the petitioner-husband in the Supreme Court.

The case can be traced to an application filed under the DV Act before the Additional Judicial Magistrate, Jodhpur in 2007. The trial court dismissed the application on the ground that the alleged cruelty had taken place before the coming into force of the DV Act. The Sessions Court also upheld the dismissal.

A revision petition filed thereafter by the wife before the Rajasthan High Court was referred to a Division Bench. The challenge was in light of the conflicting legal positions noted in the cases of Khushi Mohd & Ors v. Smt Aneesha and Hema @ Hemlata (Smt) & Anr v. Jitender & Anr.

The Khushi Mohd case held that the DV Act was applicable regardless of whether the wife was divorced. On the contrary, Hema’s case held that the DV Act was not applicable where the marriage was dissolved prior to the Act.

To resolve this conflict, the Division Bench of of Justices Amitava Roy and Sangeeth Lodh was called to decide whether the DV Act can be applied retrospectively, especially where the wife was divorced by the husband prior to the Act?

The High Court answered this question in the affirmative for the following reasons.

The various statutory definitions in the DV Act illustrate that the Act is applicable to any aggrieved woman who has been in a domestic relationship with the abuser at any point of time. The High Court held,

A plain reading of the definition of “aggrieved person” spells out that the intended beneficiary of the protection as provided for under the Act, is not only a woman who “is” in domestic relationship with the respondent but also the woman who “has been” in a domestic relationship with the respondent.

Thus, the complainant/ applicant invoking the provisions of Section 12 of the Act must be a woman who is at the moment or has been at a prior point in time in a domestic relationship with the respondent and alleges to have been subjected to domestic violence by the respondent.

An alternative reading would run contrary to the objectives of the DV Act, the Court held.

As a matter of fact, since there cannot be a legal divorce between the persons living in the relationship in the nature of marriage… [to] not to apply the said provisions to the aggrieved person whose marriage stands dissolved by a decree of divorce prior to coming into force of the Act will run contrary to the objects sought to be achieved by the Act.

Moreover, the remedies sought for under the DV Act by the aggrieved wife were found to be of a civil, remedial nature. These included the reliefs available under Sections 18 to 23 of the Act. This addressed the contention raised on behalf of the husband-respondent that the DV Act was a criminal/penal law and therefore that it could not be retrospectively applied. To the contrary, the High Court held,

Undoubtedly, the various reliefs that may be extended by the Magistrate to a woman victim of domestic violence within the ambit of the Act are remedial in nature and squarely fall within the arena of civil law and by no stretch of imagination the proceedings under the Act could be construed to be criminal proceedings…

The Court thus held that the retrospective application of the DV Act is not violative of Article 20 (1) of the Constitution either.

The High Court had ultimately concluded,

If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, is entitled to invoke the remedial measures provided for under the Act.”

This decision has now been effectively upheld by the Supreme Court, which declined to interfere in an appeal against the same, stating in its order,

In the facts of the case we are not inclined to interfere. The Special Leave Petition is accordingly dismissed.

Read Supreme Court order:

Supreme-Court-DV-Act-May-10-2018.pdf
Preview

Read Rajasthan High Court Order:

Rajasthan-HC-DV-Act-2013-order.pdf
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