News

Wife continues to be “aggrieved person” under Domestic Violence Act even after judicial separation

Murali Krishnan

The Supreme Court of India recently held that a wife can file an application under Section 12 of the Domestic Violence Act, 2005 (Act) even after a judicial separation.

A Division Bench of Dipak Misra and PC Pant JJ. held that a person does not cease to be an “aggrieved person” because of the decree of judicial separation and can claim her stridhan properties even after the same. The Court also held that retention of stridhan by the husband or any other family members is a continuing offence as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

The case has its origin in an application filed  under Section 12 of the Act by one Krishna Bhatacharjee (Appellant) for getting her Stridhan properties back from her husband. The Appellant and her husband were judicially separated but not divorced.

The Magistrate held that the Appellant’s application was not entertainable as she had ceased to be an “aggrieved person” under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation. Appeals before the Additional Sessions Judge, and the High Court of Tripura were unsuccessful.

The most relevant issue considered by the Bench was whether the appellant has ceased to be an “aggrieved person” because of a decree of judicial separation.

Relying on various judgments, the court held that:

..there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, the finding recorded by the courts below which have been concurred by the High Court that the parties having been judicial separated, the appellant wife has ceased to be an “aggrieved person” is wholly unsustainable.”

The Court then proceeded to consider whether the application was barred by limitation or not.

“…we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.”

The Court ruled that the application under the Act was not barred by limitation and the courts below as well as the High Court had fallen into a grave error. It, therefore, remitted the matter back to the Magistrate to consider the Section 12 application.

Read the complete judgment below.

Krishna_Bhatacharjee_vs_Sarathi_Choudhury_And_Anr_on_20_November_2015.pdf
Preview
Bar and Bench - Indian Legal news
www.barandbench.com