The Bombay high courtroom has held that as soon as a decree of divorce has been granted, aid cannot be sought through the wife below the domestic Violence Act.
Justice MG Giratkar become listening to a criminal revision utility filed by means of a 42-year-historical lady from Nagpur who challenged a judgment of the Judicial magistrate First category dated August 20, 2015. in the pointed out judgment, the applicant wife's software under Sections 12 and 18 of the protection of women from domestic Violence Act, 2005 was rejected.
Case heritage
The applicant got married to respondent husband on July 15, 1999. The couple had two children, however the respondent husband filed a petition for restitution of conjugal rights before the family court. besides the fact that children, the count was amicably settled and they begun living together once more.
Thereafter, the respondent converted the petition for restitution of conjugal rights into a divorce petition beneath part 13 of the Hindu Marriage Act. household court docket allowed the spoke of petition and granted divorce on June 30, 2008.
In 2009, the utility beneath Sections 12 and 18 of the DV Act became filed by means of the applicant alleging domestic violence on the a part of the respondent husband. The stated utility become resisted by using the respondent on the floor that on the time of submitting application, there became no home relation. She become no longer living with him. She became no longer a wife in view of the divorce granted, hence, her application is susceptible to be rejected.
The JMFC, Nagpur, disregarded the pointed out utility via judgment dated August 20, 2015. Then an enchantment was filed before the additional sessions choose, Nagpur, who also recorded in his findings that there changed into no home relationship and, for this reason, the applicant isn't entitled to aid beneath the DV Act.
Judgment
Adv AA Ghonge regarded on behalf of the applicant and Adv RN Sen looked for the respondent husband.
Ghonge submitted that notwithstanding her customer is a divorcee, she is entitled to relief below the said Act. She placed heavy reliance on the judgment of the Supreme court in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Anr.
besides the fact that children, the courtroom clarified that the talked about judgment had been looked at with the aid of one other bench of the Supreme court docket in the case of Inderjit Singh Grewal vs. State of Punjab and Anr, the apex court docket had found that within the referred to case, home violence took area and an FIR was registered below S.498A and 406 of IPC towards the husband and his family. Then the spouse received an ex parte "khula" (divorce) beneath the Muslim own legislations from the Mufti and filed a petition beneath S. 12 of the DV Act, therefore. The apex courtroom held that the wife's petition is maintainable.
in the present instance, the court docket accompanied-
"in the latest case, the applicant is not the spouse from the date of decree of divorce i.e. from 30th June 2008 and, therefore, there isn't any relationship as husband and wife between them at the time of filing of the utility."
After examining a number of different judgments of the high court docket, Justice Giratkar noted-
"There isn't any dispute that the applicant/spouse is no greater wife from the decision of family unit court in dated thirtieth June, 2008. The talked about resolution is not set aside by using the appellate court docket till date. for this reason, it is apparent that on the time of submitting of petition beneath the provisions of DV Act within the 12 months 2009, the applicant became now not the wife and, for this reason, the petition itself turned into no longer maintainable."
ultimately, regarding a judgment of the Delhi high court docket within the case of Harbans Lal Malik vs Payal Malik, the courtroom observed-
"within the existing case, there become no home relation on the date of submitting of application beneath the DV Act and, for this reason, the applicant/wife isn't entitled for any coverage under the stated Act."
within the observed judgment, the Delhi excessive court docket had followed-
"it's obvious that in order to make a person as respondent in a petition under part 12, there need to exist a domestic relationship between the respondent and the aggrieved adult. If there is not any home relationship between the aggrieved person and the respondent, the court of MM cannot circulate an order towards such someone under the Act."
thus, the revision software become pushed aside.
read the Judgment here
No comments:
Post a Comment