A Muslim woman can seek maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even after divorce as long as she does not remarry, said the Bombay High Court on Friday.
Justice GA Sanap, sitting at the Nagpur bench of the HC, recently dismissed an appeal by a man challenging a sessions court order enhancing maintenance awarded to his former wife in a domestic violence case.
The court observed, “... even if it is assumed for the sake of argument that the non-applicant has given divorce (Talaq) to the applicant, she cannot be denied maintenance in the proceeding initiated under Section 12 of the D.V. Act.”
The case
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The two married in 2006 and later shifted to Saudi Arabia. They used to reside in the same building in Akola. They have three children, including a minor son. A dispute arose between the families of the man and the woman. The woman alleged that due to this, the man started ill-treating her.
They returned to India in 2012. She alleged that he and his family continued harassing her to lodge a false complaint against her relatives. She even alleged that they tried to set her on fire, but she managed to escape.
She and her minor son started residing at her parents’ house. The man returned to Saudi Arabia with the other two kids. She filed an application before a magistrate seeking maintenance, shared household and compensation.
The husband refuted the allegations and contended that she would quarrel and leave the house with their minor son. Since she refused to return, he gave her talaq.
Woman subjected to domestic violence
The magistrate noted that the woman was subjected to domestic violence and awarded maintenance of ₹7,500 to her, ₹2,500 for the minor son and ₹2000 as rent. The magistrate also awarded compensation of ₹50,000 to her.
The sessions court enhanced the maintenance to ₹16,000. Hence, the man challenged this before the HC.
His advocate claimed that the DV complaint was filed almost a year after their separation. Hence, there was no domestic relationship between them, and the woman is not an “aggrieved person” under the DV Act. Also, as a divorced Muslim woman, she is not entitled to maintenance as per sections 4 and 5 of the Muslim Women (Protection Of Rights On Divorce) Act.
Justice Sanap noted that the magistrate and the sessions judge, on minute scrutiny of the evidence on record, found that the woman was subjected to domestic violence by the man. The court referred to a Supreme Court judgement which held that a divorced Muslim woman is entitled to maintenance as long as she does not remarry.
The DV Act
Even if it is assumed that the husband gave talaq, the wife cannot be denied maintenance in the proceedings under provisions of the DV Act. Subsequent decree of divorce will not absolve the husband's liability from the offence of domestic violence or deny the benefit to the aggrieved person, said Justice Sanap.
An “aggrieved person” includes a woman who has been in a domestic relationship with the man and these words are used to cover past relationships as well.
“The applicant (woman) would be squarely covered by the definition of ‘aggrieved person’ as well as by the definition of ‘domestic relationship’. Therefore, the submission made on behalf of the non-applicant (man) that she would not be entitled to get any relief under the D.V. Act cannot be sustained,” ruled the HC.
On the enhanced maintenance, by the sessions court, the HC said that the wife is entitled to maintain the lifestyle and standard which she was accustomed to while staying with her husband.
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