Dismissed

Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.

Bombay HC23 Jan 2013WP/4250/2012

Case brief

AI extract

What is this about?

This Single Judge dismissed a writ petition challenging a Sessions Order refusing maintenance to a divorced wife under the DV Act. The Court held that no domestic relationship exists after divorce, precluding relief under the Act.

What did the court decide?

The Writ Petition was dismissed; the order of the Sessions Judge refusing maintenance under the DV Act was upheld.

Juveria Abdul Majid Patni Vs Atif Iqbal… — Pension and Retirement Benefits | Bombay HC (2013)

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(1) (902) WP 4250/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Amk

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WRIT PETITION NO. 4250 OF 2012

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Juveria Abdul Majid Patni .. Petitioner Vs. Atif Iqbal Mansoori & Anr. .. Respondents

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Mr. Samir A. Vaidya for the Petitioner.

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Mr. P. Janardhan a/w. Mr. A. K. Millwala i/b Rex Legalis for Resp. No.1. Ms. P. P. Bhosale, APP for the State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 23rd JANUARY, 2013.

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P.C.

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The applicant has challenged the order of the learned Additional Sessions Judge, Mumbai dated 3^rd November, 2012 under which upon the admitted divorce of the petitioner maintenance claimed by the wife has been refused in an application under the Protection of Women from Domestic Violence Act, 2005 (DV Act).

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The only point of law which is required to be considered is whether a divorced wife, after her divorce and after ceasing to reside with her husband and after going into her parental home can be domestically violated under Section 3 of the DV Act so as to able to apply for any relief under the DV Act.

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In this case the parties were divorced upon the application of the wife by Mufti on 09.05.2008. That divorce is accepted by the wife. She thereafter applied for maintenance under the DV Act. The learned Judge has observed that there is no domestic relationship between the parties.

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(2) (902) WP 4250/12

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Mr. Vaidya on behalf of the wife claims that the domestic relationship under Section 2 (f) of the DV Act applies to parties who even previously lived in a shared household. The definition of domestic relationship runs thus: 2.(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

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Indeed a woman who at the time of the application was living in a relationship or who has previously lived in a relationship would apply under the DV Act. This would mean that the party who continued to live in relationship of marriage or otherwise and who has for whatever reason gone out of that relationship either upon volition or upon constraint can file any application after going out of that relationship also.

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This is not the case of the woman who is divorced. She lived in a marital relationship with husband. That was the domestic relationship. Her marital relationship came to an end upon her divorce. At that time she would be entitled to be maintained and obtain any other relief that she derives under the applicable laws. In this case she would be entitled under the Muslim Personal Law as also the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MW Act). She has however not applied under that legislation. She is also not applied under general law being Section 125 of the Cr.P.C. She applied only under the DV Act.

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The DV Act would apply if there was any domestic violence as defined in Section 3 of the Act. If there is no domestic relationship, there cannot be domestic violence under that Act. This has been held in a number cases relied upon by the husband and considered by the learned Judge.

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(3) (902) WP 4250/12

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In the case of Inderjit Singh Grewal Vs. State of Punjab 2011AD(CR)-4-549\2011-Supreme-6-181 marriage was dissolved by a consent decree under Section 13B of the Hindu Marriage Act. The wife claimed that that was obtained by fraud. The wife was educated and highly qualified. It was observed that she was a party to the fraud if there was a fraud. Nevertheless the marriage was dissolved. The domestic relationship came to an end. It was, therefore, held in para 25 of the judgment that the complaint under the DV Act was not compatible and in consonance with the decree of divorce which still subsists and applying under that act would amount to the abuse of process of law.

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In the judgment of this Court Jayesh Uttamrao Khairnar Vs. State of Maharashtra 2009-LAWS(BOM)-9-137=2010-MHLJ(CRI)-1-322 = 2010-BCR(Cri)-3-939 it was held that a divorced woman is not in a domestic relationship as there was no conjugal relationship between the parties. Such wife cannot obtain relief under the DV Act.

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In the case of A. Sreenivasa Rao & Ors. Vs. The State of A. P. CDJ 2011 APHC 217 in a similar situation the Andhra Pradesh High Court held that no jural relationship of man and a woman would be present after the divorce.

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In view of these judgments, the decision of the Single Judge of the Bombay High Court in the case of Smt. Bharati Naik Vs. Ravi Ramnath Halarnkar & Anr. 2011 CRI.L.J. 3572 relied upon by Mr. Vaidya cannot be accepted.

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Mr. Vaidya on behalf of the wife sought to rely upon the judgment of the Supreme Court in the case of V. D. Bhanot Vs. Savita Bhanot (2012) 3 SCC 183 . That was the case of a wife who had lived with the husband as a

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(4) (902) WP 4250/12

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legally wedded wife, for long years, until she was 63 years old. She was held entitled to apply under the DV Act even after her share residence came to an end because her relationship survived. Upon the husband's retirement, his government accommodation was to be surrendered. She was not given any accommodation. She was constrained to apply to be maintained. It was held that she would be entitled to reside in the permanent matrimonial home of the parties or to be entitled to maintenance. That was because her marriage subsisted and consequently her domestic relationship. The reliance upon this judgment is wholly misconceived.

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Other judgments shown to the Court by Mr. Vaidya relate to the application under Section 125 of the Cr.P.C. filed by a divorced wife. They do not apply to an application made by a wife under the DV Act.

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The applicant may have been entitled to maintenance under other laws applicable to her but not under the DV Act. Her application was ill-advised and misconceived. The order of the learned Sessions Judge is correct. The Writ Petition is dismissed.

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The amount deposited by the husband is allowed to be withdrawn by him.

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(ROSHAN DALVI, J.)

Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.

Case brief

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Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.

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