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Synopsis

A single-judge bench of the Bombay High Court at Aurangabad comprising Justice RM Joshi recently observed that the degree of domestic violence is immaterial if the woman proves that she has suffered from domestic violence. 

"Learned Magistrate as well as the Appellate Court has held that it is meager domestic violence. Provisions of the Act however do not differentiate or determine degrees of domestic violence. Domestic violence does not depend on its severity for the purpose of proceeding under the Act. Any woman who proves that she has suffered domestic violence at the hands of Respondent, the degree of the said violence becomes immaterial. Both Courts, therefore, have committed error in holding that it is meager domestic violence committed against Petitioner," the court observed.

The high court was hearing an appeal filed by a woman against the order of the sessions court. 

The woman alleged that her husband behaved indecently with her and caused sexual harassment. The woman, because of the ill-treatment stopped living with her husband and went to live with her mother in 2017. 

She had filed an application before the judicial magistrate under the Protection of Women from Domestic Violence Act, 2005 (the Act) who passed an order in her favour granting her maintenance of Rs 5000 per month. However, the order came to be reversed by the session court.

The counsel appearing for the woman argued that the appellate court committed a serious error in reversing the order passed by the magistrate directing interim maintenance. He submitted that there was total disregard for the provisions of the Act which was enacted to provide effective protection of the rights of women against domestic violence.

The counsel appearing for the husband argued that the woman had suppressed the material facts in the beginning such as non-disclosure of her educational qualifications and her employment. It was pointed out that in the affidavit filed by the woman, the disclosure about the education qualification was absent and there was a statement about her receiving Rs. 25,000 per month by way of rent. 

The court in its order recorded the object of the Act and said,

"The object and reasons for the said enactment is to provide effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters incidental and connected thereto. The intention of legislature, therefore, is to provide for protection of women who are victims of violence within family and also for matters connected/incidental thereto. The Courts, therefore, cannot restrict the interpretation of the same by giving restricted meaning thereto."

The high court also noted that the sessions court fell in error in ignoring the definition of domestic violence, which not only refers to the actual act of emotional or physical injury but any act which tends to do so, is also covered.

"Appellate Court has held that it is not the case of domestic violence, however, it is the case of disputes with regard to the children. Apparently, while making such observation the Court has fell in error in ignoring definition of Domestic Violence, which not only refers to the actual act of emotional or physical injury but any act which tends to do so, is also covered. Even assuming that there was dispute between husband and wife over the issue of alleged conduct of son of Petitioner with daughter of Respondent, but eventually said dispute has led to compel Petitioner to leave matrimonial home," the court noted.

The court while setting aside the order of the sessions judge observed that:

"As far the order of maintenance is concerned, it is the responsibility of the husband to maintain his wife unless she is able to maintain herself. It is not case of Respondent that Petitioner is employed and can maintain herself. Even if it is accepted that the Petitioner is qualified women, still there is no reason to hold at this stage that she did not try to secure employment. It is always open for the Petitioner to explain during trial the circumstances in which she remained unemployed."

Case title: ABC vs XYZ