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Synopsis

The Supreme Court recently observed that the Domestic Violence Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect such victims.

A bench of Justices B V Nagarathna and N Kotiswar Singh made the observation while holding that any alteration, modification or revocation of an order passed under Section 12 (protection order) of the DV Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto.

The court also explained that such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act.

It said that for invocation of Section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act.

"Thus, an order for alteration, modification or revocation operates prospectively and not retrospectively. Though the order for grant of a maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate, the position is different with regard to an application for alteration in an allowance, which may incidentally be either an increase or a reduction," the bench said.

Court allowed an appeal by a woman against the Karnataka High Court's order of April 6, 2023.

The woman filed a petition under Section 12 of the Protection of Women from the Domestic Violence Act, 2005 in a court of Magistrate which was allowed with a direction to the husband to pay Rs 12,000 per month to her and Rs one lakh as compensation.

The respondent-husband did not let in any evidence in the said proceeding. Being aggrieved by the order of the Magistrate, he filed an appeal under Section 29 of the Act which was dismissed by the appellate court on the ground of delay. The orders attained finality as they were not assailed by him. 

The husband then filed an application under Section 25 of the Act before Magistrate, who dismissed the application.

Being aggrieved, he filed a criminal appeal under Section 29 of the Act before the appellate court. The said appeal was allowed and the matter was remanded to the Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act, by giving an opportunity to both the parties to adduce their evidence and to dispose of the same in accordance with law.

The woman then approached the high court which dismissed her plea, leading her to approach the apex court.

The wife contended that the application filed by the husband was not maintainable as it was not for alteration, modification or revocation of an order made under the Act; it was in substance for setting aside the order of 2015.

The husband, on the other, claimed that the appellant-wife had misrepresented the fact that she was in need of maintenance whereas she was an employed person and not at all in need of maintenance. 

The fact that she had said that she was unemployed goes to the root of the matter and hence, despite the order of the magistrate awarding Rs 12,000 per month as maintenance having attained finality, an application under Section 25 of the Act was filed seeking revocation of the said order and the appellate court as well as the High Court were justified in directing the magistrate to consider the said application, he said.

Dealing with the scope of Section 25(2) of the Act, the bench said that it is broad enough to deal with all nature of orders passed under the Act, which may include orders of maintenance, residence, protection, etc.

"If any such application is filed before the Magistrate by any of the two parties, i.e., the aggrieved person or the respondent, then the Magistrate may, for reasons to be recorded in writing, pass an order as he may deem appropriate. Thus, an order passed under the Act remains in force till the time that order is either set aside in an appeal under Section 29 of the Act, or altered/modified/revoked in terms of Section 25(2) of the Act by the Magistrate," the bench said.

The court said that since the order for alteration, modification or revocation operated prospectively and not retrospectively, the applicant could not seek its retrospective applicability, so as to seek a refund of the amount already paid as per the original order.

Dealing with the issue of change in the circumstances, the bench said that the magistrate has to adjudge it based on the material put forth by the parties in a case and having regard to the circumstances of the said case. 

The bench said that a change in the circumstances under the Act may be of either a pecuniary nature, such as a change in the income of the respondent or an aggrieved person or it could be a change in other circumstances of the party paying or receiving the allowance, which would justify an increase or decrease of the maintenance amount ordered by the magistrate to pay or any other necessary change in the relief granted by the magistrate including a revocation of the earlier order.

"The phrasing of the provision is wide enough to cover factors like the cost of living, income of the parties, etc. Further, a change in the circumstances need not just be of the respondent but also of the aggrieved person. For example, a change in the financial circumstances of the husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in the husband or wife’s life which may have taken place since the time maintenance was first ordered," the bench said.

Case Title: S Vijikumari Vs Mowneshwarachari C