[News18] Maintenance Under Domestic Violence Act Cannot Be Provided For Refusal To Maintain Wife, Says Bombay HC

The Aurangabad bench of the Bombay High Court recently allowed the revision petition filed by the husband against the order dated June 6, 2018, passed by Additional Sessions Judge, Bhokar in a criminal appeal.

The bench of Justice S.G. Mehare considered the order of Additional Sessions Judge, Bhokar as illegal, erroneous, and improper.

The bench opined that the concepts of domestic violence and refusal and neglect to maintain are two different concepts. The concept of domestic violence is specific in the Domestic Violence Act, but there are no provisions in the Act to test the refusal and neglect to maintain, and it cannot be compared with Section 125 of the Criminal Procedure Code.

Earlier, the wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, making allegations that the domestic violence was committed by her. In the judgement, Judicial Magistrate First Class mentioned that whatever she deposed to before the Court was not pleaded in her application, and what she had pleaded, was not deposed before the Court, and there was no domestic violence.

The Additional Sessions Judge, Bhokar, agreed with the findings of the judicial magistrate but also granted her maintenance under section 125 of the CrPC on the ground that the present applicant had refused and neglected to maintain his wife.

Therefore, the husband filed a revision petition before the present bench against the order of the Additional Sessions Judge, Bhokar.

Counsel for the husband submitted that the order passed by the Additional Sessions Judge was based on the ground that the husband refused and neglected to maintain his wife, which is contrary to the law, and this was not ground before the Judicial Magistrate.

The counsel for the wife stated that there was evidence that she was ill-treated because of the demand for dowry for the construction of the house; she was driven away from her house. This was sufficient ground to believe that domestic violence had been committed against her.

The present bench, after hearing both parties, stated that the burden of proving domestic violence lies on the aggrieved person.

The bench noted that "the law is well settled that a person having remedies under the various Acts may exercise them independently. For the time being, the Domestic Violence Act is a law in addition to and not in derogation of the provisions of any other law. The wife may simultaneously claim the reliefs under the Domestic Violence Act as well as under Section 125 of the Criminal Procedure Code. The tests to prove domestic violence and refusal and neglect to maintain are different."

"In the present case, the wife never pleaded that the husband had refused and neglected her, and it was not also the issue before the trial court." Thus, the subordinate appellate court cannot travel beyond the pleadings and the laws involved in the case," the court opined.

Further, the court also mentioned that the concept of refusal and neglect and granting the maintenance to the wife in the D.V. Act case is out of the jurisdiction and an exaggeration.

Hence the order of maintenance passed by the Additional Sessions Judge, Bhokar, is illegal, and erroneous, and therefore is set aside.

Case Title: ABC vs. XYZ

Statute: The Domestic Violence Act and Section 125 of CrPC.