Second Marriage doesn’t amount to Domestic Violence ?
Table of content:-
- Background of the case
- Issues Raised
- Statutory Provision Involved
- Submissions of the Parties
- Judgment Analysis
- Conclusion
Applicant vs Sole Respondent [Criminal Application No. 164/ 2017]
Background of the case
On 13th March 2011 the applicant No. 1 got married to the sole respondent at Akola. Their marriage didn’t work and applicant No. 1 filed for divorce on the ground of cruelty. The petition filed by applicant No. 1 was decreed by the Family Court at Akola on 16th September 2014 and in the same judgment, Family Court rejected the application of the Respondent for Restitution of Conjugal Rights.
Aggrieved with the concerned judgment of the Family Court the Respondent filed for the appeal against the decision of the Family Court. On 10th August 2015, the Bombay High Court rejected both the appeals and upheld the judgment and order of the Family Court. The judgment of the Bombay High Court was challenged before the Hon’ble Supreme Court.
On 15th February 2016, the Special Leave Petition filed before the Hon’ble Supreme Court was dismissed and the decree for divorce and dismissal of the application of Restitution of Conjugal Rights was confirmed. On 15th May 2016, the respondent filed an application under section 12 to 23 of the Divorce Act before the Magistrate Court. Respondent sought relief of monthly maintenance, compensation, Residence Order, and other monetary benefits. The respondent put forth the same allegation as stated in the Divorce petition. The applicant filed an application for dismissing the proceeding on the ground of tenability. The Magistrate rejected the application. The applicant approached the Bombay High Court sought not only Setting Aside Order but also quashing of the entire proceedings.
The court passed an interim order to stay further proceedings pending before the magistrate.
Issues Raised
- Whether the respondent is entitled to rely upon the incidents that were the same as mentioned in the earlier proceedings of the Divorce petition can be treated as a ground to claim relief under the Domestic Violence Act, 2005?
- Whether a subsequent marriage after the divorce decree has been passed would be treated as domestic violence under the Domestic Violence Act, 2005?
- Whether the application filed by the respondent under the Domestic Violence Act, 2005 is considered an abuse of the law?
Statutory Provisions
- Section12 of the Domestic Violence Act, 2005
“Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favor of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set-off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.”
- Section 13 of the Domestic Violence Act, 2005
“Service of notice.—(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.”
- Section 14 of the Domestic Violence Act, 2005
“Counselling.—(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed.
(2) where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the case within a period not exceeding two months.”
- Section 15 of the Domestic Violence Act, 2005
“In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.”
- Section 16 of the Domestic Violence Act, 2005
“If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.”
- Section 17 of the Domestic Violence Act, 2005
“Right to reside in a shared household.—(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”
- Section 18 of the Domestic Violence Act, 2005
“The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) Committing any act of domestic violence;
(b) Aiding or abetting in the commission of acts of domestic violence;
(c) Entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) Causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) Committing any other act as specified in the protection order.”
- Section 19 of the Domestic Violence Act, 2005
“Residence orders.—(1) while disposing of an application under sub-section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) Restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) Directing the respondent to remove himself from the shared household;
(c) Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) Restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) Restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”
- Section 20 of the Domestic Violence Act, 2005
“. Monetary reliefs.—(1) While disposing of an application under sub-section (1) of section 12,the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”
- Section 21 of the Domestic Violence Act, 2005
“Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”
- Section 22 of the Domestic Violence Act, 2005
“In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.”
- Section 23 of the Domestic Violence Act, 2005
“Power to grant interim and ex parte orders.—(1) in any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”
Submissions of the Parties
The contentions of the applicant
Learned counsel Mr. S.A. Mohta submitted on behalf of the applicant:-
- The proceedings initiated by the respondent under the Domestic Violence Act, 2005 were not tenable.
- It was also submitted that the application filed on 15th May 2016 contained the same sets of facts and incidents that were mentioned in the Divorce proceedings and in the application of Restitution of Conjugal Rights and this application was file after three months when Supreme Court decides the case in favor of the applicant no. 1.
- Further, it was contended that this course of action was not open to the respondent and the subsequent marriage of applicant No. 1 cannot become a ground for the respondent could invoke provisions of the Domestic Violence Act, 2005.
No one has appeared on behalf of the Respondent.
Judgment Analysis
The court takes into notice that the Divorce has been granted by the Hon’ble Supreme Court and the application for Restitution of Conjugal Rights has been rejected by the court. As the application filed by the respondent under section 12 to 23 of the Domestic Violence Act had contained the same set of facts and incidents as the earlier proceedings and the earlier proceedings had been already decided by the Hon’ble Supreme Court and therefore, the respondent cannot be permitted to reiterate the same findings by filing an application under the provisions of the Domestic Violence Act.
With respect to the subsequent marriage performed by the applicant no. 1 after the divorce decree was passed, the respondent’s argument that the same amount to domestic violence cannot be accepted.
The court stated that the Family Court decision on granting divorce on the ground of cruelty cannot be denied and the subsequent marriage performed by applicant no. 1 cannot be under the ambit of Section 3 of the Domestic Violence Act. The respondent’s contention that applicant No. 1 and respondent had been married and shared a domestic relationship at a point in time is not enough for the respondent to initiate the proceedings under the provisions of the Domestic Violence Act.
The court observed that it was not like the respondent had initiated the proceedings under the Domestic Violence Act during their matrimonial discord but it was initiated after the divorce decree has been granted and the application for restitution of conjugal rights had been rejected by the Hon’ble Supreme Court. This demonstrates that the way in which the proceedings were initiated is nothing but an abuse of the process of law.
Conclusion
The court in the present application held that the respondent by initiating such proceedings trying to harass the applicants. The prayer to monthly maintenance, compensation, residence order, etc. is nothing but a repetition of the contention raised by the applicants.
Further, the court added that continuance of further proceedings would amount to permitting abuse of the process of law and that’s why the same cannot be permitted.