Protection of Women from Domestic Violence Act

In the case of Madras High Court P.K.Nagarajan @ ... vs N.Jeyarani on 30 January, 2014 it was held:

25.It is to be pointed out that ordinarily the relationship is deemed to exist for claiming maintenance by a spouse against her husband. It is to be noted that the husband is bound to maintain his wife and mere offer to maintain is not sufficient, as opined by this Court. Ordinarily, the issue/question of maintenance is to be determined in relation to the income of the husband. The burden shifts on the Revision Petitioner/Husband when circumstances show that the 1st Respondent/Wife is unable to maintain herself. Also that, the onus is on the Revision Petitioner/Husband to show that the 1st Respondent/ Wife has ample means to maintain herself.

26.At this juncture, this Court points out that even if the Husband is obtained a Divorce on the ground of adultery, he would be liable to pay maintenance to the Wife unless he proves in the proceedings under Section 125 of the Criminal Procedure Code that wife is living in adultery as per decision Nalini Kumar Pal V. Sm.Khukurani Pal, 1977 CRI. L. J. (NOC) 148 (Cal). Further, the Court will not shelve the question of validity of marriage and the paternity of child. But the Court must decide whether she is entitled to maintenance, as opined by this Court. One cannot be ignored a vital fact that the earning of the wife may be considered in determining the maintenance amount. Moreover, the father is also liable to pay for the children as per decision Shri Bhagwan Dutt V. Smt.Kamla Devi and another, (1975) 2 Supreme Court Cases 386. If the Revision Petitioner/ Husband is not denying neglect or refusal to maintain his wife or children, then, the maintenance order passed by a Court of Law is a valid one. Also that, the mere friendship with a man does not amount to living in adultery as per decision Smt.Mehbubabi Nasir Shaikh V. Nasir Farid Shaikh and another, 1977 CRI. L.J. 391 (Bombay) (DB). As a matter of fact, the charge of adultery must be proved by cogent and reliable evidence as per decision Laharam V. Melan Bai, (1987) II Crimes 560 at special page 562 (M.P.).

"40.In the case of Neelam Malhotra v. Rajinder Malhotra MANU/DE/0505/1993 : 1994 AIR (Del) 234 it was held that there can be no precise or settled formulae to assess the quantum of interim maintenance. Each case depends upon its own facts. There is no doubt that where a person is self employed, she/he tends to disclose incorrect income in the income tax return filed by him/her. There is no mathematical formula to precisely calculate any accurate amount to be given during pendency of the interim maintenance proceedings. The legislature gives wide and flexible power to the Court to decide the maintenance pendente lite considering the income and other factors like status of living and day to day expenses of the parties etc.

Section 20(2) of the Act casts a duty upon the Court to award a fair, adequate and reasonable maintenance while keeping in mind the standard of living to which the aggrieved person has used to.

Section 125, Cr.P.C., Section 24, Hindu Marriage Act, Section 20, Domestic Violence Act ensure that women are paid maintenance by the husband. Section 26 of the Act further lays down that the maintenance paid under the Act, would be in addition to maintenance paid under any other law being in force for the time being.

18. None of the laws, mentioned above, make the inability of earning as a valid defence. In fact, according to Section 125(3) Cr.P.C., if a husband does not maintain his wife, after an order has been passed in favour of the wife, he is liable to be imprisoned. Section 20(6) of the Act empowers the Court to direct a debtor of the respondent to either directly pay the maintenance to the aggrieved person, or to deposit the maintenance/ compensation in the Court. Of course, while granting maintenance the Court has to weigh the comparative hardship of the husband and of the wife. In case the wife has sufficient means to maintain herself, and in case the husband does not have any means whatsoever, in such a scenario the Court may not impose the liability of maintenance upon the husband. However, such is not the case here.

In the decision Smt.Neetu Singh V. Sunil Singh, AIR 2008 Chhattisgarh 1, it is held as follows:

"In view of scheme of Domestic Violence Act, 2005, specially as per the provisions of S.26 of the Act, the appellant wife is entitled to seek relief available to her u/Ss.18, 19, 20, 21, 22 of Act, 2005 in the maintenance proceeding pending in the Family Court. But the appellant wife is required to move an application u/S.26 read with Section in which she is seeking relief. However, instead of doing that, the appellant wife moved an independent fresh application u/S.12 of the Act, 2005 which can be entertained only by the Magistrate having jurisdiction. An application u/S.12 cannot be filed before Family Court because proceeding u/S.12 of the Act, 2005 as per the scheme of the Act, has to be filed before the Magistrate competent to entertain the application."

."As per Section 31 of Protection of Women from Domestic Violence Act, 2005, acts of domestic violence do not attract penal consequences." IV."Only a breach of the protection order is construed as an offence and the penal consequence would emanate from the date of the protection order and would not dated back to acts of domestic violence by the husband and his relatives." V."The Court is competent to take cognisance of acts of domestic violence committed even prior to the Protection of Women from Domestic Violence Act, 2005 coming into force."

VI."The Protection of Women from Domestic Violence Act, 2005 can be applied retrospectively to take cognisance of acts of violence allegedly committed even before Act came into force."

VII."Proceedings under Protection of Women from Domestic Violence Act, 2005 are summary in nature."

Whether the female relatives of the husband can be made party in the complaint under domestic violence act ? Law discussed and held by the Honorable Delhi High Court in

Varsha Kapoor vs Uoi & Ors. on 3 June, 2010 " that the expression „a relative‟ in proviso to Section 2(q) includes a female relative as well."