The Bombay High Court has set aside the Order granting interim maintenance to a woman after the Court observed that the applicant-husband and respondent-woman were married earlier to their domestic relationship.

“Prima facie, the material was placed before both the Courts that their domestic relationship was under the shadow of doubt. Both were married earlier to their domestic relationship. Where such a prima facie material is available, the Courts are suppose to maintain self-restrain from passing orders under Section 23 of the PWDV Act.”, Justice SG Mehare observed.

Advocate C.V. Dharurkar appeared for the Applicant.

In this case, the applicant-husband had approached the High Court challenging the Order granting interim maintenance passed by Judicial Magistrate First Class, and confirmed by the Additional Sessions Judge.

The respondent/wife had claimed that she and applicant got married in the State of Gujarat. They were living together; however, the husband did not disclose to her that at the time of their marriage he was already married. She also alleged that the husband had committed domestic violence.

On the other hand, it was the husband’s case that the respondent-wife had suppressed her earlier marriages. He claimed that her earlier marriages were not legally and validly dissolved. On the basis of these facts and circumstances, the husband claims that she is not in a domestic relationship.

The Court observed that for exercising power under Section 23 of the Protection of Women from Domestic Violence Act, 2005 the Magistrate has to satisfy that the applicant has a prima facie case disclosing 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, for granting an interim or ex parte order.

The Court further added that in order to claim the relief under the said Act under any of the heads permissible, the person claiming the relief has to establish the domestic relationship.

The Court noted that the domestic relationship of the applicant and respondent was under the shadow of doubt.

“After having gone through the facts of the case, the Court is of the prima facie view that it was not a fit case to exercise the power under Section 23 of the PWDV Act. Both Courts did not consider the legal aspects and have conveniently avoided the law laid down interpreting the domestic relationship.”, the Court held while setting aside the impugned Order.

Cause Title- Criminal Revision Application No.80 OF 2021

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