While dismissing the contention of the Applicant (husband) that as per Section 4 and Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife is not entitled to maintenance after divorce and hence, proceedings under Section 12 of the Domestic Violence Act are not maintainable, the Bombay High Court recently held that wife is entitled to relief even after the divorce for prior acts of domestic violence committed against her.

Relying on the decision of Atmaram Narayan Sanap Vs. Sangita Atmaram Sanap [2020 (1) ABR (CRI) 100], the High Court reiterated that “an act of domestic violence once committed, the subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the D.V. Act, including monetary relief under Section 20, of the D. V. Act”.

The Single Judge Bench of Justice G. A. Sanap observed that even if proof of divorce had been there still, the settled legal position in Shababa Bano Vs. Imran Khan 2010 CRI L.J. 521 SC, can be relied upon that Section 125 of CrPC being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman.

“In this case, even if it is assumed for the sake of argument that the non-applicant has given divorce (Talaq) to the applicant, she cannot be denied maintenance in the proceeding initiated under Section 12 of the D.V. Act”, added the Bench.

Advocate R.N. Sen appeared for the Applicant, whereas Advocate Mohtesim Badar appeared for the Non-applicant.

Facts, in brief, are that matrimonial disputes arose between the parties, and a complaint was filed before the Magistrate by the non-applicant (wife), wherein it was established that the wife was subjected to domestic violence and application was partly allowed with maintenance. On appeal, the Sessions Judge enhanced the maintenance payable to the Respondent from Rs.7,500/- to Rs.16,000/- per month. Hence, the revision application by the husband.

After perusing the records, the High Court agreed with the findings of the Magistrate and the Sessions Judge that wife would satisfy the requirements of the definition of “aggrieved person” as well as the definition of “domestic relationship” and observed that the decisions rendered by the two courts cannot be said to be either perverse, arbitrary or capricious.

With respect to alteration in quantum of maintenance, the Bench affirmed the order of the Sessions Judge which had relied on Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, AIR 2017 SC 2383 wherein it was held that the grant of maintenance to the extent of 25% of the husband’s net salary would be just and proper.

Accordingly, while observing that wife shall come under ‘aggrieved person’ under the Domestic Violence Act, even after the divorce is granted subsequently, the High Court dismissed the revision application.

Cause Title: Ahsanullah @ Javed Khan v. Shahana Parvin

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