Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., has held that the Muslim Personal Law can in no way curtail the protection granted under the Protection of Women from Domestic Violence Act 2005, from being available to a Muslim woman.
Brief facts of the case were that the respondent-wife had filed a petition for divorce against the husband under Section 2(viii)(a) and (d) of the Dissolution of Muslim Marriages Act, 1939, on grounds of cruelty. She also filed an application under the Domestic Violence Act for maintenance. The petitioner-husband filed objection to the application contending that he had already given talaq to the respondent after she filed the petition for divorce. He contended that the talaq was given by him in pursuance of the desire of the petitioner to get a divorce, as was evident by the petition filed by her; the said talaq should be considered as ‘khula’ (divorce by consent) and therefore according to the Muslim Personal Law that govern the parties, the respondent was not entitled to any maintenance as asked for by her.
The High Court observed that in the present case, the pronouncement of talaq was disputed by the wife and the husband will have to prove the said factum of talaq. As till the time the talaq was not proved, the respondent continued to be legally wedded wife of the petitioner and in that contingency, the question was whether the wife who was in a domestic relationship with the petitioner was entitled to seek relief under the DV Act.
After extensively considering various provisions of the DV Act as well as Acts concerning the rights of women under Muslim Personal Law, Hon’ble Court held that
“perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women, guaranteed under the Indian Constitution, who are the victims of the violence … The definition and connotation of “Domestic Violence” under Section 3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section 36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
The Court held that the provisions of the Muslim Personal Law can in no way curtail the protection provided under Domestic Violence Act. As a result, the impugned order of the Family Court whereby the petitioner was ordered to pay maintenance under the provisions of the DV Act was upheld and the petition dismissed. [Ali Abbas Daruwala v. Shehnaz Daruwala,2018 SCC OnLine Bom 1195, dated 04-05-2018]
