Bom HC | Divorced wife, who continues to cohabit with the husband, is entitled to filed proceedings under S. 12 of DV Act

Bombay High Court: Mangesh S. Patil, J., dismissed a criminal revision application filed against the order of the trial court whereby the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the divorced wife of the applicant-husband was allowed and he was directed to pay her and their daughter, a monthly allowance of Rs 7,500 and Rs 5000 respectively. He was also directed to pay his divorced wife, a compensation of Rs 1 lakh and costs amounting to Rs 2,000.

Shorn of details, the facts of the matter were that the parties were married to each other, who obtained a mutual divorce a few years after their marriage. Subsequently, the divorced wife filed a civil suit challenging the decree of divorce, alleging that the divorce was obtained by fraud and misrepresentation. The said civil suit is pending. She also filed an application under Section 12 of the DV Act before the Magistrate, wherein she averred that despite the passing of the divorce decree, she continued to cohabit with the applicant-husband in the same household as husband and wife along with their daughters, for a period of ten long years. The Magistrate found the fact of cohabitation as averred by the divorced wife was sufficiently proved. He also found that there was reliable evidence to substantiate her allegations of domestic violence. Accordingly, the Magistrate passed the impugned order mentioned above. Applicant’s appeal to Sessions Judge was also dismissed. Thus, the instant revision application.

At the outset, the High Court noted that since, admittedly, the civil suit filed by the divorced wife had not yet reached finality, one could only proceed on the premise that there was a decree of divorce between her and the applicant.

The Court distinguished the case Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 on facts, in as much as in the instant case, both the courts below had demonstrated as to how prima facie the decree of divorce was not acted upon and the couple, i.e., applicant and the divorced wife, had continued to cohabit in the same abode in spite of such a decree. It was held: “There was ample evidence before the two Courts below to come to a plausible conclusion that though the decree of divorce was obtained in the year 2000, the Applicant and respondent 1 had continued to cohabit in the same household. If that was the case, she was indeed entitled to file a proceeding under Section 12 of the DV Act.”

in such a view of the matter, the High Court did not find any fault with the orders passed by the courts below. Accordingly, the instant revision was dismissed. [Atmaram v. Sangita, 2019 SCC OnLine Bom 3909, decided on 05-11-2019]

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