1. Heard Mr. Coutinho, learned Counsel appearing on behalf of the petitioner and Mr. Menezes, learned Counsel appearing on behalf of respondent no. 1. In this matter, Rule was issued by order dated 04/04/2012 and hearing was expedited.
2. By this petition, the petitioner has challenged the order dated 07/07/2011 passed by the learned Additional Sessions Judge, FTC-I, Margao (Sessions Judge, for short), in Criminal Appeal No. 98/2010.
3. The petitioner and respondent no. 1 were married on 10/04/2005 and according to the petitioner they lived together till 18/04/2006, on which day she was forcibly driven out of the house by the respondent no. 1 whereas according to the respondent no. 1, the petitioner left the matrimonial house on 24/05/2006, without his consent. The marriage has been annulled by the Patriarchal Tribunal for the Archdiocese of Goa and Daman by judgment dated 17/09/2009 and the registration of their marriage has been cancelled. The petitioner filed an application in the prescribed Form I and II under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the Domestic Violence Act', for short) alleging domestic violence and sought protection order as also monetary benefits by way of maintenance of Rs. 12,000/- per month as well as compensation. The said application was registered as Criminal Case No. 951/OA/PWDV/07/III. The petitioner examined herself and three more witnesses whereas the respondent no. 1 examined himself. By judgment and order dated 07/10/2009, the learned Judicial Magistrate, First Class (Trial Magistrate) rejected the said application. The petitioner filed Criminal Appeal No. 78 of 2009 and by judgment and order dated 03/03/2010, the appeal was partly allowed. It was held that the application under Section 12 of the Domestic Violence Act, at the instance of the petitioner, in respect of the alleged acts of domestic violence which took place when she had resided with the respondent, prior to 26/10/2006, was maintainable. However, it was further held that the petitioner failed to prove that she had been subjected to any acts of domestic violence by the respondent. Thus, the petitioner was held to be not entitled to any reliefs under the Domestic Violence Act. However, the petitioner was held to be entitled to the fixed deposit amount arising from FDR No. 05140 dated 21/12/2005 in the Corporation Bank, which stood deposited in her name. Not being satisfied with the said judgment and order dated 03/03/2010, the petitioner approached the High Court of Bombay at Goa and in Criminal Writ Petition No. 30 of 2010, learned Single Judge of this Court, by judgment dated 24/08/2010, observed that whether the petitioner would not be entitled to the said amount of Rs. 12,000/- per month because of annulment of the marriage or otherwise was a matter which was required to be decided by the learned Magistrate, and in fact has not been decided by both the Courts below. This Court, therefore, set aside the orders of the Additional Sessions Judge as well as of the Trial Magistrate and directed the Magistrate to frame issues regarding the reliefs claimed after hearing the parties and then consider the evidence produced by the parties and the law applicable and then give a decision on each of the reliefs sought by the petitioner.
4. Thereafter, the Trial Magistrate, in the said Criminal Case No. 951/OA/PWDV/07/D, vide judgment and order dated 04/10/2010, partly allowed the application of the petitioner. The Trial Magistrate held that in the present case, though it was an admitted fact that the marriage between the petitioner and the respondent no. 1 was annulled, however, it was not disputed that the petitioner was residing with the respondent no. 1 as his wife and they shared a domestic relationship. It was held that therefore, the petitioner would be covered within the definition of aggrieved person under the Domestic Violence Act, irrespective of the fact that the marriage has been annulled at present. Relying upon the Judgment dated 18/07/2009 of this High Court in Writ Petition No. 202/2008 (âDr. Prakash joshi Vs. State of Maharashtra and Mrs. Anuradha Prakash Joshiâ), the Trial Magistrate held that the application under Section 12 of the Domestic Violence Act was maintainable in respect of acts prior to 26/10/2006. The Trial Magistrate further held that the petitioner/aggrieved person proved that the respondent no. 1 subjected her to domestic violence. The Trial Magistrate considered the entire evidence on record vis-a-vis the relief claimed. Consequently, the respondent no. 1 was directed to pay to the petitioner monthly maintenance of Rs. 7,000/- from the date of the application. It was also held that the petitioner was entitled to the amount of FDR No. 05140 dated 21/12/2005 in the Corporation Bank.
5. Not being satisfied with the said order dated 04/10/2010 passed by Trial Magistrate, the respondent no. 1 approached the Sessions Court. By judgment dated 07/07/2011, passed in Criminal Appeal No. 98/2010, the learned Sessions Judge partly allowed the said appeal and quashed the judgment dated 04/10/2010 to the extent of directing respondent no. 1 to pay to the petitioner maintenance of Rs. 7,000/- per month. However, the order of the Trial Magistrate to the effect that the petitioner is entitled to the amount of FDR No. 05140 dated 21/12/2005 in the Corporation Bank has been upheld and maintained. The Sessions Judge held that the Domestic Violence Act was attracted in spite of annulment of the marriage between the petitioner and the respondent. However, the Sessions Judge further held that the petitioner could not prove that she was subjected to domestic violence and hence she was not entitled to monthly maintenance. The petitioner is aggrieved by the said judgment and order of the learned Sessions Judge.
6. Mr. Coutinho, learned Counsel for the petitioner submitted that both the Courts below have positively held that annulment of marriage will not disentitle the petitioner of the reliefs under the Domestic Violence Act. He urged that the said Act does not create any new law and even after annulment of marriage or divorce, etc., a party would be entitled to maintenance, under the Act. He read out various provisions of the Portuguese Law of Marriage, mainly Articles 4, 5 and 7 from chapter II on âimpediments to the marriageâ and submitted that the marriage between the petitioner and the respondent was not in contravention of any of the said provisions. He then read out Articles 11 to 15 of Chapter III on âVoid and voidable marriageâ of the Portuguese Law of Divorce as applicable to Goa. He submitted that the case of the petitioner does not fall under any of the said provisions of Chapter III of the Portuguese Law of Divorce. He submitted that in terms of Section 2(f) of the Domestic Violence Act, even if the petitioner was in the past in relationship with the respondent no. 1, and if that was in the nature of marriage, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action. Learned Counsel urged that the applicability of the Domestic Violence Act cannot be questioned since past relationship is counted. He pointed out that Section 3 of the Domestic Violence Act, which defines âdomestic violenceâ includes âeconomic abuseâ. Learned Counsel submitted that the petitioner is not working anywhere. He therefore urged that once the petitioner proved that she needed money to meet the expenses incurred and losses suffered by her, the non-payment of maintenance itself was an âeconomic abuseâ. Learned Counsel further contended that the decree of the Ecclesiastical Court (Church decree) is almost a decree of divorce since it has all the civil effects. According to him, the situation, in the present case, is not where the marriage is void or voidable but there is plain dissolution of marriage. He therefore contended that though the registration of marriage has been cancelled, the marriage need not be termed as ab-initio void and as it had not existed at all. He, thus, urged that part of the order dated 07/07/2011 of the Sessions Judge, quashing the order dated 04/10/2010 whereby maintenance of Rs. 7,000/- was granted by the Trial Magistrate, be quashed and set aside and the said order of the Trial Magistrate be restored.
7. Learned Counsel for the petitioner relied upon the following Judgments:
(i) âShantaram Tukaram Patil and Anr. Vs. Dagubai Tukaram Patil and Ors.â (AIR 1987 Bom. 182)
(ii) âLate d/o Shrikrishna Kamat Vs. Vilas son of bhalchandra Udhoji.â [(1987)2 BOM. CR. 582]
(iii) âSmt. Bharati Naik Vs. Shri Ravi Ramnath Halankar and Anr.â, [(2010)3 Bom. CR (Cri) 871],
(iv) âDeoki Panjhiyara Vs. Shashi Bhushan Narayan Azad and Anr.â (MANU/SC/1096/2012) :AIR 2013 SC 346
(v) âRameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Dagaâ [(2005) 2 SCC 33]
(vi) Judgment dated 09/08/2011 of the Bombay High Court in Criminal Writ Petition No. 542/2010 (Shri Maroti s/o Dewaji Lande Vs. Sau Gangubai w/o Maroti Lande and Anr.)
8. On the contrary, Mr. Menezes, learned Counsel appearing on behalf of the respondent, contended that on account of the order of annulment of marriage, there is accepted finality to the end of relationship. He urged that the decree of annulment of marriage and consequent cancellation of the registration of marriage had rendered the marriage as ab-initio void and as the one which never existed at all. He pointed out that the petitioner did not pray for residence order, though under Section 17 of the Domestic Violence Act, a woman in domestic relationship has a right to reside in shared household. According to the learned Counsel, the petitioner could have been granted maintenance under Section 20 of the Domestic Violence Act for the period till the date of annulment of marriage. He submitted that the decree of annulment of marriage is dated 17/01/2009 and the suit for divorce on the ground of ill-treatment filed by the petitioner was dismissed on 02/12/2009 which means that the petitioner herself accepted that the suit for divorce did not lie since marriage was annulled. He urged that the annulment of marriage cannot be equated with divorce. He pointed out that after divorce what follows is partition of properties which cannot happen after annulment of the marriage. He urged that the Domestic Violence Act does not create any right and is always subject to the civil rights of the parties. Learned Counsel submitted that all the judgments cited by the Counsel for the petitioner are under the Hindu marriage Act or Special Marriage Act but what is relevant is the law applicable to the State of Goa. He submitted that Section 3(d)(iv) of the Domestic Violence Act, speaks about the economic abuse to include deprivation of economic or financial resources to which the aggrieved person is entitled under any law or custom. Learned Counsel contended that nowhere in the civil law, maintenance after annulment of marriage is contemplated. According to him Section 3(d)(iv) is related to 'shared household'. He further submitted that since the petitioner has left the shared household and since there is no relationship in the nature of marriage also, the petitioner is not entitled to maintenance under the domestic Violence Act. He placed reliance in the case of âD. Velusamy Vs. D. Patchiammalâ, [(2010) 10 SCC 469].
9. I have considered the material on record, the submissions advanced by the learned Counsel for the respective parties and also the judgments relied upon by them.
10. Let us, at the outset, see as to what the relevant provisions of the Domestic Violence Act say:-
(A) In terms of Section 12 of the Domestic Violence Act, inter alia, an aggrieved person can present an application to the Magistrate seeking one or more reliefs under the Act.
(B) Section 2(a) of the said Act provides that âaggrieved personâ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
(C) Section 2(f) of the Act says that âdomestic relationshipâ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
(D) Section 2(g) of the Act says that âdomestic violenceâ has the meaning as assigned to it in Section 3.
(E) Section 2(q) of the Domestic Violence Act provides that ârespondentâ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against the relative of the husband or the male partner.
(F) Section 2(s) of the said Act provides that âshared householdâ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
(G) Section 3 of the Domestic Violence Act defines domestic violence. It lays down as under:
â3. Definition of domestic violence.â For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it â
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.â For the purposes of this section,â
(i) âphysical abuseâ means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) âsexual abuseâ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) âverbal and emotional abuseâ includes â
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) âeconomic abuseâ includesâ
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.âFor the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes âdomestic violenceâ under this section, the overall facts and circumstances of the case shall be taken into consideration.â
11. Thus, the aggrieved person need not ask for all the reliefs available under the Domestic Violence Act and she can ask for any one or more of the reliefs, whichever she needs. The application under Section 12 of the Domestic Violence Act was filed before the Trial Magistrate on 11/12/2007 when the marriage was subsisting but when the petitioner was already residing at her maternal house. She did not ask for residence order because she was convenient at her maternal house. The annulment of marriage took place on 17/01/2009, during the pendency of the application. Merely because the petitioner did not pray for alternate accommodation or for an order to enter the shared household, that does not mean that on account of annulment of marriage which event occurred subsequently, she was not entitled to the relief of maintenance. The definition of âeconomic abuseâ under Section 3(d)(iv) of the Domestic Violence Act is not exhaustive but inclusive of the factors mentioned therein. It is not restricted to matters relating to the shared household. It not only includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise, but also the economic or financial resources which the aggrieved person requires out of necessity, inter alia including maintenance. Thus, it is not necessary that the aggrieved person should be entitled to claim maintenance under any law or custom. The necessity of all or any economic or financial resources of which the aggrieved person is deprived, renders the aggrieved person entitled to those resources including maintenance.
12. Normally, unlike a divorce, an annulment of marriage establishes that marital status never existed in law, as is contended by learned Counsel for the respondent no. 1. Articles 4 to 10 in Chapter II of the Portuguese Law of Marriage as applicable to the State of Goa lay down the impediments to the marriage. Admittedly, the marriage between the petitioner and the respondent no. 1 was not in contravention of any of the said provisions. Article 11 from Chapter III of the Portuguese Law of Divorce provides that the marriage celebrated in contravention of any of the clauses of Article 4 is, as between the contracting parties, null and void in law as if it had never existed. Article 13 provides that the marriage solemnized in contravention of Articles 5 to 7 is voidable. Article 17 lays down that the marriage solemnized in contravention of Articles 8 to 10 is not voidable, but the offenders are liable to the special penalties laid down in Chapter VII of the present Decree, with the force of law, and to those which are applicable to them under the penal law in force. Article 18 provides that the marriage to which consent is proved to have been caused by mistake or coercion is voidable. According to the learned Counsel for the petitioner, the marriage of the parties was not in contravention of any of the clauses of Article 4 and Articles 5 to 10, and also was not the one to which consent was caused by mistake or coercion and hence the same was neither void nor voidable. This fact has not been disputed by the learned Counsel for the respondent no.1. The marriage when it was solemnized and registered and till it was annulled was a legally valid marriage. Article 69 of the Portuguese Law of Marriage provides that the annulment of marriage has, as between the spouses, likewise in divorce, the same effect as in the case of dissolution of marriage by death, in respect of their properties and persons, in the part not specifically regulated. It may thus be said, as is contended by the learned Counsel for the petitioner, that the annulment of marriage has civil effects and hence the annulment of marriage does not render the marriage as never existing. In the present case, the petitioner in paragraph 1 of the petition has stated that the marriage has been annulled by the Patriarchal Tribunal for the Archdiocese of Goa and Daman by judgment dated 17/09/2009. The respondent no. 1(RW1), in his affidavit-in-evidence stated that the marriage between him and the petitioner has been annulled and nullified by the Patriarchal Tribunal of the Archdiocese of Goa and Daman sitting as Court of First Instance, at Major Seminary, Pilar Goa, vide order dated 17/01/2009. The judgment and decree of annulment of the marriage passed by the Patriarchal Tribunal has not been produced on record. RW1 only produced a letter allegedly issued by the Patriarchal Tribunal which was marked as âXâ for identification. The said letter was never proved. The parties have nowhere stated as to under which law and under which provision of that law, the decree of annulment has been made. Though the learned Sessions Judge has referred to Articles 1086, 1087, 1089 and 1091 of the Portuguese Civil Code, with regard to the annulment of marriage between the petitioner and the respondent no. 1, however, that may have been wrongly done. Article 72 of the Portuguese Law of Marriage (Decree No. 1 dated 25/12/1910) says that Articles 1056 to 1074, 1083 to 1095 and 1184 to 1188 and 1192 of the Civil Code and any legislation to the contrary are hereby substituted and repealed. The said application for annulment of the marriage was filed by the respondent no. 1 himself. According to RW1, the church only annulled the marriage. In his affidavit-in-evidence, RW1 has accepted the valid marriage till the date of annulment and has denied any kind of alleged domestic violence caused by him to the petitioner, during that period. He has specifically stated that presently there is no matrimonial relationship between the petitioner and himself. Hence in my considered view, since the respondent no. 1 suppressed the judgment and decree of annulment of marriage, and in view of his oral evidence, it should be held that the said annulment of marriage between the petitioner and the respondent no. 1, in this case, did not have the effect of rendering the marriage as ab-initio void as if it had never existed.
13. Be that as it may, there is no dispute that the petitioner and the respondent no. 1 got legally married to each other on 10/04/2005 and they lived together in the shared household at least till around April-May 2006. According to the petitioner, She was driven out of the house on 18/04/2006 and according to the respondent no. 1, the petitioner left the matrimonial house without his consent on 24/05/2006. In the initial reply filed by the respondent no. 1, he did not deny that the petitioner is his wife. He did not state that his marriage with the petitioner was a nullity. The marriage between the petitioner and the respondent was annulled on 17/01/2009. Only thereafter, the respondent no. 1 filed an affidavit stating that the provisions of the Domestic Violence Act were not applicable in this case. However, he did not allege that the marriage was not valid from the beginning. Even if, for the time being, it is taken for granted that on account of annulment of the marriage and consequent cancellation of the registration of the marriage, the marriage became ab-initio null and void, still the truth remains that as from the date of marriage i.e. from 10/04/2005 till about April-May 2006, the parties lived in the shared household like husband and wife, and with knowledge and under belief that they are husband and wife. The Trial Magistrate, in the order dated 04/10/2010, has observed that though it is an admitted fact that the marriage between the petitioner and the respondent no. 1 is annulled, however, it is not disputed that the petitioner was residing with the respondent as his wife and they shared a domestic relationship. The requirement for invoking the provisions of the Domestic Violence Act is that the aggrieved person i.e. the petitioner and the respondent no. 1 must either be living in the shared household or must have, at any point of time, in the past, lived together therein, not only if the relation is by consanguinity or marriage but even if the relationship is in the nature of marriage, adoption, or family members living together as a joint family.
14. In the case of âD. Velusamyâ (supra), relied upon by the learned Counsel for the respondent, the Apex Court has referred to its decision in the case of âSavitaben Somabhai Bhatiya Vs. State of Gujaratâ [(2005) 3 SCC 636], wherein it has been held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into a wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of âwifeâ. It has been held that âwifeâ in Section 125(1) of the Criminal Procedure Code, 1973 means legally wedded wife and Section 125(1) does not protect a woman who unwittingly marries a man who is already married. Thus, in the case supra, the meaning of the expression âwifeâ was stated with regard to Section 125 of Cr.P.C. and not with regard to Section 2(f) of the Domestic Violence Act. It has been held that relationship with âKeepâ whom a man uses for sexual purposes and/or as a servant, does not constitute relationship in the nature of marriage. It is, however, further held in the aforesaid case that Section 2(f) of the Domestic Violence Act embraces a wider concept by affording protection not only to legally wedded wife but also to a woman who is having domestic relationship which may not strictly be marriage but is âin the nature of marriageâ. It has been held that a ârelationship in the nature of marriageâ is akin to a common law marriage which requires, in addition to proof of the fact that parties had lived together in a shared household as defined in Section 2(s) of the Domestic violence Act, the following conditions to be satisfied:
(a) The couple must hold themselves out to society as being akin to spouses;
(b) They must be of legal age to marry;
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried;
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
15. No doubt, in the case of âDeoki Panjhyaraâ (supra), a Coordinate Bench of the Supreme Court has observed that whether the decision of that Court in âVelusamyâ (supra) is an authoritative pronouncement on the expression ârelationship in the nature of marriageâ and if so whether the same would require reference to a larger Bench, may be premature to be answered at present. The decision in the case of âD. Velusamyâ (supra) still holds good and is binding. It is nobody's case that the relationship of the respondent no. 1 with the petitioner was of âKeepâ whom the respondent no. 1 used for sexual purposes and/or as a servant. Admittedly, the parties had lived together in a shared household as defined in Section 2(s) of the Domestic violence Act. Besides the above, all the clauses (a) to (d) of paragraph 31 of the Judgment in the case of âD. Velusamyâ (supra) are fulfilled in the present case and hence even if for the time being it is assumed that on account of annulment of the marriage, the same was not existing, then also the relationship between the petitioner and the respondent no. 1 was certainly in the nature of marriage. Therefore, as has been rightly held by the learned Sessions Judge and also by the Trial Magistrate, the Domestic violence Act is attracted in the instant case in spite of the annulment of the marriage between the parties.
16. In the case of âSmt. Bharati Naikâ (supra), the issue before the learned Single Judge of this Court (R. M. Savant, J.) was whether a divorced woman can file an application under Section 12 of the Domestic Violence Act. In the case supra, the petitioner was married to the respondent no. 1, which marriage came to be annulled in view of the Decree dated 19/9/1998 passed in Special Civil Suit No. 70/95/A. The petitioner, though divorced, was staying in the matrimonial house and was working as a Nurse and used to come to her work place from the said matrimonial house, from which she was ousted by the respondent no. 1 allegedly by force. Since she was forced out of the matrimonial house, the petitioner sought to invoke the provisions of the Domestic Violence Act and specially Section 17 thereof claiming right to reside in the shared household. It has been held thus:
â9. The learned Sessions Judge having accepted the position that the requirement for invoking the provisions of the said Act is that the aggrieved person and the Respondent must either be living in the shared household or must have, at any point of time, in the past, lived together therein, but has thereafter misdirected himself by holding that in both the conditions, they are bound to be having existing relationship by consanguinity, marriage, etc. In my view, the relationship by consanguinity, marriage, etc. would be applicable to both the existing relationship as well as the past relationship and cannot be restricted to only the existing relationship as otherwise the very intent and purpose of enacting the said Act would be lost as it then would protect only an aggrieved person who is having an existing relationship by consanguinity, marriage, etc. The interpretation given by the learned Sessions Judge, would have the effect of reading into the said provisions the existence of the present status as a wife which in my view is impermissible looking to the purport and intent of the said Act.â
17. Merely because in the case of âSmt. Bharati Naikâ (supra) the petitioner, even after annulment of marriage, was residing in the shared household, that does not mean that staying in the shared household, even after annulment of marriage or after divorce, is condition precedent to become entitled to the reliefs under the Domestic Violence Act. By judgment dated 09/08/2011, in Criminal Writ Petition No. 542/2010 (supra), the learned Single Judge of this Court has observed that as held by this Court in âSmt. Bharati Naik Vs. Shri Ravi Ramnath Halarnkarâ reported in 2011 ALL MR (Cri) 224, an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act and thus, even if the woman was in the past in relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action. In the case supra, the aggrieved person was not residing in the shared household but was residing with her parents, just like the petitioner before this Court.
18. In view of the discussion supra, the petitioner was entitled to claim the relief of maintenance. The Trial Magistrate has held that the petitioner is entitled to monthly maintenance of Rs. 7,000/- from the date of application. The learned Sessions Judge, however, held that the petitioner could not prove any kind of âdomestic violenceâ and quashed the order of the Trial magistrate granting maintenance as above.
19. Since the marriage has been annulled and since the petitioner was not interested in any relief other than monetary relief, the question of deciding on physical, sexual or verbal and emotional abuse, did not arise. Only the question of âeconomic abuseâ was relevant. A perusal of the impugned Judgment passed by the Sessions Judge reveals that unnecessarily the incidents of physical, verbal and emotional abuses have been discussed and insofar as the economic abuse was concerned, only the position till about May 2006, has been considered and it has been held that the petitioner failed to prove any kind of domestic violence including the economic violence. But what about the economic abuse after May 2006? In this regard, the Trial Magistrate had not granted any maintenance for the period prior to the date of the application. The application under Section 12 of the Domestic Violence Act was filed before the Trial Magistrate on 11/12/2007. The Trial Magistrate had granted maintenance as from the date of application. According to the petitioner as from the date of filing of the application she was deprived of her financial resources and necessities.
20. PW1, the petitioner, in her affidavit-in-evidence stated that from May 2006, the respondent no. 1 never bothered to inquire about her health and did not send any money for her personal expenses and that she was looked after by her mother who bore her entire expenses. The evidence of RW1, the respondent no. 1 only shows that according to him, the petitioner was well maintained till she left the house. The evidence on record sufficiently proves that the petitioner is unemployed. She needs maintenance amount for her daily needs for which she is dependent on her mother. As already stated above, domestic violence includes economic abuse which includes deprivation of all or any economic or financial resources for which the aggrieved person is entitled under any law or custom or which the aggrieved person required out of necessity, including but not limited to household necessity and also including maintenance. RW1, the respondent no. 1, stated that he earns Rs. 18,000/- per month on an average and he produced pay slips, which corroborated the statement of RW1. According to RW1, besides maintaining himself, he is required to maintain his parents. Hence the monthly maintenance of Rs. 7,000/- as assessed by the Trial Magistrate, is just and reasonable and in any case cannot be termed as excessive. The learned Sessions Judge held that the petitioner is not entitled to maintenance and did not go into the aspect of quantum of maintenance, as assessed by the Trial magistrate. The application under Section 12 of the Domestic Violence Act was filed by the petitioner in the year 2007 and still the matter is pending. There is no point in remanding the matter to the Sessions Judge only to decide on the quantum of maintenance. I am of the view that the Judgment and order dated 04/10/2010, passed by the Trial Magistrate was correct and was erroneously set aside partly by the learned Sessions Judge.
21. In the result, the petition is allowed. The order dated 07/07/2011 of the Sessions judge in Criminal Appeal No. 98/2010 is quashed and set aside and the order dated 04/10/2010 of the Trial Magistrate in Criminal Case No. 951/OA/PWDV/07/D is restored.
22. Rule is made absolute in the aforesaid terms, with no order as to costs.