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SUPREME COURT OF INDIA
B.V. NAGARATHNA, NONGMEIKAPAM KOTISWAR SINGH, JJ.
S Vijikumari – Appellant
Versus
Mowneshwarachari C – Respondent
Criminal Appeal No. 3989 of 2024 (Arising Out Of SLP(CRL.) NO. 5342 of 2023)
Decided on : 10-09-2024
(A) Protection of Women from Domestic Violence Act, 2005 – Sections 25 and 12 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 146(1) – Maintenance – Alteration, modification or revocation of order granting maintenance – Order passed under the Act remains in force till time that order is either set aside in an appeal under Section 29 of Act, or altered/modified/revoked in terms of Section 25(2) of Act by Magistrate – Change in circumstance must occur only after an initial order is made under Section 12 of Act and cannot relate to a period prior to passing of order under Section 12 of Act – Magistrate while exercising his discretion under Section 25(2) of Act has to be satisfied that a change in circumstances has occurred, requiring to pass an order of alteration, modification or revocation – Phrase “a change in the circumstances” has not been defined under the Act – Magistrate has to adjudge change in circumstances based on material put forth by parties in a case and having regard to circumstances of the case – Change in financial circumstances of husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in husband or wife's life which may have taken place since the time maintenance was first ordered – For invocation of Section 25(2) of Act, there must be a change in circumstances after order being passed under the Act. (Paras 10, 12, 13 and 14)
(B) Protection of Women from Domestic Violence Act, 2005 – Sections 25 and 12 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 146(1) – Maintenance – Alteration, modification or revocation of order granting maintenance – Order for alteration, modification or revocation operates prospectively and not retrospectively – Though order for grant of maintenance is effective retrospectively from the date of application or as ordered by Magistrate, position is different with regard to application for alteration in an allowance, which may incidentally be either an increase or a reduction – to take effect from a date on which order of alteration is made or any other date such as from date on which application for alteration, modification or revocation was made depending on facts of each case – Under the Act, order of alteration or modification or revocation could operate from date of application being filed or as ordered by Magistrate under Section 25(2) of Act – Applicant cannot seek its retrospective applicability so as to seek refund of amount already paid as per original order – Exercise of jurisdiction under sub-section (2) of Section 25 of Act cannot be for setting aside of an earlier order merely because respondent seeks setting aside of that order, particularly when said order has attained finality by its merger with appellate order unless a case for its revocation is made out – Application for alteration, modification or revocation filed under sub-section (2) of Section 25 of Act cannot relate to any period prior to order being passed, under Section 12 of the Act – Orders of High Court as well as first Appellate Court set aside and application filed by respondent dismissed – However, liberty reserved to respondent to file a fresh application under Section 25 of Act. (Paras 14, 15, 17 and 19)
Facts of the case:
Respondent is seeking setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and with an additional prayer for seeking return of the entire amount of maintenance paid by the respondent to the appellant on the ground of fraud.
Findings of Court:
Any revocation of the order dated 23.02.2015 could be with effect from the date of application, if any, to be made by respondent herein or as ordered by Magistrate.
Result : Appeal allowed.
JUDGMENT :
NAGARATHNA, J.
Leave granted.
2. Being aggrieved by the order dated 06.04.2023 passed in Criminal Revision Petition No.674/2022 by the High Court of Karnataka at Bengaluru, the appellant who is the wife of the respondent has preferred this appeal.
3. Briefly stated, the facts are that the appellant-wife had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). The said petition, i.e., Criminal Miscellaneous No.6/2014 was allowed by the learned Magistrate by order dated 23.02.2015, granting Rs.12,000/- (Rupees Twelve Thousand only) per month as maintenance and Rs.1,00,000/- (Rupees One Lakh only) towards compensation. At this stage itself, it may be mentioned that the respondent-husband did not let in any evidence in the said proceeding. Being aggrieved by the order of the learned Magistrate, the respondent filed an appeal under Section 29 of the Act which was dismissed by the Appellate Court on the ground of delay. The aforesaid orders attained finality as they were not assailed by the respondent herein.
4. Thereafter, the respondent filed an application under Section 25 of the Act before the learned Magistrate. The said application was dismissed. Being aggrieved, the respondent filed Criminal Appeal No.757/2020 under Section 29 of the Act before the Appellate Court. The said appeal was allowed and the matter was remanded to the learned Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act, by giving an opportunity to both the parties to adduce their evidence and to dispose of the same in accordance with law.
5. Being aggrieved by the said order, the appellant herein filed Criminal Revision Petition No.674/2022 before the High Court, which, by the impugned order dated 06.04.2023 dismissed the same with a direction to the learned Magistrate to consider the application filed by the respondent under Section 25 of the Act, without being influenced by any observation made by the Appellate Court while disposing of Criminal Appeal No.757/2020.
Being aggrieved by the aforesaid orders, the appellant- wife has filed this appeal.
6. We have heard learned counsel for the respective parties at length.
7. Learned counsel for the appellant, during the course of her submissions, drew our attention to the prayers sought for by the respondent in the application filed under Section 25 of the Act, in light of sub-section (2) of the said Section. She submitted that the application filed under the said provision could be by an aggrieved person seeking alteration, modification or revocation of any order made under the Act and for reasons to be recorded in writing, the learned Magistrate can pass such an order appropriate to the facts of the case. But in the instant case, the respondent is seeking setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and with an additional prayer for seeking return of the entire amount of maintenance paid by the respondent to the appellant on the ground of fraud. Learned counsel for the appellant submitted that such prayers are not maintainable. She contended that the aforesaid application is not for alteration, modification or revocation of an order made under the Act; it is in substance for setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014; that such an application is not maintainable at all.
8. Learned counsel further submitted that the High Court as well as the Appellate Court were not right in remanding the matter to the learned Magistrate to consider the application filed by the respondent herein under sub-section (2) of Section 25 of the Act. She therefore submitted that the impugned orders may be set aside and the application filed by the respondent may be dismissed and consequently, the earlier order passed on 23.02.2015 in Criminal Miscellaneous No.6/2014 may be given effect to while sustaining the order d
Maintenance – Alteration, modification or revocation of order granting maintenance – Change in circumstance must occur only after an initial order is made under Section 12 of Domestic Violence Act, 2....
The court established that applications for maintenance under the D.V. Act must be properly categorized, and the Magistrate has the authority to modify maintenance orders based on changed circumstanc....
Proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C.
The court affirmed that domestic violence encompasses various forms of abuse, and maintenance should be awarded from the date of the application under the DV Act, not the date of the order.
The need for adjustment or set-off of maintenance amounts awarded in previous proceedings under different statutes.
The Court emphasized the importance of awarding maintenance from the date of application in cases of domestic violence, as per the legal dictum laid down by the Hon'ble Supreme Court.
The main legal point established is the appealability of orders under Sections 12 and 23 of the Protection of Women from Domestic Violence Act, 2005, and the limited scope for interference by the app....
The substantial right to appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is of importance and should be considered as the appropriate remedy.
The Domestic Violence Act provides for multiple forms of relief for women, and courts have the discretion to grant appropriate relief based on the circumstances, even if some claims are dismissed.
The court clarified the nature of interlocutory orders and their impact on the rights of the parties involved.
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