2011 Supreme(Bom) 954

High Court of Bombay
A.P.Bhangale
Maroti S/O. Dewaji Lande
VS.
Sau. Gangubai W/O. Maroti Lande
Criminal Writ Petition No. 542/2010
Decided On : Aug 09, 2011

Headnote:Protection of Woman from Domestic Violence Act, 2005 - Section 12-Constitution of India, Article 20-Protection under Act-Available to wife, driven out from her husband’s shared household prior to coming into effect of Act, 2005-But if deprivation continued even after Act came into force.-The Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006 vide S.O. 1776(E), dated 17.10.2006. The Act was brought into force to provide for more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Thus, any women who or has been in a Domestic relationship who is subjected to Domestic Violence by the respondent i.e. her husband, she can apply under Section 12 of the Act as an "aggrieved person" complainant of Domestic Violence and seek orders under the Act i.e. maintenance, protection orders etc. Thus, the respondent in such application pursuant to the complaint under the Domestic Violence Act, cannot be allowed to defeat the provisions of Act by continuously depriving his wife or applicant with whom he was in the Domestic relationship from the benefits under the Act i.e. shared household, maintenance, monetary benefits in this regard. There shall be continuing causes of action, therefore, there is no question of putting a stop to the relief sought for on the ground of continuous breach of legal right, since the continued deprivation of economic of Financial resources and continued prohibition or denial of access for the shared household, maintenance etc. to the aggrieved person can come within definition of "Domestic Violence" explained in Chapter II of the Act. Protection under the Act becomes available to the wife/ applicant, who was driven out from her husband’s shared household prior to coming into effect of the Act of 2005, but if the deprivation continued even after the Act came into force. Thus, as held by this Court in Smt. Bharati Naik v. Shri Ravi Ramnath Halnarkar reported in 2011 All MR (Cri) 224, with reference to the Act of 2005, an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purposes of the Act. 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.

       Protection of Woman from Domestic Violence Act, 2005 - Sections 12 and 26-Relief under Act-Available in addition to relief which may be available in any legal proceedings before Civil Court, Family Court or Criminal Court affecting aggrieved person.-Perusal of Section 26 of Domestic Violence Act, indicate that relief under the Act is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the respondent. Section 12 which require application before the Magistrate for obtaining order or reliefs under the Act contains proviso to the effect that before passing any order on such application, the Magistrate shall take into consideration any Domestic incident report received by him from the Protection Officer or the service provider. The word ’any’ in the proviso would indicate that if such report is received, if any, because before receiving such report it is essential that for the area concerned State Government must have appointed Protection Officer. In view of the Section 7 of the Act and such appointment must be notified in the area for which such Protection Officer shall exercise powers and perform the duties in accordance with the Act, while service provider is required to register himself under Section 10 of the Act. In the absence of notification of a Protection Officer or registered Service Provider, it may not be possible for Magistrate to receive Domestic Incident Report before disposing of application made by the aggrieved person under Section 12 of the Act.