2011(3) Crimes 7 (Raj.)
RAJASTHAN HIGH COURT
Vineet Kothari, J.
Khushi Mohd and Ors. —Petitioner
versus
Smt. Aneesha —Respondent
S.B. Criminal Revision No. 882/2009 and Petition No. 1698 of 2007
Decided on 15.2.2011

IMPORTANT POINTS
(1) It is not necessary that the applicant – woman should have a marriage subsisting and existing with the respondent at the time of filing of such application under Section 12 of the Act.
(2) Even if some benefit could be envisaged or allowed to the respondent – wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, that cannot come in the way of the applicant-wife to secure the relief under the provisions of Domestic Violence Act, 2005.

Headnote:Protection of Women from Domestic Violence Act, 2005—Section 2(a), 2(f)and 12—Aggrieved person, domestic relationship and domestic violence—Divorced Muslim Woman—It is not necessary that applicant woman should have a marriage subsisting and existing with respondent at the time of filing of application under Section 12 of the Act—Divorced Muslim wife was also entitled to relief under the Act besides her remedies under Muslim Women (Protection of Rights on Divorce) Act.

       Held: From a reading of the provisions of the Act and with understanding of the scheme of the said enactment, it is clear that it is not necessary that the applicant woman should have a marriage subsisting and existing with the respondent at the time of filing of such application under Section 12 of the Act. No time period is also prescribed in the said Act as to when the aggrieved person should have been in domestic relationship with the respondent. On the other hand, definition of words “domestic relationship” given in Section 2(f) of the Act clearly uses the words “at any point of time, lived together in a shared household in view of this clear provision of the Act covering the aggrieved person or woman in such domestic relationship, the contention of the learned counsel for the petitioner husband Khushi Mohd that in view of divorce given by the petitioner husband to the respondent wife, which fact is disputed from the opposite side, no relief could be granted to her under the provisions of this Act, falls that on its face. Admittedly, the respondent wife used to live in the shared accommodation with the petitioner husband for considerable period and out of this wedlock, a female child Asu was also born and the applicant wife chose to leave or was thrown out of the matrimonial home only about 1-1/2 years prior to the said application under Section 12 of the said Act. In the absence of any period of limitation prescribed in the said Act for approaching the Court, the contention that she left the matrimonial home about 1½ years back and therefore, she is not entitled to any relief under this Act is also devoid of any merit. The period of 1-1/2 years even otherwise is not such a long gap of period of disentitled the wife from claiming relief under this Act even otherwise. The application under Section 12 of the Act could not be said to be suffering from the vice of delay, laches, acquiescence or estoppel on this ground. The Act of 2005 was enacted around the same period and was brought into force w.e.f. 26.10.2006 even though it received the assent of President on 13.9.2005. In the kind of social background the applicant wife is living and with the low level of awareness of legal rights under this Act which can be reasonably presumed for such a lady, this Court is not inclined to uphold the contention of the respondent husband In this regard.

       Equally meritless is the contention of the learned counsel for the petitioner husband that after divorce, the respondent wife was only entitled to the relief under the provisions of Muslim Women (Protection of Rights on Divorce) Act,1986 and not under the provisions of this Act. No such prohibition is either contained in the Domestic Violence Act, 2005 nor this is the case of the petitioner husband that any such benefit has been granted to the respondent wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. On the other hand, provisions of Section 36 of the Domestic Violence Act, 2005 clearly makes it an Act to have additional field for the benefit of aggrieved person. Therefore, even if some benefit could be envisaged or allowed to the respondent wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1988, that cannot come in the way of the applicant wife to secure provisions of Domestic Violence Act, 2005. (Paras 14 & 15)