IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, J.
Prabir Kumar Ghosh & Ors. - Petitioners
Versus
Jharna Ghosh & Anr. - Opposite Parties
C.R.R. No. 1301 of 2015 with C.R.A.N. No. 2244 & 2202 of 2015
Decided On : 20-08-2015

A divorced wife, who had been in a domestic relationship and is an 'aggrieved person' under the Act of 2005, is entitled to institute a proceeding under the Act for various reliefs, provided she is able to establish that she is subjected to domestic violence as defined under section 3 thereof.

Headnote:

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 - Domestic Violence - Economic Abuse - Divorce - Right to Residence - Limitation - Section 12, 17, 18, 19, 20, 22, 23, 31, 468 Cr.P.C.

Fact of the Case:

Wife filed a petition under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act of 2005') against her ex-husband and his family members alleging economic abuse. The parties were divorced in 1988 and the wife was granted liberty to seek permanent alimony. During the pendency of the appeal against the divorce decree, the wife filed the instant proceeding under Section 12 of the Act of 2005 praying for various reliefs including monetary relief. The husband challenged the maintainability of the proceeding on the ground that since the divorce decree was passed in 1988 and the parties were not living in a shared household since then, there was no scope of domestic violence after divorce and the proceeding was barred by limitation.

Finding of the Court:

1. A divorced wife, who had been in a domestic relationship and is an 'aggrieved person' under the Act of 2005, is entitled to institute a proceeding under the Act for various reliefs, provided she is able to establish that she is subjected to domestic violence as defined under section 3 thereof. 2. A divorced wife cannot claim right to residence under section 17 of the Act of 2005 and consequently a residence order under section 19 thereof although she is an 'aggrieved person' under the said Act and pray for other reliefs including monetary relief under the Act if a case of 'domestic violence' is demonstrated in the facts of the case. 3. Economic abuse is a species of 'domestic violence' under section 3 of the Act. Denial of economic support/sustenance to a divorced wife living in penury would amount to 'economic abuse' constituting 'domestic violence' under the Act. 4. Continuity of joint residence in a shared household or domestic relationship inter se is not a sine qua non for the perpetration of domestic violence to an aggrieved person in the form 'economic abuse' under the Act. 5. The proceeding under section 12 of the Act of 2005 is neither punitive in nature nor the reliefs penal in character. The initial proceeding under section 12 of the Act, although governed by the provisions of the Criminal Procedure Code, is essentially quasi civil in nature while the subsequent prosecution contemplated under section 32 thereof for breach of protection order passed therein is penal in character. 6. Section 468 Cr.P.C. cannot have any manner of application to a proceeding under section 12 of the Act of 2005. The period of limitation prescribed under section 468 Cr.P.C. for launching prosecution in respect of offences specified therein cannot be applied to an application under section 12 of the Act which neither partakes the character of a prosecution nor the reliefs envisaged therein are penal in nature.

Issues: 1. Whether a divorced wife is entitled to institute a proceeding under the Act of 2005 for various reliefs, provided she is able to establish that she is subjected to domestic violence as defined under section 3 thereof? 2. Whether a divorced wife can claim right to residence under section 17 of the Act of 2005 and consequently a residence order under section 19 thereof? 3. Whether economic abuse is a species of 'domestic violence' under section 3 of the Act? 4. Whether continuity of joint residence in a shared household or domestic relationship inter se is a sine qua non for the perpetration of domestic violence to an aggrieved person in the form 'economic abuse' under the Act? 5. Whether the proceeding under section 12 of the Act of 2005 is punitive in nature or the reliefs penal in character? 6. Whether section 468 Cr.P.C. has any manner of application to a proceeding under section 12 of the Act of 2005?

Ratio Decidendi: 1. The expression 'domestic relationship' not only includes a relationship where two persons living together at present but also to a relationship where they had lived together in the past being related to each other by consanguinity, adoption, marriage or relationship in nature of marriage. Hence, the said expression embraces relationships where parties had lived together in the past on account of marriage or like relationships. 2. A decree of divorce snaps the legal tie of matrimony and dissolves the legal status of husband and wife and absolves them from their corresponding duty of cohabitation. The duty to live together in a shared household, therefore, no longer subsists after the decree of divorce is passed. Hence, once the marriage is dissolved, an aggrieved person cannot claim to be in a domestic relationship any longer. 3. A divorced wife cannot claim right to residence under section 17 of the Act of 2005 and consequently a residence order under section 19 thereof although she is an 'aggrieved person' under the said Act and pray for other reliefs including monetary relief under the Act if a case of 'domestic violence' is demonstrated in the facts of the case. 4. Economic abuse includes deprivation of financial or economic resources to which an aggrieved person is entitled to under any law or custom. In the instant case, the opposite party no. 1 was entitled to claim permanent alimony post divorce and such claim is a continuing one which continues from day to day. Hence, institution of the proceeding by the aggrieved lady to such relief cannot be said to be impermissible on the ground that she has been divorced and no domestic relationship is presently subsisting between herself and the petitioners. 5. Continuity of joint residence in a shared household or domestic relationship inter se is not a sine qua non for the perpetration of domestic violence to an aggrieved person in the form 'economic abuse' under the Act. 6. The initial proceeding under section 12 of the Act, although governed by the provisions of the Criminal Procedure Code, is essentially quasi civil in nature while the subsequent prosecution contemplated under section 32 thereof for breach of protection order passed therein is penal in character. 7. Section 468 Cr.P.C. cannot have any manner of application to a proceeding under section 12 of the Act of 2005. The period of limitation prescribed under section 468 Cr.P.C. for launching prosecution in respect of offences specified therein cannot be applied to an application under section 12 of the Act which neither partakes the character of a prosecution nor the reliefs envisaged therein are penal in nature.

Final Decision: The revision petition is disposed of. With the disposal of the revision petition, the connected applications being CRAN 2244 of 2015 and CRAN 2202 of 2015 are also disposed of.