Hon'ble CHAUHAN, J.—Aggrieved by the order dated 07.02.2009, passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, Jaipur, whereby the learned Magistrate has allowed the application of the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the Act', for short) and aggrieved by the order dated 23.10.2010, passed by the Additional District and Session Judge No.2, Jaipur District Jaipur, whereby the learned Judge has upheld the former order, the petitioner has approached this Court.

2. The brief facts of the case are that the respondent-wife filed an application under Section 12 of the Act against the petitioner-husband before the trial court wherein she claimed that she got married with the petitioner twelve years back in Jaipur. But ever since her marriage, her in-laws and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since last seven years. Thus, she prayed for maintenance. The respondent-husband filed reply to the application and denied the contents thereof. After hearing both the parties, vide order dated 07.02.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.800/- per month as maintenance to the respondent-wife. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 23.10.2010, the learned appellate court upheld the order dated 07.02.2009 and dismissed the appeal. Hence, this petition before this Court.

3. Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently contended that according to the complainant herself, she was married with the petitioner twelve years prior to 2008. Moreover, according to her, the petitioner and the respondent are living separately ever since 2001. Therefore, ever since 2001, no act of domestic violence has been committed. Yet, both the learned courts below have allowed an application under Section 12 of the Act. Since the Act came into force on October 26, 2006, the Act cannot be given a retrospective effect and cannot be made applicable to the alleged acts of domestic violence, which may have taken place prior to 2001. In order to buttress this contention, the learned counsel has relied upon the case of Hema @ Hemlata (Smt.) & Anr. vs. Jitender & Anr. (2009(1) Cr.L.R. (Raj.) 291).

4. On the other hand, Mr. Laxmi Kant Sandilya, the learned counsel for the respondent-wife, has strenuously contended that Section 3 of the Act defines the term domestic violence which includes “economic abuse”. An explanation in Section 3 of the Act defines the term “economic abuse” as the denial of maintenance and denial of Stridhan. Although it is true that the parties have been living separately since 2001, but the fact remains that after the Act came into force in 2006, even thereafter, the respondent-wife is not being maintained by the petitioner-husband. Therefore, her economic right to maintenance is being violated. Since the civil wrong is continuously being violated, therefore the Act is certainly applicable. Hence, the question of retrospective application of the Act does not even arise.

5. In rejoinder, Mr. Gupta has contended that since the respondent-wife is not living with him, the Act cannot be applied upon him. Moreover, since he happens to be a handicapped person, the direction to pay Rs.800/- per month, imposes a harsh financial burden upon him, which he cannot possibly discharge.

6. Heard the learned counsel for the parties, perused the impugned order as well as the case law cited at the Bar.

7. Section 3 of the Act defines the term “domestic violence” as under :

3. Definition of domestic violence.-

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-bein

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