Entitlement of divorced wife to claim maintenance and compensation under the Domestic Violence Act, 2005

JUDGMENT

(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to set aside judgment dated 21.02.2019 passed in Criminal Appeal No.155 of 2018 on the file of III Additional Sessions Judge at Salem, thereby reversing the judgment dated 18.05.2018 passed in D.V.O.P.No.71 of 2015 on the file of the learned Judicial Magistrate cum Additional Mahila Court at Salem.)

1.The petitioner husband has filed this writ petition aggrieved by the order of the learned Magistrate passed in the domestic violence petition filed by the respondent wife in and by which, the Trial Court ordered a compensation of Rs.3,00,000/- for the domestic violence and also a monthly maintenance of Rs.5,000/- per month, the same have been confirmed by the learned III Additional Sessions Judge, Salem in Crl.A.No.155 of 2018.

2. Heard the learned counsel M/s.S. Nandhini for the petitioner and Mr.R.Nalliappan, learned counsel on behalf of the respondent.

3. The learned counsel for the petitioner taking this Court through the petition and counter filed and the orders passed by the Courts below, would submit that this is the case in which complaint of not having physical relationship, the respondent wife had already filed a divorce and on the ground of cruelty, the divorce has been granted. She had not claimed any maintenance/alimony in the divorce proceeding.

4. As a matter of fact, the petitioner husband has filed C.M.A. before this Court but however on the arrangement that the respondent wife will not press this domestic violence, he even withdrew the appeal filed by him. Thereafter the petitioner husband also got re-married and he is presently living with his current family. Under these circumstances, the learned counsel would submit that there is absolutely not any domestic violence on the respondent wife and therefore, the Trial Court as well as Appellate Court erred in awarding compensation as well as monthly maintenance.

5. The learned counsel for the petitioner further submits that within the monthly income of the petitioner, he is now maintaining his family and the petitioner cannot pay a sum of Rs.5,000/- to the respondent wife by way of monthly maintenance. Without any basis whatsoever, approximately and presumptively basis a compensation was awarded by the Trial Court. Therefore, he would pray that this Court should interfere in the award of compensation as well as maintenance. He further submit that the parties are also related to each other and they were cousins.

6. Per contra, the learned counsel for the respondent would submit that this Court in Crl.R.C.No.31 of 2019 has already decided that the domestic violence petition is maintainable even by the divorced wife. She would submit that the divorce itself is granted on the ground of cruelty. The term domestic violence is defined under Section 3 of the Act and therefore, the cruelty committed by the petitioner would automatically fall within the meaning of domestic violence. Therefore, for the cruelty suffered by her and also taking into account that no maintenance or alimony granted for the said proceedings of divorce, the Trial Court has rightly awarded a sum of Rs.3,00,000/- as compensation and sum of Rs.5,000/- for monthly maintenance. Therefore, she would prayed that there is nothing for this Court to interfere in this revision.

7. I have considered the rival submission made on either side and perused the materials available on record in this case.

8. Firstly, question to be determined is that whether the petitioner is entitled to maintain a claim as rightly relied upon by the learned counsel for the respondent, a learned Judge this Court in Varalakshmi -Vs- Selvam Crl.R.C. No.31 of 2019 has categorically held that the domestic violence proceedings are maintainable even by the divorced wife. For that matter, the definition of aggrieved person in Section 2(a) of the Act specifically includes a persons “who is , or has been” in a domestic relationship. The Hon'ble Supreme Court of Indi