The main legal point established in the judgment is that the provisions of the Protection of Women from Domestic Violence Act, 2005 apply prospectively, and the court has the authority to grant monetary relief, including monthly maintenance, to the aggrieved person under the Act.

JUDGMENT :

B.N. Mahapatra, J.

This Writ Petition has been filed challenging correctness of the order dated 16.04.2011 passed by the learned Additional Sessions Judge, Nayagarh in Criminal Appeal No. 44 of 2010 whereby the order dated 07.09.2010 passed by the learned S.D.J.M., Nayagarh in CMC No. 116 of 2007 has been modified with a direction to the appellant-petitioner to pay a sum of Rs. 1000/- towards monthly maintenance to the respondent-opposite party keeping all other conditions of the order unaltered. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are as follows:

Opposite party-Rashmibala Pradhan had filed an application bearing CMC No. 116 of 2007 u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, "Act, 2005") before the learned S.D.J.M., Nayagarh, who vide order dated 30.01.2008 directed the petitioner to pay monthly maintenance of Rs. 300/- to opposite party until she is given her legitimate share in the joint family properties of the petitioner. Being aggrieved, the petitioner filed Criminal Appeal No. 20 of 2008 before the learned Additional Sessions Judge, Nayagarh, who set aside the order of the learned S.D.J.M., Nayagarh with a direction to dispose of the case afresh after giving opportunity to both parties to adduce evidence. After hearing the parties and taking into consideration the evidence adduced by them, the learned S.D.J.M., Nayagarh vide order dated 07.09.2010 enhanced the monthly maintenance to Rs. 1,500/- in favour of opposite party until there is partition among the co-shares providing definite share to the opposite party in the properties of the petitioner. Being aggrieved by the said order of the learned S.D.J.M., Nayagarh, the petitioner again filed an appeal bearing Crl. Appeal No. 44 of 2010 before the learned Additional Sessions Judge, Nayagarh, who after hearing both parties directed the petitioner vide order dated 16.04.2011 to pay a sum of Rs. 1000/- as monthly maintenance to the opposite party keeping all other conditions imposed by the learned S.D.J.M., Nayagarh unaltered. Hence, the present writ petition.

2. Mr. G.S. Mohanty, learned counsel appearing on behalf of the petitioner submitted that the petitioner is the father-in-law of opposite party. The husband of opposite party died on 11.07.2006 due to Brain Fever and Malaria. Opposite party lodged an F.I.R. before the I.I.C., Nayagarh Police Station on 28.09.2006 on the basis of which P.S. Case No. 259 of 2006 corresponding to G.R. Case No. 463 of 2006 under Sections 498A/ 506/ 34, I.P.C read with Section 4 of the D.P. Act was registered against the petitioner and other in-laws. While the said case was pending before the learned S.D.J.M., Nayagarh, the opposite party filed a petition u/s 12 of the Act, 2005. It was submitted that the petitioner is an old man, who does not have any source of income other than cultivation of his ancestral lands. The annual income from the agricultural land is insufficient to maintain his family. Therefore, the direction given by the learned Additional Sessions Judge, Nayagarh to pay monthly maintenance of Rs. 1000/- is not justified and legal. The learned Court below has made an error by awarding maintenance to opposite party even though the opposite party had not made any such prayer in her petition bearing Crl. Misc. Case No. 116 of 2007. The application under the provisions of Section 12 of the Act, 2005 is not maintainable against the petitioner and his son as the alleged domestic violence took place prior to 26.10.2006, i.e. on the date on which the Act, 2005 came into force.

Despite notice none appeared for opposite party.

3. In the present case, the following questions fall for consideration by this Court:

(i) Whether the application of opposite party u/s 12 of the Act, 2005 is maintainable before the S.D.J.M., Nayagarh as the allegation against the petitioner and his son was made prior to 26.10.2006 on which date the Act, 2005