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CALCUTTA HIGH COURT
Madhumati Mitra, J.
Krishnendu Das Thakur – Petitioner
versus
State of West of Bengal and Anr. – Opp. Parties
C.R.R. No.3566 of 2018 with
CRAN No.1348 of 2019
Decided on 28.6.2019
Protection of Women from Domestic Violence Act, 2005 – Sections 12, 23 and 25 – Award of maintenance of Rs. 3,000/- p.m. for rent of alternative accommodation – Subsequent to the order, petitioner-husband obtained exparte decree of divorce – Petitioner filed application under Section 25 of DV Act for alteration, modification or revocation of order of maintenance on ground that his marriage with opposite party was dissolved by decree of divorce – Trial Court dismissed application and Sessions Court in appeal declined to interfere – Revision – Whether change of marital status of opposite party wife by a decree of divorce could be construed to be a change in circumstances as mentioned in Section 25(2) of the Act? Yes.
Held: Admittedly, the opposite party no.2 had been in a domestic relationship with the petitioner i.e. husband and wife. Opposite party no.2 got the order of maintenance and rent for alternative accommodation while she was in domestic relationship with the petitioner and she was an aggrieved party within the meaning of the Act of 2005. ‘Change in circumstances’ and ‘change of marital status’ are quite different. Divorced wife has a right to claim and get maintenance allowance. Her said right continues till her remarriage. In view of Explanation (b) to Sub-Section (1) Section 125 of the Code of Criminal Procedure a woman divorced, by her husband under the Hindu Marriage Act, continues to enjoy the status of a wife for the purpose of claiming maintenance allowances from her ex-husband, if she is unable to maintain herself and she has not remarried.
From copy of the judgment passed in MAT Suit no.103/2015 (Previous no.345/2015) it appears that the decree of divorce was granted under the provision of Hindu Marriage Act. Now the status of the opposite party no.2 is divorced wife of a Hindu ex-husband. In view of the provisions as contained in Explanation (b) to Sub-Section (1) of Section 125 Cr.P.C., a Hindu divorced wife is entitled to get maintenance from her ex-husband. It is true that the Protection of Women from Domestic Violence Act does not contain any provision similar to that of Explanation (b) to Sub-Section (1) of Section 125 Cr.P.C.
The domestic relationship between the opposite party no.2 (aggrieved person) and the petitioner (respondent) was very much alive when the opposite party no.2 made complaint of domestic violence. The order of maintenance and rent for alternative accommodation which was passed in favour of opposite party no.2 will continue unless and until there is change in circumstances as mentioned in Section25(2) of the Act of 2005. Decree of divorce does not deprive the wife from the relief granted in her favour under the provisions of the Act of 2005. After decree of divorce the opposite party no.2 has become ‘divorced wife’.
Moreover, our law recognises the right of a divorced wife to get maintenance till her remarriage. This Act of 2005 provides additional rights and remedies to the aggrieved person. If the contention of the petitioner is accepted then the wife will be forced to approach before the Magistrate to get maintenance under Section 125 of the Code of Criminal Procedure. What is needed is that the existence of domestic relationship as defined in the Act is necessary to bring an action and to get relief under the Act of 2005. Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.
For the reasons mentioned above, I do not find any substance and force in the application filed by the petitioner. (Paras 26 to 30)
Result: Petition dismissed.
JUDGMENT
Madhumati Mitra, J.—The petitioner has filed the present application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, praying for quashing/setting aside the impugned order dated 10th October, 2018 passed by the Learned Additional Session Judge, Howrah in Criminal Appeal no.82 of 2017 and the order of rejection of the prayer for stay of the Mis.Execution Case no.298 of 2016 pending before the Learned Judicial Magistrate, Howrah Municipal Court, Howrah arising out of Miscellaneous Case no.27836/2014 under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
2. In Miscellaneous Case no.27836/2014 under Section 12 of the Protection of Women from Domestic Violence Act, the petitioner was directed by the Learned Magistrate to pay Rs.3,000/- per month for maintenance and Rs.800/- per month for rent of alternative accommodation on and from 5th October, 2015 to the opposite party. Thereafter the petitioner initiated a matrimonial suit praying for dissolution of his marriage with his wife and obtained ex parte decree of divorce on 23rd February, 2016. After the decree of divorce the petitioner filed an application under Section 25 of the Protection of Women from Domestic Violence Act, 2005 praying for alteration/modification or revocation of the order dated 5th October, 2015, passed by the Learned Magistrate granting maintenance and rent for alternative accommodation in connection with Miscellaneous Case no.27836/2014 on the ground that his marriage with the opposite party was dissolved by a decree of divorce on 23rd February, 2016 and he is not liable to pay any amount to opposite party in terms of the order dated 5th October 2015. It is the specific contention of the petitioner that after the decree of divorce he is no longer in ‘domestic relation’ with the opposite party no.2.
3. All the Learned Counsel appearing for the parties advanced their arguments with the help of a series of decisions. Before delving deep into the matter, it would be better to deal with the relevant Sections and Provisions of the Protection of Women from Domestic Violence Act, 2005.
Section 25 of the said Act reads as under:
“Duration and alteration of orders- (1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”
4. Section 25 consists of two parts. Sub-Section 1 of Section 25 of the Act 2005 deals with the protection order made under Section 18 of the Act. The second part, that is Sub-Section 2 of Section 25 speaks about alteration, modification or revocation of any order made under this Act. So far as Sub- Section 1 of Section 25 is concerned, only the aggrieved person may apply for discharge of protection order passed under Section 18 of the Act.
5. On the other hand Sub-Section 2 of Section 25 provides that the aggrieved person or the respondent may approach before the Magistrate by filing an application for alteration, modification or revocation of any order made under this Act. If any such application is filed before the Magistrate praying for alteration, modification or revocation of any order made under this Act either by the aggrieved person or by the respondent then the Magistrate may for reasons to be recorded in writing pass order, as he may deem appropriate. Sub-Section 2 of Section 25 has conferred right both on the aggrieved person and the respondent to approach before the Magistrate for alteration, modification or revocation of any order made under this Act. Sub-Section 1 of Section 25 is restricted only to the protection orders under Section 18 of the Act. The recourse under Su
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