Section 12 of the Protection of Women from Domestic Violence Act
Calcutta High Court
(Appellate Side)
Samim Rahaman vs Nasima Khatun & Anr
CRR 2280 of 2018
With
IA No. CRAN 1 of 2021
26 March, 2021
Excerpt
8- In support of this contention learned Advocate for the petitioner relies on a decision of the Hon’ble Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab & Anr. reported in (2011) 12 SCC
588. In the said report marriage between the parties was dissolved by mutual consent. Subsequently, by filing an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the wife challenged the decree of divorce. The Hon’ble Supreme Court held that the application under Section 12 of the said Act challenging a decree of divorce is not maintainable and would amount to abuse of process of court. The wife cannot claim that the marriage is still subsisting and also she cannot get any relief under the Protection of Women from Domestic Violence Act.
9. The learned Advocate for the petitioner further relies on a decision of the Bombay High Court in the case of Sadhana vs. Hemant reported in 2019 SCC OnLine Bom 659. The fact of the aforesaid reported decision is that the marriage between the parties was dissolved by a decree of divorce on 30th June 2008, in the year 2009 the wife/applicant filed an application under Section 12 and 18 of the DV Act alleging domestic violence by the respondent/husband. The said application was dismissed on the ground that there was no domestic relationship between the parties. The said order passed by the learned Magistrate was affirmed by the learned Additional Sessions Judge, Nagpur in appeal. It was contended on behalf of the applicant that both the existing relationship between the parties as well as past relationship are covered under the definition of “domestic relationship”. Hence, woman who is divorcee has remedy available to initiate proceedings under the Act. Bombay High Court held that there was no domestic relationship on the date of filing of the application under the DV Act and therefore the applicant/wife is not entitled for any protection under the said Act.
10. Md. Sarwar Jahan, learned Advocate for the opposite party No.1/wife submits that the claim of the petitioner of pronouncement of talaq to the opposite party No.1 is not an irrevocable form of talaq and therefore it is not binding upon the opposite party No.1.
11. In order to substantiate his argument it is submitted by the learned Advocate for the opposite party No.1 that the Mohammedan Personal Law recognizes two modes of talaq, viz talaq-ul-Sunnat and Talaq-ul-Biddat.
12. Talaq-ul-Sunnat further sub-divided into Talaq-i-Ahasan and Talaq- i-Hasan. The requirement of Ahasan Talaq are:-
i. Marriage must be consumed.
ii. A single pronouncement of talaq must be made.
iii. Such pronouncement must be made during tuhr i.e., the period of purity between menstruations. iv. The requirement of pronouncement of Talaq should be made during tuhr does applies to an oral divorce, but it does not apply to a written Talaq.
v. The requirement that pronouncement of Talaq should be made during tuhr does not apply to a wife who has crossed the age of menstruation or the parties have been away from each other for a long time, or when marriage has not been consummated.
vi. There must be no sexual intercourse during tuhr. vii. There must be no sexual intercourse during the period of Iddat. In case of a pregnant woman, there must be no sexual intercourses till the birth of the child. Thus talaq means pronouncing of single talaq during the period of purity following abstinence of sexual intercourse during the period of Iddat.
13. On the other hand, the requirement of Hasan Talaq is that the pronouncement of talaq should be made during three successive Tuhrs with abstinence of sexual intercourse during the period between first, second and third Tuhr.
14. In the instant case the petitioner made first pronouncement of talaq on 15th March, 2015 then on 29th June, 2015 and finally on 22nd November, 2015. It is contended by the petitioner that he divorced his wife by pronouncing Hasan talaq. But Hasan Talaq could be pronounced by single declaration of talaq by the husband during tuhr followed by abstinence from sexual intercourse during the period of tuhr. Thereafter during second and third successive tuhr, the husband requires to pronounce talaq with abstinence from sexual intercourse.
15. In the instant case the petitioner divorced the opposite party No.1 by pronouncing single talaq with abstinence from sexual intercourse for more than three months.
16. Though in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, it is not required to go into the deep of the question as to whether the opposite party No.1 was lawfully divorced or not, it is prima facie found from the registered talaqnama that after pronouncement of three talaqs followed by abstinence from sexual intercourse for more than three months, i.e., during the period of iddat, final pronouncement of talaq becomes talaq-i-bain or irrevocable talaq. In view of the said fact this Court prima facie holds that the petitioner divorced his wife pronouncing talaq under Mohammedan Personal Law.
17. It is also pointed out by the learned Advocate for the opposite party No.1 that talaq given by the petitioner to the opposite party is illegal and invalid as it was pronounced during the pregnancy of the opposite party No.1.
18. This court in exercise of revisional jurisdiction has no scope to adjudicate the issue as to whether talaq pronounced by the petitioner to the opposite party No.1 is legal, valid and binding upon the parties. Moreover, in a proceeding under Section 12 of the Domestic Violence Act, the Court does not have jurisdiction to adjudicate as to whether divorce by pronouncing talaq is legal and binding or not [See: Indrajit Singh Grewal (supra)]. The issue is left open for adjudication at the time of final disposal of the application under Section 12 of the Domestic Violence Act. The trial shall decide prima facie as to whether the petitioner divorced the opposite party No.1 or not while adjudicating the question as to whether the opposite party No.1 is entitled to monetary relief under Section 12 of the Domestic Violence Act.
19. At the same time relying on a decision of the Hon’ble Supreme Court in the case of Juveria Abdul Majid Patini vs. Atif Iqbal Mansoori & Anr reported in 2014 (10) SCC 736, this Court can safely hold that a divorced wife is included in the definition of aggrieved person. An application under Section 12 seeking relief under Sections 18 and 23 of the Domestic Violence Act is maintainable if the domestic violence had taken place when the wife lived together in shared household with her husband through relationship in nature of marriage.
20. In the case of Prabir Kumar Ghosh & Ors. vs. Jharna Ghosh & Anr. reported in 2016(2) CalLJ 154, a Coordinate Bench of this Court had the occasion to consider the question as to whether a divorced wife is entitled to claim relief under Section 12 of the Domestic Violence Act for the reason that after divorce the wife had no occasion to live with her husband in the shared household and there was no scope of domestic violence after divorce. This Court held in paragraph 17 of the said judgment :
“If economic abuse is evident in respect of an aggrieved person, who was in a domestic relationship and in the event, such economic abuse continues from day to day, the aggrieved person, in my considered opinion, would be entitled to institute a proceeding under Section 12 of the Act of 2005 for necessary relief.”
21. In her application under Section 23 of the Domestic Violence Act for interim monetary relief it is stated by the opposite party No.1/wife that her marriage was contradicted under the Mohammedan Law with the petitioner herein on 10th November, 2014. After her marriage she came to know that the petitioner was previously married and there was a male child from his first marriage. He married the opposite party No.1 after giving divorce to his first wife. It is further stated by the opposite party No.1 that after her marriage she became pregnant but her husband used to put pressure on her for abortion. He was subjected to physical and mental torture.
22. It is prima facie found from the record that the petitioner divorced the opposite party No.1 finally on 22nd November, 2015. Since then they are living separately. It is also found from the record that the opposite party No.1 has been residing in the house of her husband with her minor child. Therefore, the opposite party No.1 at present is now entitled to monetary relief for the maintenance of her minor child who was born in the wedlock between the petitioner and the opposite party No.1.
23. For the reasons stated, the impugned order passed by the learned Additional Sessions Judge, 3rd Court at Cooch Behar is set aside and modified in the following manner:
24. The petitioner herein shall pay monetary relief for the maintenance of the child who was born in the wedlock between the petitioner and the opposite party No.1 at the rate of Rs.6000/- per month till the disposal of Misc DV Case No.137 of 2016.
25. The order of monetary relief which was granted by the learned Judicial Magistrate, 1st Court at Cooch Behar for the opposite party No.1 and affirmed by the learned Additional Sessions Judge, 3rd Court at Cooch Behar is set aside.
26. The revisional application is thus allowed in part on contest, however, without cost.
(Bibek Chaudhuri, J.)