Domestic Violence Act | S. 25(2) Can Be Invoked Only Based On Change In Circumstances Which Occurred After S.12 Order Was Passed : Supreme Court

The Supreme Court held that alteration/modification/revocation of an order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) can be sought through Section 25(2) only on the basis of change of circumstances which took place subsequent to the passing of the order.

 "..for the invocation of Section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act," the Court stated.

"Any alteration, modification or revocation of an order passed under Section 12 of the Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto. Thus, such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act,” observed a bench comprising Justices BV Nagarathna and N Kotiswar Singh.

In this case, on 23.02.2015 the Magistrate passed an order under Section 12 of the DV Act allowing Rs.10,000 as monthly maintenance and Rs.1,00,000 as compensation for the wife. The order attained finality.  In 2020, the husband filed an application under Section 25(2) of the Act seeking revocation/modification of the order owing to change in circumstance.Though Magistrate dismissed the application, the Sessions Court directed the Magistrate to consider the same. The wife's revision against the Session's Court's order was dismissed by the High Court and she appealed to the Supreme Court.

The wife argued that the husband in effect was seeking the setting aside of the original order passed in 2015, which is not permissible under Section 25(2).In the application under Section 25(2), the husband sought the setting aside of the order passed in 2015 and a direction to the wife to return the entire amount received by her.

The Court observed that there cannot be a setting aside of the order dated 23.02.2015 for the period prior to such an application for revocation being made.

"Unless there is a change in the circumstance requiring alteration, modification or revocation of the earlier order owing to a change occurring subsequent to the order being passed, the application is not maintainable," Justice Nagarathna wrote in the judgment.

"Thus, the exercise of jurisdiction under sub-section (2) of Section 25 of the Act cannot be for setting aside of an earlier order merely because the respondent seeks setting aside of that order, particularly when the said order has attained finality by its merger with an appellate order as in the instant case unless a case for its revocation is made out.

Secondly, the prayers sought for by the respondent herein are for refund of the entire amount of maintenance that was paid prior to the application under sub-section (2) of Section 25 of the Act being filed and the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 being in fact revoked. The revocation of an order, inter alia, under Section 12 of the Act sought by a party cannot relate to a period prior to such an order being passed. We find that in the instant case the second prayer was not at all maintainable."

Hence, the Court found that the application under Section 25(2) was not maintainable, as it related to period prior to the date when the original order was passed.

"In fact, the prayers sought for by the respondent are totally contrary to the spirit of sub-section (2) of Section 25 of the Act. While making such a prayer, the respondent could not have sought in substance for setting aside of the original order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and seeking refund of the maintenance amount which was paid to the appellant pursuant to the said order," it observed allowing the appeal.

Case Details : S Vijikumari v. Mowneshwarachari C 

Citation : 2024 LiveLaw (SC) 745

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