No Maintenance Under Domestic Violence Act For "Refusal Or Neglect" To Maintain Wife: Bombay High Court

Justice SG Mehare of Aurangabad bench observed that the concept of “refusal and neglect to maintain wife” given in section 125 CrPC does not exist in the Protection of Women From Domestic Violence Act, 2005 (DV Act).

“The tests to prove the domestic violence and refusal and neglect to maintain are different. There were no provisions in the Domestic Violence Act to test the refusal and neglect to maintain. The concept of domestic violence is specific as provided in D.V. Act. It could not be compared with the concept of Section 125 of Criminal Procedure Code. She never pleaded that the applicant/husband refused and neglected her. It was not also the issue before the trial Court...Considering the concept of refusal and neglect and granting the maintenance to wife in D.V. Act case is out of jurisdiction and exaggeration”, the court held.

The court quashed a Sessions Court order that awarded maintenance to wife in a domestic violence complaint despite finding no domestic violence having been committed.

The wife had filed an application under section 12 of the DV Act. The Judicial Magistrate First Class (JMFC) considered the evidence and concluded that whatever she testified before the court was not pleaded in her application and what she pleaded was not deposed before the court.

In appeal, the Additional Sessions Judge affirmed the JMFC’s finding that there was no domestic violence, and she was not entitled to monetary relief, house rent, refund of dowry and compensation. However, the judge, considering the case as an application under section 125 of the CrPC, held that the applicant refused and neglected to maintain his wife and awarded maintenance.

Therefore, the applicant approached the High Court in a revision application.

From the Judicial Magistrate’s judgement, the court opined that he minutely scrutinized the wife’s evidence and rejected her application.

The court noted that the DV Act is a law “in addition to” and not “in derogation” of any other law. Therefore, the wife may simultaneously claim relief under the DV act as well as section 125 of the CrPC.

In this case, the complaint was under DV Act, but maintenance was awarded as per concept of refusal and neglect to maintain under section 125 CrPC. Therefore, the court held that the Additional Sessions Judge went beyond the pleadings and the laws involved in the case.

The court held that granting maintenance to wife in a domestic violence case based on concept of refusal and neglect to maintain is beyond the jurisdiction of the Additional Sessions Judge.

Thus, the court quashed the judgment of the Additional Sessions Judge and upheld the Judicial Magistrate’s judgement.

Case Title – Sunil and Ors. v. Jayashri

Citation: 2023 LiveLaw (Bom) 163