Bombay High Court Upholds Grant Of Maintenance To Woman Who Had Accepted Alimony Under 'Customary Divorce'

Justice S. G. Mehare, in the husband’s challenge to the award, held that:

“For claiming any customary right, the parties claiming such right are bound to prove that the customs of their caste or race still exist and the community at large is regularly observing such customs. Since the applicant approached the Civil Court for divorce, it can safely be held that the customary divorce was not in existence in their caste. Therefore, the respondent cannot claim that after the customary divorce, the domestic relationship ceased, and the applicant is not entitled to the reliefs under D.V. Act.”

In the case, Customary divorce was executed and an alimony of Rs. 1,75,000/- was given to the wife in 2012. After that, the husband filed the divorce petition on the grounds of cruelty.

The wife filed an application under the DV Act after the divorce petition. The magistrate refused relief in the domestic violence case. However, the Additional Sessions Judge awarded maintenance to the wife after she appealed. The alimony was directed to be adjusted towards the arrears of maintenance. 

Challenging the grant of maintenance, the husband argued that once the wife accepted the lump sum alimony through the customary divorce, she was not entitled to maintenance.

The court relied on Apex Court judgment in Prabhat Tyagi v. Kamlesh Devi and reiterated that the domestic relationship should subsist at the time of alleged domestic violence incidents but not necessarily on the date of filing application.

“Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time leave or had the right to leave and has been subjected to domestic violence or is later subjected to domestic violence on account of a domestic relationship is entitled to file an application under Section 12 of the D.V. Act,” said the court. 

The court noted that the victim was residing with her husband when the alleged domestic violence was committed.

The court reiterated that only divorce granted under Hindu Marriage Act is valid. “Only in certain circumstances where the custom exists and is observed continuously then the customary divorce may be considered,” the court added.

The parties claiming customary rights must prove that the customs of their caste still exist and the community at large is regularly observing them, said the court.

The court further reiterated that subsequent divorce will not absolve husband’s liability for offence of domestic violence. In the present case, divorce was granted by the civil court after filing an application under the DV Act. This will not disentitle the aggrieved person to apply for relief under the act, the court said.

The court rejected the husband’s argument that the wife is not entitled to maintenance since she accepted the lump sum alimony. The husband had relied on the case of Vitthal Hiraji Jadhav v. Harnabai Vitthal Jadhav in which the Bombay HC refused maintenance under section 125 of the Cr.P.C. observing that the acceptance of the lump sum alimony was mutual consent to live separately under Section 125(4).

The court reiterated that an aggrieved person may take recourse under various laws if the right exists, the court said.

“It (DV Act) is an additional provision of Law not affecting the other provisions of Law available for similar relief. The inquiry under the D.V. Act is independent and has an object to provide for more effective protection of the rights of a woman who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto,” the court held.

Therefore, the court refused to interfere in the maintenance order passed by the Additional Sessions Judge.

Advocate Sachin Deshmukh represented the husband and Advocate Amol Chalak represented the wife.

Case no. – Criminal Revision Application No. 290 of 2018

Case Title – Gajanan v. Surekha

Citation: 2023 LiveLaw (Bom) 61