In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. The Supreme Court held that a wife after having been judicially separated does not cease to be an “aggrieved person”.
Appellant was denied of her claim to get her Stridhan back from her husband on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘the 2005 Act’) was not entertainable as she had ceased to be an “aggrieved person” under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation.
The Supreme Court observed that considering the nature of legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, as 2005 Act is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.
In the instant matter, there were allegations of dowry demand, which on not being satisfied, the wife was driven out from her matrimonial home. Later, due to intervention of the elderly people there was some kind of conciliation as a consequence of which both the husband and the wife stayed in a rented house for two months. With the efflux of time, the husband filed a petition seeking judicial separation before the Family Court and the same was granted. After the judicial separation, wife moved an application under Section 12 of the 2005 Act, seeking seizure of Stridhan articles from the possession of the husband. It was contended by the husband that the application preferred by the wife was barred by limitation and that she could not have raised claim as regards Stridhan after the decree of judicial separation passed by the competent court. The Magistrate opined that no “domestic relationship” as defined under Section 2(f) of the 2005 Act existed between the parties and therefore, wife was not entitled to file the application under Section 12 of the 2005 Act. It was further held that though the parties had not been divorced but the decree of judicial separation would be an impediment for entertaining the application and being of this view, he opined that no domestic relationship subsisted under the 2005 Act and hence, no relief could be granted.
Subsequent appeals by wife before the superior courts also ended in a failure.
Supreme Court held that none of the court below made any effort to understand and appreciate the stand of the wife.
Section 2(a) defines “aggrieved person” which means any woman who is, or has been, in a domestic relationship with the Respondent and who alleges to have been subjected to any act of domestic violence by the Respondent. Section 2(f) defines “domestic relationship” as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
The core issue in the instant matter was whether wife ceases to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.
Both divorce and judicial separation can thus be distinguished as a situation, where in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped.
In view of the above position, the Supreme Court held that the position that wife after having been judicially separated has ceased to be an “aggrieved person” was unsustainable.
Wife had moved an application to get back her stridhan.
On the issue of stridhan, it was observed on the question as to whether retention of stridhan by the husband or any other family members is a continuing offence or not that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. This however was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.
Wife cannot be precluded to claim the stridhan once even maintenance has also stopped to her. Regard has to be made to the concept of continuing offence.
Wife’s appeal was accordingly allowed and the matter was remitted to the learned Magistrate to proceed with the application under Section 12 of the 2005 Act on merits.
[Krishna Bhatacharjee vs. Sarathi Choudhury and Anr.]
(SC, 20.11.2015 – Criminal Appeal No. 1545 of 2015)