News By/Courtesy: Kabir Jaiswal | 30 Jun 2019 16:00pm IST

HIGHLIGHTS

  • After the divorce decree, the spouse ceased to be an aggrieved individual as provided for in Section 2(a) of the Domestic Violence Act.
  • Rejecting the said claim, the tribunal noted that the decree of divorce does not deprive the spouse of the relief given in her favor under the regulations of the Domestic Violence Act.
  • A woman, divorced by her husband under the Hindu Marriage Act, continues to enjoy the status of a wife for the purpose of claiming maintenance from her ex-husband, if she is unable to maintain herself

 The Calcutta High Court held that a divorced woman who has received a maintenance order and other relief under the Domestic Violence Act [ DV Act ] before the divorce decree is entitled to execute the same if she is unable to sustain herself and has not remarried for other reasons. 

Justice Madhumati Mitra considered these two significant legal issues in Krishnendu Das Thakur vs. West Bengal State. 

  1. Whether the wife is required to continue in the domestic relationship to carry out a maintenance order already given in her favour under the Domestic Violence Protection Act, 2005.[DV Act ]? 
  1. Whether changing the wife's marriage status by a divorce decree can be regarded as a change in conditions as stated in Section 25(2) of the Act?

After the divorce decree, the spouse ceased to be an aggrieved individual as provided for in Section 2(a) of the Domestic Violence Act. After the divorce decree, the opposite party cannot be deemed an aggrieved individual or in a domestic relationship with the ' husband, ' it was argued.

Rejecting the said claim, the tribunal noted that the decree of divorce does not deprive the spouse of the relief given in her favour under the regulations of the Domestic Violence Act. The Court also observed that Section 25(2) of the DV Act refers to ' change in circumstances, ' but the phrase ' change in circumstances ' was not described in the Act. Furthermore, it was noted that the words ' change in circumstances ' are used in association with the alteration of a maintenance order in both the Code of Criminal Procedure and the Protection of Women from Domestic Violence Act, 2005. The bench said, "In view of Explanation (b) to Sub-Section (1) Section 125 of the Code of Criminal Procedure, a woman, divorced by her husband under the Hindu Marriage Act, continues to enjoy the status of a wife for the purpose of claiming maintenance from her ex-husband, if she is unable to maintain herself and she has not remarried." 

Holding that the Divorce Decree does not deprive the wife of the relief granted in her favour under the provisions of the DV Act, the Court said, "Moreover, our law recognises the right of a divorced wife to get maintenance till her remarriage. This Act of 2005 provides additional rights and remedies to the aggrieved person. If the contention of the petitioner is accepted then the wife will be forced to approach before the Magistrate to get maintenance under Section 125 of the Code of Criminal Procedure. What is needed is that the existence of domestic relationship as defined in the Act is necessary to bring an action, and to get relief under the Act of 2005. Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005, and the divorced wife, who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce, is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons."

 

Section Editor: Sandeep G | 01 Jul 2019 22:12pm IST


Tags : #Legal

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