Bombay High Court upholds alimony to woman who accepted alimony under ‘customary divorce’

The Bombay High Court found that a person’s claim in the civil court for divorce itself shows that customary divorce does not exist in her caste and recently upheld an order granting a woman maintenance under the Protection of Women from Domestic Violence Act of 2005 (DV Law). .

Judge SG Mehare held the following in the man’s challenge to the award:

“In order to assert a customary right, the parties claiming such a right must demonstrate that the customs of their caste or race still exist and that the community as a whole regularly observes those customs. Since the applicant applied for a divorce in the civil court, it can be safely assumed that there was no customary divorce in his caste. Therefore, the respondent cannot claim that the domestic relationship has ended after the usual divorce and that the applicant is not entitled to relief under the DV Act.

In this case, the usual divorce was carried out and alimony of Rs. 1,75,000/- was awarded to the wife in 2012. After that, the husband filed for divorce on grounds of cruelty.

After the divorce application, the wife filed an application under the DV Act. The judge denied remedy in the domestic violence case. However, the Extra Sessions Judge awarded the wife alimony after she appealed. The alimony was paid on the alimony arrears.

The husband challenged the award of alimony, arguing that the wife was not entitled to alimony once she had accepted liquidated alimony through the usual divorce.

Relying on the Apex Court ruling in Prabhat Tyagi v. Kamlesh Devi, the court reiterated that the domestic relationship should exist at the time of alleged domestic violence cases, but not necessarily at the time of filing the application.

“Even if an injured party is not in a domestic relationship with the respondent at the time the application is made in accordance with Section 12 of the DV Act, but is entitled to leave the country at any time or had a right to leave the country and has been exposed to domestic violence or later due to a domestic relationship Is exposed to violence is entitled to submit an application under Section 12 of the DV Act,” the court said.

The court found that the victim was staying with her husband when the alleged domestic violence was committed.

The court reiterated that only divorce granted under Hindu marriage law was valid. “Only in certain circumstances, where the custom exists and is consistently observed, will ordinary divorce be considered,” the court added.

The parties claiming customary rights must demonstrate that the customs of their caste still exist and are regularly observed by the community as a whole, the court said.

The court further reiterated that a subsequent divorce will not absolve the husband from liability for the domestic violence offense. In the present case, the divorce was approved by the civil court after an application had been made under the DV Act. According to the court, this does not release the injured person from asserting legal remedies.

The court rejected the husband’s argument that the wife was not entitled to alimony because she had accepted the lump sum alimony. The husband had relied on the Vitthal Hiraji Jadhav v. Harnabai Vitthal Jadhav case in which the Bombay HC denied alimony under Section 125 of the Cr.PC, noting that acceptance of the lump sum alimony constituted a mutual consent to living apart under Section 125( 4).

The court affirmed that an injured person could seek recourse under various laws if the right existed, the court said.

“It (DV Law) is an additional statutory provision that does not affect the other statutory provisions available for similar relief. The investigation under the DV Law is independent and aims to ensure more effective protection of the rights of a woman who is a victim of any kind of violence in the family and for matters related or related to it,” the court ruled.

Therefore, the court refused to intervene in the alimony order issued by the judge for additional sessions.

Attorney Sachin Deshmukh represented the husband and attorney Amol Chalak the wife.

Case No. – Revision Request No. 290 of 2018

Case Title – Gajanan v. Surekha

Quote: 2023 LiveLaw (Bom) 61