The Aurangabad Bench of the Bombay High Court recently opined that provision of maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act) is different from the concept of neglect or refusal to maintain under Section 125 of the Code of Criminal Procedure (CrPC).
Justice SG Mehare opined that Section 125 dealt with refusal to pay maintenance or neglecting to maintain. However, there was no provision in the DV Act to test refusal and neglect to maintain.
“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,” the order stated.
The observations came in a petition challenging an order of a sessions court directing a husband to grant maintenance to his wife after she made an application under the DV Act before a judicial magistrate.
The magistrate had rejected her application, holding that the pleadings and the deposition made by the wife before the court did not match. The sessions court upheld this order. However, the session judge considered the case as if it were an application under Section 125 CrPC and held that the husband had “refused and neglected to maintain the wife,” and granted her maintenance.
This was challenged by the husband before the High Court.
The High Court noted that the sessions judge had minutely scrutinized evidence to conclude and affirm the finding of the magistrate court that there was no domestic violence, owing to which the wife was not entitled to monetary relief under the DV Act.
Justice Mehare also reiterated that a wife could simultaneously claim relief under the DV Act as well as CrPC. However, the wife had failed to plead that the husband had refused and neglected her.
“The sessions court cannot travel beyond the pleading and laws involved in the case. Considering the concept of refusal and neglect and granting the maintenance to wife in DV Act case is out of jurisdiction and exaggeration, the order of sessions judge is illegal, erroneous and improper and liable to be set aside,” the High Court held.
Advocate Bhavthankar Vivek Vasantrao appeared for the husband and other applicants. Advocate SP Deshmukh represented the State, while Advocate SC Bhosle appeared for the wife.
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