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‘Civil court can hear plea for maintenance in divorce case’

‘Civil court can hear plea for maintenance in divorce case’

17 May 2017 No comment 72 hits

Panaji: In a judgment that provides relief to women in cases of domestic violence, the high court of Bombay at Goa has held that a wife can file an application seeking maintenance under the Protection of Women from Domestic Violence Act, before the civil court where the divorce suit was filed.

The verdict was delivered by the high court on a petition filed by a husband who argued that his wife can seek alimony before the court of judicial magistrate first class (criminal court) under the Act and not before civil court in a divorce case.

It was argued by the husband that while divorce cases are to be filed before a civil court, relief under domestic violence is to be claimed before a criminal court.

Observing that such an interpretation would only contribute to multiplicity of proceedings, which a woman subjected to domestic violence can ill afford, Justice M S Sonak said that the Domestic Violence Act was enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution, which provide remedy under the civil law. The law is intended to prevent and to protect women from domestic violence, Sonak said.

The judge noted that, normally, the procedure for obtaining relief under the Domestic Violence Act is to institute proceedings before a judicial magistrate, which proceedings are governed by the provisions of Code of Criminal Procedure (CrPC).

However, as the proceedings under the Domestic Violence Act are essentially civil in nature, such applications can be filed in a suit for divorce, which is purely a civil proceeding, the high court observed.

The husband had filed a divorce suit in the civil court. In the same civil court, the wife had filed an application for maintenance, which though entertained by the court was denied on the grounds that there was no evidence of domestic violence.

Subsequently, the wife filed an appeal before the assistant sessions court (criminal court), which directed the husband to pay her an interim maintenance of Rs 5,000 from December 2014.

The husband challenged the order of the assistant sessions court before the high court, which held that an appeal cannot be filed in the sessions courts against orders of the civil court or family court.

The high court also said that it appeared that the assistant sessions court had not considered the issue as to whether the wife was indeed subjected to any domestic violence, even prima facie. Without considering this aspect, the additional session judge was not justified in awarding maintenance, the high court said.

The court also appreciated the reasonable approach of the petitioner's lawyer Joseph Vaz, and assistance rendered by advocate Carlos A Ferreira, amicus curiae.

Source: ‘Civil court can hear plea for maintenance in divorce case’

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