Juveria Abdul Majid Patni and Atif Iqbal Mansoori got married according to Muslim rites and rituals in May 2015. The appellant experienced various abuses from the respondent, for which she lodged an FIR against him in 2007. The appellant claimed that she obtained an ex parte Khula from Mufti under the Muslim Personal Law in May 2008, but whether or not the couple legally completed the divorce process was contested. In September 2009, the appellant filed a petition under the Protection of Women from Domestic Violence Act, 2005 (PWDVA) for abuses that had occurred prior to their divorce.
Two main questions arose in this case: first, did the couple complete the divorce process in 2008? And second, can a divorced woman seek reliefs against her ex-husband under Sections 18 to 23 of the PWDVA?
The court determined that the couple’s divorce effectively took place in May 2008. It further determined that once an act of domestic violence has been committed, a subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or deny the benefit to which the aggrieved person is entitled under the PWDVA.
3. The case of the Appellant is that she got married to 1st Respondent according to Muslim rites and rituals on 13th May 2005. 1st Respondent was in the habit of harassing her. … For example, 1st Respondent acted with cruelty, harassed her and had banged her against a wall on her back and stomach on 5th January, 2006, due to which she suffered severe low back pain. The 1st Respondent refused her entry into the matrimonial house on 19th February, 2006 and asked her to stay with her parents. She delivered a baby boy at Breach Candy Hospital, Mumbai on 10th August, 2006 but the 1st Respondent never visited to see the new born baby. Later, the 1st Respondent filed a petition seeking custody of the minor child.
4. The Appellant lodged FIR No. 224 of 2007 on 6th September, 2007 before Agripada Police Station Under Section 498A, and 406 Indian Penal Code against the 1st Respondent, his mother and his sister. Against the same, a writ petition was filed by the 1st Respondent bearing Writ Petition No. 1961 of 2007 seeking quashing of the FIR. The High Court dismissed the said writ petition and the same was challenged by the 1st Respondent on which this Court issued notice. Subsequently, this Court by order dated July, 2008 remitted the matter to the High Court for hearing afresh Writ Petition No. 1961 of 2007. On 4th December, 2008, Writ Petition No. 1961 of 2007 was partly allowed by the High Court quashing the FIR against the 1st Respondent’s mother and sister with the observation that the prima facie case Under Section 498A was made out against the 1st Respondent.
5. According to the Appellant, she obtained an ex parte ‘Khula’ from Mufti under the Muslim Personal Law on 9th May, 2008. The 1st Respondent challenged the ‘Khula’ pronounced by-Mufti before the Family Court, Bandra vide M.J. Petition No. B-175 of 2008. He also filed a petition for restitution of conjugal right.
6. On 29th September, 2009, the Appellant filed a petition Under Section 12 of the Domestic Violence Act, 2005 against the 1st Respondent before the ACMM’s 46th Court, Mazgaon, Mumbai for relief Under Section18 to 23 of the Domestic Violence Act, 2005 alleging that he is not providing maintenance for herself as well as for the minor child. The 1st Respondent filed his reply to the said application which was followed by the rejoinder filed by the Appellant. The Protection Officer appointed by the Magistrate under Domestic Violence Act, 2005 filed his report, inter alia, stating that an act of domestic violence was committed by the 1st Respondent upon the Appellant. But the Magistrate was transferred, the Court fell vacant and no order was passed. Subsequently, the Appellant filed an application for interim maintenance and the Magistrate by order dated 4th February, 2012 allowed the application directing the 1st Respondent to pay interim maintenance of Rs. 25,000/-. Without paying the maintenance, the 1st Respondent preferred an appeal before the Sessions Court challenging the order of Magistrate dated 4th February, 2012. The Sessions Court, Sewree, Mumbai by order dated 3rd August, 2 012 condoned the delay in preferring the appeal and directed the 1st Respondent to deposit the entire amount of maintenance prior to the hearing of the appeal. As the 1st Respondent did not deposit the amount, the Appellant filed an application for issuance of distress warrant. Accordingly a notice was issued on 1st September, 2012. The counsel for the Respondent stated across the bar that the 1st Respondent had deposited the money before the Sessions Court and filed two applications on 3rd September, 2 012 for recalling the order dated 4th February, 2012 and for dismissal of the application on the ground that the domestic relationship did not exist between the Appellant and the 1st Respondent.
7. The Sessions Judge, Seweree, Mumbai by order dated 3rd November, 2012 observed and held as follows:
The Sessions Judge by the aforesaid judgment allowed the appeal and set aside the interim order dated 4thFebruary, 2012 passed by the Additional Chief Metropolitan Magistrate, 46th Court at Mazgaon, Mumbai. By the impugned judgment, the High Court affirmed the aforesaid order.
8. Before this Court the parties have taken similar pleas as taken before lower courts. According to the Appellant the cause of action i.e. domestic violence took place much before the divorce, therefore, FIR was filed and hence the Appellant is entitled for the relief under the Domestic Violence Act, 2005.
9. On the other hand, according to the counsel for the 1st Respondent after dissolution of the marriage no relief can be granted under the Domestic Violence Act, 2005. In his support reliance was placed on the decision of this Court in Inderjit Singh Grewal v. State of Punjab and Anr. MANU/SC/0988/2011 : (2011) 12 SCC 588.
10. The questions arise for our consideration are:
12. The Appellant had taken plea that she obtained an ex parte ‘Khula’ from Mufti under the Muslim Personal Law. But the 1st Respondent has not accepted the same and has challenged the ‘Khula’ obtained by the Appellant, before the Family Court, Bandra vide M.J. Petition No. B-175 of 2008. The Respondent has also filed a petition for restitution of conjugal rights.
13. The concept of dissolution of marriage under Muslim Personal Law was noticed and discussed by Single Judge of the High Court of Delhi in Masroor Ahmed v. State (NCT of Delhi) and Anr.MANU/DE/9441/2007: (2007) ILR 2 Delhi 1329. In the said case, the High Court noticed different modes of dissolution of marriage under the Muslim Personal Law (Shariat)
14. From the discussion [in the aforesaid judgment], what we find is that ‘Khula’ is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of ‘Khula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat.
15. In the present case, the Appellant stated that she has obtained an ex parte ‘Khula’ on 9th May, 2008 from Mufti under the Muslim Personal Law. Neither it is pleaded nor it is made clear by the Appellant or the 1st Respondent as to whether for such ‘Khula’ the Appellant made a proposal to husband-Ist Respondent for dissolution of marriage accompanied by an offer to give something in return. It has not been made clear that whether the Appellant gave up her claim to Mahr (dower). The husband, 1st Respondent has not accepted ‘Khula’ given by Mufti (jurisconsult) which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he has moved before the Family Court, Bandra against the ‘Khula’ by filing petition-M.J. Petition No. B- 175 of 2008. He has also prayed for restitution of conjugal right. Therefore, with no certainty, it can be stated that the divorce was taken on 9th May, 2008.
18. In the present case, as noticed that there is no definite plea taken either by the Appellant or by the 1st Respondent that ‘Khula’ become effective in accordance with Muslim Personal Law (Shariat). Neither the Appellant nor the 1st Respondent placed any evidence in support of such divorce. No specific pleading was made that the Appellant proposed to her husband-1st Respondent for dissolution of marriage. On the other hand, it is clear that the ‘Khula’ was pronounced by the Mufti ex parte. For the said reason, the 1stRespondent challenged the same by filing M.J. Petition No. B-175 of 2008, before the Family Court, Bandra. In this background, we hold that the Sessions Judge, Sewree, Mumbai by order dated 3rd November, 2012 wrongly observed and held that the Appellant is no more wife of the 1st Respondent. The High Court has also failed to notice that no evidence was produced in support of the statement either made by the Appellant or by the 1st Respondent. It also failed to appreciate the fact that the ‘Khula’ was obtained from the Mufti and not from Qazi and the same was challenged by the 1st Respondent before the Family Court, Bandra, Mumbai and wrongly upheld the finding of the Sessions Judge. Therefore, with no certainty, it can be stated that the divorce has taken place on 9th May, 2008, in absence of pleading, evidence and finding.
19. Even if it is presumed that the Appellant has taken ‘Khula’ (divorce) on 9th May, 2008 and the 1st Respondent is no more the husband, the question arises that in such case whether the erstwhile-wife can claim one or other relief as prescribed Under Sections 18, 19, 20, 21, 22 and interim relief Under Section 23 of the Domestic violence Act, 2005, if domestic violence had taken place when the wife lived together in shared household with her husband through a relationship in the nature of marriage.
24. In the instant case, the Appellant sought relief Under Sections 18 to 23 of the Domestic Violence Act, 2005. It includes Protection order Under Section 18, Monetary relief Under Section 20, Custody orders Under Section 21, Compensation Under Section 22 and interim relief Under Section 23. … The Monetary relief as stipulated Under Section 20 is different from maintenance, which can be in addition to an order of maintenance Under Section 125 of the Code of Criminal Procedure or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application Under Section 12 is in a domestic relationship with the Respondent.
25. [It] is well within the jurisdiction of the Magistrate to grant the interim ex parte relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie discloses that the Respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the Respondent may commit an act of domestic violence.
26. It is not necessary that relief available Under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a Civil Court and Family Court, apart from the Criminal Court, affecting the aggrieved person whether such proceeding was initiated before or after commencement of the Domestic Violence Act,
27. Appellant hap filed an F.I.R. against the 1st Respondent for the offence committed Under Section 498Aof Indian Penal Code The High Court refused to quash the F.I.R. qua 1st Respondent on the ground that prima facie case has been made out. Even before the Criminal Court where such case Under Section-498Ais pending, if allegation is found genuine, it is always open to the Appellant to ask for reliefs Under Sections 18 to 22 of the Domestic Violence Act and Interim relief Under Section 23 of the said Act.
30. In the present case, the alleged domestic violence took place between January, 2006 and 6th September, 2007 when FIR No. 224 of 2007 was lodged by the Appellant Under Section 498A and 406 Indian Penal Code against the 1st Respondent and his relatives. In a writ petition filed by 1st Respondent the High Court refused to quash the said FIR against him observing that prima facie case Under Section 498A was made out against him. Even if it is accepted that the Appellant during the pendency of the SLP before this Court has obtained ex parte Khula (divorce) under the Muslim Personal Law from the Mufti on 9th May, 2008, the petition Under Section 12 of the Domestic Violence Act, 2005 is maintainable.
31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief Under Section 20, Child Custody Under Section 21, Compensation Under Section 22 and interim or ex parte order Under Section 23 of the Domestic Violence Act, 2005.
32. Both the Sessions Judge and the High Court failed to notice the aforesaid provisions of the Act and the fact that the FIR was lodged much prior to the alleged divorce between the parties and erred in holding that the petition Under Section 12 was not maintainable.
33. For the reasons aforesaid, we set aside the impugned judgment dated 23rd January, 2013 [and] the order dated 3rd November, 2012, … and uphold the order dated 4th February, 2012. … The 1st Respondent is directed to pay the amount, if not yet paid, in accordance with order passed by the Magistrate.
34. The appeal is allowed with aforesaid observations and directions.
An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief Under Section 20, Child Custody Under Section 21, Compensation Under Section 22 and interim or ex parte order Under Section 23 of the Domestic Violence Act, 2005.