Woman can file application before Magistrate under PWDV Act irrespective of whether she was living in with respondent at the time of filing application

orissa-high-court

High Court of Orissa : In a path breaking decision the Bench comprising of S.K. Sahoo, J.,while answering a vital question that whether a women being an ‘aggrieved person’ can file an application before the Magistrate under the Protection of Women from Domestic Violence Act for domestic violence against the accused/respondent irrespective of the fact whether she is living in with the accused/respondent in share-household or not at the time of filing an application, observed for subjecting a woman to any act of domestic violence as defined under Section 3 of the PWDV Act and maintaining an application under Section 12 of the  Act, it is not necessary that the woman concerned must be living with the accused/respondent under one roof or in a shared household at the time of presenting the application to the Magistrate.

The petitioner had challenged the order passed by learned Sessions Judge and the  SDJM, Bhubaneswar basing its reliance on the case, Amit Agarwal v. Sanjay Aggarwal reported in 2016 (2) Crimes 783, that the suit filed by the opposite party under the provisions of PWDV Act is not maintainable on various grounds including that there existed no “domestic relationship” between the parties for almost 4 years therefore, without existence and continuance of domestic relationship between the parties, taking recourse to the provisions of the PWDV Act by the opposite party against the petitioner is not maintainable in the eye of law.

The Court upholding the contentions of the learned council for the opposite party observed that an ‘aggrieved person’ can file an application in case she is subjected to any act domestic violence although it is it is not necessary that the ‘aggrieved person’ concerned must be living with the respondent under one roof or in a shared household at the time of presenting the application to the Magistrate however,the ‘aggrieved person’ if have lived together with the respondent at any point of time, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, can maintain an application before the Magistrate under Section 12.

The Court dismissed the review criminal petition as being devoid of merits and stated that learned Magistrate has rightly rejected the petition filed by the petitioner challenging maintainability of the proceeding under the PWDV Act since the opposite party is the ‘aggrieved person’ within the meaning of the Act and the alleged overt acts committed by the petitioner of regularly coming to the rented house of the opposite party at Bhubaneswar and subjecting her to physical and mental torture after living separately, on the opposite party as mentioned in the application prima facie makes out a case of domestic violence and merely because they are living at separate places since 2012 does not snapped their ‘domestic relationship’ of being husband and wife. [Giridhari Nath v Mamitarani Sutar, 2016 SCC OnLine Ori 818, decided on 11th November, 2016]

 

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