HC: Domestic Violence Survivor Wives Needn't Depose For Maintenance

In a historic judgment, the Bombay High Court passed an order allowing wives, subjected to domestic violence (DV) by their husbands, to file their statement through affidavit rather then coming to the court. However, the court said it can allow the husband to cross-check her on the basis of the affidavit filed by the wife.

In a divorce case filed under the DV Act in Pune, the magistrate permitted the wife to submit evidence in the form of an affidavit. The husband later moved the case to the Bombay HC, which backed the Pune magistrate’s order

The husband and his advocate, Abhijit Sarawate, wanted the wife to come to the court’s witness box and depose. They believed that oral evidence in the court is more credible than an affidavit. But the wife’s lawyer, Abhijeet Desai, contended that the magistrate did the right thing by allowing her to submit evidence in an affidavit.

After listening to both parties, Justice Anuja Prabhudessai favoured the woman. She ruled that the Protection of Women from Domestic Violence Act, 2005 (DV Act) allows the court to take its own decision to quicken the process of disposal.

“The court, in its discretion, can allow evidence on affidavit and permit cross-examination to test the veracity of the evidence,” she held, adding that “a narrow interpretation would defeat the purpose of the Act,” TOI reported.

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The DV Act allows women survivors’ speedy protection along with a disposal deadline of 60 days.

“This Act was enacted keeping in view rights guaranteed under Articles 14 for right to equality, 15 for prohibition of discrimination on grounds of race, sex etc, and 21 for right to life of the Constitution, to provide for a remedy under the civil law, which intends to protect the woman from being a victim of domestic violence and to prevent occurrence of domestic violence in society,” said Justice Prabhudessai.

“The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which is civil in nature"

The Case

The couple married in 2013 but the husband filed for divorce in 2015 at the Pune family court. The same year, the wife filed for interim maintenance before a magistrate. The court fixed her petition hearing for November, 2016, to record her evidence. However, a few days before the hearing, the man’s lawyer moved the magistrate against her right to file an affidavit. He wanted the court to call her to the witness box to record her statement to conform to provisions for seeking maintenance under Section 125 of the Criminal Procedure Code (CrPC).

But the Pune magistrate overlooked this argument and gave precedence to Section 28(2) of the DV Act, allowing the court to frame its own procedures for disposal of an application for relief, filed under Section 12. And since the DV Act guides disposal deadline of 60 days, the Pune court ruled that the wife can send her statement through a signed affidavit.

Last year, the man moved the Bombay high court against the magistrate's order.

When the Bombay HC heard the case, it found Pune magistrate’s order justifiably right and observed, “The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which is civil in nature. Though..., there is no specific provision in the DV Act to give evidence on affidavit, Section 28(2)…gives flexibility to the court to depart from the procedure prescribed under Section 28(1) and to devise its own procedure in deciding application under Section 12.”

Picture credit- Deccan Chronicle

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