Women un­der Mus­lim Per­sonal Law can in­voke Do­mes­tic Vi­o­lence Act

Alive - - Contemplation -

In a lat­est land­mark judg­ment by the Bom­bay High Court ti­tled Mr Ali Ab­bas Daruwala v/s Mrs Shehnaz Daruwala (Writ Pe­ti­tion No. 114 of 2018 with Civil Ap­pli­ca­tion No. 518 of 2018) which was pro­nounced on May 4,

2018, the Bom­bay High Court has held that merely be­cause par­ties are gov­erned by the Mus­lim Per­sonal Law, it should not be an im­ped­i­ment in the wife in­vok­ing pro­vi­sions of the Do­mes­tic Vi­o­lence Act. In other words it im­plies that the wife even if gov­erned by the Mus­lim Per­sonal Law is fully en­ti­tled to in­voke the pro­vi­sions of the Do­mes­tic Vi­o­lence (DV) Act when­ever she finds it nec­es­sary to do so. Jus­tice Smt Bharati H Dan­gre who was hear­ing the case held in no uncer­tain terms that there is no em­bargo on a court to grant re­lief to a woman who is an “ag­grieved per­son” within the mean­ing of the DV Act, merely be­cause she is a Mus­lim. Very rightly so!

While crav­ing for the ex­clu­sive in­dul­gence of my es­teemed read­ers, let me in­form here that the Bom­bay High Court was hear­ing a writ pe­ti­tion filed by one Ali Ab­bas Daruwala who had chal­lenged a judg­ment de­liv­ered by the Fam­ily Court of Ban­dra dated June 22, 2017, wherein the wife’s ap­pli­ca­tion for main­te­nance was al­lowed. The Fam­ily Court of Ban­dra in its judg­ment had di­rected Ali Ab­bas to pay Rs 25,000 per month to the wife and Rs 20,000 per month each for both their kids to­wards main­te­nance. Ali Ab­bas then de­cided to ap­peal to the Bom­bay High Court against this judg­ment. Ali Ab­bas who is the pe­ti­tioner and who is ag­grieved by the said or­der prays for quash­ing and set­ting aside the said or­der on the ground that the Fam­ily Court has ex­ceeded its ju­ris­dic­tion in pass­ing the said or­der.

For my es­teemed read­ers ex­clu­sive in­dul­gence, let me also in­form them that in 2015, Shehnaz filed a pe­ti­tion for di­vorce un­der the Dis­so­lu­tion of Mar­riage Act, 1939 be­fore the Fam­ily Court in Ban­dra. She prayed for get­ting the cus­tody of their chil­dren, main­te­nance and ac­com­mo­da­tion. She also filed a sep­a­rate ap­pli­ca­tion for main­te­nance and ac­com­mo­da­tion which was op­posed by Ali Ab­bas in an ap­pli­ca­tion un­der Or­der 7 Rule 11(a) of the Civil Pro­ce­dure Code.

Truth be told, this ap­pli­ca­tion was re­jected and the wife again filed an ap­pli­ca­tion for main­te­nance and ac­com­mo­da­tion on May 20, 2016. There­after, it was claimed by the hus­band that he gave her a ta­laq on March 29, 2017 con­sid­er­ing how she was ask­ing for a di­vorce be­fore the fam­ily court. He also stated that Shehnaz ini­tially ac­cepted the amount of Me­har that was re­turned, only to give it back in May. In June 2017, the re­spon­dent wife filed an ap­pli­ca­tion un­der Sec­tions 12, 18, 19, 20, 22 and 23 of the Do­mes­tic Vi­o­lence Act, 2005.

Be it noted, the pe­ti­tioner’s ad­vo­cate Anagha N Nim­bkar sub­mit­ted be­fore the Court that both par­ties are gov­erned by the Per­sonal Law (Shariat) Ap­pli­ca­tion Act, 1937, the Dis­so­lu­tion of Mus­lim Mar­riage Act, 1939 and the Mus­lim Women (Pro­tec­tion of Rights on Di­vorce) Act, 1986. She sub­mit­ted that the di­vorce in the said case is sought un­der the Dis­so­lu­tion of Mus­lim Mar­riage Act by way of a ‘Khula’, which is di­vorce by con­sent at the in­stance of the wife in which she gives or ag­grieves to give a con­sid­er­a­tion to the hus­band for re­lease from mar­riage. Nim­bkar fur­ther sub­mit­ted that the di­vorce was sought ex­clu­sively un­der the Dis­so­lu­tion of Mus­lim Mar­riage Act, which does not have pro­vi­sions for an­cil­lary re­liefs, un­like the Do­mes­tic Vi­o­lence Act.

Women are fully en­ti­tled to in­voke the pro­vi­sions of the DV act when­ever she finds it nec­es­sary to do so.

Bom­bay high court said that if both par­ties are gov­erned by Mus­lim Per­sonal Law, women can in­voke pro­vi­sions of DV Act.

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