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2013 DIGILAW 709 (RAJ)

Jakir Hussain v. State of Rajasthan Anr.

2013-04-08

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners assailing the order dated 21.12.2011 passed by the learned Judicial Magistrate (First Class), Ladnu, Distt. Nagaur upon a complaint filed by the respondent No. 2 Nadira Bano under Section 12 of the Protection of Women from the Domestic Violence Act, 2005, whereby, the applicant Nadira Bano was granted protection, residence order and maintenance under the provisions of the Act and the order dated 28.8.2012 passed by the learned Addl. Sessions Judge, Didwana, Distt. Nagaur in appeal, whereby, the aforesaid order has been affirmed. 2. Learned counsel for the petitioners submits that admittedly the petitioner No. 1 Jakir Hussain had divorced the respondent No. 2 long back. He thus contends that in view of the provisions of Muslim Womens' Protection of Rights on Divorce Act, the respondent No. 2 being a divorced lady was not entitled to claim any relief from the petitioners under the Domestic Violence Act. Learned counsel thus prays that the order impugned deserves to be quashed and the misc. petition deserves to be allowed. 3. Heard learned counsel for the parties and perused the orders passed by the courts below. 4. It is not in dispute that the petitioners have turned the respondent No. 2 out of the matrimonial home. The petitioner Jakir Hussain claims that he divorced the respondent No. 2 Nadira Bano long back. The Hon'ble Apex Court in the case of Shabana Bano v. Imran, reported in AIR 2010 SC 305 has held that despite the provisions of the Muslim Womens' Protection of Rights on Divorce Act, even a divorced lady has a right to claim maintenance under Section 125 Cr.P.C. from the erstwhile husband even after being divorced. The provisions of the Protection of Women from the Domestic Violence Act, 2005 are even wider. 5. Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 reads as under:- "2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent." 6. A bare perusal of the said definition would make it clear that an aggrieved person would cover within its ambit any woman who is, or has been, in a domestic relationship with the respondent. A bare perusal of the said definition would make it clear that an aggrieved person would cover within its ambit any woman who is, or has been, in a domestic relationship with the respondent. Thus, the Act would cover even a divorced lady within its ambit. 7. Under the Domestic Violence Act, if a lady has lived in a live-in-relationship with a male, then too, she is entitled to the reliefs provided in the Act. The term aggrieved person would definitely cover in its ambit a divorced wife. On a plain reading of the Muslim Womens' Protection of Rights on Divorce Act, it is apparent that the said Act restricts the rights of a divorced woman to claim maintenance from her husband under Section 125 Cr.P.C. Un-disputedly, the Domestic Violence Act is a subsequent enactment and the said enactment being a socio beneficial legislation cannot be overridden by the restriction contained in the Muslim Womens' Protection of Rights on Divorce Act. Thus, even despite the restrictions contained in the Muslim Womens' Protection of Rights on Divorce Act, a Muslim lady even after she has been divorced would be entitled to claim maintenance from her husband under the Domestic Violence Act. 8. Therefore, this Court is of the opinion that the order dated 21.12.2011 passed by the learned Judicial Magistrate (First Class), Ladnu, Distt. Nagaur, whereby, the applicant Nadira Bano was granted order for protection from Domestic Violence, residence order and maintenance under the Act of 2005 and the order dated 28.8.2012 passed by the learned Addl. Sessions Judge, Didwana, Distt. Nagaur in appeal, whereby, the aforesaid order has been affirmed are just and legal. The orders passed by the learned courts below do not suffer from any illegality, irregularity or perversity so as to call for any interference by this Court in exercise of its revisional jurisdiction.Resultantly, the misc. petition as well as the stay petition being bereft of any force are hereby dismissed.Petition dismissed. *******