Friday, September 29, 2017

Claim under domestic violence cannot be rejected because it arouse out of second marriage

The wife can claim for maintenance cannot be denied under Domestic Violence Act merely because she is married before.
In the instant matter Justice Ashutosh Kumar held that, “The incidences of domestic violence are enumerated in Section 3 of the Act which defines domestic violence and it includes physical, verbal, emotional and economic abuse. From the evidence on record,  there is no dispute about the petitioner having being subjected to domestic violence. It would then make no difference, so far as maintenance is concerned, if the petitioner was married to someone else and the same fact was not brought on the record.
The lower court in the instant matter allowed maintenance only to her minor daughter and denied maintenance to her. The court rejected her claim only on the ground that it was her second marriage.
While quashing the judgment of the lower court, High Court refused to accept the reasoning of the lower court and held that the fact of the petitioner being in shared household with the respondent was an established fact.
In the present case, the court also held that while adjudicating a complaint under Section 12 of the Domestic Violence Act, the court cannot decide on the validity of the marriage between the parties.
Justice Singh observed, “The case of the petitioner is that she was betrothed to one Noor Mohd while she was only 14 years of age and the marriage between her and Noor Mohd was never consummated as there were no rukh Sati. Assuming but not admitting this fact to be incorrect, what cannot be doubted is that the petitioner has lived with the respondent and was subjected to domestic violence. The appellant court seems to have misdirected himself in taking it upon himself to decide whether a valid marriage existed between the petitioner and the respondent."
The Delhi High Court allowed the wife’s petition and directed payment of maintenance of Rs, 12,500  per month, collectively to the daughter and the wife.
Article by Mr.K.P.Satish Kumar M.L. Top domestic violence lawyer in Chennai
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