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The Kerala High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground.
Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.
"In a petition filed by the wife under the DV Act, if the husband disputes the marital status on the ground that he has divorced the wife by the pronouncement of talaq, the Magistrate has every power to decide whether the said plea is valid or not. "
The petitioners- wife and minor daughter- approached the Judicial Magistrate seeking protection, residential and monetary orders u/s 12(1) of the Protection of Women from Domestic Violence Act, 2005. It is the case of the petitioners that using all the gold and money given by her parents, the first respondent (her husband) constructed a house on his property in which they all resided. Therefore, according to the petitioners, this house is their shared household.
In December 2009, her husband and his brothers allegedly assaulted her on two occasions and she was stabbed with a knife in her head. It was after this that she approached the Magistrate with her daughter.
However, the husband argued that he had pronounced triple talaq in December 2009 and that they were divorced since then. He denied all allegations of receiving gold from her parents and domestic violence. He contended that he constructed the house with his own funds and that it is not a shared household.
Finding that the husband failed to prove the pronouncement of talaq, the Magistrate allowed the plea in part, granting the petitioner protection and residential orders, but not the relief of return of gold and money.
This order was challenged by the husband in appeal, and the appeal was allowed on the ground that the Magistrate under the exercise of the power under the provisions of the DV Act cannot decide the validity of talaq. It was further held that prima facie there was material to show that the husband had pronounced talaq, therefore, the status of the petitioner is that of a divorced woman and she is not entitled to claim maintenance.
Aggrieved by this, the petitioner moved the High Court with a revision petition.
The Court observed that the talaq allegedly pronounced by the husband was not valid in the eyes of law since he pronounced triple talaq at a go without following any of the procedures mentioned in the decisions of the Supreme Court.
Therefore, the Magistrate could not have been held to be incompetent to decide the validity of the talaq, although the plea was filed under the Domestic Violence Act.
Similarly, there was sufficient evidence to prove that the petitioner was subjected to domestic violence and yet the appellate court proceeded to set aside the order of the Magistrate on flimsy grounds. This finding of the appellant court was found to be perverse and not sustainable.
It was also found that none of the definitions in the DV Act contemplates that on the date of filing an application, the party should be actually residing or living together. The very phrase, 'has lived together at any point of time' necessarily covers even the past cohabitation or past living together.
The Court further held that even the continued residence or occupation of the shared household is not required for the entitlement of a wife to get a residential order.
Therefore, it was held that the petitioners had satisfactorily proved that they were entitled to protection, residence, monetary and compensation orders which were rightly granted by the trial court. Since the appellate court had committed gross illegality in reversing the order of the trial court and dismissing the petition, the Judge found it to be a fit case where the discretionary power vested with this court u/s 397 r/w 401 of CrPC could be exercised.
As such, the revision petition was allowed and the judgment of the appellate court was set aside.
Advocates P. Haridas, Renji George Cherian and P.C. Shejin appeared for the petitioners while Advocates B. Mohanlal and Public Prosecutor Sangeetha Raj appeared for the respondents.
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