Deposition of wife not required for maintenance: Bombay HC

Team SoOLEGAL 2 Apr 2018 8:02pm

Deposition of wife not required for maintenance: Bombay HC

Mumbai: In a landmark judgement order delivered by Bombay High Court , the court has ruled that  wives battling for maintenance from estranged husbands under the Domestic Violence Act,  need not depose in court to make her case. Her affidavit alone will be enough. The court however has said husband can cross-examine wife based on the affidavit filed.

The Bombay HC upheld an order given by Pune family Court which allowed a woman who had filed an application under the Protection of Women from Domestic Violence Act, 2005 (DV Act) to submit evidence in the form of an affidavit alone. Following this the husband filed an appeal in high court challenging the order of the domestic court.

The DV Act which came into force in 2006, provides effective and speedy protection to women who are victims of domestic violence. Under this act the cases have to be disposed with in a deadline of 60 days.

The case relates to couple that married in 2013. Husband filed for divorce in 2015 which is yet to be granted.In the same year wife filed for maintenance before a magistrate in Pune.

One year later she was given a date in November 2016 by court to record her evidence. Few days before the hearing, the husband moved the magistrate on the ground that she was not entitled to file an affidavit. He wanted the court to direct her to step into the witness box ,as he said, the proceedings have to conform with provisions for seeking maintenance under Section 125 of the Criminal Procedure Code (CrPC).

This Section 125 of CrPC provides for women to seek maintenance from husbands, but before that she has to depose to make out a case for maintenance.

A woman’s lawyer would ask questions and she would answer that in court in the presence of the husband or his lawyer. The husband, through his lawyer, would then be allowed to cross-examine her. This is a lengthy procedure and generally takes minimum of two years to even complete and are later open for appeals in higher courts. And during this period the women does not get the maintenance she desperately needs.

The Pune magistrate, though, held that Section 28(2) of the DV Act permits the court to lay down its own procedures for disposal of an application for relief, filed under Section 12. Keeping in mind the 60-day time frame, the Pune court had said the wife’s deposition could be dispensed with and her evidence could be presented through an affidavit.

Tagged: Bombay High Court   Pune court   Domestic Violence Act  
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