NEW DELHI: The Supreme Court has said there is no requirement for the personal presence of any party in the proceedings under the Domestic Violence Act, because they are quasi-criminal in nature and do not entail any penal consequences except when there is a breach of a protection order, which is the only offence provided under Section 31 of the Act.
SC Rules on Domestic Violence Act: No Mandatory Personal Appearance
A bench of Justices Pankaj Mithal and Sandeep Mehta stressed it is not mandatory to seek personal presence of individuals in cases filed under the Domestic Violence Act in view of their quasi-criminal nature.
The court quashed orders for impounding of passport of a man and initiation of extradition proceedings due to his non-appearance in such a case filed by the wife.
Quasi-Criminal Nature of DV Act Cases: What the Supreme Court Says
"There is no requirement for the personal presence of any party in the proceedings under the DV Act, because they are quasi-criminal in nature and do not entail any penal consequences except when there is a breach of a protection order, which is the only offence provided under Section 31 of the Act," the court said.
In a relief to the man, the court said the act of impounding passport without hearing him just because multiple cases were filed by the wife, within months of the marriage in 2018, was in violation of the principles of natural justice, and ex-facie illegal in the eyes of law.
The court set aside the Calcutta High Court's January 25, 2023 judgement, that dismissed his plea to interfere with a Howrah court's order to initiate extradition proceedings due to his failure to appear in proceedings under the Domestic Violence Act and despite being aware of the fact of impounding of his passport, as untenable and unsustainable in the eyes of the law.
The bench directed for releasing of the passport within one week.
The court said the appellant’s inability to travel to India and appear in the case filed by the respondent (wife) under Section 26 of the DV Act, stemmed from the impoundment of his passport, a circumstance beyond his control.
The court also relied upon Maneka Gandhi Vs Union of India and Another (1978) in this regard.
It also cited Rajesh Sharma Vs State of UP (2018), in which the top court, while dealing with the question of arrest and fair investigation in a case alleging the offence of cruelty under Section 498A IPC, was of the view that in respect of persons ordinarily residing out of India impounding of passports or issuance of ‘Red Corner Notice’ should not be a routine.
In the case, the court dissolved the marriage, considering the plea by the husband, who worked as software engineer in the USA and rejecting the opposition by the wife, employed as research specialist in a reputed firm in Kolkata. It found that the relationship between the parties appears to be strained from the beginning and has further soured over the years.
"With so much time having passed by any marital love or affection that may have developed between the parties seems to have evanesced. This is a classic case of irretrievable breakdown of marriage," the bench said, also noting no child was born out of wedlock.
It said long-standing separation, nature of differences, prolonged and multiple litigations pending adjudication, and the unwillingness of the parties to reconcile were evidence enough to establish beyond all manner of doubt that the marriage between the parties has broken down irretrievably and that there is no scope whatsoever for marriage to survive.
The bench said under Article 142 of the Constitution, this court has discretion to dissolve the marriage on the ground of its irretrievable breakdown. It said the factors to be examined inter alia include the period of cohabitation between the parties after marriage; the last cohabitation among the parties; the period of separation; the nature and the gravity of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and such other similar factors.
In its judgement, the court directed the husband to deposit Rs 25 lakh with the registry within two months as permanent alimony, which would be disbursed to the wife within two weeks thereafter. If the wife refused to draw the amount, it would be repaid to the husband, the court clarified.
The court noted the wife had declined the offer saying she was not interested in her husband's money and her sole intent was to have an opportunity to resume her marital life.
The court pointed the list of factors to be looked into while deciding the question of permanent alimony: Status of the parties, social and financial; Reasonable needs of the wife and the dependent children; Parties’ individual qualifications and employment statuses; Independent income or assets owned by the party; Standard of life enjoyed by the wife in the matrimonial home; Any employment sacrifices made for family responsibilities; Reasonable litigation costs for a non-working wife; Financial capacity of the husband, his income, maintenance obligations, and liabilities.
