Summary: In a significant ruling, the Supreme Court of India in the case S Vijikumari vs Mowneshwarachari C (2024 INSC 732), declared that the Protection of Women from Domestic Violence Act (2005) applies to all women, irrespective of their religious affiliations or social backgrounds. This judgment, delivered on September 10, 2024, by Justices B V Nagarathna and Nongmeikapam Kotiswar Singh, emphasizes that the Act is part of India’s Civil Code, aimed at providing enhanced protection for women’s constitutional rights. The case involved a petition under Section 12 of the Domestic Violence Act, where the appellant was granted maintenance and compensation by a lower court. The respondent sought to alter the order citing changes in circumstances under Section 25 of the Act. The Supreme Court clarified that modifications to such orders can only apply after they are made and cannot retroactively revoke past orders. This ruling reinforces the wide scope of protection under the Domestic Violence Act, covering not only maintenance but also residence and protection orders, ensuring ongoing protection for victims.
It is definitely in the fitness of things that in a most decisive move with far-reaching implications, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled S Vijikumari vs Mowneshwarachari C (Arising out of SLP(CRL.) No. 5342 of 2023) and cited in Neutral Citation No.: 2024 INSC 732 that was pronounced as recently as on September 10, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to say in no uncertain terms most unequivocally that the Domestic Violence Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect such victims. This is exactly what truly constitutes the nucleus of this notable judgment. It must be mentioned here that a Bench of Apex Court comprising of Justices B V Nagarathna and Nongmeikapam Kotiswar Singh made the observation while holding that any alteration, modification or revocation of an order passed under Section 12 (protection order) of the DV Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto. No denying it!
At the very outset, this most remarkable, robust, refreshing, recent and rational judgment authored by Hon’ble Ms Justice BV Nagarathna for a Bench of the Apex Court comprising of herself and Hon’ble Mr Justice Nongmeikapam Kotiswar Singh sets the ball in motion by first and foremost putting forth in para 2 that, “Being aggrieved by the order dated 06.04.2023 passed in Criminal Revision Petition No.674/2022 by the High Court of Karnataka at Bengaluru, the appellant who is the wife of the respondent has preferred this appeal.”
To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case that, “Briefly stated, the facts are that the appellant-wife had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). The said petition, i.e., Criminal Miscellaneous No.6/2014 was allowed by the learned Magistrate by order dated 23.02.2015, granting Rs.12,000/- (Rupees Twelve Thousand only) per month as maintenance and Rs.1,00,000/- (Rupees One Lakh only) towards compensation. At this stage itself, it may be mentioned that the respondent-husband did not let in any evidence in the said proceeding. Being aggrieved by the order of the learned Magistrate, the respondent filed an appeal under Section 29 of the Act which was dismissed by the Appellate Court on the ground of delay. The aforesaid orders attained finality as they were not assailed by the respondent herein.”
As it turned out, the Bench enunciates in para 4 stating that, “Thereafter, the respondent filed an application under Section 25 of the Act before the learned Magistrate. The said application was dismissed. Being aggrieved, the respondent filed Criminal Appeal No.757/2020 under Section 29 of the Act before the Appellate Court. The said appeal was allowed and the matter was remanded to the learned Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act, by giving an opportunity to both the parties to adduce their evidence and to dispose of the same in accordance with law.”
As we see, the Bench then discloses in para 5 that, “Being aggrieved by the said order, the appellant herein filed Criminal Revision Petition No.674/2022 before the High Court, which, by the impugned order dated 06.04.2023 dismissed the same with a direction to the learned Magistrate to consider the application filed by the respondent under Section 25 of the Act, without being influenced by any observation made by the Appellate Court while disposing of Criminal Appeal No.757/2020. Being aggrieved by the aforesaid orders, the appellant-wife has filed this appeal.”
Do note, the Bench notes in para 10 that, “We have considered the arguments advanced at the Bar in light of the facts of this case and Section 25 of the Act. For immediate reference, Section 25 of the Act is extracted as under:
“25. Duration and alteration of orders
(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”
On a reading of the same, it is evident that an aggrieved person or a respondent as defined under the Act can seek for alteration, modification or revocation of an order made under the provisions of the Act if there is a change in the circumstances as per sub-section (2) of Section 25 of the Act. This would indicate that after an order has been made, inter alia, under Section 12 of the Act, such as in the instant case granting Rs.12,000/- as maintenance per month, if there is any change in the circumstance, the same could be a ground for seeking alteration, modification or revocation of such an order. Such circumstances could be illustratively stated in the context of the present case as the wife on divorce having been given an alimony or the wife earning an amount higher than the respondent-husband and, therefore, not in need of maintenance or such other circumstances. The said change in the circumstance must occur only after an initial order is made under Section 12 of the Act and cannot relate to a period prior to the passing of an order under Section 12 of the Act.”
Most significantly, we see that the Bench then mandates in para 11 postulating that, “The Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship.”
Do note, the Bench notes in para 12 that, “Section 25(2) of the Act contemplates an eventuality where an order passed under the Act can be altered, modified or revoked. Section 25(2) of the Act provides that the aggrieved person or the respondent, as defined under the Act, may approach the Magistrate by filing an application for alteration, modification or revocation of “any order” made under the Act. Thus, the scope of Section 25(2) of the Act is broad enough to deal with all nature of orders passed under the Act, which may include orders of maintenance, residence, protection, etc. If any such application is filed before the Magistrate by any of the two parties, i.e., the aggrieved person or the respondent, then the Magistrate may, for reasons to be recorded in writing, pass an order as he may deem appropriate. Thus, an order passed under the Act remains in force till the time that order is either set aside in an appeal under Section 29 of the Act, or altered/modified/revoked in terms of Section 25(2) of the Act by the Magistrate.”
Do further note, the Bench adds in para 13 noting that, “However, the Magistrate while exercising his discretion under Section 25(2) of the Act has to be satisfied that a change in the circumstances has occurred, requiring to pass an order of alteration, modification or revocation. The phrase “a change in the circumstances” has not been defined under the Act. The said phrase was present under Section 489 of the now repealed Code of Criminal Procedure, 1898, as well as under Section 127(1) of the Code of Criminal Procedure, 1973 (CrPC, 1973), now repealed, as is also found under Section 146(1) of the present Bharatiya Nagarik Suraksha Sanhita, 2023 (BNNS, 2023), but the legislature (Parliament) has intentionally not provided a definition for the same in the repealed Codes or the present Sanhita. Thus, the Magistrate has to adjudge the change in the circumstances based on the material put forth by the parties in a case and having regard to the circumstances of the said case. A change in the circumstances under the Act may be of either a pecuniary nature, such as a change in the income of the respondent or an aggrieved person or it could be a change in other circumstances of the party paying or receiving the allowance, which would justify an increase or decrease of the maintenance amount ordered by the Magistrate to pay or any other necessary change in the relief granted by the Magistrate including a revocation of the earlier order. The phrasing of the provision is wide enough to cover factors like the cost of living, income of the parties, etc. Further, a change in the circumstances need not just be of the respondent but also of the aggrieved person. For example, a change in the financial circumstances of the husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in the husband or wife’s life which may have taken place since the time maintenance was first ordered.”
While citing the relevant case law, the Bench then states in para 14 that, “However, for the invocation of Section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act. Alexander Sambath Abner vs. Miron Lede, 2009 SCC OnLine Mad 2851 is also to the same effect. Thus, an order for alteration, modification or revocation operates prospectively and not retrospectively. Though the order for grant of a maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate, the position is different with regard to an application for alteration in an allowance, which may incidentally be either an increase or a reduction – to take effect from a date on which the order of alteration is made or any other date such as from the date on which an application for alteration, modification or revocation was made depending on the facts of each case.”
Be it noted, the Bench notes in para 15 that, “The position is analogous to Sections 125 and 127 of the CrPC, 1973, wherein the legislature under Section 125(2) of the CrPC, 1973 had given power to the Magistrate to grant maintenance from the date of the application, but did not give any such power under Section 127 of the CrPC, 1973. Therefore, under the Act, the order of alteration or modification or revocation could operate from the date of the said application being filed or as ordered by the Magistrate under Section 25(2) of the Act. Thus, the applicant cannot seek its retrospective applicability, so as to seek a refund of the amount already paid as per the original order.”
Briefly stated, the Bench points out in para 16 that, “What the respondent is seeking is in fact a setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and return of the amount paid by him to the appellant herein in terms of the said order by way of a restitution of the status quo ante.”
It is worth noting that the Bench notes in para 17 that, “Learned counsel for the appellant rightly contended that the said order has in fact merged with the Appellate Court’s order in the appeal filed by the respondent which was dismissed on the ground of delay and there being no further challenge to the said order. In fact, the order dated 23.02.2015 has attained finality. Therefore, there cannot be a setting aside of the order dated 23.02.2015 for the period prior to such an application for revocation being made. Unless there is a change in the circumstance requiring alteration, modification or revocation of the earlier order owing to a change occurring subsequent to the order being passed, the application is not maintainable. Thus, the exercise of jurisdiction under sub-section (2) of Section 25 of the Act cannot be for setting aside of an earlier order merely because the respondent seeks setting aside of that order, particularly when the said order has attained finality by its merger with an appellate order as in the instant case unless a case for its revocation is made out. Secondly, the prayers sought for by the respondent herein are for refund of the entire amount of maintenance that was paid prior to the application under sub-section (2) of Section 25 of the Act being filed and the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 being in fact revoked. The revocation of an order, inter alia, under Section 12 of the Act sought by a party cannot relate to a period prior to such an order being passed. We find that in the instant case the second prayer was not at all maintainable inasmuch as we have already observed that any alteration, modification or revocation of an order passed under Section 12 of the Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto. Thus, such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act.”
Quite naturally and as a corollary, the Bench then propounds in para 18 that, “In the circumstances, we find that the prayers sought for by the respondent herein were not at all maintainable under sub-section (2) of Section 25 of the Act as they related to the period prior to 23.02.2015 when the original order was passed. In fact, the prayers sought for by the respondent are totally contrary to the spirit of sub-section (2) of Section 25 of the Act. While making such a prayer, the respondent could not have sought in substance for setting aside of the original order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and seeking refund of the maintenance amount which was paid to the appellant pursuant to the said order. The respondent could not have also sought the aforesaid prayers: firstly, because he did not participate in the proceedings before the learned Magistrate; secondly, respondent belatedly filed an appeal before the Appellate Court which was dismissed and thirdly, when that appeal was dismissed on the ground of delay, he did not choose to assail the said order before a higher forum.”
Resultantly, the Bench then directs in para 19 holding that, “In the circumstances, the orders of the High Court as well as the first Appellate Court are set aside and the application filed by the respondent is dismissed. However, liberty is reserved to the respondent herein to file a fresh application under Section 25 of the Act, if so advised. If such an application is filed by the respondent, the same shall be considered by the learned Magistrate having regard to the observations made above and on its own merits, which can be relatable to the period subsequent to the date of making the earlier order dated 23.02.2015 in the instant case. Any revocation of the order dated 23.02.2015 could be with effect from the date of the application, if any, to be made by the respondent herein or as ordered by the learned Magistrate.”
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