(Prayer: The Civil Revision Petition filed under Article 227 of Constitution of India to strike off the proceedings made in D.V.C.No.3 of 2024 on the file of the learned Judicial Magistrate / Additional Mahila Court, Srivilliputhur, Virudhunagar District.)
This referral has been made by the learned Single Judge in the above said Civil Revision Petition, as to whether a ‘divorced woman can maintain a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005’. The learned Single Judge framed the following Question of Law for reference:-
“Whether the divorced woman can maintain a complaint under the Protection of Domestic Violence Act, 2005”
and on administrative side, the Hon’ble Chief Justice assigned the matter to this Division Bench.
2. Heard Mr.AN.Ramanathan, learned counsel appearing for the petitioners and Mr.S.I.Muthiah, learned counsel appearing for the respondent. This Court through order dated 05.11.2025 appointed Mr.B.Vijay as Amicus Curiae to assist this Court and this Court elaborately heard Mr.B.Vijay, Amicus Curiae.
3. The Learned Single Judge while dealing with the Revision Petition arising out of the domestic violence case, in D.V.C.No.3 of 2024 on the file of the learned Judicial Magistrate, Additional Mahila Court, Srivilliputhur, referred the Judgment of this Court reported in (2008) 1 MLJ (Crl) 984 [V.Pounraj and Others Vs. Packia Lakshmi @ veni] wherein the learned Single Judge of this Court held that the marriage between the respondent and the first petitioner has already been dissolved, therefore, the respondent is not having the status of the wife of the first petitioner. Since the respondent is not having the status of the wife of the first petitioner, she cannot invoke the provisions of the Protection of Women from Domestic Violence Act, 2005 [For brevity and convenience, hereinafter referred to as Act] and also referred the Judgment of this Court in Pramu & Others Vs. Saraswathi @ Mari reported in CDJ 2024 MHC 2466, wherein this Court held that “once the domestic relationship came to an end after the decree of divorce, the complaint under Domestic Violence Act could not have proceeded further.
4. Further, the learned Single Judge also relied upon the Judgment of Calcutta High Court in C.R.R.No.4379 of 2022 (Birendra Krishna Nag Vs. Sushmita Nag Chatterjee & Another] wherein the Calcutta High Court also decided that after the divorce the complaint under the Domestic Violence Act, could not have proceeded further. Further, the learned Single Judge relied on the order of this Court in Criminal Revision Case No.31 of 2019 dated 10.04.2019 [Varalakshmi Vs. Selvam] wherein a divergence view was taken that the divorced wife can also maintain a complaint under the Act, that apart, relied on the Order of the High Court of Jammu and Kashmir and Ladakh at Srinagar [Abdul Qayoom Mugloo Vs. Irfana and Ors.,] in C.M(M) No.264 of 2024 dated 29.07.2024 wherein the same view was taken. Therefore, the Learned Single Judge directed the Registry to place the papers before the Hon’ble Administrative Judge for obtaining suitable orders and thereafter the Hon’ble Chief Justice assigned this matter to this Bench.
5. The question arose in this Case is “Whether the divorced woman can maintain a complaint under the provisions of the Protection of Women from Domestic Violence Act ”. At this juncture, it is relevant to refer Section 2(a) of the Act, in respect of the definition of ‘Aggrieved Person’.
“‘Aggrieved Person’ means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”
the above said Section 2(a) of the Act clearly reveal that aggrieved person means, any woman, who is or has been in a domestic relationship with the respondent, both the expressions are in the present tense. The legislature has not used the word, who was or had been, this means, the domestic relationship has to be in the present and not in the past.
6. The word ‘domestic relationship’ has been defined in Section 2(f) of the Act, wherein it is extracted as follows:-
“"Domestic Relationship" means a relationship between two persons who live or lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
7. The above said definitions, clearly speaks of a domestic relationship between two persons, who live or have at any point of time lived together in a shared house hold and are related by a marriage or through a relationship in the nature of marriage. Therefore, the said definition also speaks about the existence of a relationship by marriage or in a relationship in the nature of marriage at the time. From the above said provisions, it is apparent that the intention of the legislation is to protect those women, who are living in a domestic relationship. However, in order to maintain a complaint under the Act there should be domestic relationship and an aggrieved person.
8. On a conjoint reading of the above said definitions of ‘aggrieved person’ and ‘domestic relationship’, it is clear that there should be domestic relationship and during that domestic relationship, if any domestic violence committed, for that commission of domestic violence, the aggrieved person can file a petition under the Provisions of this Act. The word ‘domestic relationship’ has been mentioned that relationship between two persons, who live or have at any point of time lived together in a shared house hold clearly shows that even if domestic violence committed while living together, the aggrieved person can maintain a complaint later. Therefore, in order to maintain the complaint, there should be domestic relationship and even for the acts committed in the past, the complaint is maintainable. Hence, on the date of lodging the complaint, the existence of a domestic relationship is not necessary and the aggrieved person can file a domestic complaint for the past event. Therefore, the divorced woman can maintain the complaint for the event of past domestic relationship, as an aggrieved person.
9. At this juncture, it is relevant to refer the Judgment of Hon’ble Supreme Court [Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and Another] reported in (2014) 10 Supreme Court Cases 736 wherein the Hon’ble Supreme Court at Paragraph No.30 held as follows:-
“30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.”
Further, the Hon’ble Supreme Court in the case of Prabha Tyagi Vs. Kamlesh Devi [(2022) 8 Supreme Court Cases 90], in paragraph Nos.59 and 60 as follows:-
59. The further question is, whether, such a domestic relationship should be subsisting between the aggrieved person and the Respondent against whom relief is claimed at the time of claiming the relief. Before answering the same, it would be useful to analyse the relationships noted in the D.V. Act as under:
59.1 Any relationship by consanguinity is a lifelong relationship.
59.2 Marriage is also a lifelong relationship unless a separation by a decree of divorce is ordered by a competent authority of law.
(i) If there is judicial separation ordered by a court of law, that does not put an end to marriage and hence the domestic relationship continues between the spouses even though they may not be actually living together.
(ii) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.
(iii) That is why, the expression 'domestic relationship' has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage. We have also interpreted the word 'live' or 'lived' in the context of right to reside in Sub-section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act.
(iv) Therefore, even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the Respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act.
59.3. Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only pre condition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage.
59.4. In the same way, when a girl child is fostered by family members living together as a joint family as interpreted above and lives or at any point of time has lived together in a shared household or has the right to reside in the shared household being a member living together as a joint family and has been ousted in any way or has been a victim of domestic violence has remedies under the D.V. Act.
60. In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in praesenti but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression 'domestic relationship' to mean a relationship between two persons who not only live together in the shared household but also between two persons who 'have at any point of time lived together' in a shared household.
also in Paragraph No.75, it is held as follows:-
75. In view of the above discussion, the three questions raised in this appeal are answered as under:
75.1. “(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?
It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
75.2. “(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?
It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household Under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
75.3 “(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”
It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the Respondent in a shared household at the time of filing of an application Under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application Under Section 12 of the D.V. Act”
10. On a careful perusal of the above said Judgments, it is clear that an act of domestic violence once committed, subsequently decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act and to maintain the domestic violence complaint, there should be subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed, vis-a- vis, allegation of domestic violence. However, it is not necessary that at the time of filing an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in the shared house hold at the time of filing of an application under Section 12 of the Act, but has at any point of time lived so or have the right to live and has been subjected to domestic violence or is later subjected to domestic violence, on account of the domestic relationship, is entitled to file an application under Section 12 of the Act.
11. Therefore, from the sum and substance of the above said judgments, it is clear that a divorced woman can maintain a complaint as against the husband for the domestic violence committed during subsistence of domestic relationship. Therefore, on the date of filing the application, there is no necessity for the subsistence of domestic relationship, but the domestic violence should be committed during the subsisting domestic relationship between the parties.
12. As far as the Judgments relied upon by the learned Single Judge in V.Pounraj and Others Vs. Packia Lakshmi @ veni [(2008) 1 MLJ (Crl.) 984 and Pramu and others Vs. Saraswathi @ Mari reported in CDJ 2024 MHC 2466 are concerned, in Pounraj case, the learned Single Judge of this Court after referring the definition of Section 2(a) of the Act, came to the conclusion that a woman, who want to invoke provisions of the Act should have domestic relationship with the respondent concerned and the party not having the status of the wife as against the husband cannot invoke the provisions of the said Act. As far as Paramu’s case is concerned, the learned Single Judge of this Court after referring the definition of Section 2(a) of the Act came to the conclusion that the provisions under Domestic Violence Act can be invoked only when the domestic relationship is in existence, where the domestic relationship ceases, the provisions under the Domestic Violence Act cannot be invoked. In Pounraj’s case, the decision was made on 06.12.2007 and in Pramu’s case, the decision was made on 21.12.2023, whereas, the Hon’ble Supreme Court, in Juveria’s case, on 18.09.2014 held that an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act.
13. Further, the Hon’ble Supreme Court in Prabha Tyagi’s case, on 12.05.2022 clearly held that it is not necessary that at the time of filing an application by an aggrieved person, the domestic relationship should be subsisting, even if an aggrieved person is not in a domestic relationship with the respondent in a shared house hold at the time of filing an application under Section 12 of the Act, but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the Act. The above said judgments have not been brought to the knowledge of the Learned Single Judge, therefore, the above said judgments of the learned Single Judge are not correct according to Law.
14. As far as the Order of this Court in Crl.R.C.No.31 of 2019 [Varalakshmi Vs. Selvam], the Judgment of the High Court of Kolkata in C.R.R.No.4379 of 2022 [Birendra Krishna Nag Vs. Sushmita Nag Chatterjee & Another] and the Judgment of High Court of Jammu & Kashmir and Ladakh at Srinagar in CM(M) No.269 of 2024 [Adbul Qayoom Mugloo Vs. Irfana & Others] are concerned, the learned Single Judge in Varalakshmi’s case, after relying the judgments of the Hon’ble Supreme Court in (i) Krishna Bhatacharjee Vs. Sarathi Choudhury and Another and (ii) Inderjit Singh Grewal Vs. State of Punjab and another came to a conclusion that even the divorced wife is also entitled to file a petition under the Domestic Violence Act.
15. As far as the case law relied upon by the learned Single Judge, in Inderjit Singh Grewal is concerned, the said case had arisen out of a judicial separation and the criminal complaint, in fact, in that case, the Hon’ble Supreme Court held that once a divorce decree has been finalised by mutual consent and alimony settled, a subsequent complaint under the Domestic Violence Act for the same cause of action or relief is generally not maintainable, if it is deemed an abuse of the legal process. As far as the case law relied upon by the learned Single Judge in Krishna Bhatacharjee is concerned, the question arose in that case was whether the matrimonial offence of adultery had exhausted itself when the decree for judicial separation was granted and it was held that there can be no dispute that the wife can file a suit realization of stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust and that was the situation before Act, 2005 came into force. In the said Act, 2005 the definition of ‘aggrieved person’ clearly postulates about the status of any woman, who has been subjected to domestic violence as defined under Section 3 of the said Act. Further, referred the Inderjit Singh Grewal’s case, Section 468 of Code of Criminal Procedure applies to the said case under 2005 Act, as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of Protection of Women from Domestic Violence Rules. The concept of ‘continuing offence’ gets attracted from the date of deprivation of stridhan for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of Act, 2005, she can submit an application to the protection officer for one or more of the reliefs under the Act, therefore, the said case laws are on different footing, whether the complaint is maintainable after judicial separation. The judicial separation is different from divorce and in a judicial separation, the relationship as husband and wife is subsisting and after divorce, the relationship between the parties as husband and wife is not subsisting, therefore, the case laws relied on by the learned Single Judge in Varalakshmi Vs.Selvam in Crl.R.C.No.31 of 2019 dated 10.04.2019 no way connected to decide the dispute whether the divorced women can maintain the complaint under the Domestic Violence Act.
16. As far as the other case laws relied upon by the learned Single Judge in Birendra Krishna Nag Vs. Sushmita Nag Chatterjee & Another (C.R.R.No.4379 of 2022) is concerned, the Calcutta High Court held that after 11 years from the date of divorce, the application was filed and held that the complaint is not maintainable and the same is barred by limitation under Section 468 of Cr.P.C., and also discussed about the maintainability of the criminal complaint by the divorced woman and the learned Single judge of the Calcutta High Court after referring the Judgment of Supreme Court in Juveria Abdul Majid Patni held that the proceedings under Section 12 of Act is maintainable even when domestic violence once committed, subsequently decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefits to the aggrieved person, who is entitled under the Act, provided the application must be filed within one year or within the limitation period, as stipulated under Section 468 of the Cr.P.C., whereas in the said case, the application has been filed after expiry of period of four years from date of divorce and after expiry of domestic relationship. Therefore, the learned Single Judge has correctly came to the conclusion in respect of maintainability of the application under Domestic Violence Act by the divorced woman, however, dismissed the petition on the ground of limitation.
17. As far as the limitation under Section 468 Cr.P.C., is concerned, the Hon’ble Supreme Court in Inderjit Singh Grewal Vs. State of Punjab & Another reported in 2011 AIR SCW 6259 in Paragraph No. 24 held as follows:-
“24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C., applicable and stand fortified by the Judgments of this Court in Japani Sahoo Vs. Chandra Sekhar Mohanty AIR 2007 SC 2762 and Noida Entrepreneurs Association Vs. Noida & Ors., (2011) 6 SCC 508.
At this juncture, it is relevant to extract Sections 28 and 32 of Protection of Women from Domestic Violence Act,
“28. Procedure – (1) Save as otherwise provided in the Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in Sub-Section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 and sub-section(2) of section 23.
On a careful reading of the above provisions it is clear that for proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 of Domestic Violence Act are covered under Cr.P.C., once the provisions of Cr.P.C., are applicable for the provisions of Domestic Violence, then proceedings under Section 468 of Cr.P.C, is also applicable. Therefore, from the Judgment of Hon’ble Supreme Court in Inderjit Singh Grewal Vs. State of Punjab & Another reported in 2011 AIR SCW 6259 it is clear that the provisions under Section 468 of Cr.P.C., is applicable for the DVC Proceedings as envisaged under Sections 28 and 32 of Protection of Women under Domestic Violence Act.
18. As far as the Judgment of Jammu and Kashmir and Ladakh High Court [Adbul Qayoom Mugloo Vs. Irfana and Ors.] in CM(M) No.269 of 2024 is concerned, the learned Single Judge of the Jammu and Kashmir High Court after referring Section 2(f) of the Act, came to a conclusion that once it is shown that the petitioner was in a domestic relationship with the 1st respondent at some point of time and the respondent no.1 in her petition under Section 12 of Domestic Violence Act has alleged acts of cruelty and domestic violence against the petitioner, the petition is maintainable. Therefore, the learned Single Judge of the Jammu and Kashmir and Ladakh High Court has correctly held that when the domestic relationship was existing at some point of time and some domestic violence committed at that time, the complaint is maintainable. Therefore, the law has already been settled by the Hon’ble Supreme Court in the case law Krishna Bhatacharjee Vs. Sarathi Choudhury and Prabha Tyagi Vs. Kamlesh Devi. We place appreciation of Mr.B.Vijay, learned Amicus Curiae, who rendered good service.
19. In view of the above discussions, this Court is inclined to answer the reference as follows:-
“The divorced woman can maintain the complaint under the provisions of the protection of Women from Domestic Violence Act, 2005 for the domestic violence that took place during the domestic relationship. Further, to maintain the domestic violence complaint, there should be a subsisting domestic relationship between the aggrieved persons and the person against whom the relief is claimed alleging the domestic violence and it is not necessary that at the time of filing an application by the aggrieved person, the domestic relationship should be subsisting. Even if an aggrieved person is not in a domestic relationship with the person, against whom the relief is claimed alleging domestic violence, in a shared household at the time of filing application, but has at any point of time lived so, or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under the Domestic Violence Act. Provided the application must be filed within the limitation period, as stipulated under Section 468 of Cr.P.C.,”
Accordingly reference is answered.
