The Kerala High Court has observed that a Magistrate Court has the power to decide on the validity of talaq pronounced by the husband, while hearing a petition by the wife seeking residential and monetary protection under the Domestic Violence (DV) Act 2005.
The court made the observation recently while allowing a petition against an order of the Kollam Additional Sessions Court reversing a Magistrate Court's order for protection to a Muslim woman against domestic violence. The Sessions Court had held that that prima facie there was material to show that the husband had pronounced talaq and as such the status of the petitioner was that of a divorced woman and she was not entitled to claim maintenance.
The High Court observed that, if the husband disputes the marital status during the hearing of a petition filed by the wife under the DV Act saying that he had divorced the wife by pronouncing talaq, the magistrate had every power to decide whether the said plea was valid or not. The finding of the Sessions Court that the magistrate had no power to decide on the validity of the talaq was wrong.
Not just physical abuse
The court also held that non-payment of maintenance would also constitute domestic violence. The term ‘domestic violence’ as defined under section 3 did not mean physical harassment alone. It included emotional or economic abuse as well. The term ‘economic abuse’ had been defined under section 3(iv) of the Act. It included deprivation of all or any economic or financial resources to which the aggrieved person was entitled to under any law or custom and maintenance.
Setting aside the observation of the Sessions Court, the High Court held that a divorced wife was entitled to file a petition under section 12(1) of the DV Act claiming the return of dowry and ornaments and for maintenance under section 125 of Cr.PC.
