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Tuesday, December 1, 2015


The Hon’ble Supreme Court in Krishna Bhatacharjee Vs. Sarathi Choudhury and another (reported in 2015 AIR SCW 6386) have decided on the claim made by women over her Stridhana properties, the apex court observed who is the “aggrieved person” as defined under the Protection of Women from Domestic Violence Act, 2005 and whether the claim was barred by limitation and the relationship of husband and wife when there is a decree of judicial separation.

Stridhana properties means: Stridhana properties are properties gifted to the girl before her marriage, at the time of marriage or at the time of giving farewell or thereafter. It is her absolute property with all rights to dispose at her own pleasure. Husband has no control over her Stridhana properties, he may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. The Stridhana properties are not joint properties of the wife and husband, the husband will have no right or title over the Stridhana property.

Domestic violence includes Economic Abuse: The Protection of Women from Domestic Violence Act, 2005, is the beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. The definition of “Domestic Violence” covers a range of violence including “Economic Abuse”.

Background before appealing to Supreme Court: The appellant (woman/wife) having lost the battle for getting her Stridhan back from her husband, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not entertainable as she had ceased to be an "aggrieved person" under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate. Subsequently approached the High Court of Tripura, Agartala in Criminal Revision, the High Court declined to interfere with the lower court findings, consequently wife preferred appeal, by special leave before the Supreme Court.

Difference between decree for divorce and judicial separation: There is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and legal relationship continues as it has not been snapped. Therefore wife does not cease to be an “aggrieved person” because of decree of judicial separation. Once decree for divorce is passed the parties become different, but that is not so when there is a decree for judicial separation.

Continuing offence: The retention of Stridhana by the husband or any other family members is a continuing offence.  Neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. Wife as long as she remain the status of the “aggrieved person” can file for her right or claim under 2005 Act for her stridhana properties. In the above case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010 to the Magistrate. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for Stridhana. Regard being had to the said concept of "continuing offence" and the demands made, the Hon’ble Supreme held that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

The Hon’ble Supreme Court allowed the appeal and directed the concerned magistrate to proceed with the application filed by the appellant wife under provision of section 12 of Protection of Women from Domestic Violence Act, 2005.

Prepared by: S. Hemanth