Brief Facts
- The appellant-wife had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 which was allowed by the Magistrate granting the Appellant monthly maintenance and compensation.
- The Respondent did not let in any evidence in the proceeding. Later, the respondent filed an appeal under Section 29 which was dismissed by the Appellate Court on the ground of limitation.
- Subsequently, the Respondent filed an application under Section 25 seeking quashing of the earlier order and for reimbursement of amount paid to the Appellant till date, which was dismissed.
- The Respondent filed criminal appeal under Section 29 and the appeal was allowed and the matter was remanded to the Magistrate to consider the Respondent’s application giving an opportunity to both the parties to adduce their evidence. Even the High Court dismissed the revision petition.
- The Appellant filed the present appeal against the said order.
Issues
- Whether, and to what extent, a Magistrate is empowered under Section 25 of the Protection of Women from Domestic Violence Act, 2005 to alter, modify, or revoke an order previously passed under Section 12 of the Act?
- Whether the order passed under section 25 of the Act will be applied prospectively or retrospectively?
Held
- The Supreme Court allowed the appeal and dismissed the application filed by the Respondent under Section 25 of the Act. The Court opined that 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. The findings of the court are as under:
Change in circumstances is necessary to exercise power under section 12.
- 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defined under the Act… the legislature (Parliament) has intentionally not provided a definition for the same in the repealed Codes or the present Sanhita.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.
Order passed under section 25(2) will not apply retrospectively
- 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.
- 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.
Prayer sought by the Respondent was not maintainable
- 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.
- 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.
Relevant Para No.
- 10, 13, 14, 15 and 18