This article has been written by Mariya Masood Khan, a second-year student at Advocate Balasaheb Apte College Of Law Mumbai Maharashtra and pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. It has been edited by Oishika Banerji (Team Lawsikho).
It has been published by Rachit Garg.
Table of Contents
Introduction
The protection orders are defined under Chapter 6 (Sections 27, 28, 29, 30, 31) of the Divorce Act, 1869. The protection orders are given by the courts for safeguarding the interest of the deserted wife. By the virtue of Section 27 of the Divorce Act, 1869, the wife reserves the liberty to approach the court of law for the protection of her interest, if deserted without any feasible cause. To seek shelter from the court, desertion must take place without any reasonable cause. The court can dismiss the granted orders once the desertion ceases to end. This article provides a detailed analysis of the concept of a protection order as has been placed under the Divorce Act of 1869.
What is a protection order
In a general sense, protection orders are legal instructions or commands given by the court directing an individual not to harm another (aggrieved individual) or his property. Protection orders under the Divorce Act, 1869 are given in regard to the property of the deserted wife, against the husband.
Provisions related to protection orders under the Indian Divorce Act, 1869
- Section 27 (Deserted wife may apply to the court for protection):
A deserted wife may approach any district court with competent jurisdiction at any time after the desertion happened for the protection of her interest. Deserted wives under Section 27 include those to whom Section 4 of the Indian Succession Act 1925, does not apply (Indian Succession Act, doesn’t apply to Hindus, Muhammadan, Buddhist, sikh and Jain).
- Section 28 (Court may grant protection order):
Courts by using their discretionary power may or may not grant the protection order in regard to the property. If the court is satisfied or may think that the desertion happened on unreasonable or absurd grounds, without the consent of the wife and the wife is maintaining herself from her property or any business or industry or the part of the property of her husband which she has an interest or right, then on such grounds, it may extend protection order to the wife. Such delivered orders need to be conclusive for the time passed.
- Section 29 (Discharge or variation of orders):
Under Section 29, as the court has discretionary power to grant protection orders, it does have the additional power of dismissing the same on any reasoned grounds or if there is a need for any alterations in the already delivered protection order. The grounds on the basis of which, discharge or variation of existing order can take place, have been listed hereunder:
- If the desertion ceases thereby the husband reunites with his wife and assents to carry forward his matrimonial obligations with the wife, or
- Wife misuse the protection granted by the court, or
- For any other reasonable grounds.
- Section 30 (Liability of husband seizing wife’s property after notice of order):
If the husband or his creditors or any other person claiming under him seizes or continues to hold such property by going against the court orders, then in such cases, the wife is entitled to file a suit against such person. The specific property shall be delivered or returned to the wife under the appropriate condition by the husband and he shall also be liable to pay a sum amount of money as compensation to the wife, and the compensation shall be double of such particular property’s value.
- Section 31 (Wife’s legal position during the continuance of order):
If the wife obtains a protection order from the court,
- She shall be deemed to have been deserted by her husband without reasonable cause,
- She shall possess the absolute and full right over the property in respect of all positions,
- She will have the right to enter into the Agreement with respect to the property,
To protect such right she shall be in the position of suing others who infringes her right over the property and being sued for the same during the continuance of a protection order.
What does desertion mean when done with unreasonable cause
Section 3(9) of the Indian Divorce Act, 1869 defines desertion as an abandonment against the wish of the person charging it. In Savitri vs. Prem Chandra Pandey (2002) the court of law stated that “desertion” means withdrawal from the matrimonial obligations and not withdrawal from a place, with the intention of permanent forsaking and abandonment of one partner by the other without the other’s consent and without feasible reason from the other spouse. In other words it is a total repudiation of the obligations of marriage.
The essentials of desertion were laid down in the case of Ka Ersilian Lyngdoh vs. U kordring Rao Sad (1986), as has been listed hereunder:
- Separation of one spouse from the other;
- The intention of the deserting spouse to put an end to marital cohabitation but without reasonable excuse.
- There must also be the absence of:
- The other spouse’s consent; and
- Conduct reasonably causing the deserting spouse to form an intention of bringing the cohabitation to an end.
Section 13 of the Hindu Marriage Act, 1955 states that desertion will not be established until the desertion period continues for not less than two years. When for two consecutive years a spouse deserts the other spouse, then the same can be termed as desertion. .Desertion is therefore a valid ground for divorce under Section 13(1)(b) of the Hindu Marriage Act,1955.
To understand the unreasonable cause, one should understand its meaning. Reasonable cause means that the party can avail the matrimonial relief from the court, under Section 10 of the Divorce Act, 1869. So, when either spouses desert or leave the other with the absurd ground or illogical cause then it is said to be desertion on the unreasonable cause.
What does property under protection orders mean
Under Section 3(10) of the Divorce Act, 1869, property in the case of a wife includes any property to which she is entitled to an estate in remainder or reversion or as a trustee, executrix, or administratrix. Under Section 27 of this Act, the property is clearly defined as one upon which a wife can request protection which is the property she may have acquired, or may acquire, or she may have become possessed, or may become possessed.
Which courts have jurisdiction under the Divorce Act, 1869
By means of the Indian Divorce (Amendment) Act of 2001, Section 27 was amended to invest jurisdiction upon the district courts instead of high courts, with the purpose of reducing the burden of the latter. Hence, the district court has a wider jurisdiction in matrimonial subject matters under this Act thereby having the authority of delivering protective orders in regard to property. Under Section 3(3) of the Divorce Act, 1869, district courts have the jurisdiction in the case of all such petitions that include granting of protection orders under the Act of 1869, as follows:
- The court of the district Judge having ordinary jurisdiction,
- Where the husband and wife solemnise their marriage or,
- Where the husband and wife reside or have last resided together before their desertion.
Protection order under the Protection of Women from Domestic Violence Act, 2005
Under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act), courts grant protection orders which are restricted to its physical sense only. Courts can prevent the respondents from contacting the aggrieved party or prohibit the respondent to not enter where the aggrieved party is employed or is residing. Under the Act of 2005, for the protection of the aggrieved party from domestic violence, the state government appoints a protection officer at district level who will look into all necessary aspects of the domestic violence matter.
Judicial pronouncements
Sudhannya K.N. vs. Umasanker Valsan (2013) (Kerala High Court):
In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the petitioner (wife of the respondent) filed a Writ Petition under Article 226 of the Indian Constitution to declare that a person will be entitled to seek relief under Sections 18 and 19 of the D.V. Act from a family court by invoking Section 26 of the D.V. Act by means of issuing a writ of prohibition.
In the above case, the Kerala High Court had opined that a family court does have the jurisdiction to pass the interim order and protection orders under Section 28, as the provision gives the power to the district court to declare the protection orders in order to protect the property of the deserted wife.
Ravi Kumar vs. Julmi Devi (2010) (Supreme Court of India)
In the case of Ravi Kumar vs. Julmi Devi (2010), the Supreme Court clearly stated that the intention to desert the other spouse in marriage is the most important element in determining the existence of desertion. The marriage between the parties in the discussed case had taken place on 13.12.1988 according to Hindu rites and customs and in March 1990, a girl was born to them. The husband alleged that after the birth of the girl child, his wife left for the parental house at village Samlet and spent considerable time there. It was further alleged that his wife, who was working, on being transferred from Garli to Chauaku, stayed at Chauaku instead of her matrimonial home which was only at a distance of 3 Km from the place of her posting. However, the husband admitted that in May 1994, his wife came to his house for a short period and stayed there with him till the month of May, 1994. After that, his wife is alleged to have permanently deserted him. Thus the Apex Court had made out a case of desertion in this case.
Conclusion
The concept of a protection order is a welfare concept which aims to promote the interests of deserted women so that they can live a life worth living as has been guaranteed under Article 21 of the Indian Constitution. Therefore, the importance given to it in this article seeks to put forth the need to make females aware of protection orders so that they are legally empowered to exercise choices of living alongside recognizing their duties to not misuse the safeguard granted to them.
Reference
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