Summary
A husband's application under Section 25(2) of the Protection of Women from Domestic Violence Act, 2005 asking the Magistrate to set aside a final maintenance order and to order refund of all maintenance already paid was held not maintainable, because Section 25(2) permits alteration, modification or revocation only on a change in circumstances arising after the original order and operates prospectively. The orders remanding the application were set aside, with liberty to file a fresh application.
Issues
- What is the scope of Section 25(2) of the Domestic Violence Act and what amounts to 'a change in the circumstances' under it?
- Whether an order of alteration, modification or revocation under Section 25(2) can operate retrospectively so as to require refund of maintenance paid under the original order.
- Whether the respondent-husband's application, seeking to set aside a maintenance order that had attained finality and a refund of all maintenance paid, was maintainable.
Provisions considered
- Section 25(2), Protection of Women from Domestic Violence Act, 2005Read as allowing either the aggrieved person or the respondent to seek alteration, modification or revocation of any order made under the Act, including maintenance, residence and protection orders, when the Magistrate is satisfied of a change in circumstances occurring after the order; such an order operates prospectively, from the date of the application or as the Magistrate directs, and cannot be used to undo a final order or recover past payments. (¶¶ 10, 12, 13, 14, 15, 17, 18)
- Section 12, Protection of Women from Domestic Violence Act, 2005The maintenance and compensation order passed on the wife's Section 12 petition stays in force until set aside in appeal or altered under Section 25(2); revocation cannot relate to the period before that order. (¶¶ 10, 12, 17)
- Section 29, Protection of Women from Domestic Violence Act, 2005An order under the Act remains operative until set aside in an appeal under Section 29; here the husband's Section 29 appeal against the original order was dismissed for delay and not challenged further, so the order merged with the appellate order and became final. (¶¶ 3, 12, 17, 18)
- Sections 125(2) and 127, Code of Criminal Procedure, 1973Used as an analogy: Section 125(2) empowers grant of maintenance from the date of application while Section 127 contains no such power, supporting the view that an alteration under Section 25(2) of the DV Act cannot apply retrospectively. (¶¶ 13, 15)
Held
- Section 25(2) is wide enough to cover every kind of order under the Act. An order under the Act remains in force until it is set aside in appeal under Section 29 or altered, modified or revoked by the Magistrate under Section 25(2), who must record reasons. (¶ 12)
- 'A change in the circumstances' is left undefined, as it was under Section 489 of the 1898 Code, Section 127(1) CrPC 1973 and Section 146(1) BNSS 2023, so the Magistrate must assess it on the material in each case. It may be pecuniary, such as a change in either party's income, or any other change in the circumstances of the paying or receiving party, including cost of living; examples are the wife receiving alimony on divorce or earning more than the husband. (¶¶ 10, 13)
- The change must occur after the original order; it cannot relate to the period before that order. An order of alteration, modification or revocation therefore operates prospectively, from the date of the alteration order, the date of the application, or such date as the Magistrate orders, and cannot be used to claim a refund of amounts already paid under the original order. (¶¶ 10, 14, 15, 17)
- The husband's application, which in substance sought to set aside the final order of 23.02.2015 and recover all maintenance paid as restitution of the status quo ante, was outside and contrary to the spirit of Section 25(2) and not maintainable. He had also not led evidence before the Magistrate, had filed a belated appeal that was dismissed for delay, and had not challenged that dismissal. (¶¶ 16, 17, 18)
Result
Appeal allowed; orders of the High Court and the first Appellate Court set aside and the husband's Section 25 application dismissed, with liberty to file a fresh application relating only to the period after 23.02.2015, any revocation to take effect from the date of that application or as the Magistrate orders.