The Himachal Pradesh High Court has reaffirmed that a husband’s solemnization of a second marriage during the subsistence of the first marriage constitutes sufficient grounds for the first wife to claim maintenance and residence under the Protection of Women from Domestic Violence Act, 2005. The Court dismissed the revision petition challenging concurrent findings of the trial and appellate courts, emphasizing that the wife’s right to economic and residential security is not negated by her partial self-sufficiency or the absence of a Domestic Incident Report.
Background & Facts
The Dispute
The petitioner, Meena Kumari, filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), seeking monetary relief, a residence order, and a protection order against her husband, Tulsi Ram. The parties were married approximately 30 years prior to the filing of the petition, in accordance with Hindu rites and customs. The petitioner alleged that after marriage, the respondent began humiliating and harassing her, developed extramarital relations, and eventually ousted her from the matrimonial home. He failed to provide maintenance, forcing her to reside in rented accommodation at her parents’ home.
Key Facts
- The marriage between the petitioner and respondent was solemnized around 1986.
- The respondent left the matrimonial home with the petitioner on 19.05.1999, after which she did not return.
- The respondent subsequently solemnized a second marriage.
- The petitioner filed a petition under Section 125 CrPC, which resulted in a monthly maintenance order of ₹2,000.
- The petitioner is currently residing in rented accommodation and is unemployed.
- The respondent is a retired Naib Subedar of the Indian Army with a monthly pension exceeding ₹25,000.
- The respondent earns additional income from agricultural activities (₹5,000/month), a sawmill and thresher machine (₹4,000/month), and a shop (₹4,000/month), totaling over ₹38,000/month.
- The respondent claimed the petitioner left voluntarily and later suggested he marry again, but this was denied by the petitioner.
- The respondent did not produce any documentary evidence of the petitioner’s employment as a tailor or income of ₹10,000/month.
Procedural History
- 15.01.2016: Judicial Magistrate, First Class, Jogindernagar, passed an order granting monetary relief of ₹1,000/month, a residence order for one room with kitchen and bathroom, and a protection order.
- 05.09.2016: Additional Sessions Judge (II), Mandi, upheld the trial court’s order on appeal.
- 17.03.2026: Revision petition heard by the High Court of Himachal Pradesh.
- 04.04.2026: Judgment delivered dismissing the revision.
The Parties' Positions
For the Petitioner (Respondent in Revision)
The petitioner asserted that she was forced to leave the matrimonial home due to the respondent’s conduct, including his second marriage and refusal to maintain her. She claimed no residence was available to her and that the ₹2,000/month under Section 125 CrPC was insufficient for her needs. She sought additional relief under the DV Act.
For the Respondent (Petitioner in Revision)
The respondent contended that the petitioner left the matrimonial home voluntarily on 19.05.1999 and never returned despite his efforts to reconcile. He claimed she suggested the second marriage and was now earning ₹10,000/month as a tailor. He argued the application was barred by limitation, lacked a Domestic Incident Report, and was filed to harass him.
Relief Sought
The petitioner sought:
- Monetary relief of ₹1,000/month under Section 20 of the DV Act.
- A residence order for suitable accommodation.
- A protection order against domestic violence.
The respondent sought quashing of the orders dated 15.01.2016 and 05.09.2016, and dismissal of the DV Act application.
The Legal Issue
Can a wife claim maintenance and residence under the DV Act when her husband has solemnized a second marriage, even if she is earning some income and no Domestic Incident Report was filed?
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel argued that the trial and appellate courts erred in awarding maintenance and residence because:
- The petitioner was already receiving ₹2,000/month under Section 125 CrPC.
- The petitioner had left the matrimonial home voluntarily and was not a victim of domestic violence.
- The proceedings were vitiated due to non-filing of a Domestic Incident Report.
- The petitioner was employed and earning ₹10,000/month, making her ineligible for further relief.
For the Respondent/State
The respondent’s counsel contended that:
- The second marriage by the husband was sufficient to justify the wife’s separate residence and claim for maintenance.
- The concurrent findings of fact by two courts should not be disturbed in revision.
- The absence of a Domestic Incident Report is not fatal under the DV Act.
- The petitioner’s income after desertion cannot be used to deny maintenance, as the statutory obligation arises from the husband’s conduct during the marriage.
The Court's Analysis
The Court began by emphasizing the limited scope of revisional jurisdiction under Section 397 CrPC, citing Malkeet Singh Gill v. State of Chhattisgarh and State of Gujarat v. Dilipsinh Kishorsinh Rao. It held that revisional courts cannot reappreciate evidence or substitute their view for concurrent findings unless there is perversity, jurisdictional error, or a patent legal defect.
The Court rejected the argument that the absence of a Domestic Incident Report vitiated the proceedings. Citing Prabha Tyagi v. Kamlesh Devi, it held that Section 12 of the DV Act does not mandate the filing or consideration of such a report before passing any order. The Magistrate retains full power to grant interim or final relief even in its absence.
On the issue of second marriage, the Court relied on Banti Devi v. Moti Ram and Rajathi v. C. Ganesan, affirming that a husband’s solemnization of a second marriage during the subsistence of the first marriage constitutes neglect and refusal to maintain the first wife. This entitles her to live separately and claim maintenance under both Section 125 CrPC and the DV Act.
The Court further held that the petitioner’s partial employment after desertion does not disqualify her from maintenance. Citing Rajnesh v. Neha and Rajathi v. C. Ganesan, it clarified that the phrase “unable to maintain herself” refers to the wife’s means during cohabitation, not her post-desertion efforts to survive. The burden lies on the husband to prove inability to maintain, not on the wife to prove destitution.
The Court noted the respondent’s failure to disclose his income under oath, while the petitioner’s claim of ₹38,000/month was corroborated by his admitted pension and business activities. The trial court’s award of ₹1,000/month as additional maintenance, bringing the total to ₹3,000/month, was deemed reasonable and not excessive.
“The words ‘unable to maintain herself’ would mean that the means available to the deserted wife while she was living with her husband would not take within themselves the efforts made by the wife after the desertion to survive somehow.”
The Court also upheld the residence order, noting the respondent failed to prove the petitioner had any accommodation. The right to a safe residence is a core protection under the DV Act, especially when the husband has abandoned the matrimonial home and taken up another partner.
The Verdict
The revision petition was dismissed. The High Court upheld the orders dated 15.01.2016 and 05.09.2016, confirming:
- Monetary relief of ₹1,000 per month under Section 20 of the DV Act, payable from the date of the application.
- A residence order requiring the respondent to provide suitable accommodation consisting of one room, kitchen, and bathroom, either in his house or by renting.
- A protection order prohibiting the respondent from committing any act of domestic violence.
- The total monthly maintenance of ₹3,000 (₹2,000 under CrPC + ₹1,000 under DV Act) was deemed appropriate.
- All pending applications were dismissed.
What This Means For Similar Cases
Second Marriage Is Sufficient Ground for DV Act Relief
- Practitioners must argue that a husband’s second marriage, even if not proven under Section 494 IPC, constitutes economic and emotional abuse under the DV Act.
- Courts are bound to recognize this as a valid basis for residence and maintenance orders, irrespective of whether the second marriage is legally void.
- The burden shifts to the husband to disprove the wife’s claim of neglect or refusal to maintain.
Income After Desertion Does Not Bar Maintenance
- A wife’s post-desertion employment or income cannot be used to deny maintenance under the DV Act or Section 125 CrPC.
- The statutory obligation is rooted in the husband’s conduct during the marriage, not the wife’s post-separation survival efforts.
- Courts must assess the wife’s needs in light of the marital standard of living, not mere subsistence.
Domestic Incident Report Is Not Mandatory
- Lawyers should not delay or dismiss DV Act applications due to absence of a Domestic Incident Report.
- Magistrates have independent authority to grant relief under Section 12 without such a report.
- This removes a common procedural hurdle used by respondents to delay or defeat claims.
