Source: Supreme Court 

Why in News? 

• A bench of Justice BV Nagarathna and Justice N Kotiswar Singh held that for invocation of Section 25 (2) of the Protection of Women from Domestic Violence Act (DV Act) the change in circumstances must be after the order is passed under the Act.                      
• The Supreme Court held this in the case of S Vijikumari v. Mowneshwarachari C. 

What was the Background of S Vijikumari v. Mowneshwarachari C Case? 

• The Appellant- wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act).  
• The petition was allowed, and Magistrate ordered Rs. 12,000 per month to be paid for maintenance and Rs. 1,00,000 to be paid as compensation. 
• The respondent husband did not give any evidence in the said proceeding. 
• The respondent husband filed an appeal under Section 29 of the Act which was dismissed by the Appellate Court on the grounds of delay.  
• The aforesaid orders attained finality, and they were not assailed by the respondent. 
• Thereafter an application under Section 25 of the DV Act was filed before the Learned Magistrate by the respondent. The application was, however, dismissed. 
• Being aggrieved, the respondent filed a criminal appeal under Section 29 of the DV Act. 
• The said appeal was allowed, and the matter was remanded to the Learned Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act by giving opportunity to both the parties to adduce evidence and to dispose of the same in accordance with law. 
• The appellant aggrieved by the above order filed Criminal Revision before the High Court which was dismissed. 
• Aggrieved by the above order the appellant- wife has filed the appeal.

What were the Court’s Observations?

• The Court held in this case that DV Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background. 
• The Court, while exercising its jurisdiction under Section 25 of the DV Act, has to be satisfied that the change in circumstances occurred requiring to pass an order of alteration, modification or revocation. 
• The Court further held that to invoke Section 25 (2) of the Act there must be a change in circumstances after the order has been passed under the Act. 
• The Court held that the respondent could not have sought for the above prayers on the following grounds:
  • Firstly, revocation of an order under Section 12 of DV Act cannot relate to the period prior to such an order being passed. 
  • Secondly, the change in circumstance requiring alteration, modification or revocation of the earlier order must be owing to the change occurring subsequent to the order being passed. 
  • Thus, the exercise of jurisdiction under Section 25 (2) of the Act cannot be for setting aside of an earlier order owing to a change occurring subsequent to the order being passed.    
• Hence, the Court set aside the orders of the High Court and the first Appellate Court, and the application filed by the respondent was dismissed. 
• However, the Court granted liberty to the respondent to file a fresh application under Section 25 of the Act.

What is Section 25 of DV Act? 

About: 

• Section 25 of the DV Act provides for duration and alteration of orders. 
• Section 25 (1) of the Act provides that that a protection order made under section 18 shall be in force till the aggrieved person applies for discharge.   
• Section 25 (2) provides for alteration, modification or revocation of any order made under the Act. 
  • The above order will be passed if the Magistrate is satisfied on receipt of an application from the aggrieved person or the respondent, that there is a change in the circumstances. 
  • The Magistrate may for reasons recorded in writing pass the above order. 
• The scope of Section 25 (2) of the Act is broad enough to deal with all orders under the Act including the orders of maintenance, residence, protection etc.  
• The order passed under this provision remains in force till the time  
  • The order is set aside in an appeal under Section 29 of the Act, or 
  • The order is altered/modified/revoked in terms of Section 25 (2) of the Act by the Magistrate.

‘Change in Circumstances’ under Section 25 (2) of the DV Act: 

• The Phrase ‘Change in Circumstances’ 
  • The phrase “a change in circumstances” has not been defined under the DV Act. 
    • The said phrase can be found in the following legislations: 
      • Now repealed Section 489 of the Code of Criminal Procedure, 1898 
      • Now repealed Section 127 (1) of the Criminal Procedure Code, 1973  
      • Section 146 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) 
  • However, in none of the legislations had the legislature defined this term. 
• Change in Circumstances Would Include the Following 
  • The Court in the present case held that the change in circumstances would include: 
    • The wife on divorce having been given alimony 
    • The wife earning higher amount than the respondent husband and therefore not need of maintenance  
    • The change in circumstances may be of either a pecuniary nature, such as change in the income of the respondent or the aggrieved person 
    • It could also include change in other circumstance that would justify the increase or decrease in the amount of maintenance.   
    • It would include factors like the cost of living, income of the parties etc.  
    • A change in circumstances need not be of the respondent but also of the aggrieved person. 
    • A change in financial circumstances of the husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in the husband or wife’s life which may have taken place since the time maintenance was first ordered.    
• Change in Circumstances only after Order Passed under the Act  
  • Such a change in circumstances must occur only after an initial order is made under Section 12 of the Act and cannot relate to the period prior to the passing of an order under Section 12 of the Act. 
• Alteration, Modification or Revocation Operates Prospectively not Retrospectively 
  • The order for alteration, modification or revocation operates prospectively and not retrospectively. 
    • Though the order of grant of maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate. 
    • The above is not true for the order with regard to an application for alteration of allowance. This would take effect from the date on which the order of alteration is made or any other date from which an application for alteration, modification or revocation was made depending on the facts of each case.   
    • The position is analogous to Section 125 and Section 127 of the Criminal Procedure Code, 1973 (CrPC). 
    • Thus, under the DV Act the order of modification or alteration or revocation could operate from the date of the application being filed or as ordered by the Magistrate under Section 25 (2). 
    • Thus, the applicant cannot seek its retrospective applicability as to seek refund of the amount already paid as per the original order.