Question: Can wife claim her stridhan from her husband under Section 12 of the Protection of Women from Domestic Violence Act, 2005 after she is living separately from her husband?
Answer: Merely because wife is living separately, does not mean that the relationship of husband and wife has come to an end. They continue to have the legal relationship of being husband and wife until a decree of divorce is validly passed. Therefore, she continues to be an “aggrieved person” within the meaning of Section 2(a) of the Protection of Women from Domestic Violence Act, 2005. Due to this, the wife can file a claim for getting her stridhan back from the husband under Section 12 of the Protection of Women from Domestic Violence Act.
In fact, recently, in the case of Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705 : 2016 Cri LJ 330, the Supreme Court held that a wife who is living separately from the husband even under a decree of judicial separation can claim her stridhan back from the husband under Section 12 of the Protection of Women from Domestic Violence Act. In your case, there is no decree of judicial separation and you are merely living separately from the husband due to mutual convenience and not under a decree of a court for judicial separation.
In the above case, the Supreme Court held that the core issue that is required to be addressed is whether the appellant wife has ceased to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. No doubt judicial separation creates rights and obligations. And no doubt a decree or an order for judicial separation permits the parties to live apart. And no doubt there would be no obligation for either party to cohabit with the other. And no doubt mutual rights and obligations arising out of a marriage are suspended. The decree of judicial separation, however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.
The Supreme Court further held that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, due to the parties having been judicially separated, the appellant wife cannot be said to have ceased to be an “aggrieved person” under the above Act.
In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in Hindu Law of Marriage and Stridhan. Stridhan property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhan property to her husband or any other member of the family. There is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family.
The Supreme Court also held that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the above Act. This issue was considered by the Supreme Court to be of the nature of a “continuing offence”.
Your case, as mentioned above, is on a better footing than the above case decided by the Supreme Court. Therefore, you should be in a position to file an application under Section 12 of the Protection of Women from Domestic Violence Act for getting back your stridhan.