Karnataka High Court
Jitendra Virwani vs Lina Virwani on 22 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 11.09.2024
Pronounced on : 22.11.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.12954 OF 2024 (GM - RES)
BETWEEN:
JITENDRA VIRWANI
S/O LATE MR. MOHANDAS VIRWANI,
AGED ABOUT 57 YEARS,
RESIDING AT NO.341,
EMBASSY WOODS, 6A,
CUNNINGHAM ROAD, BENGALURU,
KARNATAKA - 560 052. INDIA.
... PETITIONER
(BY SRI K.G.RAGHAVAN, SR.ADVOCATE AW
SRI VIKRAM HUILGOL, SR.ADVOCATE FOR
SRI P.CHINNAPPA, ADVOCATE
SRI HARSH GUPTA, ADVOCATE
SRI VEGADARSHI AND
SRI MANISH SINGH, ADVOCATES)
AND:
LINA VIRWANI
(NOW LINA ANATOLYEVNA SHMALTS)
D/O MR. SHMALTS,
AGED ABOUT 46 YEARS,
2
RESIDING AT VILLA NO.9, STREET NO.6,
MEADOWS 5, DUBAI,
UNITED ARAB EMIRATES.
... RESPONDENT
(BY SMT.LAKSHMY IYENGAR, SR.ADVOCATE FOR
SMT.GEETHA R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS; CALL FOR TRIAL
COURT RECORDS IN CRL. MISC.NO. 20/2024 PENDING ON THE
FILE OF THE HON'BLE IV METROPOLITAN MAGISTRATE TRAFFIC
COURT, BENGALURU AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.09.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question entire
proceedings instituted by the respondent invoking the provisions of
the Protection of Women from Domestic Violence Act, 2005 ('the
3
Act' for short) in Criminal Miscellaneous No.20 of 2024 pending
before the IV Metropolitan Magistrate, Traffic Court, Bangalore.
2. Facts, in brief, germane are as follows:-
The petitioner and the respondent get married on 15-04-
2011. The petitioner is an Indian citizen and the respondent is a
Russian national. The marriage is said to have been solemnized as
per the prevailing laws and customs in Russia. After about 3 years
of marriage, a reception is held in Bangalore on 04-01-2014 and
after the said reception, on 24-05-2014 a formal certificate of
registration is applied and is granted by the Marriage Officer,
Bangalore under the Special Marriage Act, 1954. The couple is said
to have had a cordial relationship up to 2017 and it is averred that
the two began to live separately since June 2017 in the wake of
relationship turning irrevocably sore. On 20-06-2020, both the
petitioner and the respondent have decided to dissolve their
marriage and filed a petition before the Family Court at Bangalore
under Section 28 of the Special Marriage Act seeking divorce by
mutual consent. This had come to be registered as M.C.No.1815 of
2020. On 23-12-2020, it appears that the petitioner at the request
4
of the respondent, jointly applied for divorce by mutual consent
before the Consulate General of Russia in Dubai/UAE.
3. On completion of one month of filing of the petition for
divorce before the Consulate General of Russia, the Consulate
General of Russia, acting as the civil registry office under the
Federal Law of Russia, granted divorce to the petitioner with the
respondent and issued a divorce decree. Two years passed by. In
accordance with divorce by mutual consent, under the provisions of
Family Code of the Russian Federation 1995, the petitioner applied
for the said divorce decree to be taken on record in India by way of
a petition under Section 27 of the Special Marriage Act bearing
M.C.No.7151 of 2023. The Family Court issues notice to the
respondent in the proceedings instituted by the petitioner on 17-11-
2023, 05-12-2023 and 04-03-2024. The notice was sought to be
served by all known methods of service. On 11-03-2024, upon
service of notice, the respondent did not appear in the proceedings
to give a formal quietus of recognition of a decree of divorce that
had been granted as per Russian law.
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4. When things stood thus, the respondent on 12-03-2024
institutes the impugned proceedings in Criminal Miscellaneous
No.20 of 2024 under the provisions of the Act seeking interim
maintenance of ₹2/- crores per month and a compensation of
₹500/- crores. The concerned Court, by a detailed order, issued
notice to the petitioner and calls for a domestic incident report from
the concerned protection officer. Issuance of notice to the
petitioner has driven him to this Court in the subject petition.
5. Heard Sri K.G.Raghavan, learned senior counsel appearing
for the petitioner and Smt. Lakshmy Iyengar, learned senior
counsel appearing for the respondent.
6. The learned senior counsel Sri K.G. Raghavan would
vehemently contend that the marriage of the petitioner and the
respondent took place as per the Russian laws in Russia on
15-04-2011. As a formality or for an event that had already
happened, the couple applied for a registration certificate under the
Special Marriage Act, 1954 at Bangalore. The registration
certificate is granted under the Special Marriage Act which only
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recognizes an event that had already happened. The relationship
between the two thereafter turned sore. Since they had got married
under the Russian Laws and Customs, both of them went back to
Russian laws and applied for a divorce on mutual consent before
the Consulate General of Russia in Dubai. This was permissible and
a course open in terms of the laws of Russia. One month time was
granted and the Consulate General of Russia which acts as a Civil
Registry Office granted decree of divorce in terms of Section 160 of
the Family Code of Russian Federation.
6.1. To give a quietus to the marriage, as the certificate of
registration had been issued by the Competent Authority in India, a
petition was filed before the concerned Family Court under Section
27 of the Special Marriage Act. Taking advantage of filing of the
petition, contending that the petitioner and the respondent are still
husband and wife and the petitioner has tortured her, the wife
institutes proceedings under the Act seeking compensation of
₹500/- crores and interim maintenance of ₹2/- crores per month.
If this cannot be termed to an abuse of the process of law, the
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learned senior counsel would submit, that no other case will bear a
classic illustration.
7. Per contra, the learned senior counsel Smt. Lakshmy
Iyengar would vehemently refute the submissions to contend that
the petitioner and the respondent are not separated. The so-called
divorce that was granted by the Consulate General of Russia was an
ex-parte decree, as the wife did not participate in those
proceedings. The learned senior counsel would submit that the
petitioner has meted out torture upon the respondent and the
torture is clearly narrated in the complaint filed before the
concerned Court and this Court, at this juncture, should not
interfere with the proceedings, as the concerned Court is yet to
pass any order on the applications made by respondent. She would
contend that several prayers are sought under Sections 18, 19 and
22 of the Act. The Court has not passed any order on any of the
applications. Therefore, this petition cannot be entertained.
7.1. On the merit of the matter, the learned senior counsel
would contend that after the so-called separation in the year 2020,
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there are exchanges of messages between the petitioner and the
respondent, which would clearly go to demonstrate that the two are
living together and it is not and cannot be construed to be a
separation. If they are living together or even otherwise, the
learned senior counsel would contend, that the complaint under the
Act is maintainable and it is to be left to the concerned Court to
decide the issue. Plethora of whatsapp chats exchanged between
the petitioner and the respondent are sought to be taken through
by the learned senior counsel to buttress the submission of
existence of relationship between the two. In effect, she would seek
dismissal of the petition and permit the concerned Court to pass
necessary orders on the applications so filed by the
respondent/wife.
8. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record.
9. The afore-narrated facts are not in dispute, as they are the
averments in the petition and certain facts with regard to
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separation are the only dispute. It is a matter of record that on
15-04-2011 the petitioner and the respondent got married in terms
of the customs and laws prevailing in Russia. Three years after the
marriage in Russia, a reception was held in India at Bangalore on
04-01-2014. Later the couple applied for a certificate of marriage
under the Special Marriage Act, 1954. The certificate is granted.
The certificate reads as follows:
"Certificate of Marriage Celebrated in Other Forms
I, K Puttaswamy, Marriage Officer hereby certify that
JITENDRA MOHANDAS VIRWANI and LINA VIRWANI NEE LINA
ANATOLYEVNA SHMALTS appeared before me this 24 day of
May, 2014 and each of them, in my presence and presence of
three witnesses who have signed hereunder have declared that
a ceremony of marriage has been performed between
them and that they have been living together as husband
and wife since the time of their marriage, and that in
accordance with their desire to have their marriage
registered under The Special Marriage Act 1954(Central
Act No. 43 of 1954) the said marriage has, this 24 day of
May, 2014 been registered under this Act, having effect
as from 15/Apr/2011.
Sd/-
Marriage Officer
Gandhinagar
Signature of the officer
Sd/-
Signature of Witness 1
Narpatsingh Choraria
Sd/-
Signature of Witness 2
Anup S Shah
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Sd/-
Signature of Witness 3
Rajesh Bajaj
Sd/-
Signature of Husband
Sd/-
Signature of Wife
Station : GANDHINAGAR
Marriage Number: GAN-S05-2014-15
Date : 24-May-2014
CD Number : GANM12"
(Emphasis added)
A perusal at the certificate would clearly indicate that it is issued on
24-05-2014 for it to come into effect from 15-04-2011. Therefore,
what can be unmistakably inferred is that the marriage had already
taken place three years ago at Russia, and that is sought to be
registered in India. The marriage did not take place on 24-05-2014
as it has taken place 3 years earlier i.e., on 15.04.2011. The
marriage that had taken place earlier is not in this country, but in
Russia. Therefore, the contention in the complaint that the
marriage took place in India, is on the face of it, false. The
relationship between the petitioner and the respondent flounders
after three years of marriage. Floundering of relationship leads to
the couple wanting to get their marriage dissolved. A legal opinion
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is sought with regard to dissolution of marriage of Russian citizen
outside the territory of Russian Federation. Since the petitioner and
the respondent had got married in Russia, in terms of Russian laws
and customs, they sought dissolution of their marriage before the
Consulate General of Russia at Dubai.
10. Application for mutual dissolution was applied on
23-12-2020. After a month, the marriage was dissolved and a
certificate was granted. The certificate reads as follows:
"Golden Word Translation
Translation from Russian to English
<State Emblem of the Russian Federation>
DIVORCE CERTIFICATE
The marriage between Virwani Jitendra Mohandas
(SURNAME, FIRST NAME, PATRONYMIC)
Republic of India, --
(CITIZENSHIP, ETHNIC ORKIN
(SPECIFIED IF INDICATED IN
DIVORCE REGISTER)
Date of birth 18th February 1966
Place of birth Republic of India, State of
Maharashtra, Mumbai
and Virwani Lina Anatolyevna
(SURNAME, FIRST NAME,
PATRONYMIC)
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Russian Federation, -
(CITIZENSHIP, ETHNIC ORIGIN
(SPECIFIED IF INDICATED IN
DIVORCE REGISTER)
Date of birth 12th May 1978
Place of birth Stavropol Krai, Nevinnomyssk town
was dissolved on 24.01.2021
(Twenty Fourth of January Twenty
Twenty-one)
according to Mutual application of dissolution
of marriage from spouses without
common children under the legal
age No.3, dated 23rd December
2020.
Which divorce was duly registered in the Divorce Register on
24th January 2021, under Record №:
130218784000200001108.
Their surnames after the marriage dissolved:
Him: Virwani
Place of State registration: Consulate General of Russia in Dubai
(NAME AND LOCATION OF CIVIL
REGISTRY OFFICE)
This certificate is issued to Virwani Jitendra Mohandas
(SURNAME, FIRST NAME,
PATRONYMIC)
Date of issue 24th January 2021
Head of Civil Registry Office (Signature) O. O. Fomin
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<Seal: Consulate General of Russia in Dubai - United Arab
Emirates>
I-MH № 506923"
(Emphasis added)
The question that would arise is, whether a marriage that was
performed in Russia could be dissolved in Dubai before the
Consulate General of Russia. Therefore, a legal opinion was sought
whether this could be a valid separation. The legal opinion reads as
follows:
"Legal opinion on the issue of dissolution of
marriage of Russian citizens residing outside the territory
of the Russian Federation
Applicable law of the Russian Federation:
1.The Constitution of the Russian Federation
2. Civil Code of the Russian Federation (Article 47)
3. The Family Code of the Russian Federation (Articles 18, 160,
162)
4. Federal Law No 143-1Ф3 dated 15.11.1997 "On Acts of Civil
Status" (Articles 4, 5)
5. Federal Law No. 154-Ф3 dated 05.07.2010 "Consular
Regulations of the Russian Federation" (Articles 5, 25)
6. Order of the Ministry of Justice of Russia dated 01.10.2018
No. 201 "On Approval of the Forms of Applications for State
Registration of Civil Status Acts and Rules for Filling in the
Forms of Applications for State Registration of Civil Status
Acts" (Appendix to the Order Form No.9)
14
7. Order No. 3507 of the Ministry of Foreign Affairs of the
Russian Federation dated 13.03.2018 "Administrative
Regulations of the Ministry of Foreign Affairs of the
Russian Federation for the Provision of State Services
for State Registration of Civil Status Acts of Citizens of
the Russian Federation Residing Outside the Territory
of the Russian Federation"
In accordance with Article 47 of the Civil Code of
the Russian Federation, acts of civil status are subject to
state registration, including the dissolution of marriage.
The registration of acts of civil status shall be carried out
by the bodies carrying out state registration of acts of civil
status by drawing up the relevant records of acts of civil status.
The bodies carrying out state registration of acts of civil status
issue certificates to citizens on the basis of these records.
The bodies carrying out state registration of civil status
acts, the procedure for registering these acts, the procedure for
altering, reissuance and voidance of records of civil status acts,
their forms, the procedure and terms for their custody, as well
as the forms of certificates issued to citizens to certify the facts
of state registration of civil status acts, shall be determined by
the law on civil status acts.
In accordance with Article 18 of the Family Code of
the Russian Federation, the dissolution of a marriage is
carried out in register offices (in special institutions) or,
in certain cases, in court (if the marital partners have
minor children of relationship if one of the marital
partners does not consent to the dissolution of the
marriage).
In accordance with Article 160 of the Family Code of the
Russian Federation, the dissolution of a marriage between
citizens of the Russian Federation and foreign citizens or
stateless persons, as well as of a marriage between foreign
citizens in the territory of the Russian Federation, is carried out
in accordance with the legislation of the Russian Federation.
A citizen of the Russian Federation residing outside
the territory of the Russian Federation shall have the
15
right to dissolve a marriage with a marital partner
residing outside the territory of the Russian Federation,
irrespective of their citizenship, in a court of the Russian
Federation. If, in accordance with the legislation of the
Russian Federation, it is permitted to dissolve a marriage
in the civil register offices, the marriage may be dissolved
in diplomatic representations or in consulates of the
Russian Federation.
Dissolution of marriage between citizens of the
Russian Federation or dissolution of marriage between
citizens of the Russian Federation and foreign citizens or
stateless persons, performed outside the territory of the
Russian Federation in compliance with the legislation of
the relevant foreign state on the competence of the
bodies that took decisions on the dissolution of marriage,
and the legislation to be applied in the dissolution of
marriage, shall be recognized as valid in the Russian
Federation.
In accordance with Section 3 of Article 4 of Federal
Law No. 143- Ф3 of 15.11.1997, the state registration of
acts of civil status of citizens of the Russian Federation
residing outside the territory of the Russian Federation is
carried out by consulates of the Russian Federation
outside the territory of the Russian Federation in
accordance with this Federal Law.
In accordance with Articles 5, 25 of Federal Law No. 154-
Ф3 dated 05.07.2010 "Consular Regulations of the Russian
Federation", officials of consulates of the Russian Federation
outside the territory of the Russian Federation are authorized to
state registration of acts of civil status: birth, conclusion of
marriage, dissolution of marriage, adoption, establishment of
paternity, name change and death.
The procedure for consulates to issue such documents for
Russian citizens residing outside the country is established by
the Order of the Ministry of Foreign Affairs of Russia dated
13.03.2018 No. 3507 "Administrative Regulations of the Ministry
of Foreign Affairs of the Russian Federation for the Provision of
State Services for State Registration of Civil Status Acts of
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Citizens of the Russian Federation Residing Outside the Territory
of the Russian Federation"
The procedure for dissolution of marriage is defined by
the Family Code of the Russian Federation (Article 162 of the
Family Code of the Russian Federation), Federal Law No. 143-
ФЗ dated 15.11.1997 "On Acts of Civil Status" (Articles 31-38 of
this Federal Law), as well as Order No. 3507 of the Ministry of
Foreign Affairs of the Russian Federation dated 13.03.2018
"Administrative Regulations of the Ministry of Foreign Affairs of
the Russian Federation for the Provision of State Services for
State Registration of Civil Status Acts of Citizens of the Russian
Federation Residing Outside the Territory of the Russian
Federation" (Sections 30-30.3 of the Administrative
Regulations).
In accordance with Part 2 of Article 162 of the
Family Code of the Russian Federation, a citizen of the
Russian Federation residing outside the territory of the
Russian Federation shall have the right to dissolve a
marriage with a marital partner residing outside the
territory of the Russian Federation, irrespective of their
citizenship, in a court of the Russian Federation. If, in
accordance with the legislation of the Russian Federation,
it is permitted to dissolve a marriage in the civil register
offices, the marriage may be dissolved in diplomatic
representations or in consulates of the Russian
Federation.
The procedure for dissolution of marriage is regulated by
Federal Law No. 143- Ф3 dated 15.11.1997 "On Acts of Civil
Status" (Articles 31-38 of this Federal Law).
The procedure for consulates to issue such documents for
Russian citizens residing outside the country is established by
the Order of the Ministry of Foreign Affairs of Russia dated
13.03.2018 No. 3507 "Administrative Regulations of the Ministry
of Foreign Affairs of the Russian Federation for the Provision of
State Services for State Registration of Civil Status Acts of
Citizens of the Russian Federation Residing Outside the Territory
of the Russian Federation" (Sections 30-30.3 of the
Administrative Regulations).
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In accordance with the established procedure for the
state registration of the dissolution of marriage applicants
submit the following documents to the consulate in person to
the place of residence of the marital partners (one of the marital
partners) or at the place of state registration of conclusion of
the marriage.
In dissolution of marriage by mutual consent of marital
partners who do not have minor children of relationship:
1) Joint application for dissolution of marriage in writing
(the application form (valid at the time of dissolution of
marriage) is approved by Order of the Ministry of Justice of
Russia No. 201 dated 01.10.2018, Form 9 is attached to the
conclusion)
In a joint application for the dissolution of marriage, the
marital partners must confirm their mutual consent to the
dissolution of marriage and the absence of their minor children
of relationship. The following information must be indicated in
the joint application for the dissolution of marriage:
surname, name, patronymic (if any), dare and place of
birth, citizenship, place of residence of each martial partner;
nationality, education, first or second marriage (entered
at the request of each marital partner);
reference details of the marriage entry,
the surnames chosen by each of the marital partners at
the dissolution of the marriage.
reference details of the marriage entry;
the surnames chosen by each of the marital partners at
the dissolution of the marriage;
reference details of the documents certifying the identity
of the marital partners.
Marital partners who wish to dissolve their marriage sign
and date a joint application for dissolution of marriage.
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2) Documents certifying the identity of the applicants.
If one of the marital partners is unable to appear at the
consulate to file a petition for dissolution of marriage, the
expressed will of the marital partners may be formalized by
separate petitions for dissolution of marriage. The signature in
such application of the marital partner unable to appear at the
consulate must be notarized.
State registration of the dissolution of marriage shall be
made in the presence of at least one of the marital partners
after one month from the date of submission of a joint
application for dissolution of marriage by the marital partners on
presentation of a certificate of marriage, which shall be returned
to the applicants with a mark of state registration of dissolution
of marriage.
A marital partner who changed his or her surname at the
time of conclusion of marriage to another surname has the right
to retain that surname after the dissolution of the marriage or,
at his or her request, is assigned a pre-marital surname at the
time of the state registration of the dissolution of the marriage
(Article 36 of the Federal Law).
In accordance with Article 38 of Federal Law No. 143- Ф 3
dated 15.11.1997, the certificate of dissolution of marriage shall
contain the following information:
surname (before and after the dissolution of marriage),
first name, patronymic, date and place of birth, citizenship,
nationality (if stated in divorce record) of each of the persons
who dissolved the marriage;
information on the document that constitutes the legal
basis for the state registration of the dissolution of marriage;
date of termination of the marriage;
the date and number of the divorce record;
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place of state registration of the dissolution of marriage
(name of the registry office that performed the state registration
of the dissolution of marriage);
surname, first name, patronymic of the person to whom
the certificate of dissolution of marriage is issued;
date and place of issue of the certificate of dissolution of
marriage (name of the register office)
2. A certificate of dissolution of marriage shall be issued
by the consulate to each of the persons who dissolved the
marriage."
(Emphasis added)
The conclusion on the legal opinion reads as follows:
"Conclusion: In this case, the dissolution of the
marriage was performed by the authorized agency- the
Consulate General of Russia in Dubai, and the record of
the dissolution of marriage dated 24.01.2021 No.
13021878000200001108 was made. A Certificate of the
established form was issued by a state body and stamped
with the official seal of the Consulate General of Russia in
Dubai.
As it follows from the Certificate of dissolution of
marriage, Series I-MH No. 50692 dated 24.01.2021, the
marriage between the marital partners was terminated
on 24.01.2021 on the basis of joint application for
dissolution of marriage of the marital partners having no
minor children of relationship No. 3.
The document was translated into English and duly
apostilled.
In case of obtaining a reissued Certificate
(Duplicate) in Russia, it is necessary to pay the state
duty, issue a power of attorney for the right to represent
the interests of one of the parties in the civil register
offices in Russia, and a Duplicate will be issued with the
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same act record number and date of 24.01.2021 No.
13021878000200001108.
Therefore, this Certificate is a legitimate document.
Based on the foregoing, I consider that the issuance of a
duplicate in Russia is inexpedient, requires extensive
time and additional costs.
Appendix: Form 9-- Application for Dissolution of
Marriage by Mutual Consent of the Marital Partners
Ianus Natalia Iurevna, lawyer
passport 4018 052516
issued on 26.05.2018 by the Ministry of
Internal Affairs of Russia for St. Petersburg
and the
Leningrad Region
subdivision code 780-013, +7-921-907-90-97
Higher legal education
Diploma of St. Petersburg State University
No. SВС 0679121 dated 30.05.2000
12.04.2024"
(Emphasis added)
The conclusion steers clear the controversy holding that dissolution
of marriage was performed by the authorized agency. The
authorized agency was the Consulate General of Russia in Dubai
which is valid in the eye of law as, as per Article 162 of the Family
Code of Russian Federation, a citizen of the Russian Federation
residing outside the territory of Russian Federation would have a
right to dissolve the marriage with a marital partner residing
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outside the territory of Russia, irrespective of their citizenship, in a
Court of Russian Federation. It is also permitted to dissolve a
marriage in the Civil Register Office. Marriage could be dissolved in
diplomatic representations or in Consulates of Russian Federation.
Therefore, the dissolution of marriage happens before the Consulate
General of Russia at Dubai; such dissolution is valued in the eye of
law; such marriage happens in terms of the laws of Russia and
dissolution happens again in terms of the laws of Russia.
11. After the said dissolution of marriage, the petitioner
initiates proceedings before the Family Court in M.C.No.7151 of
2023 under Section 27 of the Special Marriage Act for dissolution of
marriage by mutual consent. This was instituted on 16-11-2023.
The averment in the petition was that it was instituted as a
formality, since registration was done in this country. Upon service
of notice on the respondent/wife in M.C.No.7151 of 2023, the
respondent files a petition under Section 22 of the Special Marriage
Act seeking a decree of restitution of conjugal rights in
M.C.No.1629 of 2024. This is filed on 11-03-2024. On the next day,
the impugned proceedings invoking the provisions of the Act are
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filed in Criminal Miscellaneous No.20 of 2024. The initiation of the
proceedings by the petitioner in M.C.No.7151 of 2023, was wholly
unnecessary as there was no necessity to record the dissolution of
marriage through a Court of law as the marriage did not happen in
India nor the dissolution happened in terms of the laws prevailing in
this Country. What has lead to this unnecessary proceeding is, the
respondent taking advantage and claiming that the marriage is yet
to be dissolved and the petitioner is indulged in domestic violence
against the respondent.
12. The submission of the learned senior counsel for the
petitioner that the wife comes to India on 11-02-2024, institutes
petition for restitution of conjugal rights and on the next day files
the impugned proceedings and leaves the country appears to be
correct.
13. It now becomes germane to notice a few of the
averments in the complaint. The averments that are required to be
noticed are as follows:
".... .... ....
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3. The Petitioner submits, that the Respondent had
deserted and abandoned the Petitioner for no rhyme and reason
so far has not made any efforts toward reconciliation. The
Petitioner and the Respondent are living separately since 2021
but occasionally the Respondent visit the residence of the
Petitioner in dubai along with his friends disconcerting the peace
and harmony of the Petitioner by partying all night and
subjecting the petitioner to cruelty. The Respondent from 2019
has subjected the Petitioner to immense cruelty and humiliation
throughout her stay with the Respondent by casting aspersions
on her conduct. The Petitioner was put under constant stress
from 2019 due to all the cruelty exerted by the Respondent The
Petitioner was employed in the business of the Respondent and
since 2021 she has been laid off by the Respondent and the
Petitioner had to shoulder the financial burden of maintaining
herself and would require substantial amount towards quality
lifestyle, conveyance, incidental expenses, medical expenses,
co-curricular activities etc,. and the Petitioner had to share the
financial burden of her daughter herein and would require
substantial amount towards providing quality lifestyle,
conveyance, incidental expenses, medical expenses co-
curricular activities and marriage expenses etc., of Her daughter
and the Respondent being gainfully engaged in a profitable
business has not been supporting the Petitioner, since 2021 and
therefore the Petitioner is constrained to file the this Petition
seeking an order of protection, maintenance to sustain the
standard of life and social status as of same of the Respondent
and to secure a safe future for her daughter.
4. BRIEF FACTS OF THE CASE; The Petitioner
submits that, the Petitioner and the Respondent were to
known each other from 2004 through mutual friends. It is
further submitted that, the Respondent had proposed to
marry the Petitioner in the year 2010 and the marriage
was solemnized in Russia as per the customs of the
Petitioner 15.04.2011. It is further submitted that the
Petitioner and the Respondent resided as Husband and
Wife subsequent to the marriage in Russia. It is further
submitted that on the request of the Respondent another
ceremony was held and the Marriage came to be
solemnized in Bangalore according to Hindu customary
rites and practices on 04.01.2014 registered in Bangalore
on 24.05.2014 at Gandhinagar, Bangalore vide Marriage
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Number GAN-SO5-2014-15 stored in CD no.GANM12,
according to Hindu rites and norms under the special
marriage act 1954. The wedding photographs of the
reception, Marriage Certificate and OCI of the Petitioner
are herewith produced as Document No. 1 to 3.
5. It is submitted that the Petitioner's daughter is
from a previous relationship of the Petitioner and that the
Respondent had undertaken to take care and shoulder
the responsibilities of the Petitioner's daughter prior to
the marriage with the Petitioner. It is submitted that the
Respondent had voluntarily shouldered the
responsibilities of the Petitioner's daughter and the
Respondent had adopted the daughter of the Petitioner
as per the customs and tradition and to the same effect
has extended the surname VIRWANI to Ms. Natalie
Virwani the daughter of the Petitioner herein and the
Respondent also provided consent and fulfilled all legal
formalities to obtain an OCI for the Petitioner and his
adopted daughter. It is submitted that the Russian
Government has issued a Birth certificate of the Daughter
of the Petitioner and the Respondent as the father's name
of the Respondent. The Aadhaar Card, Passport, PAN card
and OCI of the daughter of the Petitioner and Respondent
is hereby produced as Document No.4 to 7
6. It is further stated that, the Petitioner and the
Respondent shared better understanding and
companionship up until the year 2019 and had jointly
purchased a house in Dubai in the year 2014 namely the
Meadows house in a joint name as the Petitioner has
invested to the extent of 50% of the sale consideration
amount to the said purchase. It is further submitted that
the Respondent had promised to transfer his share of
50% and to bestow the absolute ownership in the name
of Petitioner in the year 2014 itself, and has till date
postponed the same on one or the other pretext and has
failed to honor the promise made to Petitioner.
... ... ...
9. It is further submitted that, in the year 2021 the
Respondent had placed African American securities at the
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entrance of the Meadows house and installed CCTV cameras
inside the house. It is further submitted that upon arrival of the
Petitioner from a business trip the said African American
securities prevented her from entering into her own house,
obstructing her entry in an intimidating manner, the said act of
the henchmen hired by the Respondent made the Petitioner fear
for her life and limb, and left a deep psychological scar in the
mind of the Petitioner. It is further submitted that the Petitioner
could not enter into her own house and was allowed to enter
only once. It is further submitted that the Respondent had kept
the Petitioner's daughter out of the country on the pretext of her
job, and when both, the Petitioner and her daughter travelled
together the Respondent had taken over the house and placed
CCTV cameras in every nook and corner including the bedrooms
and common areas of the house. Additionally, placing 3 African
American security guards to the house. It is further submitted
that the Respondent had informed the Petitioner's daughter to
pack her belongings in Bangalore and to return all her work
equipment such as laptops namely one MacBook. It is further
submitted that when the Petitioner and her daughter were
allowed to enter into her house the Petitioner was barely
allowed to rest and was not even allowed to freshen up as her
belongings were kept packed in boxes. It is further submitted
that the Petitioner and her daughter were not allowed to
consume food and were kept under hard, dire and threatening
conditions with 3 African American security guards in the house
round the clock. It is further submitted that the Petitioner was
made to follow the directions and dictum issued by the
henchmen hired by the Respondent. The Petitioner being the
title-holder of the house was put under the command of African
American security guards who dictated every move in the house
and screened all the visitors for their IDs, which caused great
embarrassment and caused the Petitioner to suffer severe
mental trauma. It is further submitted that there was an
unidentified gentleman in the house on watch assumingly from
law enforcement, given the Respondent's financial position and
political influence in the vicinity.
.... .... ....
19. It is further submitted that the Respondent's
company Embassy headed by the Respondent have many
national and international clients majorly Google, IBM,
26
Microsoft, Fidelity, Rolls-Royce, Mercedes-Benz, Yahoo,
Goldman -Sachs, Swiss Re and Warburg Pincus and other
multinational companies. It is further submitted that
Embassy groups started to take up residential and
commercial projects and recently joined hands with India
bulls Real Estate where the contribution of Petitioner is
highly appreciable and immense for all this projects. It is
further submitted that the Respondent is in the list of the
Top 100 of the India's Richest Billionaires.
20. It is further submitted that the Respondent has
restricted the Petitioner and has issued a dictum to not
approach the media for all these acts and also has continuously
kept the Petitioner under constant life threats with a controlled
lifestyle wherein the Petitioner had not chosen to initiate any
legal action till date for all these acts done by the Respondent
having dread feeling in her life.
21. It is further submitted that the Petitioner had
issued a comprehensive legal notice dated 27.11.2023 calling
upon the Respondent to refrain from the acts of harassment and
to dissolve the marriage by transferring 50% ownership in all
the assets owned by the Respondent which the Petitioner is
rightfully entitled to. The Respondent on receipt of the said legal
notice has not chosen to reply for the same but instead has
made fresh threats to take over the Meadows house and that
the Respondent would have the Petitioner and her daughter
killed.
22. It is further submitted that the Petitioner had
issued a second legal notice dated 06.12.2023 calling
upon the Respondent to refrain from harassing the
Petitioner and her daughter, the Respondent upon receipt
of the said legal notice has threatened to take over the
aforementioned Meadows and has issued dictum to the
Petitioner and her daughter to vacate the Meadows
House, the Petitioner is convinced of the ability of the
Respondent given the Respondent's financial and political
influence, to go through the said life threats and fears for
her and her daughter's safety. It is submitted that the
Respondent is having unlawful possession of many of the
title deeds of properties, Documents pertaining to the
Education of the Petitioner and her daughter and all
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Banking related documents of the Petitioner and her
daughter upon umpteen requests has not been
deliberately not delivering the same to the petitioner in
order to harass the Petitioner and keeping the Petitioner
and her daughter under constant threat and control.
23. It is submitted that the Petitioner is not in a
position to withstand the aforesaid harassment and cruelty by
the Respondent. The Petitioner has been put into immense
trauma and shock of her life after getting married with the
Respondent, who deprived her marital bliss, companionship and
emotional bonding and the whole relationship of husband and
wife was just farce
24. The Cause of action for this Petition is from
04.01.2014 and on date of reception on the date of marriage
and subsequently on all the dates on which the Respondent has
meted out cruelty against the Petitioners.
25. Since the Petitioner last resided in Bangalore and the
Respondent presently residing at Bangalore, this Hon'ble Court
has jurisdiction to try this case,
WHEREFORE, the Petitioner prays that this Hon'ble court
be please to grant the relief's claimed therein and to take
cognizance of offence of domestic violence as against
Respondents, punish the Respondents and to pass the following
orders:
A) Pass protection order under Section 18
I. Prohibiting the Respondent from repeating any of the
acts committed under domestic violence:- physically
causing harm, injuring, insulting, name calling,
defaming her by the Respondent as stated above.
II. Prohibit the Respondent from approaching the
aggrieved person.
III. Restrain the Respondent from posing life threats to
aggrieved person, and her daughter as stated above.
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IV. Restrain the Respondent from entering residence
house and threatening, intimidating her over the
phone.
B) Residence order under section 19
I. Direct the Respondent no.1 to secure same level of
alternate accommodation in India at Bangalore for
the aggrieved person as enjoyed by her in the
shared household by paying monthly rental,
electricity, water and gas charges to the house.
C) Compensation order under Section 22
I. Direct the first Respondent to grant a
compensation on damages as per section 22 a
lump sum amount of 500,00,00,000/(Rupees
Five Hundred Crores Only) for domestic
violence, mental torture pain and suffering,
physical mental and emotional trauma suffered
by the Petitioner.
E) Interim Prayer under section 22:
I. Pending consideration this complaint on merits
it is most humbly prayed that this Hon'ble
Court be please direct the Respondent to pay
maintenance of a sum of Rs. 2,00,00,000/- per
month (Rupees Two Crores Only) to the
Petitioner.
II. Pending consideration this Complaint on merits
it is most humbly prayed that this Hon'ble
Court be please to pass refraining order against
Respondents from posing life threats to the
aggrieved person.
III. Pass any such order/s as deemed fit and
proper in the circumstances of this case in the
interest of justice.
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The Petitioner has filed separate applications
seeking ad interim relief before this Hon'ble court."
(Emphasis added)
If the afore-quoted complaint is noticed, what would unmistakably
emerge is, none of the allegations that are made in the complaint
have ever happened in India. Every narration is what has transpired
in Dubai between 2017 and 2021. Not one incident that is narrated
has happened in India. All that has happened outside the shores of
the nation is now sought to be complained of by the
respondent/wife only to get the prayer that has been sought for in
the complaint. These allegations are made on the very next date of
filing of the petition seeking restitution of conjugal rights. As rightly
contended by the learned senior counsel for the petitioner, the
allegations do not inspire any confidence and is filed only to harass
and coerce the petitioner in parting with the property and money,
as is sought, all long after the divorce has been given effect to.
14. A legal notice was caused by the wife on the
husband/petitioner on 27-11-2023 which is borne out at paragraph
21 supra claiming that due to the acts of harassment, in order to
30
dissolve the marriage, 50% of the ownership in all the assets
owned by the petitioner/husband should be transferred in her
favour. The prayer shocks the conscience of the Court. The prayer
is seeking compensation or damages as per Section 22 of the Act in
a lumpsum of ₹500/- crores and interim maintenance again under
Section 22 of the Act pending final decision at ₹2/- crores per
month. Therefore, the compensation is ₹500/- crores and interim
maintenance under the Act is ₹2/- crores per month on invoking
the Act in a relationship that had already ended in terms of law in
the year 2021. The two got married in terms of Russian laws and
the two had divorced again in terms of Russian laws. What remains
was only a certificate of recognition of marriage that had happened
in Russia.
15. The husband in order to give a quietus to the relationship
had instituted M.C.No.7151 of 2023 seeking annulment of marriage.
Immediately springs a petition for restitution of conjugal rights and
on the next day brings the impugned proceedings. The respondent
appears to be taking advantage of an unnecessary proceeding
instituted by the husband. If the marriage that had already
31
happened in 2011 was recognized and a certificate issued in India,
perhaps the husband thought that the marriage that had been
dissolved under Russian law should also end by such recognition. In
the considered view of the Court, there is no necessity of the kind
in law as, if Russian authorities have declared or issued a certificate
of divorce in terms of Russian laws, it would become binding inter-
parties wherever they are. The certificate of registration of
marriage or any event which took place before the
annulment/divorce is of no avail. Once a marriage is dissolved or
annulled by way of a decree of divorce in one country, there would
be no requirement to get an already dissolved marriage, one
against dissolved, in another country, merely because marriage is
registered in the other country. Marriage once dissolved remains as
a dissolved marriage, unless there is remarriage in a manner known
to law.
16. After the alleged divorce, the learned senior counsel for
the respondent has strenuously contended that Whatsapp
conversation between the two would clearly depict that the two had
gone on a holiday and still are in touch with each other. This is
32
neither here nor there, as if conversation is pitted against
conversation, the wife on many occasions indicated that "you are
no more my husband" on several occasions. This Court would not
go into those issues which are unnecessary to be noticed even.
Since marriage between the two is dissolved in terms of laws of
Russia, once the marriage gets dissolved in a manner known to law
as is in the case at hand, any amount of conversation between the
former spouses or being in touch after the dissolution of marriage
will not result in their reunion/remarriage in a manner known to
law. This is exactly the situation in the case at hand. The learned
senior counsel vehemently contends that both of them have been
sharing conversation; they have gone on vacation and they have
attended parties of friends together, this will not make them
husband and wife all over again. Their marriage is dissolved and
such dissolution cannot be flown to thin air. Therefore, I deem it
appropriate to hold that the very institution of the proceedings by
the wife is with a mala fide intention, as the averments in the
complaint are very clear that all the incidents have happened in
Dubai are projected to be the events or incidents that have
33
happened between the two in India with a clear intention of
initiating action which would fringe upon the borders of extortion.
17. The marriage had already been annulled and the
petitioner and the respondent are no longer husband and wife. The
action of the wife depicts malafides, as long after divorce the wife is
still using the name of the petitioner with her, even in the affidavit
filed before this Court and using the name of the petitioner to the
child born out of a previous relationship, when he is neither the
husband nor the father. The events narrated in the complaint have
all happened in Dubai and not even one incident has happened in
India. If everything has happened in Dubai, it is ununderstandable
as to how a complaint is entertained and a notice was issued to the
petitioner/husband. All that the wife wants, it appears, is ₹500/-
crores compensation and ₹2/- crores interim maintenance.
One fault of the husband cannot be taken advantage of, by the wife
by initiating proceedings under the Act. It is therefore, I deem it
appropriate to observe in all such cases where marriage or
annulment have happened outside the shores of the nation under
those respective laws what is necessary is only intimation of such
34
dissolution of marriage before the Marriage Office under the Special
Marriage Act, failing which, such cases would ensue.
18. With all the aforesaid facts and the preceding analysis, if
further proceedings are permitted to continue it would, on the face
of it, become an abuse of the process of law and putting a premium
on the illegal litigative persistence of the wife and result in
miscarriage of justice.
19. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Entire proceedings in Criminal Miscellaneous No.20 of 2024 pending before the Metropolitan Magistrate, Traffic Court-IV, Bangalore stand quashed. 35
(iii) In the light of the quashment of the entire proceedings, if the petitioner would prefer an application before the Registrar of Marriages seeking entry of dissolution of marriage, the Registrar shall consider the same and pass necessary orders in accordance with law, bearing in mind the observations made in the course of the order.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ