Himachal Pradesh High Court
Apartment Solan vs Vijay Kumar on 31 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 31st DAY OF AUGUST 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRMMO No. 428 OF 2019
Between:
VIJAY KUMAR SON OF SH. DEEP RAM, RESIDENT
OF HOUSE NO.326/12, SUNNY SIDE, NEAR AMIT
APARTMENT SOLAN, TEHSIL AND DISTRICT
SOLAN, H.P.
....PETITIONER
(BY MR. SUDHIR THAKUR, SENIOR ADVOCATE
WITH MR. KARUN NEGI, ADVOCATE)
AND
SANJANA KUMARI DAUGHTER OF LATE SH.
LAXMI RAM, RESIDENT OF VILLAGE & P.O.
GAURA, TEHSIL KANDAGHAT, DISTRICT SOLAN,
H.P.
....RESPONDENT
(BY MR. RAJNISH MANIKTALA, SENIOR
ADVOCATE WITH MS. RINKI KASHMIRI,
ADVOCATE)
RESERVED ON:23.08.2022
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
ORDER
By way of instant petition filed under Section 482 Cr.P.C, challenge has been laid to order dated 31.05.2019, passed by learned Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P., in case No.3/S of 2018, titled as Sanjana Versus Vijay Kumar, whereby an ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 2 application having been filed by the petitioner-husband, praying therein to dismiss/reject the complaint having been filed by the .
respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, came to be dismissed.
2. Facts, relevant for adjudication of the case at hand are that the marriage interse petitioner and the respondent was solemnized on 11.03.2011, but no issue was born out of their wedlock.
Since the parties were unable to live together happily, after some time of their marriage, respondent-wife was compelled to live at her parental house. Though, elder from both sides made an attempt for amicable settlement interse parties, but ultimately on 5.01.2014, allegedly parties decided to take mutual divorce (Apasi Talaqnama) and since then both petitioner and respondent had been living separately (Annexure P-2). Approximately, after 4 ½ years of alleged customary divorce, respondent, who had started residing with her parents, lodged complaint to SHO, police Station, Solan, stating therein that she is residing in Amit Apartment, Sunny Side, Solan alongwith her parents. She alleged that in March, 2013 after the death of her cousin, she had come to her maternal house and thereafter she was not permitted to come back to her matrimonial house. She alleged that when she went to her in laws house, her mother-in-law and sister-in-law gave beatings and thrown her out of the house.
While praying for handing over Supardari report of that day, she also ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 3 alleged that her husband has contracted second marriage, as a consequence of which, she is mentally upset.
.
3. Police after having recorded the complaint of the complainant in General Diary Details vide G.D.No.053, dated 18.06.2018(Annexure P-4), found the matter/dispute to be of Domestic Violence and as such, sent the same to CDPO Solan, for further investigation. Legal-cum- Probation Officer apprised the Child Development Project Officer with regard to domestic violence allegedly committed upon the respondent vide communication dated 30.06.2018 (Annexure P-6) and thereafter Protection Officer was appointed and domestic incident report was prepared by the Protection Officer, which has been placed on record as Annexure P-7.
On the basis of aforesaid domestic incident report (Annexure P-7), matter came to be landed before the Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P.
4. Having taken note of the allegations contained in the domestic incident report, learned court below issued summons to the petitioner. After having received summons in the aforesaid case, petitioner filed an application, praying therein to dismiss the complaint filed under the provisions of Protection of Women from Domestic Violence Act (Annexure P-8) on the ground that there is no relationship of husband and wife interse petitioner and respondent and their marriage already stands annulled vide mutual divorce dated ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 4 5.01.2014. Aforesaid prayer made on behalf of the petitioner for dismissal of complaint came to be resisted on behalf of the .
respondent by way of filing reply (Annexure P-9), wherein she claimed that the divorce papers signed by her and her father has no legal sanctity in the eye of law as they were forced/coerced to sign the papers.
5. Taking note of aforesaid pleadings adduced on record by the respective parties, learned Judicial Magistrate, 1st Class, Kandaghat vide order dated 31.05.2019 (Annexure P-1) dismissed the application for dismissal/ rejection of the complaint filed by the petitioner and vide same order directed the petitioner to pay sum of Rs. 3000/- per month to the respondent as interim maintenance.
Being aggrieved and dissatisfied with aforesaid order dated 31.05.2019, petitioner approached this Court in the instant proceedings filed under Section 482 Cr.P.C, praying therein to set aside the order dated 31.05.2021 as well as complaint under Section 12 of the Act. Since, the respondent was unable to engage lawyer, this Court vide order dated 2.9.2019 appointed legal aid counsel on her behalf and having taken note of the controversy interse parties, deemed it necessary to make an effort for amicable settlement.
However, fact remains that no further headway could be made towards amicable settlement and as such, this Court is compelled to decide the case at hand on its own merit.
::: Downloaded on - 01/09/2022 20:05:51 :::CIS 56. Mr. Sudhir Thakur, learned Senior Counsel duly assisted by Mr. Karun Negi, Advocate, vehemently argued that impugned order .
dated 31.05.2019 is not legally sustainable and as such, deserves to be quashed and set-aside. Mr. Thakur, submitted that in proceedings under Section 12 of the Act, there was no occasion, if any, for Judicial Magistrate to go into the correctness and legality of the customary divorce, especially when respondent-wife at no point of time disputed the factum with regard to customary mutual divorce allegedly took place interse her and petitioner-husband on 5.01.2014 (Annexure P-2). Learned counsel representing the petitioner strenuously argued that since 5.01.2014, both petitioner and respondent are living separately and during this period, no challenge ever came to be laid to the customary divorce by the respondent-wife in the Civil Court, which is only competent authority to declare customary divorce to be null and void. Mr. Thakur further argued that domestic incident report itself suggests that respondent -wife had left her matrimonial house in the year 2013 and as per the allegations of the respondent-wife, she was given beatings and maltreated by her mother-in-law and sister-in-law in the year, 2013, whereas complaint under Domestic Violence Act came to be lodged in the year 2018 and as such, same otherwise ought to have been dismissed being highly belated. Lastly, Mr. Thakur, learned Senior Counsel argued that once factum with regard to annulment of marriage interse petitioner-
::: Downloaded on - 01/09/2022 20:05:51 :::CIS 6husband and respondent-wife by way of customary divorce never came to be refuted by the respondent-wife, coupled with the fact that .
since she had been living in her maternal house since 2013, there was otherwise no occasion for the petitioner to commit/inflict "domestic violence" as defined under Section 12 of the Act. It is submitted that since at the time of filing of the complaint in the year 2018, petitioner was not sharing household with the petitioner and their relationship of husband and wife had come to an end on account of customary divorce, court below ought not have entertained complaint under Section 12 of the Act. Mr. Thakur, further argued that since there was no relationship of husband and wife and no "domestic violence" in terms of Section 3 of the Act, was inflicted upon the respondent by the petitioner, court below ought not have directed the petitioner to pay interim maintenance to the complainant to the tune of Rs. 3000/- per month.
7. Mr. Rajnish Maniktala, learned Senior counsel duly assisted by Ms. Rinki Kashmiri, Advocate while supporting the impugned order dated 31.05.2019, vehemently argued that till the time marriage interse petitioner-husband was not annulled by competent court of law, no illegality can be said to have been committed by the court below while dismissing the application for rejection of the complaint filed by the petitioner. Learned counsel further argued that there is no custom prevailing in the area where parties can take ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 7 mutual divorce and as such, Talaqnama/mutual divorce dated 5.01.2014, is of no consequence. It is submitted that since existence .
of any such customs was denied by the complainant and no material was placed on record to prove tradition of the customary divorce in the area by the petitioner, Court below rightly held that power of learned District Court cannot be exercised by the Panchayat, especially when there is no such custom prevailing in the society, where the parties reside. Learned counsel representing the respondent further argued that there is no limitation prescribed under the Act for filing the complaint under domestic violence Act. He further submitted that though respondent started living at her parental house in the year, 2013 but once her husband i.e. petitioner contracted second marriage in the year 2018, she rightly filed complaint under the Act, alleging therein domestic violence. While referring to the definition of domestic violence, as provided under Section 3 of the Act, learned counsel for the respondent stated that the "emotional abuse" also falls in the category of "domestic violence". Since, in the case at hand, petitioner during subsistence of his first marriage, contracted second marriage and on account of the same respondent became mentally upset, she rightly filed complaint under section 12 of the Act and her case squarely falls in the category of "emotional abuse". Learned counsel for the respondent argued that since respondent successfully proved that she is legally wedded wife of the petitioner, court below rightly ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 8 awarded monthly maintenance to the tune of Rs. 3000/- per month in favour of the respondent.
.
8. I have heard learned counsel representing the parties and gone through the record.
9. After having noticed pleadings as well as above rival contentions, following questions need to be answered for adjudicating the controversy at hand:-
(i). Whether the complaint filed by the respondent under the provisions of Domestic Violence Act, is barred by limitation?
(ii). Whether the fact that the marriage of the petitioner stood dissolved by way of customary divorce, when the complaint under Domestic Violence Act was filed, would render the complaint not maintainable?
10. Before exploring the answer to aforesaid questions, it is apposite to bear in mind the relevant provisions under the scheme of the Domestic Violence Act, which vests a wife with certain rights in case she is wronged by her husband or other members of his family.
Section 12(1) of the Act provides that an aggrieved person may file an application to the Magistrate seeking one or more reliefs under the Act. Under the provisions of Section 20(1), the Magistrate while dealing with an application under Sub section (1) of Section 12 is empowered to direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by an "aggrieved person"
and any child of the aggrieved person as a result of domestic ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 9 violence. An "aggrieved person" has been defined section 2(a) of the Act as follows:-
.
2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
11. The term "respondent", as used in section 2(a) of the Act is defined in Section 2(q) which reads as under:-
2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
12. A perusal of section 2(q), clearly reveals that the expression "respondent" means any adult male person who is, or has been, in a domestic relationship with the 'aggrieved person' and against whom relief has been sought. The proviso to aforesaid provisions suggests that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.
13. Section 2(f) defines "domestic relationship" which reads as under:
2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
14. The expression "shared household" is defined in Section 2(s) of the Act, as follows:-
::: Downloaded on - 01/09/2022 20:05:51 :::CIS 102(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned .
or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;
15. In order to determine as to whether the respondent had a domestic relationship with the petitioner, one of the material fact to be considered is as to during which period the respondent had been staying together with her petitioner-husband in her matrimonial house.
16. From the facts, as noticed hereinabove, it is not in dispute that after marriage, both the parties to the lis lived together for almost three years, whereafter allegedly on account of maltreatment and beatings given to the respondent-wife by the family members of the petitioner-husband, she started living with her parents. In the case at hand, there is no dispute that on 5.1.2014, petitioner and respondent divorced each other by way of customary divorce (Annexure P-2). Customary divorce placed on record clearly reveals that besides, respondent-wife, her father, Ex-Pradhan of the Gram Panchayat, Gaura also appended his signatures and factum with regard to mutual divorce was reported to the concerned Gram Panchayat.
As per mutual divorce, it was agreed interse parties that respondent-wife would receive her entire belongings, Streedhan and all the articles to which she is entitled to receive and after execution of divorce deed, all the articles and belongings of the respondent-wife lying in the matrimonial house were ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 11 returned to her. After four years of customary divorce, petitioner contracted second marriage with lady namely, Nisha Kumari on 2.04.2018. Respondent .
having came to know factum with regard to second marriage of the petitioner with Smt. Nisha Kumari, filed complaint to the SHO, Solan vide complaint dated 18.06.2018 (Annexure P-3). After having found the nature of the allegation to be of "domestic violence" as defined under Section 3 of the Act, police referred the matter to CDPO Solan (Annexure P-5), who further transferred the complaint to CDPO, Kandaghat t(Annexure P-6). The protection Officer prepared the domestic incident report (Annexure P-7), perusal whereof clearly reveals that since 2013 respondent had been living separately from her husband and other family members. She categorically reported to the Protection Officer that she was forced/coerced to give consent for divorce with the petitioner. She alleged that her mother-in-law and sister-in-law pressurized her to take mutual divorce from her husband.
Interestingly, in the domestic incident report allegation is of 13.12.2013, that too against mother-in-law and sister-in-law. However, there is no document available on record suggestive of the fact that report, if any, was ever made by the respondent to the police qua the alleged incident of beatings and maltreatment on 13.12.2013. It is after 18.06.2018 respondent after having came to know the factum with regard to second marriage of the petitioner, lodged the complaint with SHO, Solan (Annexure P-3). Since allegation in the complaint was with regard to domestic violence, police referred the matter to CDPO, Solan. Most importantly, in the complaint given to the police, respondent categorically stated that since March 2013, she had been living with her parents at Solan, meaning thereby after March, 2013 ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 12 respondent neither shared household with her husband nor other family members i.e. mother-in-law and sister-in-law.
.
17. Similarly, there is no allegation of "domestic violence", if any, against the petitioner or other family members qua the period starting from March, 2013 to 18.06.2018, when for the first time complaint with regard to domestic violence came to be lodged by the respondent to SHO, Solan.
Though, domestic incident report reveals that the respondent alleged that on 13.12.2013 she was given beatings by her mother-in-law and sister-in-
law, but since did not lodge the complaint qua the aforesaid incident, if any, immediately after alleged incident, that could not be taken cognizance at this belated stage, especially on account of intervening developments i.e. alleged customary divorce interse parties on 5.01.2014.
18. Though, in the instant case, respondent-wife while opposing the prayer made on behalf of the petitioner-husband for rejection of the complaint, nowhere disputed factum with regard to customary divorce dated 5.01.2014, but claimed before the court below that same was obtained under coercion and by way of undue influence. She alleged that her mother-
in-law and sister-in-law pressurized her to take divorce. She also alleged that since there is no provisions of customary divorce in the area, customary divorce placed on record is of no consequence and she continues to be wife of the petitioner.
19. Since, customary divorce (Annexure P-2) was reported to Gram Panchayat, Gaura and father of the respondent was one of the signatory to the same, this Court with a view to ascertain the factum with regard to genuineness of the customary divorce placed on record, directed ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 13 Secretary Gram Panchayat, Hinnar, Kandaghat and brother of the respondent namely, Rajinder Kumar to come present before this Court.
.
Sequel to order dated 7.11.2019, Sh. Bant Ram, S/o Sh. Ramia Ram, R/o village Deothal, P.O. Kuji, Tehsil Pachhad, District Sirmaur, H.P., came present in Court alongwith Secretary of Gram Panchayat concerned. Mr. Rup Singh Ex- Pradhan, Gram Panchayat, Hinner, who had appended his signature on Annexure P-2, was also present. All the above named persons categorically stated before this Court that the customary divorce placed on record as Annexure P-2 bears their signatures and same was entered interse parties in their presence. Secretary Gram Panchayat also made available Pariwar register, perusal whereof revealed that factum with regard to customary divorce interse petitioner and respondent was brought to the notice of the Gram Panchayat concerned, on the basis of the same, name of the respondent was deleted from the Pariwar register.
20. Perusal of order impugned in the instant proceedings clearly reveals that though petitioner placed on record customary divorce dated 5.01.2014, but was unable to prove custom, if any, prevalent in the area with regard to customary divorce, as a consequence of which, court below paid no heed to the claim of the petitioner with regard to his having taken divorce from the respondent by way of customary divorce and proceeded to grant interim maintenance to the tune of Rs.3000/- per month. Now question remains to be decided is" whether Magistrate while proceedings under Section 12 of the Act was required/competent to go into the question of correctness/legality of customary divorce placed on record indicative of the fact that petitioner and respondent had taken divorce by way of mutual ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 14 consent on 5.01.2014 in the presence of their family members and Gram Panchayat officials, especially when such fact was not disputed by the .
respondent. It is not in dispute that respondent never disputed factum with regard to her having signed divorce deed (Annexure P-2) alongwith the petitioner, rather she claimed that she was compelled/forced to sign the divorce deed. If it is so, it is not understood what prevented respondent to approach competent court of law for annulment of divorce deed being obtained under coercion.
21. Mr. Sudhir Thakur, learned Senior counsel representing the petitioner, vehemently argued that in these proceedings, which is criminal in nature, court below could not go into the question of correctness of the divorce deed, especially when same was not disputed by the respondent.
He argued that it stood established on record with placing of divorce deed that relationship of husband-wife interse petitioner-husband stands severed on 5.01.2014 and thereafter respondent was not entitled to claim maintenance, if any, under various provisions of law. Mr. Thakur also argued that being aggrieved, if any, on account of customary divorce allegedly obtained under coercion, respondent had remedy to file appropriate proceedings before the Civil Court but definitely such question could not be gone into by criminal court in criminal proceedings. Mr. Rajnish Maniktala, learned Senior counsel representing the respondent, contended that once respondent was unable to prove provisions of customary divorce, if any, prevalent in the area and respondent had specifically alleged that she was forced/coerced to take customary divorce, court below rightly ignored divorce deed placed on record.
::: Downloaded on - 01/09/2022 20:05:51 :::CIS 1522. This Court finds considerable force in the submission of learned counsel for the petitioner that court while considering complaint .
under Section 12 of the Act, could not have gone into the question of correctness/legality of the divorce deed placed on record, especially when factum with regard to customary divorce interse petitioner and respondent was not denied by the respondent. Whether the respondent was forced/ coerced to take divorce by customary divorce is/was a question which could not be decided in these proceedings, rather respondent being aggrieved of the same could file appropriate proceedings for annulment of such divorce deed before the Civil Court. Once respondent had admitted factum of her having taken mutual divorce by way of customary divorce, court below had no option but to accept the prayer made on behalf of the petitioner for rejection of the complaint.
23. It stands duly established on record that on 5.01.2014 petitioner and respondent decided to take divorce by way of mutual consent as per the custom prevalent in the area and thereafter admittedly parties never resided/cohabited with each other. As per own case of the respondent, she had been living separately from the petitioner since 13.12.2013 i.e. when she was allegedly thrown out of her house by her mother-in-law and sister-in-law. There is no material/record, worth credence, made available on record that report, if any, ever came to be lodged at the behest of the respondent after 13.12.2013 till filing of the complaint to the police on 18.06.2018(Annexure P-3), wherein she alleged that petitioner has spoiled her life after having contracted second marriage. In this complaint, she alleged that petitioner has mentally tortured her. It is not ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 16 understood that if respondent was forced/compelled by the petitioner or his other family members to take divorce by way of mutual consent on .
5.01.2014 what prevented her for more than four years to lay challenge to aforesaid deed in the competent court of law. Here in the case at hand, parties after having taken divorce, started living separately and it is only after contraction of second marriage by the petitioner with lady namely Nisha Kumari, respondent woke up from deep slumber and lodged the report to the police on 18.06.2018, alleging therein her mental harassment on account of second marriage of her husband, meaning thereby though respondent was aware of the fact that she was forced/coerced to enter into the customary divorce by the petitioner or other family members but yet she chose to remain silent and live separately from her husband for more than four years.
24. At the cost of repetition, it may be noticed that factum with regard to the respondent having signed the divorce deed along with her father stands duly established with the statement of father of the respondent and Secretary of Gram Panchayat concerned. Be that as it may, this Court is of the definite view that learned Magistrate while considering the complaint under Section 12 of the Act had no jurisdiction/competence to go into the question of correctness/legality of the customary divorce deed placed on record, especially when same was not disputed by the respondents. Whether there is/was custom prevalent in the area of taking customary divorce is/was not a question to be gone into by the Magistrate in these proceedings, rather he/she was/is only to ascertain whether there is any kind of domestic relationship between petitioner and respondent and if ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 17 the Magistrate was convinced that there is domestic relationship interse petitioner and respondent, he could further proceed to ascertain whether .
respondent is an "aggrieved person" in terms of Section 2 of the Act or not.
If Magistrate was convinced that complainant is an aggrieved person he was to further ascertain whether "domestic violence" as defined under Section 3 of the Act has been inflicted/ committed upon the respondent by the petitioner or his family members. Since in the case at hand petitioner by way of placing customary divorce deed (Annexure P-2) succeeded in establishing factum with regard to mutual divorce interse him and the respondent, coupled with the fact that respondent had been living separately from her husband and other family members since 2013, learned Magistrate ought not have taken cognizance of the complaint filed under Section 12 of the Act and it should have allowed the prayer made on behalf of the petitioner for rejection of the complaint.
25. In view of the aforesaid detailed discussion made herein, this Court is of the view that respondent was estopped from filing the complaint under Section 12 of the Act against the petitioner after her having agreed to take divorce by way of mutual consent vide divorce deed dated 5.01.2014(Annexure P-2). Unless aforesaid divorce deed is not quashed and set-aside/annulled by competent court of law, same could not have been ignored by the Magistrate in the instant proceedings.
26. It is well settled that there is no limitation prescribed for instituting a complaint under Domestic Violence Act and it is only if any person is to be prosecuted under the provisions of section 31 of ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 18 Domestic Violence Act, there would be a limitation of one year in terms of section 468 of Cr.P.C. In this regard, reliance is placed upon the .
judgement reported as 2018(3) RCR(Criminal) 307, Vikas & others vs. Smt. Usha Rani and another (Pb. & Hr.), wherein it has been held as under:-
"16. An aggrieved person is permitted to present an application to the Magistrate seeking one or more reliefs under this Act and the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer also. section 12 of the Domestic Violence Act is enabling provision to file an application, whereas Sections 18 to 22 of the Domestic Violence Act provide for rights of the aggrieved person to seek different reliefs like protection, residence, monetary relief, custody of minor and compensation. No limitation has been prescribed for seeking any such relief. Penal provisions under section 31 of the Domestic Violence Act would get attracted on a breach of a protection order. It is only in a situation when there is a breach of any protection order on an application under Section 12 or on any of the reliefs under Sections 18 to 22 of the Domestic Violence Act, then and then only, an application under section 31 of the Domestic Violence Act is to be filed within one year from the date of such breach and not thereafter. Therefore, the court is of the opinion that there is no limitation prescribed to institute a claim seeking relief under Sections 17 to 22 of the Domestic Violence Act."
27. While there can be no doubt that an application under provisions of section 17 to 22 of Domestic Violence Act would be maintainable even if filed belatedly after the alleged incident of domestic violence as no limitation is prescribed under the Act for instituting such an application, but the Court, as a matter of caution, would be required to satisfy itself as regards the genuineness of a claim made therein so as to rule out the possibility of any concocted version which may have been put forth as an afterthought to settle scores with the applicant's husband or other members of his family merely on account of the relations having ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 19 turned sour between the applicant and her in-laws. Having held that no limitation is prescribed for instituting a complaint under provisions of .
Section 17 to 12 of the Act and that an applicant cannot be thrown out of the Court solely on account of delay in approaching the Courts, the next question before this Court is as to "whether in view of the circumstances that the marriage between the petitioner and respondent stood dissolved by way of customary divorce and husband of the applicant have already solemnized second marriage, an application on behalf of the respondent would be maintainable under provisions of Domestic Violence Act?".
28. Mr. Rajnish Maniktala, learned counsel representing the respondent, in order to demonstrate that grant of divorce would not absolve the liability of the respondents under provisions of Domestic Violence Act pressed into service a judgement of Hon'ble Apex Court reported as 2014(10) SCC 736 Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and another. On the other hand, Mr. Sudhir Thakur, learned Senior counsel representing the respondent the petitioner invited attention of this Court to judgment rendered by Hon'ble Apex Court in Inderjit Singh Grewal vs. State of Punjab and another, 2011(12) SCC 588, to state that once the relationship of husband-and-wife stood severed by a decree of divorce, no complaint under provisions of domestic violence act would be maintainable. In Inderjit Singh Grewal vs. State of Punjab and another, wherein a wife whose marriage stood dissolved by a decree of divorce but even after the said divorce, had allegedly been staying together held that a complaint under provisions ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 20 of Domestic Violence Act was not maintainable as the marriage between the parties no longer subsisted. The relevant extract read as such:
.
"33. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court.
Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same."
29. In Juveria Abdul's case (supra), the Hon'ble Supreme Court noticed the earlier judgement rendered in Inderjit Singh Grewal's case (supra) but upon finding the factual matrix to be distinct, held the complaint under Domestic Violence Act maintainable. The distinction noticed is that while in Inderjit Singh Grewal's case, the marriage stood finally dissolved amongst the parties and neither any complaint under provisions of Domestic Violence Act had been filed nor any FIR/complaint under section 406 or 498-A IPC or under any other penal provisions had been instituted prior to grant of divorce, whereas in Juveria Abdul's case (supra), a FIR under provisions of section 498- A IPC already stood lodged before the husband got his marriage dissolved. It was on account of the said distinguishable facts in Juveria Abdul's case that Hon'ble Supreme Court held that complaint under provisions of Domestic Violence Act was maintainable.
30. Though, from the direct reading of aforesaid judgment, it appears that there is no such rule that divorce between a couple would ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 21 absolutely debar a wife from invoking provisions of Domestic Violence Act and that in certain exceptional circumstances, as in Juveria Abdul's .
case (supra), a wife, despite her divorce, may still be able to make out a case for grant of relief. However, as far as the present case is concerned, the facts are more akin to the facts in Inderjit Singh Grewal's case because in the case at hand neither any complaint under domestic Act nor any FIR under section 406 or 498-A of IPC or under any other penal provisions had ever been instituted before the dissolution of marriage. Rather, after five years of dissolution of marriage by customary divorce respondent instituted complaint to the police alleging therein maltreatment and harassment at the hands of the petitioner. Police after having found the allegations to be of "domestic violence", referred the matter to CDPD, who after having drawn domestic violence report, referred the matter to concerned Magistrate.
31. Since in the case at hand, matter was listed before the court below on the basis registration of case with the police and on the basis of report furnished by the police to the CDPO, wherein factum with regard to dissolution of marriage by way of mutual consent stood established, court below otherwise could not go into the legality and correctness of the divorce deed placed on record. Leaving everything aside, there is no material/ convincing evidence to show that the respondent had resided in share household with the petitioner ::: Downloaded on - 01/09/2022 20:05:51 :::CIS 22 or other family members after March, 2013 and they had subjected her to domestic violence.
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32. Mr. Rajnish Maniktala, learned Senior counsel representing the respondent argued that since there is no provisions of customary divorce in the area, the divorce obtained by customary divorce is of no consequence and as such, respondent was not required to get it annulled from the competent court of law. However, this Court is not persuaded to agree with aforesaid contention of learned counsel for the respondent. As has been observed hereinabove, court while considering complaint under Section 12 of the Act could not go into the question of legality and correctness of the customary divorce deed placed on record, especially when factum with regard to respondent having signed such divorce deed was not disputed. In such like situation, appropriate remedy for respondent was to get such divorce deed annulled from the competent court of law. Till the time aforesaid customary deed allegedly obtained under coercion was not set aside by the competent court of law, relationship interse petitioner husband shall be considered as severed. At this juncture, it is profitable to take note of the judgment rendered by Hon'ble Apex Court in Inderjit Singh (supra), wherein it has been held as under:-
"18. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent Court.::: Downloaded on - 01/09/2022 20:05:51 :::CIS 23
The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 Supreme Court 906;
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and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 ).
19. In Sultan Sadik v. Sanjay Raj Subba & Ors., 2004(1) R.C.R.(Civil) 767 : 2004(3) S.C.T. 395 , this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.
20. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006)7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is nonest/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under :-
"18. It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non- est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof."
33. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and same is accordingly allowed. The order dated 31.05.2019, passed by learned Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P., in case No.3/S of 2018, rejecting the complaint and granting the maintenance in favour of the respondent as well as complaint filed by the respondent, are quashed and set-aside. Pending applications, if any, also stands disposed of.
31st August, 2022 (Sandeep Sharma),
(shankar) Judge
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