Uttarakhand High Court
Sandeep Kumar Chauhan vs State Of Uttarakhand And Another on 11 March, 2019
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Miscellaneous Application No. 1363 of 2015
Sandeep Kumar Chauhan ....Applicant
Versus
State of Uttarakhand and another ....Respondents
Mr. Pradeep Chamiyal, Advocate for the applicant.
Mr. Sachin Panwar, Brief Holder for the State of Uttarakhand.
Mr. H.C. Pathak & Mr. B.D. Pande, Advocates for respondent no. 2.
Dated: 11.03.2019
Hon'ble Manoj K. Tiwari, J.
According to the applicant, marriage was solemnized between him and respondent no. 2 on 15.06.2010, which was duly registered with the Registrar of Marriages. Subsequently, differences arose between them and a divorce petition was filed, which was decreed by learned Additional District Judge, Saharanpur, against which respondent no. 2 preferred an appeal. While admitting the appeal, Hon'ble Allahabad High Court directed the applicant to pay `15,000/- per month to the respondent no. 2, as alimony, which, according to the applicant, is being paid continuously.
2. Thereafter, respondent no. 2 filed an application under Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). Applicant raised question of maintainability of the application filed by the respondent no. 2 by filing an application on the ground that domestic relationship between applicant and respondent no. 2 does not exist anymore, after grant of decree of divorce by learned Additional District Judge, Saharanpur. Thus, it was contended on behalf of the applicant that the 2 application made by respondent no. 2 is liable to be rejected on this score alone.
3. Learned Ist Additional Chief Judicial Magistrate, Dehradun, by placing reliance upon a judgment rendered by Bombay High Court in the case of Bharati Naik Vs. Ravi Ramnath Halarnkar & another, rejected the objection filed by the applicant by holding that wife can file application against her husband even after dissolution of marriage. The said order dated 21.07.2014 passed by learned Magistrate was challenged by applicant by filing Criminal Appeal No. 147 of 2014, which was dismissed by Vth Additional Sessions Judge, Dehradun vide judgment and order dated 02.05.2015.
4. During the pendency of the said appeal, respondent no. 2 filed an application under Section 12 read with Section 19 of the Act with the prayer that the applicant may also be directed to pay ` 7,000/- per month, as house rent to her. The said application was allowed by learned Magistrate vide order dated 03.12.2014 and applicant was directed to pay ` 7,000/-, as notional rent, to the respondent no. 2 under Section 19(1) (f) of the Act.
5. Thereafter, applicant moved an application on 17.06.2015 with the contention that since he is paying ` 15,000/- per month to respondent no. 2, as maintenance in terms of order passed by Hon'ble Allahabad High Court, therefore, the amount of notional rent awarded to respondent no. 2 vide order dated 03.12.2014 be adjusted against the amount paid to respondent no. 2 in terms of order of Hon'ble Allahabad High Court. The said application was 3 rejected by learned Magistrate on 27.06.2015, by holding that the amount of notional rent cannot be adjusted in the maintenance amount ordered to be paid by Hon'ble Allahabad High Court. It was further observed that the order dated 03.12.2014 has not been challenged before any forum; therefore, the said order has attained finality.
6. Applicant challenged the order dated 27.06.2015 by filing Criminal Appeal No. 102 of 2015, which too was dismissed by VIIth Additional Sessions Judge, Dehradun vide judgment dated 19.08.2015. Thereafter, learned Magistrate passed an order on 30.09.2015 for issuing recovery warrant against the applicant, fixing 31.10.2015. Thus, feeling aggrieved, applicant has approached this Court challenging the orders dated 27.06.2015 and 30.09.2015 passed by learned Magistrate and also the judgment dated 19.08.2015 passed by learned VIIth Additional Sessions Judge.
7. The sole contention of learned counsel for the applicant is that since marriage between applicant and respondent no. 2 was dissolved by a competent Court of law, therefore, learned Courts below erred in entertaining the application moved by respondent no. 2 under the Act. He further submits that provisions of the Act can be invoked by the wife only during subsistence of domestic relationship between her and the husband and once relationship is severed by a decree of divorce, thereafter no relief can be granted to the wife under provisions of the Act.
48. Per contra, learned counsel for respondent no. 2 submits that divorce decree was fraudulently obtained by the applicant by setting up an imposter in place of respondent no. 2. He further submits that when respondent no. 2 learnt about the fraud having been committed upon her, respondent no. 2 filed an appeal, which was registered as First Appeal No. 567 of 2013. Copy of the order dated 11.02.2015 passed in the said appeal is brought on record as Annexure-3 to the counter affidavit filed by respondent no. 2. Hon'ble Hon'ble Allahabad High Court has observed in the said order that respondent no. 2 had no knowledge about suit for divorce filed in her name before Additional District Judge, Saharanpur. It has further been observed that order sheet of learned Court below reflects that respondent no. 2 was not present at the time of filing of plaint. Relevant extract of the said order is reproduced below:-
"Since the matter involves a serious question of fraud upon the court, I consider it necessary that the same may be examined minutely. Accordingly, in exercise of powers under Section 107 C.P.C. following additional issue is framed and remitted to the court below for recording evidence of the parties on it and to return its finding to this Court within a period of three months from the date of receipt of this order and record of the lower court which is presently before this Court.
Whether any fraud has been played by the defendant/ respondent in engaging a counsel on behalf of the plaintiff/ appellant, getting the suit instituted in the name of the plaintiff/ appellant by manipulating her signatures on the plaint and further by getting her statement recorded before the court by setting up an imposter or the suit was actually instituted by the plaintiff/ appellant?"5
9 Perusal of the order passed by Hon'ble Allahabad High Court, prima facie indicates that decree for divorce was obtained by the applicant by playing fraud upon the trial Court.
10. Even otherwise also, Hon'ble Supreme Court in the case of Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori reported in (2014) 10 SCC 736 has held that the protection under Domestic Violence Act would be available to the aggrieved person even after decree of divorce. Paragraph No. 30 of the said judgment is extracted below:
"30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, child custody under Section 21, compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005."
11. In such view of the matter, the contention made on behalf of the applicant, that the proceedings under the Act could not have been initiated against him in view of divorce decree passed by the Civil Court at Sharanpur, cannot be accepted. Even otherwise also, learned Courts below have given cogent reasons in support of the orders/ judgments impugned in this C482 application.
12. Thus, this Court does not find any infirmity in the view taken by learned Courts below and there is no scope for interference in this C482 application. Accordingly, the same is dismissed.
(Manoj K. Tiwari, J) 11.03.2019 Navin