Madhya Pradesh High Court
Sanjay Singh Thakur vs Smt. Urmila Thakur on 10 May, 2019
.....1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C. No. 9827/2018
Sanjay Singh Thakur & ors.
Vs.
Smt. Urmila Thakur
Shri Vivek Agrawal, Advocate for the applicants.
None for the Respondent.
Whether approved for reporting : (Yes/No).
ORDER
(10/5/2019)
1. This petition under Section 482 of the Cr.P.C. has been preferred by applicant for quashment of proceedings of M.J.C.No.R/00396/2014 pending before Judicial Magistrate First Class, Jabalpur under Section 12 of Protection of Women from Domestic Violence Act,2005.
2. The facts of the case in brief are that marriage of applicant No.1 was solemnised with Respondent on 2.5.2002 and out of their wedlock they were blessed with a son who was born on 21.10.2005. Applicants No.2 and 3 are parents and applicant No. 4 and 5 are brothers of the applicant No.1. The respondent left the house of the applicant No.1 in the year 2008-09 and was residing with her parents. She has also left her son who is residing with applicant No.1. Despite of all efforts .....2 made for restitution of conjugal rights, respondent did not come back, therefore, applicant No.1 filed a petition for divorce before Family Court. The Family Court, Jabalpur has passed a decree of divorce on 28.2.2009 in favour of applicant No.1. Respondent has also filed petition under Section 125 of Cr.P.C. for maintenance and as per order of the Court, applicant no.1 is paying Rs.1500/- per month as maintenance to Respondent and relationship with the Respondent as wife was ceased after getting decree of divorce. There was no domestic relationship with the Respondent. However, on 14.5.2014 she has moved an application under Section 12 of Protection of Women from Domestic Violence Act for every relief which can be granted under the Act. But in the application there are no specific averments disclosing time, date, place, and particulars of the incident of the act of domestic violence against any of the applicants. The application is vague and filed just to take revenge from the applicants after six years of voluntary separation.
3. Learned trial Court without considering the infirmities in the application, took cognizance mechanically. Apparently, the application has been filed with malicious intention as a counter blast of proceedings of divorce and just to take revenge. The applicants No.2 and 4 have also been arrayed as the Respondents to create pressure on the applicant No.1. Apart from it, after passing of the decree of divorce, there was no domestic relationship between the applicant No.1 and the Respondent. Hence, no case for domestic violence is made out and no cognizance can be taken for proceedings against the applicants under Section 12 of the Protection of Women from Domestic Violence Act. Hence, the proceedings be quashed.
.....3
4. None appeared on behalf of the Respondent at the time of final hearing.
5. Having considered the contentions of the learned counsel for the applicants and the documents produced for perusal of this Court, it is found that II Additional Principal Judge, Family Court in Civil Suit No.258-A/2008 has passed a divorce decree in favour of applicant No.1. There was a dispute with regard to custody of the child and warrant was issued by the SDM, Lakhnadon. As per the order-sheet of the S.D.M. Lakhnadon (Annexure A-4) the child was produced before the S.D.M. Lakhnadon and his custody was given to the applicant No.1. Annexure A-3 is certified copy of the order dated 25.7.2014 passed by Gram Nyayalay, Lakhnadon under Section 125 Cr.P.C. with regard to direct the applicant to pay Rs.1500/- as maintenance to the Respondent. The order also shows that since before 13.3.2009, the parties are living separately and thereafter, the application under Section 12 of the Protection of Women from Domestic Violence Act has been filed on 14.10.2014 i.e after five years of separation from the applicant No.1. During that period the applicant No.1 has also got decree of divorce. However, a perusal of application under Section 12 of Protection of Women from Domestic Violence Act (Annexure A-5) does not disclose any averment or any incident which can be considered as domestic violence. After living separately since 2009, the proceedings which were taken place for the custody of the child ended on 24.7.2009 and between the period, no report or complaint has been made with regard to any act of the applicants which could be termed as an act of domestic violence.
6. In the aforesaid circumstances, apparently it is a case in which the respondent has filed the petition without having any .....4 cause and has been filed as a counter blast of proceedings of divorce just to take revenge with the applicant no.1, his parents and brothers and it is a misuse of process of the Court.
7. The learned counsel for the applicants has also contended that there is no domestic relationship between the applicant No.1 and the respondent as after passing of the decree of divorce, as the relationship was ceased as husband and wife and the respondent is not entitled for any protection under under the provisions of Protection of Women from Domestic Violence Act. He has placed reliance on the judgment of Smt. Sadhana vs. Hemant passed on 18.4.2019 by the High Court of Judicature at Bombay in Cr.Rivision No.121 of 2018 and also placed reliance on the judgment of Amit Agrawal vs. Sanjay Aggarwal and ors. Passed on 31.5.2016 by the High Court of Punjab & Haryana in Cr.Misc. No. M-36736/14 , in which it is held that after passing of the decree of divorce, domestic relationship does not exist, therefore, no case of domestic violence is made out.
8. In view of this Court, this petition may be disposed of without entering into the aforesaid legal question leaving for consideration to another appropriate case as the same can be answered after a comprehensive exercise with regard to objectivity of the provisions of the Protection of Women from Domestic Violence Act, considering each relief separately and simultaneously. In the aforesaid judgments, the High Courts, have not considered the question in the aforesaid manner.
9. Therefore, without commenting anything on the aforesaid points, in the light of the earlier discussions, this petition is allowed. This Court in exercise of inherent powers under Section .....5 482 of the Cr.P.C. quash the proceedings arising out of M.J.C.No.R/00396/2014 under Section 12 of the Protection of Women from Domestic Violence Act pending before Judicial Magistrate First Class, Jabalpur.
A copy of this order be sent to the concerned courts below for information and its compliance.
CC as per rules.
(J.P. Gupta) JUDGE vj Digitally signed by VIJAY LAKSHMI JHA Date: 2019.06.17 16:36:38 +05'30'