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Showing contexts for: dv act in Smt. Sadhana W/O. Hemant Walwatkar vs Shri. Hemant S/O. Shalikramji ... on 18 April, 2019Matching Fragments
3. The brief facts, which give rise to filing of the present revision, can be summarized as under -
The applicant/wife had filed an application under Sections 12 and 18 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred as "DV Act" for the sake of brevity). The applicant got married with respondent/husband on 15th July, 1999. She delivered two children out of the said wedlock. The respondent had filed petition for restitution of conjugal rights before the family Court. The matter was amicably settled and they started living together on trial basis. Respondent converted the petition for restitution of conjugal rights into divorce petition under Section 13 of the Hindu Marriage Act. Learned family Court allowed the said 3 revn121.18 petition and granted divorce on 30th June, 2008. In the year 2009, the application under Sections 12 and 18 of the DV Act was filed by the applicant alleging domestic violence on the part of the respondent/ husband. The said application was resisted by the respondent on the ground that at the time of filing application, there was no domestic relation. She was not residing with him. She was not wife in view of the divorce granted on 30th June, 2008 and, therefore, her application is liable to be rejected. Both the parties adduced their respective evidence before the learned JMFC, Nagpur, who dismissed the said application by judgment dated 20th August, 2015. In appeal, learned Additional Sessions Judge, Nagpur recorded his findings that there was no domestic relationship and, therefore, the applicant is not entitled for relief under the DV Act.
7. The Hon'ble Apex Court has held that to entertain the petition under the DV Act, there must be relationship as husband and 6 revn121.18 wife. In the present case, the applicant/wife is no more wife from the date of judgment of family Court dated 30 th June, 2008. During the pendency of petition under DV Act (Petition No. 1087 of 2009), learned trial Court had granted interim maintenance of Rs.1,000/- per month. The said order was challenged before the Sessions Court. The main issue before the Sessions Court as to whether the divorcee can claim relief under the DV Act. Learned Sessions Judge in Criminal Appeal held that there was no domestic relationship between the parties on the date of filing of the petition and accordingly set aside the order of interim maintenance. The order of Sessions Judge was not challenged and, therefore, it attained finality.
9. In the case of Dhananjay Ramkrishna Gaikwad and others .v. Sunanda Dhananjay Gaikwad and others (reported in 2016 ALL MR (Cri), 2291), there exists relationship as husband and wife. There was no divorce between them. Therefore, it was held that though she is residing separately, she can file application under the provisions of DV Act.
10. There is no dispute that the applicant/wife is no more wife from the decision of family Court in Petition No. A-410/2004 dated 30th June, 2008. The said decision is not set aside by the appellate Court 8 revn121.18 till date. Therefore, it is clear that at the time of filing of petition under the provisions of DV Act in the year 2009, the applicant was not the wife and, therefore, the petition itself was not maintainable. This Court, in the case of Jayesh Uttamrao Khairnar and others .v. State of Maharashtra and others (reported in 2010(3) Mh.L.J., 305), has held that, "decree of divorce was already granted by the competent Court. During the relevant period of one year or before filing of the application under the Act, there was no conjugal relationship between the petitioner No.1-husband and the respondent No.2-wife. There was no question of giving protection to respondent No.2 when she was not residing with the petitioners. Case of respondent No.2 did not fall under Section 20(1) of the Act. In view of absence of domestic relationship of the respondent No.2 as on the date of filing of the complaint, proceedings under the Act were not maintainable and were filed with mala fide intention to harass the husband and his relatives. Proceedings quashed and set aside."
12. In the present case, there was no domestic relation on the date of filing of application under the DV Act and, therefore, the applicant/wife is not entitled for any protection under the said Act.
13. The Hon'ble Apex Court in the case of Inderjit Singh Grewal .v. State of Punjab and another (cited supra) has observed that, "there is no domestic relationship as husband and wife at the time of filing of petition. Therefore, proceedings under DV Act not maintainable." In the present case, divorce was granted by the family Court vide order dated 30th June, 2008. Application under DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in 10 revn121.18 Criminal Appeal No. 235 of 2015 are perfectly legal and correct. There is no perversity or illegality in the impugned orders.