(12) In the present case, the fact that the Family Court granted divorce on the ground of cruelty cannot be denied. Merely
because the applicant No.1 performing a second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act. Although, it may be said that the respondent could have claimed that there had been a domestic relationship between the parties, for the reason that the applicant No.1 and respondent were married at a point in time, but the said fact in itself would not be enough for the respondent to initiate the said proceedings under the provisions of the D.V. Act, much after the divorce proceedings had attained finality and findings had been rendered against her.
(13) Chronology of events of the present case does indicate that the respondent sought to invoke the provisions of the D.V. Act after the proceedings concerning the divorce decree had attained
finality upto the Supreme Court. It was not as if the respondent had initiated a proceeding under the D.V. Act during the course of the matrimonial discord between the parties. It is after the respondent suffered adverse orders in the proceedings concerning the divorce petition and the application for restitution of conjugal rights, which stood confirmed right upto the Hon’ble Supreme Court, that she turned around and sought to invoke the provisions of the D.V. Act. This demonstrates that the manner in which the proceedings were sought to be initiated under the provisions of the D.V. Act was nothing but an abuse of process of law. The respondent could not be permitted to keep the applicants engaged in litigation in this form, when the requirements of the D.V. Act, on the face of it, did not appear to be satisfied.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 164 OF 2017
Applicants Vs Respondent
CORAM : MANISH PITALE, J.
DATED : 09/08/2021
This application is listed at Sr.No.209 in the final
hearing board for today. A specific note was given at the top of the
cause list stating that no adjournment would be granted on any
ground in the matters listed at Sr. No.201 to 210.
(2) When the application was called out for hearing in
the pre-lunch session, the learned counsel for the applicants appeared
and argued at length. The sole respondent has been served and is
represented through counsel, although none appeared for the sole
respondent. The application was then kept in post lunch session at
2.30p.m. but, none appeared on behalf of the sole respondent. As
noted above, the learned counsel for the applicants was heard finally.
(3) By this application, the applicants have sought
quashing of criminal proceedings bearing Miscellaneous Criminal Case
No.778 of 2016, filed by the sole respondent under the provisions of
the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as ‘D.V. Act’). The applicants have also prayed
for setting aside the orders passed by the Court of Judicial Magistrate
First Class, Akola, issuing notice in the application filed by the
respondent herein and also rejecting an application filed by the
applicants for dismissal of the criminal proceedings, on the ground
that such proceedings were an abuse of the process of law. The
applicant No.1 got married with the sole respondent on 13/03/2011 at
Akola. Soon after the marriage, there was matrimonial discord
between the two, as a consequence of which, the applicant No.1 file a
proceeding for divorce on the ground of cruelty. The said petition filed
for divorce was decreed by the Family Court at Akola on 16/09/2014,
after rendering findings to the effect that the respondent had indeed
inflicted cruelty on the applicant No.1. It is relevant to mention here
that the Family Court, by the very same judgment and order had also
rejected an application for restitution of conjugal rights filed by the
respondent. Aggrieved by the said common judgment and order of the
Family Court, the respondent filed Family Court Appeal Nos.7 of 2015
and 08 of 2015 before this Court. By judgment and order dated
10/08/2015, this Court dismissed both the appeals and confirmed the
judgment and order passed by the Family Court. The said judgment of
this Court was then challenged before the Hon’ble Supreme Court. On
15/02/2016, the Special Leave Petition stood dismissed, as a
consequence of which, the divorce decree was confirmed and the
dismissal of the application for restitution of conjugal rights was also
confirmed. It is after the aforesaid proceedings had reached upto the
Hon’ble Supreme Court and terminated in favour of the applicant
No.1, that on 15/05/2016, the respondent filed an application under
Sections 12 to 23 of the D.V. Act before the Court of the Magistrate,
seeking various reliefs including monthly maintenance, compensation,
residence order and other monetary benefits. The respondent made
allegations similar to those made in the proceedings pertaining to the
divorce decree and the application for restitution of conjugal rights
and thereafter, claimed that the applicant No.1 had treated her with
cruelty, by performing a second marriage. The respondent also stated
that she had filed a complaint against the applicant No.1 for offence
under Section 494 of the Indian Penal Code (IPC).
(4) In this application, on 17/05/2016, the Court of
Magistrate issued notice to the applicants. The applicants herein filed
an application for dismissing the proceeding on the ground of
tenability. It was submitted that the respondent was not entitled to
invoke the provision of the D.V. Act in the backdrop of the earlier
round of litigation between the parties. By the order dated
01/12/2016, the Magistrate rejected the application. Aggrieved by
the same, the applicants have approached this Court seeking not only
setting aside the said orders, but also quashing of the entire
proceedings.
(5) On 14/03/2017, this Court issued notice in the
present application and granted interim stay to the further proceedings
pending before the Magistrate. On 28/06/2017, this Court granted
Rule, after hearing of the learned counsel for the rival parties and the
interim order was continued.
(6) Mr.S.A.Mohta, learned counsel appearing for the
applicants submitted that the proceedings initiated by the respondent
under the provisions of the D.V. Act were not tenable, in view of the
contents of the application itself filed on behalf of the respondent
under the provisions of the D.V. Act. It was submitted that the very
same facts and incidents that were referred to and relied upon in the
earlier set of proceedings pertaining to the divorce decree and
rejection of the application for restitution of conjugal rights, were
relied upon in the said application filed on 15/05/2016, three months
after the Hon’ble Supreme Court had confirmed the findings rendered
in favour of applicant No.1 in the aforesaid earlier proceedings. It was
further submitted that such a course of action was not open to the
respondent and the subsequent incident on which the respondent
sought to rely i.e. the applicant No.1 performing a second marriage,
could not be an incident for which the respondent could invoke
provisions of the D.V. Act. It was submitted that the relief sought in
the application were not maintainable at all in the facts and
circumstances of the present case.
(7) As noted above, none has appeared on behalf of the
respondent.
(8) Having heard the learned counsel for the applicants.
This Court has perused the documents filed along with this
application. There can be no dispute about the fact that divorce
decree granted in the present case has been confirmed upto the
Hon’ble Supreme Court and the rejection of the application for
restitution of conjugal rights filed by the respondent also stood
confirmed. The contentions raised on behalf of the applicant No.1 on
the ground of cruelty were accepted by all the Courts and hence the
said findings have attained finality.
(9) The question is, in the face of such findings
rendered by the Family Court and confirmed by this Court and the
Hon’ble Supreme Court, whether the respondent is entitled to rely
upon incidents pertaining to the same time period and relatable to the
allegations and contentions raised in the aforesaid round of litigation,
to claim that she had suffered domestic violence at the hands of the
applicants, as defined under the D.V. Act. The other question that
arises for consideration is, as to whether the act of the applicant No.1,
performing a second marriage after the grant of divorce decree can be
said to be an act of domestic violence under the provisions of the D.V.
Act. A related question is, as to whether the proceeding initiated by
respondent under the provisions of the D.V. Act can be said to be an
abuse of the process of law.
(10) In order to answer the said questions, it would be
appropriate to peruse the contents of the application filed on behalf of
the respondent under Sections 12 to 23 of the D.V. Act. A perusal of
the same would show that the respondent has indeed raised the very
issues and contentions that she had relied upon during the initial
round of litigation pertaining to the divorce petition filed by the
applicant No.1 and the application for restitution of conjugal rights
filed by the respondent. It cannot be disputed that such contentions
pertaining to incidents alleged by the respondent had been considered
and decided by the Family Court and that the findings had attained
finality upto the Hon’ble Supreme Court. Therefore, the respondent
cannot be permitted to reiterate the same by filing application under
the provisions of the D.V. Act, three months after the Hon’ble Supreme
Court dismissed her Special Leave Petition and confirmed the findings
rendered by the Family Court and this Court on identical issues.
(11) Insofar as the second marriage performed by the
applicant No.1, after grant of divorce decree is concerned, the
contention of the respondent that this amounted to domestic violence
cannot be accepted. Section 3 of the D.V. Act defines ‘domestic
violence’ in an elaborate manner and it refers to physical abuse, sexual
abuse, verbal abuse, emotional abuse, and economic abuse. This is in
the context of a domestic relationship shared between the aggrieved
person and the respondent.
(12) In the present case, the fact that the Family Court
granted divorce on the ground of cruelty cannot be denied. Merely
because the applicant No.1 performing a second marriage cannot come
within the definition of domestic violence under Section 3 of the D.V.
Act. Although, it may be said that the respondent could have claimed
that there had been a domestic relationship between the parties, for
the reason that the applicant No.1 and respondent were married at a
point in time, but the said fact in itself would not be enough for the
respondent to initiate the said proceedings under the provisions of the
D.V. Act, much after the divorce proceedings had attained finality and
findings had been rendered against her.
(13) Chronology of events of the present case does
indicate that the respondent sought to invoke the provisions of the D.V.
Act after the proceedings concerning the divorce decree had attained
finality upto the Supreme Court. It was not as if the respondent had
initiated a proceeding under the D.V. Act during the course of the
matrimonial discord between the parties. It is after the respondent
suffered adverse orders in the proceedings concerning the divorce
petition and the application for restitution of conjugal rights, which
stood confirmed right upto the Hon’ble Supreme Court, that she
turned around and sought to invoke the provisions of the D.V. Act.
This demonstrates that the manner in which the proceedings were
sought to be initiated under the provisions of the D.V. Act was nothing
but an abuse of process of law. The respondent could not be
permitted to keep the applicants engaged in litigation in this form,
when the requirements of the D.V. Act, on the face of it, did not
appear to be satisfied.
(14) In any case, the respondent appeared to be
interested in initiating and continuing such proceedings as a tool of
harassment against the applicants. The prayers pertaining to monthly
maintenance, compensation, residence order etc. have all been made
in the backdrop of such allegations, which are nothing but a repetition
of the contentions raised in the earlier round of litigation. Therefore,
this Court is of the considered opinion that continuance of further
proceedings in such a matter would amount to permitting abuse of the
process of law. The same cannot be permitted. The Magistrate failed
to appreciate this aspect of the matter while passing the impugned
orders and therefore, the impugned orders also deserved to be
interfered with.
(15) In view of the above, the application is allowed.
(16) Miscellaneous Criminal Case No. 778 of 2016 is
quashed. Consequently, the impugned orders dated 17/05/2016 and
01/12/2016, are also set aside.
[ MANISH PITALE J. ]
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