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Section 12 of the Act is not maintainable after a valid decree of divorce

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) No. 990 of 2013

Mohan Singh …………. Applicant

versus

Smt. Laxmi Devi …………. Respondent

Mr. Devendra Singh Bohra, Advocate holding brief of Mr. Raveendra Singh Bisht, Advocate for the applicant. Mr. Lalit Miglani, Advocate for the respondent.

U.C. Dhyani, J.(Oral) By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the proceedings of case no. 90 of 2013, Smt. Laxmi Devi vs Mohan Singh, pending in the court of learned Chief Judicial Magistrate, Nainital, as also the order dated 02.09.2013, passed by learned Judicial Magistrate, Nainital in the selfsame case.

2) A perusal of the order impugned (Annexure 5 to the petition) will indicate that when a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity here-in-after referred to as ‘the Act’) was filed by the respondent against the applicant, applicant was issued notice. Aggrieved only against the order dated 02.09.2013, directing issuance of notice, present application under Section 482 Cr.P.C. has been filed on behalf of the applicant-husband.

3) Learned counsel for the respondent objected that applicant has not taken recourse to remedial measure under Section 29 of the Act. To this, learned counsel for the applicant replied that since no adverse order was passed and the order impugned is only in the form of interlocutory order, therefore, the applicant could not have approached the appellate forum under Section 29 of the Act.

4) Learned counsel for the applicant also submitted that after obtaining a decree of divorce, complaint under Section 12 of the Act was filed by the respondent, which is not maintainable.

5) Various decisions have been placed by learned counsel for the parties before this Court. A brief reference of those judgments is given in the following paragraphs of this judgment.

6) Learned counsel for the applicant placed reliance upon a judgment rendered by Hon’ble Supreme Court in Inderjit Singh Grewal vs State of Punjab and another, 2011 (12) SCC 588, wherein it was observed that after dissolution of marriage between the parties by mutual consent, respondent no. 2 wife filed complaint under Section 12 of the Act, alleging that decree of divorce obtained by them was a sham transaction and that even after getting divorce, both of them had been living together as husband and wife. Respondent no. 2 alleged that since she was forced to leave the matrimonial home, she prayed for justice. On summons being issued by the Magistrate against the husband, the husband approached the High Court against the same by way of filing a petition under Section 482 Cr.P.C, which was dismissed by the High Court. Aggrieved against the same, husband preferred a Criminal Appeal before the Hon’ble Supreme Court. Hon’ble Apex Court observed that respondent no. 2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce, as alleged by her in the impugned complaint. The statements / allegations made by respondent no. 2 patently and latently involved her in the alleged fraud committed upon court. Thus, she made herself disentitled for any equitable relief. Granting permission to the Magistrate to proceed further with the complaint under provisions of the Act was not compatible and in consonance with the decree of divorce which still subsisted. The same will amount to abuse of process of the court. Hon’ble Apex court allowed the Criminal Appeal, set aside the impugned judgment of the High Court and allowed the petition under Section 482 Cr.P.C. filed by the husband.

7) Reliance is also placed upon a decision rendered by this Court in Sunil Kumar Gupta vs Smt. Shalini Gupta, 2011 (2) UD 663, wherein against the decree of divorce passed against the wife under Section 13 of the Hindu Marriage Act, divorced wife filed application under the Act seeking same level of alternative accommodation for her and her children, as enjoyed by her husband in the shared household, besides a maintenance of rupees six thousand per month. Learned Magistrate directed the opposite party / erstwhile husband to pay Rs.2,000/- per month as rent in lieu of residential accommodation. Learned Sessions Judge confirmed the said order holding that no matrimonial relationship existed between the parties after the decree of divorce and there having been no provision of residence of the divorced wife in the decree of divorce, she was not an “aggrieved person” as envisaged in the provisions of Section 2(a) of the Act and the right of alternative accommodation from her erstwhile husband, in the shared household or by way of rent for the same, was not available to her. The Court observed that the petition has force and the impugned judgments and orders warrant interference and the same are liable to be quashed. Accordingly, the petition is allowed. The judgment and order dated 01.12.2007, passed by the learned Special Magistrate II, Dehradun as well as the judgment and order dated 20.08.2008, passed by learned Addl. District Judge / F.T.C. II are hereby quashed.

Attention of the Court is also drawn towards the decisions rendered by Hon’ble High Court of Gauhati in Meraj Alam (Alhaz Dr. Md.) vs State of Assam & another, 2011 (3) GauLT 334 and Amit Agarawal and others vs Sanjay Agarawal & others, 2016 (2) Crimes (HC) 783 rendered by Hon’ble Punjab and Haryana High Court.

8) Learned counsel for the respondent, on the other hand, placed reliance upon a judgment rendered by Hon’ble Supreme Court in Krishna Bhatacharjee vs Sarathi Choudhary & another, 2015 AIR(SCW) 6386, wherein the family court granted the application for the judicial separation filed by the husband. The appellant filed an application under Section 12 of the Act before the Child Development Officer. The learned Magistrate held that though the parties had not been divorced as no domestic relationship subsisted under the Act and hence, no relief could be granted. The appellate court dismissed the appeal and the High Court had also dismissed on the ground that the application is barred by limitation. Hon’ble Supreme Court held that once the decree of divorce is passed, the status of the parties becomes different. A new fact of circumstance amounting to wrong which will stand as an obstacle in the way of the husband to obtain the relief which he claims in the divorce proceedings is a continuing cause of action. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. The courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation. Appeal was allowed.

9) Attention of the Court is also drawn towards a decision rendered by Chhattisgarh High Court in Vishal Jindal and others vs Puja Jindal and another, (2015) 2 Crimes (HC) 163 holding that word “the order” in the provision must take within its sweep all order passed under Section 18 to 22 of the Act. Interlocutory orders which dealt with procedure and which did not affect or determine the rights and liabilities of parties would not come within the sweep of expression “the order”. Magistrate in the petition under Section 12 of the Act filed by aggrieved person directed personal appearance of applicants and respondents. Order was only a step in aid for final disposal of application which neither decided the rights of applicants nor affected any of their rights. The Court held that the impugned order was purely interlocutory against which appeal under Section 29 of the Act was not maintainable. Sessions Judge was justified in holding so. In the result, the revision was dismissed.

In Abhijit Bhikaseth Auti vs State of Maharashtra (2008) 0 Supreme (Mah) 1500, Hon’ble High Court of Bombay held that appeal lies against the final order passed by the Magistrate under Section 12(1). It was further observed that interim orders passed by the Magistrate under the provisions are appealable, but the appellate court will interfere with the exercise of discretionary powers of the Magistrate when it is exercised arbitrarily, capriciously or perversely or against the settled principles of law regarding grant or rejection of interim relief. …No appeal lies against orders which are procedural in nature not determining the rights and liabilities of the parties in any way.

10) In view of the above principles of law laid down by Hon’ble Apex Court and various other High Courts, the application under Section 482 Cr.P.C. is disposed of by directing that the applicant-husband shall respond to the notice issued by learned Chief Judicial Magistrate, Nainital. Liberty is granted to the applicant- husband to show that the criminal complaint case preferred by the respondent under Section 12 of the Act is not maintainable after the marriage of the applicant and the respondent has been dissolved by a valid decree of divorce. Liberty is also granted to the applicant to place all the decisions in support of his contention to make a request to the trial court for discharge of such notice.

11) Learned trial court is directed to consider the rival submissions of learned counsel for the parties and pass an appropriate order thereafter, in accordance with law, after affording due opportunity of hearing to both the parties.

(U.C. Dhyani, J.) Dt. May 30, 2017.

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