IN THE HIGH COURT OF JUDICATURE AT __________
IN ITS CRIMINAL APPELLATE JURISDICTION
Misc. CRIMINAL APPLICATION NO. OF 2010
IN THE MATTER OF ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA
IN THE MATTER OF SEC. 482 OF CR.P.C.
IN THE MATTER OF ORDER DATED dd/yy PASSED BY THE LD. JMFC, ______. COURT, ________
1) wwwwwwwww wwwwwww wwwwwwww
Age : aa years, Occupation : Service
Having his address at:
Aaaaaaaa nnnnnnnn mnnnm,
Ssssssss jjjjjjjj kkkkk
2) rrrrrrr eeeeeeeeee ffffff
Age : qq years, Occupation : Retired
Having his address at:
Aaaaaaaa nnnnnnnn mnnnm,
Ssssssss jjjjjjjj kkkkk
Aaaaaaa aaaa ……….. PETITIONERS
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Having her address at:
Ttttttt rrrrrrrrr eee
Aaaaaaa ddddddd fffffff,
ttttttt .. RESPONDENT
THE HON’BLE THE CHIEF JUSTICE AND THE OTHER HON’BLE COMPANION JUDGES OF THE HIGH COURT OF JUDICATURE AT __________
THE HUMBLE PETITION OF THE PETITIONERS (ORIGINAL RESPONDENTS NO. 1 & 2) ABOVE NAMED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA R/W. SEC. 482 OF CR.P.C. FOR QUASHING THE PROCEEDINGS OF M.C.A. NO. xx/09 UNDER DOMESTIC VIOLENCE ACT PENDING ON THE FILE OF THE LD. JMFC, COURT, WWWWWWWW
MOST RESPECTFULLY SHEWETH THAT:
- The petitioners submit that by way of present petition, the petitioners are challenging the proceedings initiated by respondent herein under the provisions of Protection of Woman from the Domestic Violence Act, 2005 (hereinafter referred to as DV Act for the sake of brevity). Subsequent to the report of the Protection Officer under Sec. 12 of the DV Act before the Ld. JMFC (Cccc.), MMMMMM the Court took cognizance and initiated the proceedings. The petitioners herein had applied to the Ld. Court to dismiss the complaint, as the respondent does not fall under the definition of “aggrieved person” as her marriage is null and void as per the facts presented in the subsequent paragraphs. The Ld. Court had declined that application by its order dated xx/yy/zzzz. Since, the respondent has complained claiming her relationship with the petitioner to be of wife and since by law, that status fails due to the nullity of her marriage with the petitioner; based on the materials placed on record, this order is bad in law and without the jurisdiction. Hence, the petitioners are filing this petition under article 226 and 227 of the Constitution of India 1950, read with the Sec. 482 of the Code of Criminal Procedure, 1973, challenging the legality of the impugned order.
- The petitioners submit that the brief facts leading to filing of the present petition are as described in the following paragraphs.
- That the petitioner no.1 and petitioner no. 2 are son and father respectively, and petitioner no.1 has filed a suit on dt. 15/12/2008 in the Hon. Family Court, Xxxxxxxx under sec. 11, read with 5(i) of Hindu Marriage Act 1955 for declaration of nullity of his marriage with the respondent, being the suit no. CA cccc/09. Annexed hereto as Annexure I is a certified copy of the suit. Before the marriage, the respondent had represented to the petitioners that she was legally divorced and, therefore, competent to solemnise the marriage again, which was later found to be untrue. The petitioners later revealed that she was not in possession of decree of divorce on the date of her marriage with the petitioner no.1. On the date of the said marriage (aa/bb/cccc), the respondent’s earlier divorce matter was pending with the Hon. Family Court of MMMMMM. Annexed hereto and marked as Annexure II is the certified copy of the divorce petition of her earlier husband under Sec. 13 and Sec. 13 B both, of Hindu Marriage Act.
- That after said marriage, the respondent stayed with petitioners at ________ for 7 days during dd/mm/yy evening to aa/bb/cccc and left to her parental home at MMMMMM on her own, in the evening on aa/bb/cccc. From the conduct of the respondent during these 7 days, the petitioner was compelled to go into the past history of the respondent, wherein it was found that she was not in possession of legal decree of her divorce at the time of her marriage with the petitioner. Also, it was found that she had litigations going on under Sec. 498, 114, 420, 506 (2) etc. of CrPC with her earlier husband and in-laws. All that within a time span of about a year, had led her husband to prefer divorce petition under Sec. 13 of the Hindu Marriage Act at the Family Court of MMMMMM, as is presented in Annexure II.
- It was revealed from the Court records that the respondent had obtained from her husband a sum of Rs. five lakhs in the form of permanent alimony in return to consent of divorce. Annexed hereto and marked as Annexure III is the certified copy of her statement on oath admitting the facts as above before Court.
- It is respectfully submitted that the relationship of husband–wife was also not established between the respondent and petitioner no. 1 during those seven days. Then shocked by all above revelations, the present petitioner no.1 took immediate action to file the petition on dd/mm/2008, before the Hon. Family Court of Xxxxxxxx, as mentioned before, to get declaration to the effect that this marriage is void ab-initio, in accordance with sec. 11, read with 5(i) of Hindu Marriage Act 1955.
- That, during this time, the respondent and her brother and sister-in-law started giving threats on life of petitioner no.1 by phone, and also illegitimately demanded money, for not harming him physically. Due to such threatening phones, the petitioner no. 2 had to lodge a police complaint on dd/mm/08, against the respondent’s brother and his wife, under Sec. 507 of CrPC with the Bbbbbbb Police Station. Annexed hereto and marked as Annexure IV is a copy of this FIR and chargesheet. The same is pending with the Ld. Court of Metropolitan Magistrate, Bbbbbbb, Xxxxxxxx, being the case no. qq/09.
- Subsequently, on dd/mm/yy, the respondent lodged a complaint under Sec. 498 (A) of CrPC and others against the (a) petitioner no.1, (b) his parents, (c) a married sister and (d) maternal Grandma – (c) and (d), though not living with the petitioner no.1, annexed hereto as Annexure V is a copy of this FIR. After due inquiry into the complaint, the Ccccccc Police issued B summary in favour of the petitioners in August 2009, annexed hereto and marked as Annexure VI is the certified copy of that police report, which is lying with the LD. Court at Mirzapur, Xxxxxxxx, being the case no. www/ee.
- That, the respondent and many of her relatives, alongwith a bunch of criminals had assaulted the house of petitioner no.1’s mother on d/m/y, with a view to physically harm the petitioner no.1 and his family. The petitioner no.1 and the family were not in house, but due to respondent’s effort to break the house, they had hand scuffle with the watchman and the neighbours of the society. A complaint for the same was given in writing, by mother of the petitioner no.1, at Ccccccc Police station. Annexed hereto and marked as Annexure VII is a copy of the written complaint of petitioner’s mother made to the Ccccccc Police Inspector.
- That, later on, on 3/2/2009, a report came to be filed by the Protection Officer of MMMMMM city, which was submitted to JMFC (Cccc.), MMMMMM wherein it is inter-alia stated that the Petitioners had abused and tortured Respondent and also demanded dowry. That the Respondent has also asked for appropriate relief pertaining to Protection under Sec. 18, Right to Residence under Sec. 19 and monetary relief under Sec. 20 of the DV Act. The same being the case no. dd/yy, is pending with the JMFC (ddddddd) Court of MMMMMM. Annexed hereto and marked as Annexure VIII is a copy of the relevant case papers. It is respectfully stated that this case and an order dated dd/yy under the matter, passed by the Ld. JMFC, xxx. Court, MMMMMM, below Ex.qq in M.C.A. No.ww/09 are the subject matters of this petition.
- In the above proceedings, the petitioner no.1 had applied to the Ld. Court of JMFC (vvv.), MMMMMM, as annexed hereto and marked as Annexure IX, that the complainant does not fall into the definition of “aggrieved person” from the capacity of wife, as per the Domestic Violence Act, as she was not possessing legal decree of dissolution of her earlier marriage, rendering her marriage with the petitioner no. 1 void ab-initio, hence rendering the said complaint devoid of locus standi, as the capacity of Respondent on which the case is based, itself is non-existent and ipso jure void, since inception. This application of the petitioners had been declined by the Court by its order as annexed hereto and marked as Annexure X.
- That in reference to the above, the petitioners respectfully agree that any woman in a defined relationship can complain under Domestic Violence Act, but since here, the respondent has complained assuming the relationship of wife, which itself proves to be void-since-inception by law at her own instance, results into failure of establishing the relationship as defined in the DV Act. Thereby the respondent fails to fall in the definition of aggrieved person in the capacity of a wife. In light of the above argument, the said order of the Ld. Court of JMFC (zzzz.), MMMMMM is bad in law and the said matter under the Domestic Violence Act is not maintainable, and hence is liable to be dismissed in limine.
- That while submitting as above, the petitioners rely on the observation made by the Hon. High Court of Mumbai in its judgement dtd. 3rd May, 2010 of Mangala Bhivaji Lad vs. Dhondiba Rambhau Aher, being FAMILY COURT APPEAL NO. 117 OF 2006, which is as follows: “Since the institution of marriage and the very relationship of husband and wife originates from the personal law applicable to the parties, there can be no escape from reference to the personal law while understanding the expressions “husband” and “wife” used in different statutes. As far as Hindus are concerned, the law relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore unless the marriage is valid under the provisions of the Hindu Marriage Act the parties entering into such a marriage cannot describe themselves as “husband” and “wife” for the purposes of application of different statutes or for deriving the benefits available under different statutes.” Also that, according to this judgement, since as per law, the said marriage is void ab-initio irrespective of the declaration of the same (which is optional), the petitioner no.1’s status is not subject to (and is independent of) the Hon. Family Court’s declaration to that effect. Hence, on this aspect also, the premises taken under the impugned order of Ld. Court of JMFC (mmm.), MMMMMM, is missing in legality.
- Since one cannot take advantage of her own wrong, and since she, not being a legally wedded wife, could not assume the capacity of wife for the complaint under the DV Act, it would not be in the interest of justice that this case proceeds in the said Court, and the petitioners are further subjected to harassment. In those circumstances, the impugned order of Ld. JMFC (nnnnn), MMMMMM, pending against the petitioners is required to be quashed and set aside and the complaint under the DV Act is required to be dismissed in limine.
- That, during the course of petitioner no.1’s petition at Hon. Family Court, Xxxxxxxx, the respondent had also filed a petition under Sec. 125 of CrPC, annexed hereto as Annexure XI, against the petitioner no.1, which she had withdrawn at her own instance, finding it devoid of locus standi, her not being a legally wedded wife. However, later on, she filed an application under Sec. 24 of Hindu Marriage Act, 1955, as annexed hereto as Annexure XII, against the petitioner no.1. In the proceedings, she had intentionally suppressed the fact that she was employed in a Govt. job presenting herself as jobless and devoid of proper knowledge to get a job. Due to that false representation, the Family Court had ordered interim maintenance under Sec. 24 of Hindu Marriage Act, 1955 in her application. Later on, on getting the proofs of her job at a Govt. undertaking “ttttttt” (earlier “hhhhhh iiiiiii lllll”) and her income as annexed hereto as annexure XIII, the petitioner no.1 has applied for the review and cancellation of that maintenance order, and a contempt and perjury application against Respondent in the same court. Annexed hereto and marked as Annexure XIV is a copy of these applications.
- The petitioners further respectfully submit that, in respondent’s FIR under IPC 498 (A) against the petitioners, the Investigating Officer has issued B summary, negating the charges made by the respondent, which are of similar nature to those in the case in question. Hence, over and above the facts mentioned before, on merit also the respondent’s case does not make a prima facie case of Domestic Violence, particularly when the respondent’s relation with the petitioner itself is a part of respondent’s malicious design, fraught with ulterior and oblique motive of making money by abusing the process of law. Hence, in light of the all above facts, allowing the proceeding to continue would be an abuse of the process of the court and that the ends of justice require that the proceeding ought to be quashed. The petitioners hereby most respectfully and assertively would like to drive at a point that this case is conspicuously that of a woman who by taking inappropriate advantage of the pious custom of institution of marriage, has entered into the house of petitioner putting on a mask of a wife, with sole intention of abusing the law for shelling out easy money from him, as is amply evident in the history of respondent’s earlier marriage.
- The Petitioners crave leave to add, amend, alter or modify the grounds urged hereinabove.
- The Petitioners have not filed any other petition or application previously before this Hon’ble Court for the reliefs claimed herein under.
- In light of the above, The Petitioners therefore most respectfully pray that this HON’BLE COURT BE PLEASED TO:
- a) Issue rule in the above petition.
- b) Issue writ of certiorari or any other writ, order or direction in the nature of certiorari, for quashing and setting aside the order dated mm.yyyy passed by the Ld. JMFC, gggg Court, MMMMMM below Ex. ee in M.C.A. No.ss/09.
- c) Stay the further proceedings of M.C.A. No.ss/09 under Domestic Violence Act, 2005 pending on the file of the Ld. JMFC, zzzz. Court, MMMMMM, till the hearing and final disposal of the present petition,
- d) Issue order to pay the cost to the petitioner,
- e) Pass such other and further orders as may be deemed just, proper and reasonable.
AND FOR THIS ACT OF KINDNESS THE PETITIONERS HERE, AS IS DUTY BOUND, PRAY FOREVER.
PLACE: XXXXXXXX XXXXXX YYYYYYY ZZZZZZ
YYYYYYY K ZZZZZZ
I, Xxxxxx Yyyyyyy Zzzzzz, adult, residing at ddd, trrrr eee ww, zzzzzzz, Xxxxxxxx, do hereby solemnly affirm and state on oath that what is stated hereinabove from paragraphs 1 to 18 is true to the best of my knowledge and information, and I believe the same to be true and correct. The content of paragraph 19 is prayer clause.
SOLEMNLY AFFIRMED AT XXXXXXXX ON THIS ____ DAY OF September, 2010.
XXXXXX YYYYYYY ZZZZZZ
For himself and on behalf of petitioner no. 2
IN THE HIGH COURT OF JUDICATURE AT XXXXXXXX
IN ITS CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2010
1) XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY uuuuuu ZZZZZZ
1) ssssssss ssssssssa aaaaaaaaa ..…………RESPONDENT
I N D E X
|1.||Criminal Writ Petition|
|2.||Petitioner no.1’s Family suit for declaration of nullity No. wwww/08||1|
|3.||Respondent’s earlier husband’s divorce petition under Sec. 13||2|
|4.||Respondent’s statement on affidavit about alimony of Rs. 5/- lacs||3|
|5.||Petitioner no.1’s father’s FIR against the brother and sister in law of Respondent alongwith the chargesheet||4|
|6.||Respondent’s FIR under 498 and ors against the petitioner no.1 and family||5|
|7.||B summary of FIR against the petitioners under 498 and ors||6|
|8.||Petitioner no.1’s mother’s complaint against the Respondent and others at Ccccccc police station||7|
|9.||Respondent’s complaint under DV Act against the petitioners||8|
|10.||Petitioner no.1’s application at LD. JMFC (Cccc.) MMMMMM in the matter under DV Act||9|
|11.||Order dated dd/yy passed by the Ld. JMFC, cccc. Court, MMMMMM||10|
|12.||Respondent’s application under Sec. 125 of CrPC at Family Court, Xxxxxxxx||11|
|13.||Respondent’s application under Sec. 24 of HMA at Family Court, Xxxxxxxx||12|
|14.||Proofs of job and income of the respondent||13|
|15.||Review application of the petitioner at Family Court||14|
Dated this day of September 2010
1) XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY ssssssss ZZZZZZ