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Judgments of Supreme Court of India and High Courts

Neha Chawla vs Virender Chawla And Anr on 4 October, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRR – 1503 -2019
Date of Decision:- 4.10.2019

Neha Chawla ………..Petitioner

Versus

Virender Chawla another ………Respondents

CORAM: HON’BLE MR. JUSTICE GURVINDER SINGH GILL

Present:- Sh. Arjun Chawla, Attorney of Petitioner alongwith petitioner in
person

Sh. Ajay Jain Sh. Vansh Chawla, Advocates, counsel for
Respondent no. 1 2

*****

GURVINDER SINGH GILL, J.

1. The petitioner challenges judgement dated 11.4.2019, passed by Court of

Sessions Judge, Ambala whereby an appeal filed by respondents against

order dated 30.7.2018 passed by JMIC Ambala has been accepted and said

order dated 30.7.2018, passed under provisions of Protection of Women

from SectionDomestic Violence Act, 2005 (hereinafter, in short being referred to as

SectionDomestic Violence Act) granting maintenance, rental allowance and

medical expenses to petitioner, has been set aside.

2. A few facts, necessary to notice for disposal of this revision petition are that

the petitioner filed a complaint under SectionDomestic Violence Act alleging

therein that she is a resident of Jammu and that her marriage was solemnised

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with Surinder Chawla in the year 1995 who somehow expired on 24.3.2010.

The petitioner alleged that her brothers-in-law namely the respondents

Virender Chawla and Rajinder Chawla had, however, been harassing her and

also been giving beatings to her on various occasions while stating that the

petitioner had not brought dowry as per their expectations. It is alleged that

when the petitioner was living in shared household she was not permitted to

move alone out of home and the respondents used to threaten her that they

would cause friction in her relationship with her husband. It is further

alleged that earlier she had been awarded maintenance at the rate of ₹5000

per month by the Courts at Jammu Kashmir which was later enhanced to

₹11,000 per month. However, after death of her husband the petitioner or her

son had not been given a single penny towards maintenance out of the

property of her husband and the entire business of her husband had been

usurped by her brothers-in-law i.e. the respondents who had also

misappropriated all the articles of her dowry. It is further alleged that when

her husband was on death bed the respondents forged his signatures and got

all the money released from banks and also operated the lockers and took out

gold ornaments lying therein. The complainant alleged that she was not

being allowed to enter into the shared household by respondents and was

not given a single penny from the property or business of her husband.

3. The respondents, in their reply, opposed the petition. While the factum of

marriage of the petitioner with Surinder Chawla i.e the brother of the

respondents was admitted but a stand has been taken that in fact Surinder

Chawla was a divorcee and it was a simple marriage without any dowry. It is

further stated therein that the marriage had been solemnized in a temple at

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Jammu in a very simple manner. The respondents asserted that the relations

between the petitioner and her husband were strained right from the very

beginning and she resided in her matrimonial home barely for 2-3 months

after her marriage and thereafter left while taking away the valuables not

only those belonging to her but also those of mother and elder brother of

respondents. It has been stated in reply that the petitioner had never made

any complaint either under Sectionsection 406 or 498-A of SectionIPC against her husband

during his lifetime but after his death she started a tirade against the

respondents in order to pressurise them to part with their properties. The

respondents have further taken a categoric stand that the property i.e. house

No. 109, the Mall, Ambala Cantt, was never a shared household and the

petitioner had never resided in the said house. It is further the case of

respondents that the petitioner had been residing at Jammu since last more

than 15 years and was getting Migration Allowance from Jammu Kashmir

Government. It is thus alleged by the respondents that the present petition

has been filed by levelling false and concocted allegations against the

respondents.

4. Both the parties led evidence in support of their respective stands. The JMIC

accepted the application and awarded monthly maintenance @ ₹ 10,000,

rental allowance at the rate of ₹ 5000 per month and medical expenses to the

petitioner at the rate of ₹ 5000 per month apart from a compensation to the

tune of ₹ 25,000, vide order dated 30.7.2018. Aggrieved by said order, the

respondents preferred an appeal in the Court of Sessions Judge, Ambala,

which was accepted vide impugned judgement dated 11.4.2019 and order

dated 30.7.2018 passed by JMIC, Ambala, was set aside.

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5. The present petition has been filed by the petitioner in person challenging

impugned order dated 11.4.2019. Upon a query made by this Court on

5.9.2019, the petitioner expressed that she does not wish to engage any

counsel and would either be arguing the matter herself or her son would be

arguing on her behalf. Subsequently, an application was moved on behalf of

the petitioner seeking permission to place on record a Special Power of

Attorney executed by petitioner in favour of her son Arjun Chawla,

authorising him to present her case on her behalf which was taken on record

vide order dated 17.9.2019 and the petitioner’s son Arjun Chawla was

permitted to address arguments before this Court.

6. I have heard Sh. Arjun Chawla, appearing on behalf of the petitioner and

also the counsel representing the respondents and have also perused the

impugned order as well as other documents annexed with the petition. Sh.

Arjun Chawla, attorney of petitioner, submitted that the lower Appellate

Court fell in error in placing undue reliance upon the fact that some decree

for dissolution of marriage of the petitioner with her husband had been

passed whereas the alleged decree dated 31.1.2001(Annexure P-9) is in the

nature of an ex-parte decree and infact the passing of said decree is

questionable inasmuch as although the said decree purports to have been

passed in the year 2001, but the petitioner’s husband had also filed a petition

in the year 2005 u/s 13 of SectionHindu Marriage Act seeking dissolution of his

marriage as would be evident from a copy of divorce petition dated

3.3.2005(Annexure P-11). It has also been submitted that in any case the

alleged ex-parte decree dated 31.1.2001(Annexure P-9) virtually stood

revoked upon the petitioner’s husband having made a statement towards

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compromise on 4.3.2003 whereby he agreed to take back his wife in his

matrimonial home as would be evident from a copy of order dated for

4.3.2003(Annexure P-10) passed in execution proceedings pertaining to

execution of a decree for restitution of conjugal rights passed in favour of

the petitioner.

7. It has further been submitted that the Court of Sessions was also swayed

unnecessarily by the fact that the petitioner’s husband had expired whereas a

petition under SectionDomestic Violence Act is duly maintainable against the

relatives of an aggrieved person’s husband and the mere fact that the

husband had expired would not debar the petitioner/wife from having

recourse to provisions of SectionDomestic Violence Act. It has also been submitted

that the learned Sessions Judge did not take into account the fact that earlier

the order granting interim maintenance to the wife had been upheld up the

High Court inasmuch as this High Court did not choose to set aside the order

granting interim maintenance to the petitioner. Sh. Arjun Chawla, attorney of

petitioner, in this context has referred to order dated 18.1.2016(Annexure P-

3) passed by this Court in CRM-M-25197 of 2013.

8. It has further been submitted that the conduct of petitioner’s husband and of

other members of his family was always cruel towards the petitioner and she

was never permitted to settle in her matrimonial home and was continuously

harassed and after death of petitioner’s husband every effort has been made

by brothers of petitioner’s husband to defeat all the legitimate claims of the

petitioner and of her son to the estate of her husband and she is not even

permitted to reside in her matrimonial home at Ambala. It has thus been

submitted that the petitioner having been subjected to domestic violence by

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the respondents and having been thrown out of ‘shared household’, was

entitled to claim relief under provisions of SectionDomestic Violence Act. The

petitioner while placing reliance upon a judgement of Supreme Court

reported as 2019(2) RCR(Criminal) 1016, Ajay Kumar Vs. Lata @ Sharuti,

has submitted that the impugned order dated 11.4.2019 is liable to be set

aside and that of JMIC granting maintenance deserves to be restored.

9. On the other hand, the learned counsel for the respondents has supported the

impugned judgement and has submitted that the same is well reasoned,

passed after proper appreciation of the evidence on record and does not

suffer from any infirmity. It has further been submitted that in fact the

petitioner claims her pound of flesh from the respondents to which she is

not at all entitled to as she had hardly ever resided with her husband and had

always been residing at Jammu where she is getting Migration Allowance. It

has further been submitted that in any case the petitioner had never resided

in ‘shared household’ with the respondents so as to have ‘domestic

relationship’ with the respondents to be entitled to stake any claim under

provisions of SectionDomestic Violence Act. It has further been submitted that in

any case not only the marriage between the petitioner and her husband stood

dissolved in year 2001 but subsequently the petitioner’s husband expired in

the year 2010 and that the present petition came to be filed after the death of

petitioner’s husband which would suggest that the same has been filed

simply in order to pressurise the respondents to part with some property. It

has been submitted that no petition under SectionDomestic Violence Act or any

criminal case was ever instituted by the petitioner during the lifetime of her

husband and since she has continuously been residing at Jammu, away from

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her matrimonial home since the year 1997 onwards, she cannot raise any

claim after more than decade after leaving her matrimonial home, and that

too against her brothers-in-law, which, in any case would be barred by

limitation. A prayer has, thus, been made for dismissal of the petition.

10. The above noticed rival contentions inter-alia require the following

questions to be answered for adjudicating on the controversy in hand:

( 1 ) Whether the complaint filed by the petitioner under provisions
of SectionDomestic Violence Act is barred by limitation?

( 2 ) Whether the fact that the marriage of the petitioner stood
dissolved by way of decree of divorce when the complaint
under SectionDomestic Violence Act was filed, would render the
complaint not maintainable?

( 3 ) Whether a complaint under provisions of SectionDomestic Violence
Act against brothers of petitioner’s husband, filed after the death
of petitioner’s husband is maintainable?

( 4 ) Whether the petitioner had no option of assailing ex-parte
decree of divorce obtained by her husband, after death of her
husband?

( 5 ) Whether ex-parte decree of divorce(dated 31.1.2001) in favour
of petitioner’s husband, dissolving marriage of petitioner, is to
treated as a sham decree as the petitoner’s husband had filed
another divorce petition in 2005 which was dismissed?

11. Before proceeding to consider the aforesaid questions, it is apposite to bear

in mind the relevant provisions under the scheme of the SectionDomestic Violence

Act, which vests a wife with certain rights in case she is wronged by her

husband or other members of his family. Section 12(1) provides that an

aggrieved person may present an application to the Magistrate seeking one

or more reliefs under the Act. Under the provisions of Section 20(1), the

Magistrate while dealing with an application under sub-section (1) of

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Section 12 is empowered to direct the respondent(s) to pay monetary relief

to meet the expenses incurred and losses suffered by an “aggrieved person”

and any child of the aggrieved person as a result of domestic violence. An

“aggrieved person” has been defined Sectionsection 2(a) of the Act as follows:

2(a) “aggrieved person” means any woman who is, or has been, in a
domestic relationship with the respondent and who alleges to have
been subjected to any act of domestic violence by the respondent;

12. The term “respondent”, as occurring in Sectionsection 2(a) of the Act is defined in

Section 2(q) as follows:-

2(q) “respondent” means any adult male person who is, or has been, in
a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship
in the nature of a marriage may also file a complaint against a
relative of the husband or the male partner;

13. A perusal of Sectionsection 2(q) indicates that the expression “respondent” means

any adult male person who is, or has been, in a domestic relationship with

the ‘aggrieved person’ and against whom relief has been sought. The proviso

indicates that both, an aggrieved wife or a female living in a relationship in

the nature of marriage may also file a complaint against a relative of the

husband or the male partner, as the case may be.

14. Section 2(f) defines “domestic relationship” as follows:

2(f) “domestic relationship” means a relationship between two persons
who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage, or
through a relationship in the nature of marriage, adoption or are
family members living together as a joint family;

15. The expression “shared household” is defined in Section 2(s) as follows:-

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2(s) “shared household” means a household where the person aggrieved
lives or at any stage has lived in a domestic relationship either
singly or along with the respondent and includes such a house hold
whether owned or tenanted either jointly by the aggrieved person
and the respondent, or owned or tenanted by either of them in
respect of which either the aggrieved person or the respondent or
both jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint family of
which the respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest in
the shared household;

16. The above referred definitions reveal the scheme of the Act in creating both

an obligation and a remedy in terms of the enactment. While bearing in mind

the aforesaid scheme of the Act, this Court proceeds to notice some of the

relevant facts, as extracted from various documents annexed with the

petition, which may be stated chronologically as follows :

15.2.1995 : Marriage of petitioner was solemnised with Surinder
Chawla. It was second marriage of Surinder Chawla.

31.1.2001 : Marriage of petitioner was dissolved vide ex-parte
judgement and decree dated 31.1.2001(Annexure P-9)
passed by Court of Additional District Judge Ambala,
pursuant to a petition u/s 13 of HMA filed by petitioner’s
husband.

9.2.2001 : An ex-parte judgement and decree for restitution of conjugal
rights was passed on 9.2.2001(Annexure P-7) in favour of
the petitioner/wife by Court of Additional District Judge,
Jammu.

4.3.2003 : Execution proceedings were initiated by petitioner against
her husband Surinder Chawla for implementation of
judgement and decree 9.2.2001(Annexure P-7) . However,
the parties stated that matter had been compromised and
they were ready to settle under one roof and to lead happy

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marital life. The statements of the parties were recorded and
consequently the execution application was dismissed as
having been compromised.

4.9.2003 The petitioner had earlier filed a petition in the Court of
JMIC Jammu, claiming maintenance under Hindu Adoption
and SectionMaintenance Act wherein amount of ₹ 5000 p.m. had
been awarded as maintenance which was subsequently
enhanced Rs. 20,000 by Hon’ble High Court. During
execution of said orders, the petitioner’s husband was
arrested and produced before a Court at Jammu on 4.9.2003.

23.3.2005 : Another petition(Annexure P-11) under Sectionsection 13 of Hindu
Marriage Act filed by Surinder Chawla, husband of
petitioner seeking dissolution of his marriage with the
petitioner.

14.7.2009 : The aforesaid petition under Sectionsection 13 of Hindu Marriage
Act filed by the husband Surinder Chawla was dismissed
vide judgement and decree dated 14.7.2009(Annexure P-13)
as the husband did not lead any evidence in support of his
petition and did not even himself step into the witness box.

24.3.2010 : Surinder Chawla, husband of Petitioner expired.

25.4.2011 : Complaint filed by petitioner under SectionDomestic Violence Act
against brothers of her husband i.e. against the respondents.

15.9.2015 : A suit seeking declaration that petitioner and her son were
jointly holding the properties with the respondents was
dismissed by the Court of Civil Judge (Junior Division)
Ambala. The appeal against the said judgement was also
dismissed by the Court of Additional District Judge, Ambala
on 16.05.2016 and so was the Regular Second Appeal
dismissed by this High Court on 15.12.2017.

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Another suit filed by petitioner seeking declaration as
regards some partnership firms was also dismissed on
17.07.2015, which was affirmed upto High Court.

30.7.2018 : The JMIC, Ambala accepted the petition filed by the
petitioner under provisions of Protection of Women from
SectionDomestic Violence Act 2005, vide order dated
30.7.2018(Annexure P-4) directing the respondents to pay
an amount ₹ 10,000 per month to the petitioner as
maintenance from the date of order and also to pay another
amount of ₹ 5000 towards rent for alternate accommodation
and also another amount of ₹ 5000 per month towards
medical expenses.

11.4.2019 : Upon an appeal having been filed by the respondents
challenging aforesaid order dated 30.7.2018(Annexure P-4),
the appeal was accepted and the aforesaid order dated
30.7.2018 was set aside.

17. In order to determine as to whether the petitioner had a domestic relationship

with respondents, one of the material fact to be considered is as to during

which period the petitioner has been staying together with her husband in

her matrimonial home. The said position can be discerned from averments

made by the petitioner as well as by her husband at different points of time

in different proceedings. The relevant extracts from various petitions filed by

them are reproduced below:

Sr. Description of Averments made in the Document /
No. Document Relevant extract from order/judgement

1. Petition u/s 13 of 9. That the respondent left the matrimonial home in the
SectionHindu Marriage Act absence of the petitioner and while leaving the petitioner
filed by husband at took all the jewellery including that of the petitioner.
Ambala on 8.6.2000

10. The petitioner even sought the help of relatives of the
respondent to resolve the matter and even took his own

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( Annexure P-8 ) relatives to Jammu but the respondent did not accept to
come to Ambala.

11.That the petitioner’s health has completely broken down
because of these acts and omissions and commissions of
the respondent and he suffered a heart attack on 17.3.1998
and thereafter remained admitted in Ram Manohar
Lohaya Hospital, Delhi where angiography of the
petitioner was got done and subsequently was treated for
angioplasty in the hospital at Delhi. The petitioner feels
loneliness and he has been deprived of the love and
affection of a son and of the wife.

2. Petition u/s 9 of Petitioner Neha Chawla has deposed that she was married
SectionHindu Marriage Act to the respondent on 15.2.1995 as per Hindu rites and
filed by the wife at ceremonies and lived with the respondent husband for 8
Jammu on 11.9.2000. to 9 months only and thereafter the respondent started
Decreed on 9.2.2001 making demands of more dowry and she couldn’t fulfil the
demands and was turned out of the matrimonial home.

( Annexure P-7 )
(aforesaid is an extract from judgement
dated 9.2.2001 – Annexure P-7 )

3 Order dated 4.3.2003 Execution proceedings against Surinder Chawla was in
passed in execution progress and case was posted for appearance of the
proceedings in judgement debtor Surinder Chawla for 12th March 2003
respect of a decree for when an application for summoning the file for today
restitution of conjugal came to be initiated by both the parties on the ground that
rights which had been parties have compromised with each other and are ready
passed in favour of to settle under one roof and want to lead happy congenial
the petitioner Neha and cordial marital life. The file was summoned. The
Chawla at Jammu. statements of the parties were recorded over leaf the
compromise application. Since the parties have settled
( Annexure P-10 ) their grievances and want to lead a happy married life as
such the petition is dismissed as compromise. Hence
disposed off. File be consigned to records after due
completion.

(aforesaid is an extract from order dated
4.3.2003 – Annexure P-10 )

4 Another petition filed 11.That in the month of March 1996 the respondent left
by husband Surinder matrimonial home along with jewellery and valuable
Chawla u/s 13 of articles in the absence of the petitioner and without any
SectionHindu Marriage Act information to the petitioner and his family members. On
at Ambala on enquiry the petitioner came to know that the respondent
23.3.2005 seeking reached at Jammu and thereafter on 30.4.1996 she gave
dissolution of his birth to a male child at Central Hospital Jammu against
marriage. the wishes of the petitioner. The petitioner and his family
members always wanted to have delivery of the child at
( Annexure P-11 ) Ambala where all types of facilities regarding delivery
etc. are available in their presence and care and in spite
of all this she left the matrimonial home. … … …

13.That thereafter the respondent started pressing hard upon
the petitioner as she wanted to shift her at Jammu for
which she started compelling the petitioner to shift his

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business and residence at Jammu as she had to collect
every month Relief. The petitioner requested the
respondent that it is not feasible for the petitioner to
leave Ambala as he earns livelihood from Ambala.

14.That on 16.2.1997 the respondent along with minor child
left Ambala in the absence of the petitioner and she also
took all the jewellery and costly clothes etc.

18. From the above referred averments of the parties it can safely be discerned

that the parties barely resided together for about 1-2 years after their

marriage. In fact the petitioner herself, in her petition filed under Sectionsection 9 of

Hindu Marriage Act, has stated that that she was married in the year 1995

and they barely lived together for about 8-9 months and was thereafter

turned out of her matrimonial home. Though there is some inconsistency in

the averments made by the petitioner and her husband as regards the exact

period when the petitoner left matrimonial home but it is apparent that the

parties have not been residing together after 1997 because in any case even

the petition under Sectionsection 9 of the Hindu Marriage Act came to be filed by

the petitioner in the year 2000 and that too at Jammu while the petitioner’s

husband was residing in Ambala where he was carrying on his business as

well. The fact that respondent resides separately is also borne out from the

fact that petitioner’s husband had got his marriage dissolved way back in the

year 2001 vide judgement and decree dated 31.1.2001(Annexure P-9).

19. Thus, while it can be safely said that the parties had been residing separately

since prior to the year 2000, they complaint under SectionDomestic Violence Act

came to be filed after about 11 years from the time when the relations

apparently became strained. However it is well settled that there is no

limitation prescribed for instituting a complaint under Domestic Violence

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Act and it is only if any person is to be prosecuted under the provisions of

Sectionsection 31 of Domestic Violence Act that there would be a limitation of one

year in terms of Sectionsection 468 of Cr.P.C. This Court, in a recent judgement

reported as 2018(3) RCR(Criminal) 307 Vikas others vs. Smt. Usha

Rani and another (Pb. Hr.), held as follows:

“16. An aggrieved person is permitted to present an application to the Magistrate
seeking one or more reliefs under this Act and the Magistrate shall take into
consideration any domestic incident report received by him from the Protection
Officer also. Sectionsection 12 of the Domestic Violence Act is enabling provision to file
an application, whereas Sections 18 to Section22 of the Domestic Violence Act provide
for rights of the aggrieved person to seek different reliefs like protection,
residence, monetary relief, custody of minor and compensation. No limitation has
been prescribed for seeking any such relief. Penal provisions under Sectionsection 31 of
the Domestic Violence Act would get attracted on a breach of a protection order. It
is only in a situation when there is a breach of any protection order on an
application under Section 12 or on any of the reliefs under Sections 18 to Section22 of the
Domestic Violence Act, then and then only, an application under Sectionsection 31 of the
Domestic Violence Act is to be filed within one year from the date of such breach
and not thereafter. Therefore, the court is of the opinion that there is no limitation
prescribed to institute a claim seeking relief under Sections 17 to Section22 of the
Domestic Violence Act.”

20. While there can be no doubt that an application under provisions of Sectionsection

17 to Section22 of Domestic Violence Act would be maintainable even if filed

belatedly after the alleged incident of domestic violence as no limitation is

prescribed under the Act for instituting such an application, but the Court, as

a matter of caution, would be required to satisfy itself as regards the

genuineness of a claim made therein so as to rule out the possibility of any

concocted version which may have been put forth as an afterthought to

settle scores with the applicant’s husband or other members of his family

merely on account of the relations having turned sour between the applicant

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and her in-laws. Question no. (1), thus stands answered accordingly to the

effect that there is no limitation prescribed for instituting a complaint under

under provisions of Sections 17 to Section22 of Domestic Violence Act.

21. Having held that no limitation is prescribed for instituting a complaint under

provisions of Sectionsection 17 to Section22 of Domestic Violence Act, and that an

applicant cannot be thrown out of the Court solely on account of delay in

approaching the Courts, the next question before this Court is as to whether

in view of the circumstances that the marriage between the petitioner and her

husband stood dissolved and in fact even the husband had expired, an

application on behalf of a divorced wife after death of her husband would be

maintainable under provisions of SectionDomestic Violence Act.

22. The petitioner, in order to contend that grant of divorce would not absolve

the liability of the respondents under provisions of SectionDomestic Violence Act

has pressed into service a judgement of Hon’ble Apex Court reported as

2014(10) SCC 736 Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and

another.

23. On the other hand the learned counsel for respondents cites 2011(12) SCC

588 SectionInderjit Singh Grewal vs. State of Punjab and another, to contend that

once the relationship of husband-and-wife stood severed by a decree of

divorce, no complaint under provisions of domestic violence act would be

maintainable.

24. The above cited judgements have been perused. Hon’ble Apex Court in

2011(12) SCC 588 SectionInderjit Singh Grewal vs. State of Punjab and another,

wherein a wife whose marriage stood dissolved by a decree of divorce but

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even after the said divorce, had allegedly been staying together with her ex-

husband, held that a complaint under provisions of SectionDomestic Violence Act

was not maintainable as the marriage between the parties no longer

subsisted. The relevant extract read as such:

“33. In view of the above, we are of the considered opinion that permitting the
Magistrate to proceed further with the complaint under the provisions of
the Act 2005 is not compatible and in consonance with the decree of
divorce which still subsists and thus, the process amounts to abuse of the
process of the court. Undoubtedly, for quashing a complaint, the court has
to take its contents on its face value and in case the same discloses an
offence, the court generally does not interfere with the same. However, in
the backdrop of the factual matrix of this case, permitting the court to
proceed with the complaint would be travesty of justice. Thus, interest of
justice warrants quashing of the same.”

25. In the subsequent judgement, relied upon by the petitioner i.e. Juveria

Abdul’s case (supra), the Hon’ble Supreme Court noticed the earlier

judgement rendered in Inderjit Singh Grewal’s case (supra) but upon finding

the factual matrix to be distinct, held the complaint under SectionDomestic Violence

Act to be maintainable. The distinction noticed is that while in Inderjit

Singh Grewal’s case, the marriage stood finally dissolved amongst the

parties and neither any complaint under provisions of SectionDomestic Violence Act

had been filed nor any FIR/complaint under Sectionsection 406 or 498-A SectionIPC or

under any other penal provisions had been instituted prior to grant of divorce

whereas in Juveria Abdul’s case (supra), a FIR under provisions of Sectionsection

498-A IPC already stood lodged before the husband got his marriage

dissolved. It was on account of the said distinguishable facts in Juveria

Abdul’s case that Hon’ble Supreme Court held that complaint under

provisions of SectionDomestic Violence Act was maintainable.

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26. It, thus, follows that there is no such rule that divorce between a couple

would absolutely debar a wife from invoking provisions of SectionDomestic

Violence Act and that in certain exceptional circumstances, as in Juveria

Abdul’s case(supra), a wife, despite her divorce, may still be able to make

out a case for grant of relief. However, as far as the present case is

concerned, the facts are more akin to the facts in Inderjit Singh Grewal’s

case inasmuch as neither any complaint under SectionDomestic Violence Act nor

any FIR under Sectionsection 406 or 498-A of SectionIPC or under any other penal

provisions had ever been instituted before the dissolution of marriage.

Rather, another glaring fact is that the husband also had expired before

institution of an application under provisions of SectionDomestic Violence Act. In

these peculiar circumstances of the present case, the complaint filed by the

petitioner against her brothers-in-law under provisions of SectionDomestic Violence

Act, filed after a decade of dissolution of her marriage with her husband and

also after death of her husband, especially when no FIR for any offence u/s

406 or 498-A had ever been lodged at the instance of wife, has has to be held

as an abuse of process of law. The aforesaid conclusion is fortified from the

fact that there is no convincing evidence even to show that the petitioner had

resided in shared household with the respondents or that the respondents had

subjected the petitioner to domestic violence. Question no. (2) and (3) are,

thus, answered accordingly, against the petitioner.

27. Question no. (4) pertains to the position of law as regards maintainability of

an application at the instance of wife for setting aside an ex-parte decree of

divorce in favour of husband, after death of husband. In the present case,

although the petitioner’s marriage stood dissolved by way of an ex-parte

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decree but no step whatsoever has ever been taken by the petitioner for

getting the said the ex-parte decree set aside. During the course of

arguments, it was contended on behalf of the petitioner that after the death of

petitioner’s husband she had no option to get the decree set aside since by

the time the petitioner came to know about ex-parte decree her husband had

already expired, but this Court is unable to accept the aforesaid contention

inasmuch as the death of her husband would not have debarred the petitioner

from assailing the ex-parte decree as the same could have been challenged

by impleading some legal representative of her deceased husband. Hon’ble

Supreme Court in (1996)6 SCC 371 R. Lakshmi Vs. K. Saraswathi Ammal ,

while dealing with a matter pertaining to right of a wife to challenge

ex-parte decree of divorce, after death of her husband, held as follows:

“4. We are of the opinion that the wife should be and is competent
to maintain the application under Order 9 Rule 13. Even though
the husband is dead, yet the decree obtained by him is effective
in law and determines the status of the appellant. If the
appellant says that it is an ex-parte decree and ought to be set
aside, her application has to be heard on merits. The decree of
divorce determines her status as a wife apart from determining
her rights in the properties of her deceased husband. This gives
her sufficient locus standi and right to contest the divorce
proceedings even after the death of her husband.”

28. To a similar effect is another judgement of Hon’ble Supreme Court reported

in 1997(11) SCC 159 Smt. Yallawwa Vs. Smt. Shantavva, wherein it has

been held as follows :

“8. …. …… …… It must, therefore, be held that after a decree of
divorce is obtained by the petitioning husband against his wife

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she has right to file an appeal and such appeal does not abate on
account of the death of the respondent-husband whether such
death takes place prior to the filing of appeal or pending the
appeal. Similarly if an ex-parte decree of divorce is obtained
against the wife and thereafter if the husband dies, the
aggrieved wife can maintain an application under Order 9, Rule
13, C.P.C. even though the husband might have died prior to the
moving of that application or during the pendency of such
application. In all such cases other legal heirs of the deceased
husband can be brought on record as opponents or respondents
in such proceedings by the aggrieved spouse who wants such
decree to be set aside, and when the other heirs of the deceased-
husband would naturally be interested in getting such decree
confirmed either in appeal or under Order 9. Rule 13, C.P.C. …”

29. The above referred judgements leave no manner of doubt that the petitioner,

even after death of her husband did have a right to challange the ex-parte

decree of divorce obtained by her husband. Question no. (4) stands answered

accordingly.

30. It was also contended on behalf of the petitioner that the ex-parte decree

dated 31.1.2001 was a sham decree inasmuch as the petitioner’s husband had

in fact filed a petition seeking dissolution of marriage much later in the year

2005 as would be evident from a copy of petition annexed as Annexure P-11

and that in these circumstances no reliance can be placed upon the decree of

divorce. A contention has also been raised that statement made by

petitioner’s husband on 4.3.2003 before executing Court where execution of

decree in favour of wife for restitution of conjugal rights was pending,

wherein he agreed to rehabilitate his wife, would have the effect of setting at

naught the ex-parte decree of divorce obtained earlier.

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31. I have considered the aforesaid submission. Although it is certainly

unexplained as to how the second petition(Annexure P-11) u/s 13 of SectionHindu

Marriage Act came to be filed at the instance of petitioner's husband when a

decree of divorce(Annexure P-9) had already been passed in his favour and

the same had not ever been set aside but this question need not detain this

Court as the undisputed fact is that the decree dated 31.1.2001 dissolving

marriage between the parties was still operative and had not been set aside.

Hon'ble Apex Court in 2011(12) SCC 588 SectionInderjit Singh Grewal vs. State of

Punjab and another, while dealing with validity of a judgement alleged to be

obtained by fraud, held as follows:

"18. However, the question does arise as to whether it is permissible for
a party to treat the judgment and order as null and void without
getting it set aside from the competent Court. The issue is no more
res integra and stands settled by a catena of decisions of this Court.
For setting aside such an order, even if void, the party has to
approach the appropriate forum. (Vide: SectionState of Kerala v. M.K.
Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) Ors.,
AIR 1996 Supreme Court 906; and SectionTayabbhai M. Bagasarwalla
Anr. v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473
: 1997(2) R.C.R.(Rent) 682 ).

19. SectionIn Sultan Sadik v. Sanjay Raj Subba Ors., 2004(1) R.C.R.(Civil)
767 : 2004(3) S.C.T. 395 , this Court held that there cannot be any
doubt that even if an order is void or voidable, the same requires to
be set aside by the competent court.

20. SectionIn M. Meenakshi Ors. v. Metadin Agarwal (dead) by Lrs.
Ors., (2006)7 SCC 470, this Court considered the issue at length
and observed that if the party feels that the order passed by the
court or a statutory authority is non-est/void, he should question

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the validity of the said order before the appropriate forum resorting
to the appropriate proceedings. The Court observed as under :-

"18. It is well settled principle of law that even a void order is required
to be set aside by a competent Court of law, inasmuch as an order
may be void in respect of one person but may be valid in respect of
another. A void order is necessarily not non-est. An order cannot be
declared to be void in collateral proceedings and that too in the
absence of the authorities who were the authors thereof." (Emphasis
added)

A similar view has been reiterated by this Court in SectionSneh Gupta v. Devi
Sarup Ors., 2009(2) R.C.R.(Civil) 129 : 2009(2) Recent Apex
Judgments (R.A.J.) 145 : (2009)6 SCC 194.

21. From the above, it is evident that even if a decree is void ab initio,
declaration to that effect has to be obtained by the person aggrieved
from the competent court. More so, such a declaration cannot be
obtained in collateral proceedings."

32. Thus, as long as the earlier decree dated 31.1.2001 had not been set aside

the same would be fully operative and the filing of some petition at a

subsequent stage purported to be filed by petitioner's husband or any

statement made by husband that he would start residing with his wife would

not ipso-facto render the earlier decree of divorce void or redundant.

Question no. 5 is thus answered accordingly and decree dated 31.1.2001 can

not be said to be void or nonest till it is declared so and is set aside.

33. Although the death of petitioner's husband is not a factor which would dis-

entitle petitioner to claim maintenance from those with whom she had

resided in "shared household" and whose conduct had rendered her

"aggrieved" but for getting such relief it is sine-qua-non that the wife

establishes that she and the respondents had been living in a "shared

household" and there had been a domestic relationship between them.

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However, there is no such evidence forthcoming in this regard. Although the

petitioner seems to have filed civil suits staking claim in the property and

business of the respondents on the ground that it was a joint holding with her

husband but the said civil suits stand dismissed upto High Court and no such

declaration was granted in favour of the petitioner. The said fact has been

noticed by the lower Appellate Court. Further, the fact that the present

complaint under SectionDomestic Violence Act came to be filed after about a

decade of the petitioner residing separately leaves much to be explained and

would cause some kind of doubt as regards the genuineness of the

allegations regarding domestic violence made by the petitioner. The very

fact that she chose to remain silent all these years would tend to put the

Courts at caution particularly when no justifiable explanation is forthcoming

to explain the whopping delay of a decade. As already mentioned that the

petitioner has even been unsuccessful in the civil suits wherein she had

raised a claim in the property and business of the respondents.

34. Although the material questions, as discussed above, stand answered against

the petitioner, but to be fair to the petitioner, her contention that a complaint

under SectionDomestic Violence Act, in any case would be maintainable against

brother-in-law deserves to be discussed. The petitioner places reliance upon

a recent judgement of Hon'ble Apex Court reported as 2019(2) RCR

(Criminal) 1016, SectionAjay Kumar vs. Lata @ Sharuti, the relevant extract of

which reads as follows:

"16. At the present stage, there are sufficient averments in the complaint
to sustain the order for the award of interim maintenance.
Paragraph 10 of the complaint prima facie indicates that the case of

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the complainants is that the house where the first respondent and
her spouse resided, belong to a joint family. The appellant and his
brother (who was the spouse of the first respondent and father of
the second respondent) carried on a joint business. The appellant
resided in the same household. Ultimately, whether the
requirements of Section 2(f); Section 2(q); and Section 2(s) are
fulfilled is a matter of evidence which will be adjudicated upon at
the trial. At this stage, for the purpose of an interim order for
maintenance, there was material which justifies the issuance of a
direction in regard to the payment of maintenance.

17. However, we clarify that the present order as well as orders which
have been passed by the courts below shall not come in the way of
a final adjudication on the merits of the complaint in accordance
with law."

35. A perusal of the cited judgement would show that the Hon'ble Supreme

Court has held that a brother of husband is liable in case the husband of the

complainant had been carrying on joint business with his brothers and the

said brothers and complainant's husband resided in the same household.

36. In context of the aforesaid issue, the following observations of Hon'ble

Supreme Court pertaining to maintainability of complaint under SectionDomestic

Violence Act against relatives of husband, as made in SectionS.R. Batra and

another v. Taruna Batra (Smt.), (2007)3 SCC 169, also need to be borne in

mind:

"24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition
of shared household includes a household where the person aggrieved lives or
at any stage had lived in a domestic relationship. He contended that since
admittedly the respondent had lived in the property in question in the past,
hence the said property is her shared household.

25. We cannot agree with this submission.

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26. If the aforesaid submission is accepted, then it will mean that wherever the
husband and wife lived together in the past that property becomes a shared
household. It is quite possible that the husband and wife may have lived
together in dozens of places e.g. with the husband's father, husband's paternal
grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews,
nieces etc. If the interpretation canvassed by the learned counsel for the
respondent is accepted, all these houses of the husband's relatives will be shared
households and the wife can well insist in living in the all these houses of her
husband's relatives merely because she had stayed with her husband for some
time in those houses in the past. Such a view would lead to chaos and would be
absurd.

27. It is well settled that any interpretation which leads to absurdity should not be
accepted.

28. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section
19(1)(f) of the Act and claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative accommodation can
only be made against the husband and not against the husband's in-laws or other
relatives."

37. In another case reported as (2008) 4 SCC 649 Vimlaben Ajitbhai Patel v.

Vatslaben Ashokbhai Patel and others, Hon'ble the Supreme Court has, after

referring to the provisions of Sectionsection 3(b),Section18 and Section19 of the Hindu Adoptions

and SectionMaintenance Act, 1956, observed that maintenance of a married wife,

during subsistence of marriage, is on the husband and that the same is a

personal obligation and that such an obligation, upon death of husband, can

also be met from the properties of which the husband is a co-sharer and not

otherwise.

38. When the facts of the case in hand are examined in light of the ratio of above

referred judgements, the materially distinct factual position make the

application of Ajay Kumar's case (supra) rather inappropriate. The distinct

facts, although already discussed above, may be summarised as follows:

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(i) After the marriage in 1995, the petitioner and her husband resided
together for just about 1-2 years at Ambala and the petitioner/wife,
thereafter, started residing in Jammu.

(ii) The petitioner's husband expired in the year 2010 whereas the
application under SectionDomestic Violence Act came to be filed thereafter
in the year 2011. In any case, the said application was filed after a
decade of the the petitioner residing separately from her husband.

(iii) The ex-parte decree of divorce passed on 31.1.2001 has not been set
aside and nor any application for getting the same set aside has been
filed by the petitioner till date.

(iv) No FIR or any complaint for any offence under Sectionsection 406 or 498-A
of SectionIPC or under any other penal provisions was ever instituted against
the petitioner's husband or any other member of his family.

(iv) The civil suits filed by the petitioner against the respondents claiming
that the properties and bussiness were jointly held by respondents
with the petitioner's husband already stand dismissed up to the High
Court.

39. In these circumstances, in the absence of evidence to hold that the

complainant was residing in a "shared household" with the respondents or

that the respondents had committed any act of domestic violence so as to

hold them responsible to pay maintenance or any amount towards rentals of

residential accommodation to the petitioner, the respondents who are

brothers of petitioner's husband can not be held liable in any manner to

compensate the petitioner. The impugned order, thus, does not suffer from

any infirmity so as to warrant any interference. Finding no merit in the

petition the same is hereby dismissed.

40. Before parting with the judgement, it is clarified that the petitioner or her

son shall be entitled to continue with their other cases, in case any are

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pending, and the Courts concerned shall proceed in accordance with law

without being influenced by the observations made in this judgement which

have been made for the purpose of deciding the present petition.

4.10.2019                                         (Gurvinder Singh Gill)
kamal Judge

Whether speaking /reasoned Yes / No
Whether Reportable Yes / No

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