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Sandeep Kumar Chauhan vs State Of Uttarakhand And Another on 11 March, 2019

Criminal Miscellaneous Application No. 1363 of 2015

Sandeep Kumar Chauhan ….Applicant


State of Uttarakhand and another ….Respondents

Mr. Pradeep Chamiyal, Advocate for the applicant.
Mr. Sachin Panwar, Brief Holder for the State of Uttarakhand.
Mr. H.C. Pathak Mr. B.D. Pande, Advocates for respondent no. 2.

Dated: 11.03.2019
Hon’ble Manoj K. Tiwari, J.

According to the applicant, marriage was
solemnized between him and respondent no. 2 on
15.06.2010, which was duly registered with the
Registrar of Marriages. Subsequently, differences arose
between them and a divorce petition was filed, which
was decreed by learned Additional District Judge,
Saharanpur, against which respondent no. 2 preferred
an appeal. While admitting the appeal, Hon’ble
Allahabad High Court directed the applicant to pay
`15,000/- per month to the respondent no. 2, as
alimony, which, according to the applicant, is being
paid continuously.

2. Thereafter, respondent no. 2 filed an
application under Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to as ‘the Act’).
Applicant raised question of maintainability of the
application filed by the respondent no. 2 by filing an
application on the ground that domestic relationship
between applicant and respondent no. 2 does not exist
anymore, after grant of decree of divorce by learned
Additional District Judge, Saharanpur. Thus, it was
contended on behalf of the applicant that the

application made by respondent no. 2 is liable to be
rejected on this score alone.

3. Learned Ist Additional Chief Judicial
Magistrate, Dehradun, by placing reliance upon a
judgment rendered by Bombay High Court in the case
of Bharati Naik Vs. Ravi Ramnath Halarnkar
another, rejected the objection filed by the applicant by
holding that wife can file application against her
husband even after dissolution of marriage. The said
order dated 21.07.2014 passed by learned Magistrate
was challenged by applicant by filing Criminal Appeal
No. 147 of 2014, which was dismissed by Vth
Additional Sessions Judge, Dehradun vide judgment
and order dated 02.05.2015.

4. During the pendency of the said appeal,
respondent no. 2 filed an application under Section 12
read with Section 19 of the Act with the prayer that the
applicant may also be directed to pay ` 7,000/- per
month, as house rent to her. The said application was
allowed by learned Magistrate vide order dated
03.12.2014 and applicant was directed to pay
` 7,000/-, as notional rent, to the respondent no. 2
under Section 19(1) (f) of the Act.

5. Thereafter, applicant moved an application
on 17.06.2015 with the contention that since he is
paying ` 15,000/- per month to respondent no. 2, as
maintenance in terms of order passed by Hon’ble
Allahabad High Court, therefore, the amount of
notional rent awarded to respondent no. 2 vide order
dated 03.12.2014 be adjusted against the amount paid
to respondent no. 2 in terms of order of Hon’ble
Allahabad High Court. The said application was

rejected by learned Magistrate on 27.06.2015, by
holding that the amount of notional rent cannot be
adjusted in the maintenance amount ordered to be
paid by Hon’ble Allahabad High Court. It was further
observed that the order dated 03.12.2014 has not been
challenged before any forum; therefore, the said order
has attained finality.

6. Applicant challenged the order dated
27.06.2015 by filing Criminal Appeal No. 102 of 2015,
which too was dismissed by VIIth Additional Sessions
Judge, Dehradun vide judgment dated 19.08.2015.
Thereafter, learned Magistrate passed an order on
30.09.2015 for issuing recovery warrant against the
applicant, fixing 31.10.2015. Thus, feeling aggrieved,
applicant has approached this Court challenging the
orders dated 27.06.2015 and 30.09.2015 passed by
learned Magistrate and also the judgment dated
19.08.2015 passed by learned VIIth Additional Sessions

7. The sole contention of learned counsel for the
applicant is that since marriage between applicant and
respondent no. 2 was dissolved by a competent Court
of law, therefore, learned Courts below erred in
entertaining the application moved by respondent no. 2
under the Act. He further submits that provisions of
the Act can be invoked by the wife only during
subsistence of domestic relationship between her and
the husband and once relationship is severed by a
decree of divorce, thereafter no relief can be granted to
the wife under provisions of the Act.


8. Per contra, learned counsel for respondent
no. 2 submits that divorce decree was fraudulently
obtained by the applicant by setting up an imposter in
place of respondent no. 2. He further submits that
when respondent no. 2 learnt about the fraud having
been committed upon her, respondent no. 2 filed an
appeal, which was registered as First Appeal No. 567 of
2013. Copy of the order dated 11.02.2015 passed in
the said appeal is brought on record as Annexure-3 to
the counter affidavit filed by respondent no. 2. Hon’ble
Hon’ble Allahabad High Court has observed in the said
order that respondent no. 2 had no knowledge about
suit for divorce filed in her name before Additional
District Judge, Saharanpur. It has further been
observed that order sheet of learned Court below
reflects that respondent no. 2 was not present at the
time of filing of plaint. Relevant extract of the said order
is reproduced below:-

“Since the matter involves a serious question of
fraud upon the court, I consider it necessary
that the same may be examined minutely.
Accordingly, in exercise of powers under Section
107 C.P.C. following additional issue is framed
and remitted to the court below for recording
evidence of the parties on it and to return its
finding to this Court within a period of three
months from the date of receipt of this order and
record of the lower court which is presently
before this Court.

Whether any fraud has been played by the
defendant/ respondent in engaging a counsel
on behalf of the plaintiff/ appellant, getting
the suit instituted in the name of the
plaintiff/ appellant by manipulating her
signatures on the plaint and further by
getting her statement recorded before the
court by setting up an imposter or the suit
was actually instituted by the plaintiff/


9 Perusal of the order passed by Hon’ble
Allahabad High Court, prima facie indicates that decree
for divorce was obtained by the applicant by playing
fraud upon the trial Court.

10. Even otherwise also, Hon’ble Supreme Court
in the case of Juveria Abdul Majid Patni Vs. Atif Iqbal
Mansoori reported in (2014) 10 SCC 736 has held that
the protection under Domestic Violence Act would be
available to the aggrieved person even after decree of
divorce. Paragraph No. 30 of the said judgment is
extracted below:

“30. An act of domestic violence once committed,
subsequent decree of divorce will not absolve the
liability of the respondent from the offence committed
or to deny the benefit to which the aggrieved person is
entitled under the Domestic Violence Act, 2005
including monetary relief under Section 20, child
custody under Section 21, compensation under
Section 22 and interim or ex parte order under Section
23 of the Domestic Violence Act, 2005.”

11. In such view of the matter, the contention
made on behalf of the applicant, that the proceedings
under the Act could not have been initiated against
him in view of divorce decree passed by the Civil Court
at Sharanpur, cannot be accepted. Even otherwise
also, learned Courts below have given cogent reasons
in support of the orders/ judgments impugned in this
C482 application.

12. Thus, this Court does not find any infirmity
in the view taken by learned Courts below and there is
no scope for interference in this C482 application.
Accordingly, the same is dismissed.

(Manoj K. Tiwari, J)

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