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Judgments of Supreme Court of India and High Courts

Smt. Sadhana W/O. Hemant … vs Shri. Hemant S/O. Shalikramji … on 18 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

CRIMINAL REVISION APPLICATION (REVN) NO. 121 OF 2018

Smt. Sadhana w/o Hemant Walwatkar,
aged 42, Occ. Household, R/o C/o Shri
Nagoraoji Hiwarkar, Plot No.369,
Darshan Colony, Nagpur. … APPLICANT

VERSUS

Hemant s/o Shalikramji Walwatkar,
aged 46, Occ. Electric Contractor,
R/o Plot No.6, Gorewada Road,
Uttam Nagar, Nagpur. … RESPONDENT

….
Smt. Amruta A. Ghonge, Advocate (appointed) for the applicant.
Shri R.N. Sen, Advocate for the respondent.
….

CORAM : M.G. GIRATKAR, J.

DATE OF RESERVING THE JUDGMENT : 03RD APRIL, 2019.

DATE OF PRONOUNCING THE JUDGMENT : 18TH APRIL, 2019.

JUDGMENT :

Heard. Admit. Heard finally with the consent of learned

Counsel appearing on behalf of the respective parties.

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2. The present revision is against the judgment of 25 th Judicial

Magistrate, First Class, Nagpur in Miscellaneous Criminal Application

No. 1087 of 2009 by which the application of the applicant came to be

rejected vide order dated 20th August, 2015. The said judgment was

challenged before the learned Sessions Judge, Nagpur in Criminal

Appeal No. 235 of 2015. The said appeal came to be dismissed vide

order dated 03rd August, 2017.

3. The brief facts, which give rise to filing of the present

revision, can be summarized as under –

The applicant/wife had filed an application under Sections

12 and 18 of the Protection of Women From Domestic Violence Act,

2005 (hereinafter referred as “DV Act” for the sake of brevity). The

applicant got married with respondent/husband on 15th July, 1999.

She delivered two children out of the said wedlock. The respondent

had filed petition for restitution of conjugal rights before the family

Court. The matter was amicably settled and they started living

together on trial basis. Respondent converted the petition for

restitution of conjugal rights into divorce petition under Section 13 of

the Hindu Marriage Act. Learned family Court allowed the said

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petition and granted divorce on 30th June, 2008. In the year 2009, the

application under Sections 12 and 18 of the DV Act was filed by the

applicant alleging domestic violence on the part of the respondent/

husband. The said application was resisted by the respondent on the

ground that at the time of filing application, there was no domestic

relation. She was not residing with him. She was not wife in view of

the divorce granted on 30th June, 2008 and, therefore, her application

is liable to be rejected. Both the parties adduced their respective

evidence before the learned JMFC, Nagpur, who dismissed the said

application by judgment dated 20th August, 2015. In appeal, learned

Additional Sessions Judge, Nagpur recorded his findings that there was

no domestic relationship and, therefore, the applicant is not entitled for

relief under the DV Act.

4. Heard Smt. A.A. Ghonge, learned Counsel appearing on

behalf of the applicant and Shri R.N. Sen, learned Counsel appearing

on behalf of the respondent.

5. Smt. Ghonge, learned Counsel for the applicant, has

submitted that the applicant is entitled for the relief even though she is

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divorcee. In support of her submission, she has placed heavy reliance

on the judgment of Hon’ble Apex Court in the case of Juveria Abdul

Majid Patni .v. Atif Iqbal Mansoori and another (reported in 2014

(1) SCC, 736). In the case of Inderjit Singh Grewal .v. State of

Punjab and another (reported in 2011(9) SCALE, 295), the apex

Court has considered the judgment in the case of Juveria Abdul Majid

Patni .v. Atif Iqbal Mansoori and another (cited supra) and recorded its

findings in para 29 that domestic violence took place between January,

2006 and 06.09.2007 on which date FIR under Sections 498-A and 406

of the Indian Penal Code was lodged by the wife against her husband

and his relatives. It is in this context, the apex Court has observed that

even if it is accepted that during the pendency of the SLP, the wife has

obtained exparte “khula” (divorce) under the Muslim Personal Law

from the Mufti on 09.05.2008, the petition under Section 12 of the DV

Act is maintainable.

6. In the present case, the applicant is not the wife from the

date of decree of divorce i.e. from 30 th June, 2008 and, therefore, there

is no relationship as husband and wife between them at the time of

filing of the application. The judgment in the case of Juveria Abdul

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Majid Patni .v. Atif Iqbal Mansoori and another (cited supra) is

considered by the apex Court in the case of Inderjit Singh Grewal .v.

State of Punjab and another (cited supra), in which, it is observed that,

“in the facts and circumstances of the case, the submission made on

behalf of respondent No.2 that the judgment of decree of Civil Court

granting divorce is null and void and they continued to be the husband

and wife, cannot be taken note of at this stage unless the suit filed by

respondent No.2 to declare the said judgment and decree dated

30.03.2008 is decided in her favour. In view thereof, the evidence

adduced by her particularly the record of the telephone calls,

photographs attending a wedding together and her signatures in school

diary of the child cannot be taken into consideration so long as the

judgment and decree of the Civil Court subsists. On the similar footing,

the contention advanced by her counsel that even after the decree of

divorce, they continued to live together as husband and wife and

therefore, the complaint under the Act 2005 is maintainable, is not

worth acceptance at this stage.”

7. The Hon’ble Apex Court has held that to entertain the

petition under the DV Act, there must be relationship as husband and

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wife. In the present case, the applicant/wife is no more wife from the

date of judgment of family Court dated 30 th June, 2008. During the

pendency of petition under DV Act (Petition No. 1087 of 2009),

learned trial Court had granted interim maintenance of Rs.1,000/- per

month. The said order was challenged before the Sessions Court. The

main issue before the Sessions Court as to whether the divorcee can

claim relief under the DV Act. Learned Sessions Judge in Criminal

Appeal held that there was no domestic relationship between the

parties on the date of filing of the petition and accordingly set aside the

order of interim maintenance. The order of Sessions Judge was not

challenged and, therefore, it attained finality.

8. Smt. Ghonge, learned Counsel for the applicant has pointed

the decision of this Court in the case of Aradhana Walkade .v.

Chandrashekar Vaidya and another (reported in 2014 ALL MR

(Cri), 1658). Her Ladyship has held that, “both relationship between

parties in existence as well as past relationship covered under

definition of ‘domestic relationship’. Hence, woman who is divorcee

has remedy available to initiate proceedings under the Act.” In the

cited decision, there was divorce between husband and wife. Husband

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was paying amount of Rs.25,000/- for the daughter who was residing

with the wife. He was continuously paying amount of Rs.25,000/- till

August, 2011. Since then, he stopped paying the said amount.

Therefore, it was contended by the wife (divorced wife) that as her

child was deprived of maintenance, she thereby suffered economic

abuse. Hence, it was held that the petition was maintainable even

though it was filed by divorced wife. The facts in the cited decision are

very much different and, therefore, it is not applicable in the case at

hand.

9. In the case of Dhananjay Ramkrishna Gaikwad and

others .v. Sunanda Dhananjay Gaikwad and others (reported in

2016 ALL MR (Cri), 2291), there exists relationship as husband and

wife. There was no divorce between them. Therefore, it was held that

though she is residing separately, she can file application under the

provisions of DV Act.

10. There is no dispute that the applicant/wife is no more wife

from the decision of family Court in Petition No. A-410/2004 dated 30th

June, 2008. The said decision is not set aside by the appellate Court

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till date. Therefore, it is clear that at the time of filing of petition under

the provisions of DV Act in the year 2009, the applicant was not the

wife and, therefore, the petition itself was not maintainable. This

Court, in the case of Jayesh Uttamrao Khairnar and others .v. State

of Maharashtra and others (reported in 2010(3) Mh.L.J., 305), has

held that, “decree of divorce was already granted by the competent

Court. During the relevant period of one year or before filing of the

application under the Act, there was no conjugal relationship between

the petitioner No.1-husband and the respondent No.2-wife. There was

no question of giving protection to respondent No.2 when she was not

residing with the petitioners. Case of respondent No.2 did not fall

under Section 20(1) of the Act. In view of absence of domestic

relationship of the respondent No.2 as on the date of filing of the

complaint, proceedings under the Act were not maintainable and were

filed with mala fide intention to harass the husband and his relatives.

Proceedings quashed and set aside.”

11. In the case of Harbans Lal Malik .v. Payal Malik

(Criminal Revision Petition No. 253 of 2010, dated 29.07.2010),

Delhi High Court has held that, “it is apparent that in order to make a

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person as respondent in a petition under Section 12, there must exist a

domestic relationship between the respondent and the aggrieved

person. If there is no domestic relationship between the aggrieved

person and the respondent, the Court of MM cannot pass an order

against such a person under the Act.”

12. In the present case, there was no domestic relation on the

date of filing of application under the DV Act and, therefore, the

applicant/wife is not entitled for any protection under the said Act.

13. The Hon’ble Apex Court in the case of Inderjit Singh

Grewal .v. State of Punjab and another (cited supra) has observed that,

“there is no domestic relationship as husband and wife at the time of

filing of petition. Therefore, proceedings under DV Act not

maintainable.” In the present case, divorce was granted by the family

Court vide order dated 30th June, 2008. Application under DV Act was

filed in the year 2009. At the time of filing of application under the DV

Act, the applicant was not the wife. There was no domestic

relationship between them. Hence, orders passed by the learned JMFC,

Nagpur and maintained by Additional Sessions Judge, Nagpur in

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Criminal Appeal No. 235 of 2015 are perfectly legal and correct. There

is no perversity or illegality in the impugned orders.

14. In view of the aforesaid facts, there is no merit in the

revision and the same deserves to be dismissed. Accordingly, Criminal

Revision Application is dismissed with no order as to costs.

15. Fees payable to the learned Counsel appointed for the applicant

are quantified at Rs.3,000/- (rupees three thousand only).

JUDGE

*rrg.

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