Monday, 30 January 2017

Whether wife is entitled to file proceeding under DV Act after decree for nullity is passed?

In my opinion, an application by an ‘aggrieved person’ or a
Protection Officer is essential for maintaining a proceeding in view
of the provisions of Section 12 of the P.W.D.V. Act. Here petitioner filed the application as ‘aggrieved person’. Question is whether her
right to claim herself as aggrieved person was ceased with effect
from 23.04.2012. ‘Aggrieved person’ has been defined in Section 2
(a) of the P.W.D.V. Act as- “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. In her application petitioner alleged
that she had been subjected to physical as well as mental torture by
her husband during her living with the O.P. No. 1 in a shared
household as wife of the opposite party no. 1 which attracts the
definition of “domestic violence” as per Section 3 of the Act.
Undisputedly petitioner was wife of the opposite party no. 1 till the
passing of the decree of nullity of marriage on 23.04.2012. In order
to establish herself as aggrieved person any woman must prove first
that she is or has been in a domestic relationship with the
respondent. As per definition in Section 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. According to factual
matrix in this case the petitioner and opposite party no. 1 have
lived together in a shared household till petitioner’s departure from
that house during her pregnancy stage as the petitioner and
opposite party no. 1 were related each other by marriage.
Significantly, it is mentioned that out of their such joint living a
child has born. Therefore, as per definition of “domestic
relationship” it can be said that even after passing the decree of
nullity of marriage the domestic relationship between petitioner and
the opposite party no. 1 for the purpose of P.W.D.V. Act subsists
out of their past joint living as legally wedded couple. In this
connection I like to note that petitioner’s application cannot be
treated as an application under Section 125 of the Cr.P.C. The
P.W.D.V. Act is a special beneficial legislation to protect the rights
of women expanding the limited scope of Section 125, Cr.P.C. Suchwider scope is required to be kept in mind in course of dealing with
any matter under the provisions of the P.W.D.V. Act but certainly
within the ambit of the language used in the statute. Be it noted
that in a judgment in the case of D. Velusamy Vs. D.
Patchaiammal reported in (2010) 10 SCC 469 (cited by learned
counsel for the petitioner) extended scope in the P.W.D.V. Act has
been discussed. Said case, though not similar according to facts to
this case, but it throws light to understand the legal position on the
subject.
In the instant case, petitioner alleged physical and mental
torture upon her by opposite party no. 1 during continuation of
their marital relationship. She also alleged that opposite party no.
1 kept her ‘Stridhana’ property with him and she was not provided
maintenance for herself and her child by the opposite party
although the petitioner is unable to maintain herself and her child.
Since her marital relation with opposite party no. 1 has been
declared a nullity with effect from 23.04.2012, her right to claim
maintenance from opposite party no. 1 may not be proper under
Section 125 of the Cr.P.C. But she cannot be debarred from
seeking reliefs against the opposite party no. 1 ventilating her
grievances against opposite party no. 1 who is engaged in legal
profession as an advocate. In my opinion, the P.W.D.V. Act is the
proper enactment for her redress. In this regard the latin maxim,
“Ubi jus ibi remedium” (wherever there is a right there is a
remedy) may be mentioned.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON’BLE JUSTICE SANKAR ACHARYYA
 C.R.R. No. 3963 of 2013
 In the matter of :
Priti Dey (Chandra)
Vs.
Subhasish Dey & Anr.
Citation:2016 ALLMR(CRI)JOURNAL 554



This revisional application under Section 401 read with
Section 482 of the Code of Criminal Procedure, 1973 (in short
Cr.P.C.) has been directed challenging the judgment and order
dated 30.08..2013 passed by learned Sessions Judge, Purulia in
Criminal Appeal No. 22 of 2012 under Section 29 of the Protection
of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act)
setting aside an order dated 25.09.2012 passed by learned Judicial
Magistrate, 3rd Court, Purulia in Miscellaneous Case No. 131 of
2012 under the provision of the P.W.D.V. Act.Petitioner in this revisional application is a women and she
has ventilated her grievance against a man who has been made
opposite party no. 1.
Some admitted facts as transpire from the materials on record
are that marriage was solemnised between petitioner and opposite
patty no. 1 on 27.04.2008 and they lived together as married couple
in the residence of opposite party no. 1 continuously for a long time
and that out of their such living a son has born on 17.08.2010 at
Purulia Sadar Hospital while the petitioner stayed in her father’s
house as she came there during her pregnancy. Thereafter,
petitioner did not return to the house of opposite party no. 1.
Petitioner and her child have been living in petitioner’s father’s
house. On prayer of the opposite party no. 1 in a matrimonial suit
being no. 27 of 2012/81 of 2011 learned Additional District Judge,
2nd Court, Bankura passed an ex parte decree on 23.04.2012
against the present petitioner declaring her marriage with the
opposite party no. 1 is a nullity under Section 12 (1) of the Hindu
Marriage Act, 1955 with effect from 23.04.2012. On 29.05.2012
petitioner filed Misc. Case No. 131 of 2012 against the opposite
party no. 1 alleging domestic violence and seeking reliefs under the
P.W.D.V. Act. Opposite party no. 1 appeared in that case on
4.09.2012. He challenged maintainability of petitioner’s application
under the P.W.D.V. Act in Misc. Case No. 131 of 2012. Hearing the
point of maintainability learned Judicial Magistrate, 3rd Court,
Purulia passed order dated 25.09.2012 rejecting the prayer of
opposite party no. 1. Said order was challenged by opposite party
no. 1 filing Criminal Appeal No. 22 of 2012. Said appeal was
allowed in the impugned judgment dated 30.08.2013. It is also
admitted fact that the opposite party no. 1 is a practicing advocate
in Bankura Court.
Learned Sessions Judge, Purulia allowed the appeal with cost
with observation that “when the marriage between the parties is not
found to be subsisting when the proceeding was started under
Section 12 of the P.W.D.V. Act, 2005, I think the said proceedingcannot be continued so long as the O.P No. 1 wife has not been able
to get an order setting aside the decree of nullity of their marriage
as passed by the learned Additional District Judge, 2nd Court,
Bankura”. Learned Sessions Judge passed order setting aside the
order dated 25.09.2012 passed by learned Judicial Magistrate, 3rd
Court, Purulia in Misc. Case No. 131 of 2012.
Moot question for determination in this revisional application
is whether learned Sessions Judge rightly set aside the order dated
25.09.2012 of learned Judicial Magistrate.
At the very outset I like to note that it has been brought to my
notice in this case that during pendency of the appeal in the Court
of learned Sessions Judge, Purulia the learned Judicial Magistrate,
3rd Court, Purulia heard the Misc. Case No. 131 of 2012 and passed
final order. However, said final order of learned Magistrate is not a
matter under consideration in this revisional application.
At the time of hearing this revisional application learned
counsel for the petitioner has cited a decision of the Hon’ble
Supreme Court of India in the case of V.D. Bhanot Vs. Savita
Bhanot reported in (2012) 3 SCC 183 and has argued that even if
a wife, who had shared a household in the past, but was no longer
doing so when the P.W.D.V. Act came into force, would still be
entitled to the protection of a P.W.D.V. Act, 2005. Learned counsel
for the opposite party no. 1 urged that learned Sessions Judge,
Purulia has rightly followed the decision of the Hon’ble Apex Court
in the case of Inderjit Singh Grewal Vs. State of Punjab and
Another reported in (2011) 12 SCC 588 and learned Sessions
Judge rightly observed that the proceeding under Section 12 of the
P.W.D.V. Act cannot be continued so long as the O.P. No. 1/wife
has not been able to get an order setting aside the decree of nullity
of their marriage.
Having gone through the impugned judgment it appears that
learned Sessions Judge referred to the judgment of the Hon’ble
Apex Court in the case of Inderjit Singh Grewal Vs. State ofPunjab and Another (Supra) and learned Sessions Judged made
his finding in the last line of first paragraph at page- 3 (continued
from page- 2) that it was further observed (as if by the Hon’ble Apex
Court in the referred judgement) that unless the decree for divorce
passed by the Civil Court is set aside, the complaint under Section
12 of the Act is not maintainable. On going through the said
judgment of the Hon’ble Supreme Court I do not find any such clear
verdict as mentioned in the impugned judgment. However, from the
factual matrix this case under my consideration is distinguishable
from the case of Inderjit Singh Grewal (Supra). On going through
the decision of the Hon’ble Apex Court in the case of V.D. Bhanot
Vs. Savita Bhanot (Supra) I am of the view that the legal position
as discussed in paragraph 12 “We agree with the view expressed
by the High Court that in looking into a complaint under
Section 12 of the P.W.D. Act, 2005, the conduct of the parties
even prior to the coming into force of the P.W.D. Act, could be
taken into consideration while passing an order under Sections
18, 19 and 20 thereof. In our view, the Delhi High Court has
also rightly held that even if a wife, who had shared a
household in the past, but was no longer doing so when the Act
came into force, would still be entitled to the protection of the
P.W.D. Act, 2005” stands in support of petitioner’s claim of
maintainability of her case under the provisions of the P.W.D.V.
Act.
In the instant case, the petitioner was not in a legal position to
claim herself as wife of the opposite party no. 1 on the date of filing
her case under the P.W.D.V. Act due to passing of the decree of
nullity of her marriage with effect from 23.04.2012. According to
the impugned judgment, after passing of the said decree the
proceeding at the instance of petitioner for reliefs under the
P.W.D.V. Act is not maintainable.
In my opinion, an application by an ‘aggrieved person’ or a
Protection Officer is essential for maintaining a proceeding in view
of the provisions of Section 12 of the P.W.D.V. Act. Here petitioner filed the application as ‘aggrieved person’. Question is whether her
right to claim herself as aggrieved person was ceased with effect
from 23.04.2012. ‘Aggrieved person’ has been defined in Section 2
(a) of the P.W.D.V. Act as- “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. In her application petitioner alleged
that she had been subjected to physical as well as mental torture by
her husband during her living with the O.P. No. 1 in a shared
household as wife of the opposite party no. 1 which attracts the
definition of “domestic violence” as per Section 3 of the Act.
Undisputedly petitioner was wife of the opposite party no. 1 till the
passing of the decree of nullity of marriage on 23.04.2012. In order
to establish herself as aggrieved person any woman must prove first
that she is or has been in a domestic relationship with the
respondent. As per definition in Section 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. According to factual
matrix in this case the petitioner and opposite party no. 1 have
lived together in a shared household till petitioner’s departure from
that house during her pregnancy stage as the petitioner and
opposite party no. 1 were related each other by marriage.
Significantly, it is mentioned that out of their such joint living a
child has born. Therefore, as per definition of “domestic
relationship” it can be said that even after passing the decree of
nullity of marriage the domestic relationship between petitioner and
the opposite party no. 1 for the purpose of P.W.D.V. Act subsists
out of their past joint living as legally wedded couple. In this
connection I like to note that petitioner’s application cannot be
treated as an application under Section 125 of the Cr.P.C. The
P.W.D.V. Act is a special beneficial legislation to protect the rights
of women expanding the limited scope of Section 125, Cr.P.C. Suchwider scope is required to be kept in mind in course of dealing with
any matter under the provisions of the P.W.D.V. Act but certainly
within the ambit of the language used in the statute. Be it noted
that in a judgment in the case of D. Velusamy Vs. D.
Patchaiammal reported in (2010) 10 SCC 469 (cited by learned
counsel for the petitioner) extended scope in the P.W.D.V. Act has
been discussed. Said case, though not similar according to facts to
this case, but it throws light to understand the legal position on the
subject.
In the instant case, petitioner alleged physical and mental
torture upon her by opposite party no. 1 during continuation of
their marital relationship. She also alleged that opposite party no.
1 kept her ‘Stridhana’ property with him and she was not provided
maintenance for herself and her child by the opposite party
although the petitioner is unable to maintain herself and her child.
Since her marital relation with opposite party no. 1 has been
declared a nullity with effect from 23.04.2012, her right to claim
maintenance from opposite party no. 1 may not be proper under
Section 125 of the Cr.P.C. But she cannot be debarred from
seeking reliefs against the opposite party no. 1 ventilating her
grievances against opposite party no. 1 who is engaged in legal
profession as an advocate. In my opinion, the P.W.D.V. Act is the
proper enactment for her redress. In this regard the latin maxim,
“Ubi jus ibi remedium” (wherever there is a right there is a
remedy) may be mentioned.
In conclusion, I find and hold that learned Sessions Judge,
Purulia has failed to consider the facts and circumstances properly
and his finding against the maintainability of the petitioner’s
application under Section 12 of the P.W.D.V. Act is neither correct
nor legal. As such, the impugned judgment is liable to be set aside.
Accordingly, the judgment dated 30.08,2013 passed by learned
Sessions Judge, Purulia in Criminal Appeal No. 22 of 2012 is
hereby set aside. The order dated 25.09.2012 passed by learned
Judicial Magistrate, 3rd Court, Purulia is left without interference.This revisional application is allowed.
Copy of this judgment be sent from department to learned
District and Sessions Judge, Purulia with a request to communicate
the same to learned Judicial Magistrate, 3rd Court, Purulia for
information and necessary action.
 Urgent Photostat certified copy of this judgment if applied for be
supplied promptly to the parties or their advocates on record
observing usual formalities.
 (SANKAR ACHARYYA, J.,)
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