Thursday 19 August 2021

Whether wife can initiate a domestic violence proceeding if the husband performs second marriage after divorce?

 (12) In the present case, the fact that the Family Court granted divorce on the ground of cruelty cannot be denied. Merely

because the applicant No.1 performing a second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act. Although, it may be said that the respondent could have claimed that there had been a domestic relationship between the parties, for the reason that the applicant No.1 and respondent were married at a point in time, but the said fact in itself would not be enough for the respondent to initiate the said proceedings under the provisions of the D.V. Act, much after the divorce proceedings had attained finality and findings had been rendered against her.

(13) Chronology of events of the present case does indicate that the respondent sought to invoke the provisions of the D.V. Act after the proceedings concerning the divorce decree had attained

finality upto the Supreme Court. It was not as if the respondent had initiated a proceeding under the D.V. Act during the course of the matrimonial discord between the parties. It is after the respondent suffered adverse orders in the proceedings concerning the divorce petition and the application for restitution of conjugal rights, which stood confirmed right upto the Hon’ble Supreme Court, that she turned around and sought to invoke the provisions of the D.V. Act. This demonstrates that the manner in which the proceedings were sought to be initiated under the provisions of the D.V. Act was nothing but an abuse of process of law. The respondent could not be permitted to keep the applicants engaged in litigation in this form, when the requirements of the D.V. Act, on the face of it, did not appear to be satisfied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL APPLICATION (APL) NO. 164 OF 2017

 Applicants  Vs   Respondent

CORAM : MANISH PITALE, J.

DATED : 09/08/2021


This application is listed at Sr.No.209 in the final

hearing board for today. A specific note was given at the top of the

cause list stating that no adjournment would be granted on any

ground in the matters listed at Sr. No.201 to 210.

(2) When the application was called out for hearing in

the pre-lunch session, the learned counsel for the applicants appeared

and argued at length. The sole respondent has been served and is

represented through counsel, although none appeared for the sole

respondent. The application was then kept in post lunch session at

2.30p.m. but, none appeared on behalf of the sole respondent. As

noted above, the learned counsel for the applicants was heard finally.

(3) By this application, the applicants have sought

quashing of criminal proceedings bearing Miscellaneous Criminal Case

No.778 of 2016, filed by the sole respondent under the provisions of

the Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as ‘D.V. Act’). The applicants have also prayed

for setting aside the orders passed by the Court of Judicial Magistrate

First Class, Akola, issuing notice in the application filed by the

respondent herein and also rejecting an application filed by the

applicants for dismissal of the criminal proceedings, on the ground


that such proceedings were an abuse of the process of law. The

applicant No.1 got married with the sole respondent on 13/03/2011 at

Akola. Soon after the marriage, there was matrimonial discord

between the two, as a consequence of which, the applicant No.1 file a

proceeding for divorce on the ground of cruelty. The said petition filed

for divorce was decreed by the Family Court at Akola on 16/09/2014,

after rendering findings to the effect that the respondent had indeed

inflicted cruelty on the applicant No.1. It is relevant to mention here

that the Family Court, by the very same judgment and order had also

rejected an application for restitution of conjugal rights filed by the

respondent. Aggrieved by the said common judgment and order of the

Family Court, the respondent filed Family Court Appeal Nos.7 of 2015

and 08 of 2015 before this Court. By judgment and order dated

10/08/2015, this Court dismissed both the appeals and confirmed the

judgment and order passed by the Family Court. The said judgment of

this Court was then challenged before the Hon’ble Supreme Court. On

15/02/2016, the Special Leave Petition stood dismissed, as a

consequence of which, the divorce decree was confirmed and the

dismissal of the application for restitution of conjugal rights was also

confirmed. It is after the aforesaid proceedings had reached upto the

Hon’ble Supreme Court and terminated in favour of the applicant

No.1, that on 15/05/2016, the respondent filed an application under

Sections 12 to 23 of the D.V. Act before the Court of the Magistrate,

seeking various reliefs including monthly maintenance, compensation,

residence order and other monetary benefits. The respondent made

allegations similar to those made in the proceedings pertaining to the

divorce decree and the application for restitution of conjugal rights

and thereafter, claimed that the applicant No.1 had treated her with

cruelty, by performing a second marriage. The respondent also stated

that she had filed a complaint against the applicant No.1 for offence

under Section 494 of the Indian Penal Code (IPC).

(4) In this application, on 17/05/2016, the Court of

Magistrate issued notice to the applicants. The applicants herein filed

an application for dismissing the proceeding on the ground of

tenability. It was submitted that the respondent was not entitled to

invoke the provision of the D.V. Act in the backdrop of the earlier

round of litigation between the parties. By the order dated

01/12/2016, the Magistrate rejected the application. Aggrieved by

the same, the applicants have approached this Court seeking not only

setting aside the said orders, but also quashing of the entire

proceedings.

(5) On 14/03/2017, this Court issued notice in the

present application and granted interim stay to the further proceedings

pending before the Magistrate. On 28/06/2017, this Court granted

Rule, after hearing of the learned counsel for the rival parties and the

interim order was continued.

(6) Mr.S.A.Mohta, learned counsel appearing for the

applicants submitted that the proceedings initiated by the respondent

under the provisions of the D.V. Act were not tenable, in view of the

contents of the application itself filed on behalf of the respondent

under the provisions of the D.V. Act. It was submitted that the very

same facts and incidents that were referred to and relied upon in the

earlier set of proceedings pertaining to the divorce decree and

rejection of the application for restitution of conjugal rights, were

relied upon in the said application filed on 15/05/2016, three months

after the Hon’ble Supreme Court had confirmed the findings rendered

in favour of applicant No.1 in the aforesaid earlier proceedings. It was

further submitted that such a course of action was not open to the

respondent and the subsequent incident on which the respondent

sought to rely i.e. the applicant No.1 performing a second marriage,

could not be an incident for which the respondent could invoke

provisions of the D.V. Act. It was submitted that the relief sought in

the application were not maintainable at all in the facts and

circumstances of the present case.

(7) As noted above, none has appeared on behalf of the

respondent.

(8) Having heard the learned counsel for the applicants.

This Court has perused the documents filed along with this

application. There can be no dispute about the fact that divorce

decree granted in the present case has been confirmed upto the

Hon’ble Supreme Court and the rejection of the application for

restitution of conjugal rights filed by the respondent also stood

confirmed. The contentions raised on behalf of the applicant No.1 on

the ground of cruelty were accepted by all the Courts and hence the

said findings have attained finality.

(9) The question is, in the face of such findings

rendered by the Family Court and confirmed by this Court and the

Hon’ble Supreme Court, whether the respondent is entitled to rely

upon incidents pertaining to the same time period and relatable to the

allegations and contentions raised in the aforesaid round of litigation,

to claim that she had suffered domestic violence at the hands of the

applicants, as defined under the D.V. Act. The other question that

arises for consideration is, as to whether the act of the applicant No.1,

performing a second marriage after the grant of divorce decree can be

said to be an act of domestic violence under the provisions of the D.V.

Act. A related question is, as to whether the proceeding initiated by

respondent under the provisions of the D.V. Act can be said to be an

abuse of the process of law.

(10) In order to answer the said questions, it would be

appropriate to peruse the contents of the application filed on behalf of

the respondent under Sections 12 to 23 of the D.V. Act. A perusal of

the same would show that the respondent has indeed raised the very

issues and contentions that she had relied upon during the initial

round of litigation pertaining to the divorce petition filed by the

applicant No.1 and the application for restitution of conjugal rights

filed by the respondent. It cannot be disputed that such contentions

pertaining to incidents alleged by the respondent had been considered

and decided by the Family Court and that the findings had attained

finality upto the Hon’ble Supreme Court. Therefore, the respondent

cannot be permitted to reiterate the same by filing application under

the provisions of the D.V. Act, three months after the Hon’ble Supreme

Court dismissed her Special Leave Petition and confirmed the findings

rendered by the Family Court and this Court on identical issues.

(11) Insofar as the second marriage performed by the

applicant No.1, after grant of divorce decree is concerned, the

contention of the respondent that this amounted to domestic violence

cannot be accepted. Section 3 of the D.V. Act defines ‘domestic

violence’ in an elaborate manner and it refers to physical abuse, sexual

abuse, verbal abuse, emotional abuse, and economic abuse. This is in

the context of a domestic relationship shared between the aggrieved

person and the respondent.

(12) In the present case, the fact that the Family Court


granted divorce on the ground of cruelty cannot be denied. Merely

because the applicant No.1 performing a second marriage cannot come

within the definition of domestic violence under Section 3 of the D.V.

Act. Although, it may be said that the respondent could have claimed

that there had been a domestic relationship between the parties, for

the reason that the applicant No.1 and respondent were married at a

point in time, but the said fact in itself would not be enough for the

respondent to initiate the said proceedings under the provisions of the

D.V. Act, much after the divorce proceedings had attained finality and

findings had been rendered against her.

(13) Chronology of events of the present case does

indicate that the respondent sought to invoke the provisions of the D.V.

Act after the proceedings concerning the divorce decree had attained

finality upto the Supreme Court. It was not as if the respondent had

initiated a proceeding under the D.V. Act during the course of the

matrimonial discord between the parties. It is after the respondent

suffered adverse orders in the proceedings concerning the divorce

petition and the application for restitution of conjugal rights, which

stood confirmed right upto the Hon’ble Supreme Court, that she

turned around and sought to invoke the provisions of the D.V. Act.

This demonstrates that the manner in which the proceedings were

sought to be initiated under the provisions of the D.V. Act was nothing

but an abuse of process of law. The respondent could not be

permitted to keep the applicants engaged in litigation in this form,

when the requirements of the D.V. Act, on the face of it, did not

appear to be satisfied.

(14) In any case, the respondent appeared to be

interested in initiating and continuing such proceedings as a tool of

harassment against the applicants. The prayers pertaining to monthly

maintenance, compensation, residence order etc. have all been made

in the backdrop of such allegations, which are nothing but a repetition

of the contentions raised in the earlier round of litigation. Therefore,

this Court is of the considered opinion that continuance of further

proceedings in such a matter would amount to permitting abuse of the

process of law. The same cannot be permitted. The Magistrate failed

to appreciate this aspect of the matter while passing the impugned

orders and therefore, the impugned orders also deserved to be

interfered with.

(15) In view of the above, the application is allowed.

(16) Miscellaneous Criminal Case No. 778 of 2016 is

quashed. Consequently, the impugned orders dated 17/05/2016 and

01/12/2016, are also set aside.

[ MANISH PITALE J. ]


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