No DV After Divorce Punjab and Haryana High Court
No DV After Divorce Punjab and Haryana High Court
No DV After Divorce Punjab and Haryana High Court
IN
Versus
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ANITA CHAUDHRY, J.
The instant petition has been filed under Section 482 Cr.P.C.
legal issues. A complaint under the Domestic Violence Act was filed by
Allegations were levelled that there was demand of a car before marriage.
The family gave Rs.2 lacs in cash, gold items besides electrical goods. There
was a demand even at the time of birth of the child, the wife was beaten up
and tortured and kicked out of the house finally in June, 2006. The Istridhan
and the dowry articles were retained by the accused. A claim for
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was made.
The petitioners are the husband, father in law & the brother in
law. It was the second marriage for petitioner no.1. It is claimed that Ritu
left the matrimonial home in June, 2006 to attend two functions and took all
was pleaded that petitioner no.1 and his parents had made a number of calls
but she refused to return till petitioner no.1 separated from his family. She
name. The petitioners had pleaded that petitioner no.1 got the FIR registered
registered under Section 498-A and 406 IPC against petitioner no.1, his
parents and other relatives. The FIR against the sister and brother in law was
quashed in October, 2008. The FIR qua the husband and his parents was
quashed on the ground that no part of the cause of action had arisen at
Batala, however, the Apex Court transferred the trial to Delhi. It was
pleaded that petitioner no.1 had filed a divorce petition and Ritu failed to
appear though she had been served and exparte decree of divorce was
passed. An application for setting aside the exparte decree was filed after 14
application was filed for its restoration, which was pending. It was pleaded
that since a divorce had been granted, there was no domestic relationship
and the complaint under the Domestic Violence Act was not maintainable. It
was pleaded that so far as the maintenance was concerned, a petition under
Section 125 Cr.P.C. had been filed and maintenance was granted by the
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Magistrate against which an appeal had been filed, which was pending and
maintenance up to October, 2014 had been paid and all the articles had been
Respondent no.1 filed the reply and it was pleaded that the
before the trial Court and it was pending and the petitioner could not raise
the same issue before this Court. It was pleaded that respondent no.1 had
complainant wished to withdraw the complaint and file a fresh one and a
exparte decree of divorce was passed and no service was effected and an
application for setting aside the decree was filed and was pending. It was
pleaded that the decree had not attained finality and the exparte decree did
not wash away the previous incidents of domestic violence and respondent
no.2 was pushed out of the house in June, 2006. It was pleaded that although
petitioner no.3 was the brother in law of petitioner no.1 and married prior to
the marriage of respondent no.2 but he was actively involved in the acts of
Officer or any other person on behalf of the aggrieved person could present
Act and he had filed the complaint on behalf of his sister. It was admitted
that a complaint was filed and was withdrawn and no liberty was granted to
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complaint under the Domestic Violence Act had been filed approximately
after three years from the date the wife had left the matrimonial home and
the complaint had been filed by the brother. It was urged that during her
total stay in Delhi, no complaint was given to the police though the police
station was at a walking distance. It was urged that the brother filed a
complaint was filed. It was urged that in view of the provisions contained in
D.V. Act, a complaint can be filed only within a period of one year of the
incident and since there was a divorce, the complaint was not maintainable.
It was urged that the complainant had also named the brother in law who
had been married five years prior to the marriage and he did not have a
domestic relationship and the complaint was liable to be dismissed qua him.
It was urged that the FIR was got registered against the petitioner and his
family members and the High Court had quashed the FIR partly, against the
sister and brother in law in 2008 and the FIR has been quashed against the
husband. It was urged that the wife had left the matrimonial home before the
Act came into existence and she was living in Batala and no domestic
was urged that so far as the maintenance was concerned, a petition under
Section 125 Cr.P.C. had been filed in the Courts at Batala and the Court had
granted maintenance to the wife and the child and there are two parallel
jurisdictions and the wife had already availed the remedy of filing a petition
under Section 125 Cr.P.C. and later a petition under Section 127 Cr.P.C. was
the wife was an income-tax assessee and she had a D-Mat account and she
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held shares in the D-Mat account and was doing business and had received
filed earlier where a statement was given and liberty was sought for
instituting another complaint and therefore, second complaint was filed after
few days. It was urged that the brother had filed the complaint and there is
no restriction and any person can file a complaint on behalf of the aggrieved
person. It was urged that the question of limitation did not arise as the wife
was asking for residence and maintenance which was a recurring cause of
action. It was urged that an application has been filed before the Court
below on the similar lines and the petitioners could not have filed a petition
which had already been withdrawn. It appears that the correction made with
the ink was erroneous otherwise an objection would have been taken by
Ritu filed a complaint under the Domestic Violence Act some time in
Though the complainant had sought liberty to file a fresh complaint but the
order dated 27.03.2009 (Annexure P-5) shows that no such liberty was
marriage. Service was effected on the respondent and she failed to appear
and was proceeded exparte and exparte decree of divorce was passed on
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16.05.2008. The complaint under the D.V. Act was filed against the
husband, his father and brother in law. The brother in law admittedly is
residing separately, though in the same city. Exparte decree of divorce has
Two important issue arise in the case. Whether the wife can file
a complaint under the Domestic Violence Act when the relationship has
behalf of the petitioner was that the inherent powers under Section 482
groundless or where the complaint can not proceed then the parties cannot
been filed before the trial Court and the trial Court was yet to examine the
issue and the petition under Section 482 Cr.P.C. would not be maintainable.
Anr. Vs State of U.P. & Ors., reported in 2014 AIR (SCW) 6152 noticed
that the complaint did not attribute specific role to the relatives of the
Kans Raj Vs. State of Punjab & Ors. ((2000) 5 SCC 207), which reads thus:
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Court in Ashish Dixit and others Vs. State of U.P. and another
Violence Act in a petition filed under Section 482 Cr.P.C. This High Court
2011 allowed the petition filed under Section 482 Cr.P.C. seeking quashing
of the complaint filed under the Domestic Violence Act. The Karnatka High
No.5246/2010 had allowed the petition filed under Section 482 Cr.P.C.
Thus a complaint can be quashed in the petition filed under Section 482
Cr.P.C. if it is found that the complaint was an abuse of the process of the
Court or has filed only with a view to harass the other side.
under:-
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behalf of the aggrieved person and there is no bar and the other person on
A perusal of the record reveals that the complaint had been filed
which was withdrawn and liberty was taken to lodge a fresh complaint but
no liberty was granted and the fact that earlier a complaint was filed and was
"2 (a) "aggrieved person" means any woman who is, or has
The use of the word is any woman 'who is' or 'has been'. Both
the expressions are in the present tense. The legislature has not used the
word 'who was' or 'had been'. This means the domestic relationship has to be
in the present and not in the past. The definition requires that on the date Act
(f) further supports the view that the requirement under D.V.Act is that the
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between two persons who live or have at any point of time lived together in
the nature of marriage. This definition also speaks about the existence of a
time. The expression used is 'are related' by marriage. The expression by the
legislature is not 'were related'. From the bare reading of these two
The contention of the respondent was that when the wife can
move the jurisdiction of the court under Section 125 Cr.P.C., nothing
prevents her from invoking the jurisdiction of the court under D.V.Act. It
was further contended that the expression used under Section 2 (f) 'at any
Harbans Lal Malik vs. Payal Malik wherein it had been held:
"11. It is apparent that in order to make a 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.
Domestic relationship is defined under Section 2 (f) of the
Act and is as under:
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persons, who have lived together in a shared household and when they are
The definition speaks of living together at any point of time however it does
not speak of having relation at any point of time. Thus, if the domestic
relationship continued and if the parties have lived together at any point of
relationship does not continue and the relationship had been in the past and
and the respondent must be present and alive at the time when the complaint
Violence Act. Section 125 specifically provides that the wife means
'divorced wife'. Explanation under Section 125 (1) (b) reads as under:
(b) "wife" includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried;
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invoked.
Though it was an exparte decree but it has not been set aside by the
competent Court. Once the domestic relationship came to an end after the
decree of divorce the complaint under the Domestic Violence Act could not
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A FIR had been lodged by the wife against the husband and
other relatives. The FIR has been quashed qua the relatives. The FIR qua the
husband was also quashed as the Court did not have the jurisdiction,
however, the trial was transferred to Delhi from Batala by the Apex Court.
The aggrieved person had also filed a petition under Section 125 Cr.P.C. and
abuse of the process of the Court. The domestic relationship had come to an
end. The complainant had impleaded relatives who were not living in the
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shared house and permitting the Magistrate to proceed with the complaint
would be an abuse of the process of law. The complaint and the proceedings
without being influenced with the observations made herein. The said
observation has been made only to decide the petition filed under Section
482 Cr.P.C.
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