R/SCR.

A/4629/2017 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 4629 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE UMESH A. TRIVEDI

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1 Whether Reporters of Local Papers may be allowed to

see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the

judgment ?

4 Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any
order made thereunder ?

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KANJIBHAI BHANABHAI PARMAR
Versus
URMILABEN KANJIBHAI PARMAR W/O PREMJIBHAI VIRJIBHAI TUNDIYA
& 2 other(s)
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Appearance:
MR AB GATESHANIYA(3766) for the Applicant(s) No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 2
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MS JK HINGORANI(2491) for the Respondent(s) No. 1
MS MOXA THAKKAR APP (2) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI

Date : 13/12/2019
ORAL JUDGMENT

1. By way of present petition under Article 226 and/or

227 of the Constitution of India, the petitioner seeks

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quashing of the proceedings being Criminal Misc.

Application No.42 of 2017 registered with Chief Judicial

Magistrate, Surendranagar filed for relief under Sections

19 and 20 of the Protection of Women from Domestic

Violence Act (herein after referred to as ‘the Act’), by

respondent no.1.

2. Mr.A.B.Gateshaniya, learned advocate for the

petitioner submitted that the marriage of the petitioner

took place with the Respondent No.1 herein somewhere in

the year 1984 (approximately before 35 years). The

petitioner, in the year 1989, filed Hindu Marriage

Petition under Section 9 of the Hindu Marriage Act

against the Respondent No.1 herein for restitution of

conjugal rights. However, the parties settled their

dispute there at that time and obtained customary

divorce. Therefore, vide an application Exh.14 in that

Hindu Marriage Petition, a settlement pursis was

submitted by both of them. It is mentioned in it that

customary divorce obtained by them on terms of settlement

pursis which is to be abided by both of them. It is

further disclosed in it that since there was no

possibility to reconcile their differences, they were not

in a position to stay together and therefore, they have

decided to part their ways. It is further mentioned in it

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that nothing remains to be given or taken from each

other. There is no right or interest remains over each

other.

3. He has further submitted that the said divorce took

place in the year 1990 and based on that, Hindu Marriage

Petition for restitution of conjugal rights filed by the

petitioner came to be disposed of. After about 27 years

of the divorce, the Respondent No.1 herein has filed the

aforesaid proceedings invoking the provisions of “the

Act”, that too, long after she remarried with someone

else.

4. Therefore, according to Mr. Gateshaniya, learned

advocate for the petitioner, the wife is not entitled to

file the proceedings under “the Act” against her ex-

husband, who is not only divorcee but she has also

contracted second marriage with someone else. According

to his submission, once she has already contracted

second marriage with someone else, she cannot invoke

provisions of “the Act” against the petitioner with whom

divorce took place before 27 years. At best, she can file

proceedings under “the Act” against her existing husband

but not ex-husband with whom she got divorce long back.

Therefore, he has submitted that proceedings initiated by

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her against the petitioner be quashed and set aside, as

it is an abuse of process of law.

5. Mr. Gateshaniya, learned advocate for the petitioner

to support his assertion that she has contracted second

marriage, drawn attention to a copy of FIR filed by her

which is at page No.37 of the compilation registered as

C.R.No.I-81 of 2014 for an offence under Section 143, 452

and 328 of the Indian Penal Code registered with Joravar

Nagar Police Station, Surendranagar, wherein, Respondent

No.1 herein has stated her status as wife of one

Premjibhai Virjibhai Tundiya as first informant in it.

Importantly, in the said FIR, she has stated that all

three children are through her wedlock with the applicant

who has died before 25 years and therefore, she has

remarried with Premjibhai Tundiya. Not only that,

pursuant to the filing of the FIR, Sessions Case No.93 of

2014, she was examined as witness there and on oath, she

has stated that her husband’s name to be Premjibhai

Virjibhai Tundiya who is rendering service as member in

Dudhrej Surendranagar Nagarpalika. He has further drawn

attention to the copy of statement dated 7.7.2014,

recorded by police, of Premjibhai Virjibhai Tundiya

wherein, Respondent No.1 is referred to as his wife. It

is also mentioned in it that respondent No.1 had taken

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divorce from the petitioner before 25 years and therefore

he had married respondent No.1. Not only that, in a

deposition before the Court in Sessions Case, Respondent

No.1 herein is referred to as wife of Premjibhai

Virjibhai Tundiya. Thus, according to his submission,

there is no doubt that after getting divorce from the

petitioner, she has remarried. Therefore, it is submitted

that for all the purposes under “the Act”, petitioner

ceased to be responsible to be proceeded under the

provisions of “the Act”, that too, at the instance of the

wife, who has already remarried.

6. He has produced on record the judgment and order

passed by the learned Principal Judge, Family Court,

Surendranagar, in Criminal Misc. Application No.32 of

2017, seeking maintenance against the petitioner under

the provisions of Section 125 of the Code of Criminal

Procedure, 1973, which came to be rejected with cost by

the Competent Court considering the second marriage of

the Respondent No.1 herein with Premjibhai Tundiya. After

considering the material evidence produced in that

proceedings, it is recorded that she is wife of

Premjibhai Tundiya. Therefore, she is not entitled to

invoke the provisions of “the Act” against the

petitioner. Mr. Gateshaniya, learned advocate for the

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petitioner relied on a decision in the case of

Inderjitsingh Grewal V/s. State of Punjab reported in

2011 (12) SCC 588 for the proposition that, when divorce

decree by mutual consent is obtained, no proceedings

under Section 12 of the Act could be maintained by the

divorced wife on the ground that the decree of divorce

was obtained by them i.e. husband and wife playing fraud

upon the Court. Still, however, the Supreme Court had

quashed the proceedings initiated by the wife under

Section 12 of the Act. According to him, he is in a

better position that not only customary divorce is

obtained by mutual consent but thereafter, she has

already remarried.

7. As against that, Ms.Hingorani, learned advocate, as

also Ms.Moxa Thakkar, learned APP submitted that

considering the provisions made under “the Act”, she can

invoke provisions as an aggrieved person as she has lived

with the petitioner in a domestic relationship in past

also. It is further submitted that “the Act” does not

prohibit filing of the proceedings by divorced wife. They

have further submitted that there is no limitation

prescribed for initiation of the proceedings under “the

Act” and therefore, it cannot be quashed on the ground of

delay as such.

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8. Heard the learned advocates for the parties. It is

undisputed fact that the Respondent No.1 herein is the

divorced wife of the applicant. Respondent No.1 herein

has not filed any affidavit disputing the averments made

in the present petition. The order passed by learned

Principal Judge, Family Court, Surendranagar rejecting

application filed under Section 125 of the Code of

Criminal Procedure, 1973 (for short, ‘the Code’),

initiated by the Respondent No.1 herein against the

petitioner is also not disputed. Considering the evidence

brought before the Family Court it concluded that on

8.7.1990, there is a divorce between the parties. It is

further admitted fact recorded in it that both were

staying separate since then. Considering the documents in

respect of a Criminal Case filed by Respondent No.1 as

first informant; wherein, she had referred her status as

wife of Premjibhai Tundiya, was also referred to in the

order passed by learned Principal Judge, Family Court in

the proceedings under Section 125 of ‘the Code’. Not only

that, in the said FIR very respondent No.1 has mentioned

that her husband, namely, Kanjibhai Bhanabhai i.e.

present petitioner has died before 25 years, therefore,

she has remarried with Premjibhai Tundiya.

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9. Learned advocate for the Respondent No.1 herein is

unable to controvert the factum of subsisting second

marriage between the Respondent No.1 herein and

Premjibhai Tundiya.

10. Considering the documents produced and undisputed

facts, it is clear that Respondent No.1 is the erstwhile

wife of the petitioner who took customary divorce in the

year 1990. Her application for order of maintenance under

Section 125 of ‘the Code’, came to be rejected by the

Competent Court, after considering the aforesaid

undisputed facts. Therefore, one thing is clear that, she

has contracted second marriage with Premjibhai Tundiya.

The question will then arise, can she invoke provisions

of “the Act” against her erstwhile husband when she is

already married and staying together contracting second

marriage with another man?

11. It would be worthwhile to refer a decision in the

case of Juveria Abdul Majid Patni V/s. Atif Iqbal

Mansoori and Another reported in (2014) 10 SCC 736;

wherein, the Supreme Court after analyzing the various

provisions of “the Act” concluded that even if divorce

takes place after the proceedings under “the Act” is

filed, a petition under Section 12 of “the Act” would be

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maintainable. It would be profitable to refer certain

paragraphs from the judgment as under:

"28. In Inderjit Singh Grewal the appellant Inderjit Singh and

Respondent 2 of the said case got married on 23-9-1998. The
parties to the marriage could not pull on well together and
decided to get divorce and, therefore, filed a case for divorce by
mutual consent under Section 13-B of the Hindu Marriage Act,
1955. After recording the statement in the said case, the
proceedings were adjourned for a period of more than six
months to enable them to ponder over the issue. The parties
again appeared before the Court on second motion and on the
basis of their statement, the District Judge, Ludhiana vide
judgment and order dated 20-3-2008 allowed the petition and
dissolved their marriage. After dissolution of marriage the wife
filed a complaint before the Senior Superintendent of Police,
Ludhiana against Inderjit Singh under the provisions of the
Domestic Violence Act alleging that the decree of divorce
obtained by them was a sham transaction. It was further alleged
that even after getting divorce both of them had been living
together as husband and wife. In the said case, the
Superintendent of Police, City I conducted the full- fledged
inquiry and reported that the parties had been living separately
after the dissolution of the marriage. Hence, no case was made
out against Inderjit Singh. In this context, this Court held that
Section 12 "application to Magistrate" under the Domestic
Violence Act challenging the said divorce was not maintainable
and in the interest of justice and to stop the abuse of process of
court, the petition under Section 482 Cr.PC was allowed. The
law laid down in the said case is not applicable for the purpose
of determination of the present case."

29. In the present case, the alleged domestic violence took

place between January, 2006 and 6-9-2007 when FIR No.224 of
2007 was lodged by the appellant under Sections 498-A and 406
IPC against the first respondent and his relatives. In a writ
petition filed by the first respondent the High Court refused to
quash the said FIR against him observing that prima-facie case
under Section 498-A was made out against him. Even if it is
accepted that the appellant during the pendency of the SLP
before this Court has obtained ex partie “khula” (divorce) under
the Muslim Personal Law From the Mufti on 9.5.2008, the
petition under Section 12 of the Domestic Violence Act, 2005 is
maintainable.

"30. An act of domestic violence once committed, subsequent

decree of divorce will not absolve the liability of the respondent

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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 and interim or
ex parte order under Section 23 of the Domestic Violence Act,
2005."

31. Both the Sessions Judge and the High Court failed to
notice the aforesaid provisions of the Act and the fact that the
FIR was lodged much prior to the alleged divorce between the
parties and erred in holding that the petition under Section 12
was not maintainable.

12. Since the case of Juveria Abdul Majid Patni (supra)

referred to the case of Inderjitsingh Grewal (supra)

cited by the petitioner, there is no need to separately

deal with the same.

13. The crux of the matter in the case of Juveria Abdul

Majid Patni (supra) was very clear that once the act of

domestic violence committed and proceedings under “the

Act” is filed 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 Act” including monetary

relief. But question still remains to be answered is when

the parties have obtained divorce, provision of “the Act”

can be invoked subsequent thereto or not. Whether after

remarriage is the aggrieved party entitled to file

proceeding under “the Act” against former husband?

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14. However, where divorce took place nearly about 28

years before and wife remarries thereafter, can she

invoke provisions of “the Act” would be the issue to be

addressed?

15. To decide the controversy in this case, it would be

profitable to refer certain Sections of “the Act”:

2(a) “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

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
relationship in the nature of marriage,
adoption or are family members living together
as a joint family;

Considering the definition of an aggrieved

person, it is clear that a woman who is, or has been, in

a domestic relationship with the respondent can invoke

the provisions of “the Act”. Again referring the

definition of domestic relationship, it is clear that it

is a relationship, which is alive between the persons.

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Even on separation or staying apart, marital relationship

still continues. Once the marital tie is severed by way

of divorce between the parties the relationship between

them is snapped. Considering the definitions, as

aforesaid, it is clear that the wife would be aggrieved

person so long as domestic relationship survives. As

soon as it is snapped, it is an end to the domestic

relationship and she would not be aggrieved person then.

Thus, after divorce between two persons, neither the

domestic relationship survives nor any person would be

termed as an aggrieved person for the purpose of this

Act. Hence, after divorce takes place between husband

and wife, the provisions under “the Act” cannot be

invoked. Things would be different if the provisions are

invoked and thereafter divorce takes place. The said

situation is covered by the decision of the Supreme Court

in the case of Juveria (Supra). In short, in my opinion,

divorced wife cannot invoke the provisions of “the Act”.

So far as the present case is concerned, even if the

divorced wife is entitled to invoke the provisions of

“the Act”, respondent no.1 – wife, after getting divorce

from the petitioner, 28 years before, contracting second

marriage with Premjibhai Tundia, the domestic

relationship with the erstwhile husband is not

subsisting, and therefore, in no case, respondent No.1

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wife can invoke the provisions of “the Act”. Thus, there

is irresistible conclusion that divorced wife who has

remarried cannot invoke provisions of “the Act” against

her erstwhile husband.

16. Therefore, this petition deserves to be allowed and

is, accordingly, allowed. Criminal Misc. Application

No.42 of 2017 pending before the Court of Chief Judicial

Magistrate, Surendranagar filed by Respondent No.1 herein

against the petitioner invoking provisions of the Act is

hereby quashed and set aside. Rule is made absolute.

(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA

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