SMT. BISMITA SAIKIA @ BISMITA SAIKIA DUTTA vs PRANJAL DUTTA and 3 ORS.

1.Heard Ms. A. Devi, learned counsel appearing on behalf of the petitioner. Also heard Ms.

M. Borah, learned counsel for the respondents.

By this revision petition under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, the aggrieved person/petitioner seeks setting aside and quashing of the impugned judgment & order, dated 18.10.2016, passed by the learned Addl. Sessions Judge No. 1, Kamrup(M), Guwahati, in Criminal Appeal No. 27/2016, upholding the order, dated 05.01.2016, passed by the learned Judicial Magistrate, 1st Class, Guwahati, whereby application under Section 12 of the Protection of Women from Domestic Violence Act, 2005(for short, the DV Act) has been dismissed.

The aggrieved person/petitioner’s case, in a nut-shell, is that, on 18.11.2015, she filed an application/complaint under Section 12 of the DV Act, in the Court of the learned Chief Judicial Magistrate, Kamrup(M) at Guwahati, whereupon Misc. Case No. 161 M/2015 was registered, seeking reliefs under Sections 18, 19, 22 and 23 of the said Act against the respondents. The respondents contested the said proceeding by filing a written objection, contending, inter alia, that the application/complaint is not maintainable as the alleged aggrieved person/complainant is the divorced wife of the respondent No. 1 and that the same is filed without complying with the procedure laid in Form 11 Rule 6(1) of the DV Act. The learned Judicial Magistrate, 1st Class, Kamrup(M), Guwahati, to whom the complaint was made over for trial, by order, dated 05.01.2016, dismissed it with cost of Rs. 5,000/- to be paid to the respondents. Against the aforesaid dismissal order, the alleged aggrieved person/complainant preferred an appeal being Criminal Appeal No. 27/2016 before the Court of learned Sessions Judge, Kamrup(M) at Guwahati, which was eventually made over to the learned Additional Sessions Judge No. 1, Kamrup(M) at Guwahati, for disposal. The learned Additional Sessions Judge No. 1, Kamrup(M) at Guwahati, after hearing the learned counsel of both sides and consideration of the relevant materials on record, dismissed the appeal vide the impugned judgment & order, dated 18.10.2016.

Now, being aggrieved, by the instant petition, the aggrieved person/ complainant has assailed the judgment & order, dated 18.10.2016, passed by the learned Additional Sessions Judge No. 1, Kamrup(M) at Guwahati, inter alia, on the following grounds :

(a) That both the learned Courts below failed to appreciate that the complainant is an ‘aggrieved person’ as per the statutory definition given in Section 2(a) of the DV Act;

(b) That the ratio of the judgment delivered by the Apex Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoon, reported in (2014) 10 SCC 736, is not applicable to the instant case:

(c) That both the learned Courts below wrongly appreciated the evidence and observed that there is no material on record to show that the alleged aggrieved person/complainant filed any FIR/complaint against the respondent No. 1 during subsistence of their marriage or prior to the decree of divorce, and that she was subjected to any domestic violence, prior to dissolution of marriage; and

(d) That it has been wrongly observed that the alleged aggrieved person/complainant failed to comply with the Rule 6(1) of the DV Act.

The respondent No. 1, in his affidavit-in-opposition, averred and Ms. Bora, appearing for the respondents, submitted that the petition filed under Section 12 of the DV Act, is not maintainable in law and facts as on the date of filing of the application, on 18.11.2015, the applicant/petitioner, herein, ceased to be an ‘aggrieved person’, defined in Section 2(a), because of want of ‘domestic relationship’, defined in Section 2(f), due to decree of divorce, dated 15.09.2014, passed by the learned Family Court No. 1 at Guwahati in F.C.(Civil) No. 136/2010 under Section 13(i)(ia) of the Hindu Marriage Act, 1955, which attained finality in Mat. Appeal No. 12/2015, wherein the High Court by judgment & order, dated 24.06.2015, dismissed the appeal. Relying upon the judgments delivered by the Apex Court in Inder Singh Grewal v. State of Punjab & anr., reported in (2011) 12 SCC 588; Krishna Bhattacharjee v. Sarathi Choudhury & anr ., reported in (2016) 2 SCC 705, and Dr. Buddhi Kota Subbarao v. Mr. K. Parasaran &

ors. , reported in (1996) 5 SCC 530; Ms. Bora submitted that a divorced wife cannot claim to be an aggrieved person when no domestic relationship existed at the time of filing of the application u/s. 12 of the D.V. Act. According to Ms. Bora, the applicant/petitioner averred in the said application and in the affidavit filed in support of it, projected falsely as the wife of the respondent. Hence, it is submitted to dismiss the petition.

I have gone through the records inclusive of the impugned judgment & order. Also perused the affidavit-in-opposition filed by the respondents and reply affidavit thereto, filed by the applicant/petitioner herein.

Perusal of the impugned judgment & order, dated 18.10.2016, passed in Crl. Appeal No. 27/2016, passed by the learned Additional Sessions Judge

No. 1, Kamrup(M) at Guwahati, which was directed against the judgment & order, dated 05.01.2016, passed by the learned Judicial Magistrate, 1st Class, Guwahati, in Misc. Case No. 161 M/2015, inter alia, reveals that the ‘domestic relationship’ between the applicant and the respondent

No. 1, admittedly, got terminated with the dissolution of their marriage by way of decree of divorce by the learned Family Court, Guwahati, which was subsequently affirmed by the High Court, at the time of filing of the application under Section 12 of the DV Act. The learned appellate Court held that the law laid down by the Apex Court in Juveria Abdul Majid Patni(supra) is not applicable to the case of the applicant/petitioner for wide variance in facts. The learned appellate Court focused on the material facts that the applicant/petitioner had not filed any FIR/complaint against the respondents alleging domestic violence, prior to dissolution of their marriage by a decree of divorce. The learned appellate Court further held that as the application under Section 12 of the DV Act was filed after the decree of divorce, alleging that the respondent subjected her to domestic violence, does not appear to be maintainable and as such, dismissed the appeal.

In the case of Amit Agarwal & ors. V. Sanjay Aggarwal & ors.(supra), the Punjab & Haryana High Court answered two questions, which are relevant to the instant petition, firstly, whether the wife can file a complaint under the DV Act, when the relationship has come to an end with a decree of divorce and secondly, whether the definition of ‘aggrieved person’ also includes a ‘divorced woman’. While answering the said two questions, the Court look into consideration of the statutory definitions of ‘aggrieved person’ and ‘domestic relationship’ and came to a conclusion that by virtue of use of the expression ‘who is’ or ‘has been’ instead of ‘who was’ or ‘had been’ by the legislature, indicates that the ‘domestic relationship’ must be of present and not of the past. This view is supported by the definition of ‘domestic relationship’ occurring in Section 2(f) of the DV Act. Therefore, existence of ‘domestic relationship’ on the day of filing of an application under Section 12 of the DV Act is a condition precedent. Similar view was taken by the High Court of Andhra Pradesh in the case of A.

Sreenivasa Rao & ors. V. The State of A.P. (supra), the High Court of Delhi in the case of Poonam v. V. P. Sharma(supra), and Harbans Lal Malik

v. Payal Malik(supra), wherein it has been held that existence of jural relationship of the petitioner/aggrieved person and the respondent is a condition precedent to filing of an application under Section 12 of the DV Act, lest the application is not maintainable.

In the case of Inderjit Singh Grewal(supra), the Apex Court held that permitting the Magistrate to proceed further with the complaint is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the Court. In another case of Krishna Bhattarcharjee(supra), the Apex Court held that when there is severance of status between the aggrieved person and the respondent as husband and wife, by a decree of divorce, the former ceases to be an ‘aggrieved person’ so as to entitle her to reliefs under the DV Act. The Apex Court in the case of Dr. Buddhi Kota Subbarao(supra) opined that no litigant has a right to unlimited drought to get his affairs settled in the manner as he wishes. Every access to justice should not be misused as a license to file misconceived or frivolous petitions.

On an anxious consideration of the rival contentions made by both the parties to the instant petition, this Court is of the considered opinion that as the marriage between the petitioner/alleged aggrieved person and the respondent No. 1 stood dissolved by a decree of divorce, the domestic relationship automatically came to an end. Therefore, in the instant case, as long before filing of the application under Section 12 of the DV Act, by the applicant/ petitioner, on 18.11.2015, against the respondents, their marriage stood dissolved by a decree of divorce on 15.09.2014, and thereby, their domestic relationship got terminated, the application has become not maintainable in law.

Resultantly, no interference in the impugned judgments and orders, is called for and accordingly, the revision stands dismissed.