The Jammu and Kashmir and Ladakh High Court recently comprising of a bench of Justice Vinod Chatterji Koul ruled that once a marriage is validly dissolved by a competent foreign court, the “domestic relationship” between the parties as husband and wife, which is required to invoke the Domestic Violence Act, ceases. (S Rawail Singh Vs Gurinder Jeet Kour.)
Facts of the case
The petitioner in the month of February 2014 came to India for 10 days and when he returned back to Germany, he found that the respondent-complainant had left her matrimonial house along with all gold ornaments and other goods as well as money and had went to some place. To know her whereabouts, he made efforts, but she remained untraceable.
The respondent-complainant thereafter filed a "false and frivolous case" in Germany against the petitioner and started residing separately. The Court in Germany made several attempts for reconciliation between them, but all such efforts failed and she "flatly refused to stay with him". Ultimately. he approached the District Court Wisman, Germany and filed a petition for divorce. After hearing both the parties and perusing the evidence led by them, the foreign court allowed the divorce petition in July 2017.
Petitioners in the instant petition sought quashing of the complaint titled Gurinder Jeet Kaur Versus S. Baldev Singh and Ors. filed under Section 12(1) of the J&K Protection of Women from Domestic Violence, Act (‘impugned complaint’) which is pending before the Court of Learned JMIC, Sub-Judge, Jammu (‘trial Court’), wherein process has been issued by the trial Court against the petitioners herein.
The petitioners have challenged the complaint as well as the process issued by the trial Court precisely, on the ground that there is no relationship of husband and wife between the petitioner No. 4-Baldev Singh and respondent- Gurinder Jeet Kaur. The petitioners submitted that the allegations contained in the complaint filed by her under the Domestic Violence, Act are false and frivolous.
Issue before the Court
Whether the marriage between the parties stands dissolved and the complainant- respondent herein has lost the status of wife, and that there is no domestic relationship between the parties in order to invoke the provisions of Domestic Violence, Act.
Contention of the Parties
Learned counsel for the respondent however, submitted that the judgment which is being relied upon by the petitioners in support of their contention that the relationship between the petitioner No. 4-Baldev Singh and respondent herein has come to an end is not binding upon, in view of the law laid down in case titled K. Radha Krishanan Nayyar vs. Smt. Radha, J&K (8) SCC Online 1990. While relying upon the said judgment he submitted that the marriage between the petitioner No. 4-Baldev Singh and respondent herein had taken place in Jammu and Kashmir, therefore, they are governed by the Jammu and Kashmir Hindu Marriage, Act. Therefore, District Court Wisman, Germany was not having the jurisdiction, and as such, the said order dissolving the marriage between the parties, is without any jurisdiction.
Courts Observation and Judgment
The bench taking note of the contention of the parties remarked, "This Court in K. Radha’s case (supra) held that the marriage of the parties was solemnized at Madras a place where the State Act is not applicable and the appellant was not justified in approaching the State-Courts under Section 21(iv) of the State Act and the trial Court has rightly dismissed the petition on the ground of jurisdiction.
The aforesaid judgment would not be applicable in the present case, because in the present case both the husband and wife, after they solemnized their marriage in Jammu, shifted to Germany on 10.10.2010 and became the citizens of Germany and being the citizens of Germany the laws of Germany would be applicable to them and not the State as and they would be governed by the local law."
The bench further remarked, "In the present case, the husband-Baldev Singh filed a divorce petition before a competent Court of law in Germany and the judgment has been passed on merits, after due service of summon upon the wife- Gurinder Jeet Kaur as well as after hearing both the parties. 26. The decree of divorce dated 20.07.2017, unless and until challenged, is binding upon both the parties. The child born out of the said wedlock as stated by the complainant-respondent herein is still residing in Germany, where he is undergoing studies.
Therefore, for the reasons stated hereinabove, it is held that the judgment/decree of divorce dated 20.07.2017 passed by the District Court Wisman, Germany whereby the marriage has been dissolved is conclusive and binding upon the parties."
The bench further noted, "Section 14 CPC presumption is attached to the said judgment that same has been pronounced by a Court of competent jurisdiction, however, such presumption can be displaced by proving for want of jurisdiction, no such ground is alleged in this case, even the complainant-respondent herein has not made a whisper about the passing of this judgment. The judgment so passed has also not been challenged separately by the complainant-respondent herein."
The bench allowing the petition remarked, "While having regard to the facts and circumstances of the case, the case in hand falls under rarest of the rare cases in which the discretion is required to be exercised, because there is no domestic relationship between the parties and in the absence of such domestic relationship provisions of Domestic Violence, Act cannot be invoked.
Therefore, the allegations made in the complaint would not constitute commission of any offence under the provisions of Domestic Violence, Act which requires existence of domestic relationship. The allegations in the complaint thus, are absurd and inherently improbable and on the basis of such allegations there is no sufficient ground for proceeding against the petitioner-accused in the complaint. These criminal proceedings are thus, manifestly attended with mala fide and ulterior motive for wreaking vengeance on the petitioners. Thus, the grounds taken in the petition made out a case in favour of the petitioners for quashing of the proceedings. Accordingly, the complaint as well as the proceedings initiated thereon are quashed."
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