Smt. Vimla Devi vs State Of Jharkhand
2023 Latest Caselaw 3678 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No.1733 of 2022
                             ------

1. Smt. Vimla Devi

2. Sri Laxmi Das .... .... .... Petitioners Versus

1. State of Jharkhand

2. Sumana Sharan @ Suman Sharan .... .... .... Opp. Parties

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Petitioners : Mr. Kaushik Sarkhel, Advocate For the State : Mr. Vineet Kumar Vashistha, Special P.P.

For the O.P. No.2 : Mr. Mahesh Tewari, Advocate Mr. Amit Kumar Agarwal, Advocate Mr. Ritesh Kumar Mahto, Advocate

------

Order No.16 Dated : 04.10.2023 Instant petition has been filed for quashing of entire criminal proceeding arising out of Complaint Case No.10418 of 2021 under Sections 12, 18, 19, 20, 21, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (for short DV Act). Opposite party No.2-Sumana Sharan filed complaint before A.C.J.M., Ranchi under Domestic Violence Act.

2. Petitioner no.1 and 2 are the mother-in-law and father-in-law of the Complainant.

CASE OF THE COMPLAINANT

3. The brief facts of the Complainant's case is that she was married to Kanhaya Lal Gupta (Respondent No-1) on 22.05.2013 at Naini, Allahabad and was taken to the matrimonial home situated at 158-Manas Vihar , Tiwaripur-2, Jajmau, Kanpur, UP and the marriage was formally registered after six days before the Registrar, Hindu Marriage Registration Office at Kanpur on 29.05.13.

4. From the wedlock, they have two children. The respondent No.1 is an Indian Citizen working in Dublin, U.S.A. and was working there under VISA-H1-B as software developer. The complainant was also living with her husband in U.S.A. on "Dependent spouse VISA", and was subjected to domestic violence and subjected to cruelty in reference to dowry demand. It is alleged that he had developed extra marital relations with US national to get US Citizenship/Green Card with the aim of divorcing the Complainant. She was quite helpless in U.S.A and had to take refuge with some shelter home for 13 days and then somehow managed to return to her parent's home in India from LSS Choice Shelter Home, Columbus, U.S.A. on 20th December, 2019.

5. After coming to India, she filed Ranchi Sadar P.S. Case No.09 of 2020 under Sections 498A, 323, 354B, 307, 504, 506/34 of the Indian Penal Code and Sections 3 & 4 of Dowry Prohibition Act. During investigation Sections 376, 511 of

the I.P.C has also been added. She also filed case for maintenance against her husband which is now pending before the Principal Judge Family Court Ranchi.

6. Case against domestic violence has been filed for the following reliefs:

i. Pass protection order under Section 18 of the DV Act ii. Pass residence order under Section 19 of the DV Act iii. Direct the respondent to pay monetary relief under Section 20 of DV Act.

iv. Pass order under Section 21 of the DV Act to grant compensation or damages under Section 22 of the DV Act.

PETITIONER'S CASE

7. The petitioners are father-in-law and mother-in-law of the complainant and seek quashing of the entire proceeding inter alia on the ground that there is no allegation against the present petitioners that they had resorted to domestic violence. The entire allegation is directed against the husband which took place in USA. Not a part of the incidence of domestic violence did take place in India.

8. It is urged that sine qua non for initiating a proceeding under DV Act is that there should be some material to show that the respondents shared domestic relationship with the complainant. Soon after the marriage as per the complaint the petitioner joined her husband abroad were the alleged incidents of domestic violence took place. In the absence of the petitioner sharing any domestic relationship with the complainant, the initiation of proceeding against them is an abuse of process of court. a. As a matter of fact, the complainant was living with her husband in U.S.A. and after the marital dispute, a decree for divorce was filed on the ground of cruelty by the son of petitioners which has been decreed by the Court of Franklin County, Ohio, U.S.A. on 01.11.2021. The appeal has also been dismissed. Copy of judgment and decree of divorce and the order of dismissal of appeal is annexed herewith. Lastly, it is submitted that the allegation of domestic violence has been refuted and denied in the finding recorded by the Court of Common Pleas, Franklin County, Ohio, Division of Domestic Relations.

9. It is submitted that after divorce on 01.11.2021, the husband of complainant is still living in U.S.A. with two minor children and the complainant has returned Ranchi and is staying in her parents' home.

10. The main plea for quashing the entire criminal proceeding is that the present case has been filed on 04.12.2021 after the decree of divorce on 01.11.2021 and at no point of time the complainant share domestic relationship with the petitioners. She is not sharing domestic household with these petitioners therefore, question of domestic violence does not arise. Reliance has been placed on a. Harbans Lal Malik Versus Payal Malik passed by High Court of Delhi in Crl.

Rev. P. No.253/2010 dated 29th July, 2010 and b. Amit Agarwal & Others Versus Sanjay Aggarwal & Others passed in Crl. Misc. No.M-36736 of 2014 (O&M) dated 31.05.2016.

ARGUMENT FOR COMPLAINTANT/OP No.2

11. Two folds submissions have been made by learned counsel on behalf opposite party No.2. Firstly, in a decree of divorce passed by Court in USA will have no application over criminal Courts regarding incidence which took place much before dissolution of the marriage. Secondly, Sadar P.S. Case No. Sadar P.S. Case No.09 of 2020 under Sections 498A, 323, 354B, 307, 504, 506, 34 of the Indian Penal Code and Sections 3 & 4 of Dowry Prohibition Act and added Sections 376, 511 of the I.P.C were lodged the divorce.

12. Contrary to the pleadings of the Petitioners, decree of divorce was awarded on 14th January, 2022 whereas the complaint under DV Act was filed on 04.12.2021 and the F.I.R. has been lodged under Sections 498A of the I.P.C. and other Sections on 07.01.2020 being Sadar Mesra P.S. Case No.9 of 2020. It is contended that in view of specific statement in the complaint that after marriage at Naini, Allahahad she was taken to the matrimonial home at Kanpur, where she shared the domestic household with the Petitioners, where marriage was registered. Even if it is assumed that she stayed only only for six days, domestic relationship came into existence in view of the domestic relationship under Section 2 (F) of Domestic Violence Act.

13. It is submitted by learned counsel for the O.P. No.2 that there are specific allegations of subjecting the complainant to Domestic Violence in USA in reference to dowry demand by her husband and family members including the petitioners. After she returned from USA, she filed Sadar (Ranchi) P. S. Case No.09 of 2020 under Sections 498A, 323, 354B, 307, 504, 506, 34 of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and later on Sections 376, 511 IPC was added during investigation and now the case is under investigation and pending before the learned ACJM, Ranchi. It was under these circumstances, the instant Cr. M. P under the Domestic Violence Act, 2005 has been filed.

14. Section 26 of the Domestic Violence Act, 2005 which reads as follows:

26. Relief in other suits and legal proceedings -(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (I) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

Reliance is placed upon the following authorities:-

(a) Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors. [in Civil Appeal No.10084 of 2016 (arising out of SLP (Civil) NO.9132 of 2015)].

(b) Javeria Abdul Majid Patni vs. Atif Iqbal Mansoori and Anr. [Criminal Appeal No.2069 of 2014 (arising out of SLP (CRL.) No.8056 of 2013].

(c) Rajnesh Vs. Neha & Anr. [Criminal Appeal No.730 of 2020 (arising out of SLP (Crl.) No.9503 of 2018].

(d) Y. Narasimha Rao & Ors. vs. V. Venkata Lakshmi and Anr., reported in 1991 (3) SCC 451 in which it is held that divorce granted by the Court in USA between the parties shall have no application in view of the ratio laid down by the Supreme Court.

ANALYSIS

15. For better appreciation of the present case, it will be desirable to set out the list of dates on the basis of the indisputable materials on record.

22.05.2013--Marriage solemnized at Allahabad and the Complainant taken to matrimonial home at Kanpur and the marriage is registered six days thereafter. Shortly after the marriage complainant moves to USA and joins her husband. Two sons were born there on 4 June 2015 and 8 February 2017.

24.10.2019-- Divorce suit filed by the son of the Petitioners in the Court of Common Pleas at Franklin County, Ohio.

20th December 2019-- Complainant returns India to her parents home. 27.10.2021-- A decision and entry was issued granting a de facto termination date of marriage of 4th December 2019 by the Court of Common Pleas at Franklin County, Ohio. Thus the duration of marriage has been held in the Judgment in the Judgment - Decree of divorce passed by the Court of Common Pleas at Franklin County, Ohio to be from May 22, 2013 until December 4, 2019.

04.12.2021-- Complaint under the DV Act filed by Suman Sharan (OP No.2) against the Petitioners and her son.

14th January 2022--Judgment Entry-Decree of Divorce by the Ohio Court

16. 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 complainant. If there is no domestic relationship Court 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:

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

17. Domestic relationship cannot arise unless two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition stresses the need of living together at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent. It has been held in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 :

33. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the 2005 Act 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. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.

Law has been summed up in Prabha Tyagi VS Kamlesh Devi, 2022 (0) Supreme(SC) 446 in the following words;

The further question is, whether, such a domestic relationship should be subsisting between the aggrieved person and the respondent against whom relief is claimed at the time of claiming the relief. Before answering the same, it would be useful to analyse the relationships noted in the D.V. Act as under:

(a) Any relationship by consanguinity is a lifelong relationship.

(b) Marriage is also a lifelong relationship unless a separation by a decree of divorce is ordered by a competent authority of law.

(i) If there is judicial separation ordered by a court of law, that does not put an end to marriage and hence the domestic relationship continues between the spouses even though they may not be actually living together,

(ii) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.

(iii) That is why, the expression "domestic relationship" has been defined in an expansive manner to mean 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 marriage. We have also interpreted the word live or lived in the context of right to reside in Sub-Section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act.

(iv) Therefore, even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances,

the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act.

(c) Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage.

(d) In the same way, when a girl child is fostered by family members living together as a joint family as interpreted above and lives or at any point of time has lived together in a shared household or has the right to reside in the shared household being a member living together as a joint family and has been ousted in any way or has been a victim of domestic violence has remedies under the D.V. Act.

In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in presentia but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression "domestic relationship" to mean a relationship between two persons who not only live together in the shared household but also between two persons who 'have at any point of time lived together in a shared household.

(emphasis supplied)

18. There may appear some seeming inconsistency between the ratio laid down in the two cases, but there is not. It depends upon the facts of each case whether domestic violence took place in domestic relationship or not. In view of the above exposition of law, there cannot be two views that subsistence of domestic relationship is not a pre-condition for initiation of a proceeding under the DV Act. It can be initiated in appropriate cases even after a decree of divorce, but it cannot be permitted to become a tool wreak vengeance. However, after the marital relationship comes to an end with a decree of divorce, a party cannot be permitted to wreak vengeance out of the bitterness flowing from the ruptured marital relationship. DV Act is intended to protect a woman from violence in the domestic relationship and is not a penal tool for deterrence. There must be cogent material that the respondent was in domestic relationship and he resorted to domestic violence.

19. Central issue in the present case is not whether the complaint under DV Act was filed after the dissolution of marriage by the judgment and decree passed by the court in USA. Crux of the matter is whether the Petitioners who are the parents, ever shared the domestic household sharing domestic relationship with the complainant and if there was any material that they were responsible for the domestic violence. The issue that the complainant has been filed after cessation domestic relationship by a de facto divorce requires the materials to be closely scrutinized.

20. At the stage of quashing of a criminal proceeding, the probative values of the materials brought on record is not to be tested and scrutinised, but there should be some allegation supported by materials from which a reasonable inference can be

drawn of a shared domestic relationship and the acts of violence against the petitioners.

21. It is true that the complainant started her marital life from her matrimonial home, but there is no whisper in the complaint that the complainant continued in her matrimonial home at Kanpur and these petitioners directly or indirectly resorted to domestic violence. The entire story revolves around the incidences that took place in USA and is directed against the son of the petitioners. On a bare reading of the complainant, it is apparent that there is no allegation whatsoever against these petitioners.

22. There is no reason to discard the Judgment of the foreign Court delivered by a court of competent jurisdiction by which the judgment and decree of divorce was pronounced. Under section 13 of the Civil Procedure Code, a foreign judgement is conclusive, save and except the exceptions laid down in this provision and there is a presumption in favour of it under Section 14, which are as under:

a. where it has not been pronounced by a Court of competent jurisdiction;

b. where it has not been given on the merits of the case;

c. where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;

d. where the proceedings in which the judgment was obtained are opposed to natural justice;

e. where it has been obtained by fraud;

f. where it sustains a claim founded on a breach of any law in force It has been held in Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC 253

15. A glance on the enforcement of the foreign judgment, the position at common law is very clear that a foreign judgment which has become final and conclusive between the parties is not impeachable either on facts or law except on limited grounds enunciated under Section 13 CPC. In construing Section 13 CPC we have to look at the plain meaning of the words and expressions used therein and need not look at any other factors. Further, under Section 14 CPC there is a presumption that the foreign court which passed the order is a court of competent jurisdiction which of course is a rebuttable presumption. In the present case, the appellant does not dispute the jurisdiction of the English Court but its grievance is, it is not executable on other grounds which are canvassed before us. Under the circumstance the objection of the Complainant that the Judgment and decree by the court at Ohio, cannot be looked into and have no application has no legal basis.

23. Certain findings rendered in the Judgment Entry-Decree of Divorce pronounced by the court of Common Pleas, Frankly County, Ohio, gives a telling

account about the role of the present complainant. The divorce was allowed on the grounds of adultery and for extreme cruelty committed by the present complainant against her husband. It was noted that she had made five false police reports regarding domestic violence. The appeal against the Judgment was dismissed. Complainant in this case did not appear at 11 of 13 scheduled hearings throughout the case. Court held that defendant (complainant) was in no way prejudiced by the scheduling of the trial on November 1, 2021.

24. After the marital relationship was shattered beyond repair and a de facto termination of marriage took place since 4 December 2019, complainant returned to India on 20th December 2019 and initiated spate of proceedings on the criminal side against her husband and in-laws.

25. The fact of the matter remains that even if it is assumed that the complainant had a brief stay after marriage in her matrimonial home with the petitioners, it will not materially affect the nature of relationship. A casual stay or visit to the in-laws does not make out a domestic relationship, unless there was an element and semblance of some duration when they shared the common household. Expression used in the DV Act is not family-relationship, but of domestic relationship. Word 'domestic' is intrinsically connected with the word 'home'. There cannot be an iota of doubt that the domestic relationship of the complainant with her husband grew in USA and not in India. Under the circumstance for the unfortunate turn of events that took place in the marital relationship of the Petitioner's son with the complainant abroad, cannot be said to have occurred within the domestic relationship of these petitioners. The address in the complaint of the Petitioner has been given that of India, and it is not the case of the complainant that they shared the domestic household of the complainant with her husband in USA. Mere filing of a criminal case U/s 498 A of the IPC cannot furnish the ground to initiate a proceeding under DV Act, when the Petitioners were not a part of the domestic relationship.

Under the aforesaid facts and circumstance, and for the reasons discussed above this court is of the view that instant proceedings under DV Act against these petitioners is a gross abuse of process of court. The senior citizens in the twilight of their life have been dragged into the instant case on account of the marital dispute between the complainant and her husband that took place abroad. The entire criminal proceedings arising out of Complaint Case No.10418 of 2021, so far as these petitioners are concerned is quashed.

Criminal miscellaneous petition is allowed. I.A., if any, is disposed of.

(Gautam Kumar Choudhary, J.) Anit