Telangana High Court

Boda Muthaiah A2 vs The State Of Telangana on 8 August, 2024

        THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI
                Writ Petition No.2282 of 2023
ORDER:

In this writ petition filed under Article 226 of the

Constitution of India, the petitioners are seeking the

following reliefs:

i) to quash the FIR No.38 of 2022, dated 15.06.2022 followed with charge sheet in C.C.No.770 of 2022 dated 23.08.2022 under Sections 420, 498-A IPC, Sections 3 & 4 of the Dowry Prohibition Act, registered by the Bhongir Women P.S., Rachakonda and the entire proceedings pending on the file of the Court of Judicial First Class Magistrate at Bhongir;

ii) to quash the Complaint dated 01.07.2022 in DVC No.16 of 2022 under Sections 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 pending on the file of the Hon'ble Addl. Judicial First Class Magistrate at Bhongir

by declaring them as illegal, arbitrary and unconstitutional and consequently,

iii) to the direct the respondents to immediately withdraw the LOOK OUT NOTICE/ LOOK OUT

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CIRCULAR issued against the petitioner No.3 herein; and

iv) to direct the respondent No.1 to pay compensation to the tune of Rs.2 crores to the petitioner No.1 for and on behalf of all the petitioners herein, he being the husband and father; owing to gross misconduct and violation of the due process of law by the respondents No.2, 3, 4 & 5 as a consequence of which the right to life and personal liberty of the petitioners herein have been infringed; and

v) to pass such other order or orders.

2. Heard Ms. Nandita Guha, learned counsel for the

petitioners, learned Government Pleader for Home

appearing on behalf of respondents No.1, 4 & 5, learned

Government Pleader for Women Development and Child

Welfare appearing on behalf of respondents No.2 & 3, Sri

Gadi Praveen Kumar, learned Deputy Solicitor General of

India appearing for respondent No.6 and Sri Pasham

Krishna Reddy, learned counsel for respondent No.7.

Perused the material placed on record.

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3 i). The brief facts leading to the filing of this writ petition

are that the de facto complainant/respondent No.7 herein

was married to the son of petitioners 1 & 2. The petitioner

No.3 is the daughter of petitioners 1 & 2 and petitioner

No.4 is the husband of petitioner No.3. It is submitted that

the said marriage took place on 17.12.2014 at Hyderabad

with the consent of the parents of both the parties and in

January 2015, the son of petitioners 1 & 2 left to Australia

for work as he was a citizen of Australia and thereafter, in

the month of August 2015, the de facto complainant also

joined him in Australia. According to the petitioners, post

marriage and prior to her departure to Australia, the de

facto complainant resided in her parents' house only. It is

further submitted that the couple was blessed with a son

at Australia on 17.06.2016 and they resided happily

together in Australia till 17.05.2021. It is submitted that

prior to December 2021, i.e., within the seven years of her

marriage, the de facto complainant never raised any

complaint against her husband or his family members.

However, since 17.05.2021, allegedly the de facto

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complainant has been residing separately from her

husband at Sydney, Australia, whereat she filed certain

cases against her husband, who had no talking terms with

the petitioners.

3 ii). It is submitted that consequent to the orders of the

Courts in Australia, the de facto complainant is getting

maintenance to the tune of Rs.3,000/- per month i.e.,

Rs.36,000/- annually from the Australian Government and

she is also doing a private job. It is also submitted that the

parents of de facto complainant also informed the

petitioners that the de facto complainant has psychological

problems and that she is under the treatment of one

Psychiatrist at Himayatnagar, Hyderabad. It is submitted

that the petitioners never questioned the de facto

complainant about her psychological behaviour and she

lived with her parents until she flew off to Australia to be

with her husband and there was no occasion for the

petitioners and the de facto complainant to reside together

and in fact, the petitioners tried to settle the issue, but the

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de facto complainant lodged a criminal case against the

petitioners and her husband on 15.06.2022 before the

Station House Officer, Bhongir Women Police Station for

the offences punishable under Sections 420 and 498-A of

the Indian Penal Code (IPC) and Sections 3 and 4 of Dowry

Prohibition Act. She has also filed a Domestic Violence

Case against the petitioners and her husband, which was

registered as DVC No.16 of 2022 under Sections 18, 19,

20, 21 and 22 of the Protection of Women from Domestic

Violence Act, 2005. It is submitted that the son of

petitioners No.1 & 2 and husband of respondent No.7 is

the Accused No.1 in both the cases.

3 iii). It is submitted that petitioners 1 & 2 were residing

with petitioners 3 & 4 in the United States of America

(USA) at the relevant point of time i.e., when the complaint

was filed against them, and the Police without verifying the

facts and the correctness of the allegations made against

them, have issued a lookout notice against the petitioner

No.3. It is further submitted that petitioners 1, 2 & 4

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subsequently came to India and have appeared before the

Station House Officer, Bhongir Women Police Station and

submitted their explanation. Thereafter, charge sheet in

C.C.No.770 of 2022 has been filed in FIR No.38 of 2022.

3. iv). Aggrieved by the same, the petitioners filed the

present writ petition for quashing the C.C.No.770 of 2022

in FIR No.38 of 2022 dated 15.06.2022 on the file of the

Judicial First Class Magistrate's Court at Bhongir and also

to quash the complaint dated 01.07.2022, which was later

registered as DVC No.16 of 2022 on the file of the

Additional Judicial First Class Magistrate's Court at

Bhongir and also to direct the respondents immediately to

withdraw the lookout notice/lookout circular issued

against the petitioner No.3 and to direct the respondent

No.1 to pay compensation of Rs.2 crores to the petitioners

for being harassed without any basis and for abuse of

process of law to pass such other order or orders.

4. The learned counsel for the petitioners, while

reiterating the averments made in the writ affidavit,

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submitted that the ingredients of the offences punishable

under Sections 420 and 498-A of IPC read with Sections

3 & 4 of the Dowry Prohibition Act are absent against the

petitioners in this case and therefore, the C.C.No.770 of

2022 in FIR No.38 of 2022 is liable to be quashed. It is

submitted that the petitioners as well as the respondent

No.7 belonged to SC community and there was never any

demand for dowry or exchange of gifts at the time of

marriage. It is further submitted that post marriage, till

the de facto complainant joined her husband in Australia,

there was never any shared residence with the petitioners

and therefore, there was no occasion for any domestic

violence or demand for additional dowry and therefore, the

allegations of dowry harassment or domestic violence

against them are without any basis. It is further submitted

that to invoke the provisions of Domestic Violence Act,

there has to be a shared residence between the

complainant and the accused and in the absence of the

same, the complaint under Domestic Violence Act is not

maintainable.

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5. It is submitted that the de facto complainant has

invoked the jurisdiction of the Courts in Australia both

against the harassment by her husband and also for

maintenance of herself and her son by accused No.1 i.e.,

the son of petitioners 1 & 2 and the brother of petitioner

No.3 and has obtained orders from the Courts in Australia

and therefore, the de facto complainant cannot again

invoke the jurisdiction of Courts in India. It is further

submitted that petitioners 3 & 4 never shared any

residence with the de facto complainant at any point of

time and have given the details of their stay in India. It is

stated that petitioner No.3 stayed from 03.12.2014 to

22.01.2015 for 36 days during 3rd petitioner's marriage

with the 4th petitioner and from 19.10.2018 to 03.12.2018

for 45 days when the 3rd petitioner was staying with the 4th

petitioner, her parents and her in-laws and from

29.08.2021 to 08.10.2021 for 41 days. It is submitted that

during this period, the de facto complainant was residing

at Sydney, Australia.

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6. With regard to petitioner No.4, it is submitted that he

was in India along with his parents for only 18 days during

the period from 15.11.2018 to 15.12.2018 and later for

only 13 days from 29.08.2021 to 11.09.2021.

7. It is further submitted that petitioner No.1 has

worked as a Warden in the Social Welfare Department and

retired from service in the year 2011 as District Social

Welfare Officer and throughout his long tenure, he has

been well appreciated and honoured with many accolades

to his credit and has thus earned good reputation in the

society. He submitted that his wife is a cancer patient since

2018 and that both of them have been suffering from

various old age diseases. It is submitted that the de facto

complainant foisted false cases against the petitioners only

to harass them and therefore, the petitioners have

approached this Court under Article 226 of the

Constitution of India for quashing the CC No.770 of 2022

in FIR No.38 of 2022 and also the complaint in DVC No.16

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of 2022 and are seeking compensation of Rs.2 crores to the

petitioners.

8. The learned counsel for the petitioners, while

reiterating the above submissions made in the writ

affidavit, has relied upon various case laws and has filed

the same before this Court in support of the

maintainability of the writ petition and also the

presumption as to the foreign judgments. She has drawn

the attention of this Court to the judgments of the Courts

in Australia against the accused No.1/son of the

petitioners 1 & 2 and husband of the de facto

complainant/respondent No.7 for maintenance and also for

divorce. It is submitted that since the son of the petitioners

1 & 2 has applied for divorce and has obtained the same

from respondent No.7, she has hatched a plan to come to

India on the pretext of her mother's ill heath and

accordingly lodged false complaints against the petitioners.

It is submitted that the petitioners are in no way concerned

with any of the atrocities allegedly committed by accused

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No.1, who is the son of petitioners 1 & 2, on the

respondent No.7 and for the last 7½ years, there have been

no allegations of any kind against the petitioners and

therefore, the false complaints lodged against the

petitioners should be quashed.

9. The learned counsel for the petitioners has placed

reliance on the following decisions in support of her

contentions.

i) Annam Adinarayana and another Vs. State of Andhra Pradesh and another 1.

ii) State of Haryana and others Vs. Ch. Bhajan Lal and others 2.

iii) Radha Krishan Industries Vs. State of Himachal Pradesh and others 3.

iv) Chandrawati Devi & others Vs. the State of Bihar and another (order of Patna High Court in Cr.Misc.No.7165 of 2008 dated 29.04.2010).

AIR 1958 AP 16

1992 AIR 604

MANU/SC/0293/2021

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vi) M/s. Pepsi Foods Ltd. & another Vs. Special Judicial Magistrate & Others (judgment of Hon'ble Supreme Court of India dated 04.11.1997).

vii) S. Rawail Singh and others Vs. Gurinder Jeet Kour (Judgment dated 01.09.2022 of High Court of Jammu, Kashmir and Ladakh at Jammuin Crl.MC No.43 of 2018).

10. The learned Government Pleader for Home, however,

submitted that the petitioners could not have filed one

single writ petition for a number of prayers. It is submitted

that under Rule-5 (g) of Writ Rules, writ petition can be

filed for a single prayer and not for multiple prayers as

done by the petitioners herein. He placed reliance upon the

decision of a learned single Judge of the Hon'ble Madras

High Court in the case of Jareswari Vs. Kiran and others 4

with regard to the maintainability of Domestic Violence

Case. He also placed reliance upon the decision of a

learned single Judge of the High Court of Judicature at

Hyderabad in the case of Giduthuri Kesari Kumar & others

Vs. State of Telangana, rep.by Public Prosecutor and

2019 (4) LW 589 = 2019 (0) Supreme (Mad) 2858

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another 5. As regards the quashing of FIR No.38 of 2022 for

the offences punishable under Sections 420 and 498-A of

IPC, it is submitted that it requires a trial by the trial Court

concerned and that it cannot be decided by this Court

under Article 226 of the Constitution of India and

therefore, the writ petition has to be dismissed.

11. The learned counsel for respondent No.7 also

submitted that this writ petition is not maintainable as the

petitioners have sought five multiple prayers in a single

writ petition and therefore, the writ petition is liable to be

dismissed on this ground alone. It is submitted that the de

facto complainant has resided with the petitioners in her

matrimonial home after her marriage with the son of

petitioners 1 & 2, till she joined her husband at Australia

and therefore, the concept of shared residence is very

much applicable and that both the complaints against the

petitioners for the offences under Sections 420 and 498-A

of IPC and under the provisions of DVC Act are

2016 1 ALT (Crl.) 358

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maintainable. It is admitted that the de facto complainant

has invoked the jurisdiction of the Australian Courts for

maintenance and also for divorce from accused No.1, who

is the son of petitioners 1 & 2 i.e., her husband, but the

complaints filed in India are in respect of the harassment

meted out to her by the petitioners. Therefore, he

submitted that the reliefs claimed in Australian Courts are

not similar to the reliefs claimed in the Courts of India and

therefore, the complaints are maintainable and

respondents 1 to 6 should be directed to proceed with the

trial of the said criminal cases in accordance with law.

12. In support of his contention, the learned counsel for

respondent No.7 relied upon the following case law:-

         i)      Gaddameedi         Nagamani     Vs.   State       of
                 Telangana and others 6.

         ii)     Giduthuri Kesari Kumar and others Vs. State
                 of Telangana and another 7.





    2015 (2) ALD (Crl.) 764

    2015 (2) ALD (Crl.) 470

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13. Having regard to the rival contentions and the

material placed on record, this Court finds that in this

case, the following points arise for adjudication:

i) Whether the writ petition is maintainable as it seeks multiple relief in a single writ petition?

ii) Whether there are multiple proceedings in two different countries for the very same set of facts and relief?

iii) Whether respondent No.7/de facto complainant can invoke the jurisdiction of the Courts in India when she has already invoked the jurisdiction of Courts in Australia?

iv) Whether there was any shared residence between the petitioners and the de facto complainant at any point of time to invoke the jurisdiction under the provisions of Protection of Women from Domestic Violence Act, 2005? and

v) Whether the petitioners are entitled to any relief?

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vi) Whether the petitioners are entitled for the relief of compensation?

14. As regard the point No.(i), this Court finds that the

petitioners are accused in two criminal cases i.e., FIR

No.38 of 2022 of Bhongir Women Police Station for the

alleged offences under Sections 420 and 498-A of IPC and

Sections 3 & 4 of the Dowry Prohibition Act and DVC

No.16 of 2022 on the file of Additional Judicial First Class

Magistrate, Bhongir for the alleged offences under Sections

18, 19, 20, 21 & 22 of the Protection of Women from

Domestic Violence Act. The facts and circumstances

leading to the filing and registration of the cases are also

the same. For the very same set of facts different

complaints have been filed seeking different reliefs and

under the relevant legal provisions, different crime

numbers have also been registered. The learned counsel for

the petitioners has relied upon the decision of this Court

(as it then was) in the case of Annam Adinarayana (cited

supra), in support of her contention that a single writ

petition is maintainable for the reliefs claimed. This Court

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finds that the issue decided therein is whether a single writ

petition can be filed by two or more persons to enforce

separate claims. The Court held as under:-

"10. The legal position may now be summarised. An application under Article 226 of the Constitution of India is a proceeding in a court of civil jurisdiction. The provisions of Orders 1 and 2 can be invoked as far as they can be made applicable to the proceedings in a writ application under Article

226. Ordinarily, two or more persons cannot join in a single petition to enforce separate claims. But where the right to relief arises from the same act or transaction and there is a common question of law or fact or where, though the right to relief claimed does not arise from the same act or transaction, the petitioners are jointly interested in the cause or causes of action, one petition is maintainable at their instance. In the present case, the petitioners are aggrieved by a single act of the Collector, and a common question of law and fact arises and. therefore, a single application is maintainable."

In view of the above decision, this Court is of the opinion

that a single writ petition can be filed by more than one

person for the same set of facts and the same cause of

action and where the prayers are multiple but arise out of

same set of facts, in order to avoid multiplicity of

proceedings and also to ensure uniformity of the decision

in all the cases. Therefore, the preliminary objection of the

respondents about the maintainability of this writ petition

is rejected.

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15. As regards the point No.(ii) as to whether the de facto

complainant can invoke the jurisdiction of Courts in India

after invoking the same at Sydney, Australia, this Court

finds that in the Courts at Australia, a complaint was filed

by respondent No.7 against her husband about the

violence meted out to her by her husband. It is also not in

dispute that the de facto complainant and the accused

No.1 are blessed with a male child and it is the duty and

responsibility of the father also to look after his son.

Therefore, respondent No.7 has invoked the jurisdiction of

the Courts at Australia for the maintenance of the child. In

view thereof, this Court is of the opinion that the reliefs

claimed by the de facto complainant in the Courts at

Australia are not similar to the reliefs claimed against the

petitioners herein in the Courts in India. Therefore, there

is no bar or embargo on respondent No.7 in invoking the

jurisdiction of the Courts in India for the alleged acts of the

harassment meted out to her by the petitioners in India.

Therefore, point No.(ii) is answered in favour of respondent

No.7 and against the petitioners.

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16. As regards point No.(iii), the allegations of respondent

No.7 against the petitioners are with regard to dowry

harassment and admittedly the complaint is given after 7½

years after the marriage. Though the de facto complainant

has referred to the dowry harassment meted out to her by

the petitioners in her complaint to the police, no evidence

and no list of witnesses of such demands have been

mentioned in the complaint. It is an admitted fact that only

after the being divorced from her husband, the de facto

complainant has invoked the jurisdiction of Courts in

India. In respect of petitioners 3 & 4, who are the sister

and brother-in-law of her husband, this Court finds that

both of them are living in USA and the complainant lived

only briefly with petitioner No.3 after her marriage and the

petitioner No.4 never lived with the Accused No.1 and the

respondent No.7. Therefore, the complaints against them

with regard to the offences under Sections 420 and 498-A

of IPC and also under the provisions of Domestic Violence

Act are clearly not maintainable. A general omnibus

allegation is made that the petitioners 3 & 4 supported the

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respondent No.7's husband and harassed for additional

dowry. Therefore, it is but an omnibus allegation which

cannot be sustained. Therefore, the FIR No.38 of 2022 and

DVC No.16 of 2022 against the petitioners 3 & 4 are liable

to be quashed.

17. As regards the allegations of harassment by the

petitioners 1 & 2, the complaint against them is that they

have demanded dowry at the time of marriage and also

thereafter. The contention of the petitioners is that there

was no demand for dowry and that the complaint is given

only to harass and blackmail them giving into the demands

of the de facto complainant. However, this Court finds that

the allegations against the petitioners 1 & 2 have been

made by the complainant in the Courts in Australia also,

but the complaint has been filed in India for necessary

action against them only after divorce petition filed by the

son of petitioners 1 & 2 has been allowed by the Courts in

Australia. From a perusal of the complaints given by

respondent No.7 before the Courts in Australia and the

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proceedings thereunder, this Court finds that the

allegations are both against her husband as well as against

petitioners 1 & 2 herein. The respondent No.7 has made

allegations against the petitioners also in the additional

counter affidavit filed.

18. As rightly pointed out by the learned Government

Pleader for Home, the veracity or otherwise of the

complaints under Sections 420 and 498-A of IPC cannot be

decided under Article 226 of the Constitution of India, but

they require trial. However, the petitioners 1 & 2 cannot be

made to suffer the trial if the very basis of such complaints

does not exist. It is stated in the complaint that the

marriage of de facto complainant and the son of petitioners

1 & 2 was performed with a demand and satisfaction of

demand for dowry and that there has been demand for

additional dowry on subsequent dates too. Therefore, the

provisions of Sections 420 and 498-A of IPC would get

attracted against petitioners 1 & 2. However, the

circumstances as well under which such complaints have

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been made also have to be looked into before deciding as to

whether there was prima facie evidence to investigate the

case and try the accused. In this case, the respondents 4 &

5 have filed charge sheets and except for reciting the

allegation of the complainant, no other evidence has been

brought on record to support or substantiate the

allegations. The Hon'ble Apex Court in the case of State of

Haryana Vs. Ch. Bhajan Lal (stated supra) at para 8.1 (g)

and para 9.1 thereof has held as under:

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases wherein such power should be exercised:

(a) .......

(b) .......

(c) .......

(d) .......

(e) .......

(f) .......

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

9.1. The entire matter is only at a premature stage and the investigation has not proceeded with except some preliminary

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effort taken on the date of the registration of the case. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that the complainant has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected."

In view of the above, this Court is of the opinion that the

complaint against petitioners 1 & 2 cannot be quashed at

this stage. However, on account of the medical condition of

petitioner No.2 and the age of petitioners 1 & 2, the trial

Court is directed to require the presence of the petitioners

1 & 2 only when the evidence is being recorded provided

the learned counsel for the petitioners attends the Court

on every date of hearing.

19. In respect of the alleged incidents with regard to

Domestic Violence also, this Court finds that though there

was shared household for a limited period i.e., immediately

after marriage, the incidents cited by the de facto

complainant seem to have been cited only for the purpose

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of making out a case against the petitioners herein. The

Jammu and Kashmir High Court in the case of S. Rawail

Singh v. Gurinder Jeet Kour (stated supra) has held in

paragraph Nos.7, 8, 10, 18, 19, 22 and 35 of CRMC

No.43/2018 and in paragraph Nos.1, 3, 4, 5 and 6 of

CRMC No.51/2018 as under:

7. The petitioners' case is that once the complainant-respondent herein had lost the status of wife she cannot maintain a petition under the Domestic Violence, Act as she has no domestic relationship with the petitioner No. 4- Baldev Singh.

8. Now the question that arises for consideration in this case is, as to 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.

10. There is no dispute with regard to the fact that the petitioner No. 4 - Baldev Singh was settled in Germany since 2002 on account of his employment. He married the complainant-

respondent herein and after marriage she also went to Germany and both of them were residing there. They became the permanent residents of Germany. After having stayed in Germany and becoming permanent residents of Germany, the relationship between them became hostile to each other and both of them started living separately. Thereafter, petitioner No. 4- Baldev Singh approached the District Court, Wisman and filed a petition for divorce.

18. In case titled Alcon Electronics (P) Ltd. vs. Celem S.A.of France, (2017) 2 SCC 253, the Apex Court has held that once an order or decree is obtained after following the judicial process by giving reasonable notice and opportunity to all proper and necessary parties to put forth their case, executing Court cannot enquire into validity, legality or otherwise of the said judgment Paras 14 to 16 of this judgment reads as under:-

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"14.A plain reading of Section 13, CPC would show that to be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing Court cannot enquire into the validity, legality or otherwise of the judgment.

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.

16. The appellant contends that the order of the English Court is not given on merits and that it falls under Section 13(c) of the CPC as a result of which it is not conclusive and therefore inexecutable. We cannot accept such submission. A judgment can be considered as a judgment passed on merits when the Court deciding the case gives opportunity to the parties to the case to put forth their case and after considering the rival submissions, gives its decision in the form of an order or judgment, it is certainly an order on merits of the case in the context of interpretation of Section 13(c) of the CPC."

19. In case titled Harbans Lal Malik vs. Payal Malik, 2010 SCC Online Del 2516, while dealing with the question of presumption as to foreign judgment, in Paras 18, 21 & 22, the Court observed and held as under:-

"18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son

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cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. - The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case.

Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7Â1⁄2 years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7Â1⁄2 years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.‖

22. Learned counsel for the respondent however, submits 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

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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 submits 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.

In para 7 of the said judgment Court has held as under:-

"The important question of law to be determined in the case is as to whether the forum of jurisdiction is to be determined with reference to the parties or the solemnisation of marriage between them or on the basis of their residence, under Section 21 of the State Act. Section 21 of the State Act corresponds to Section 19 of the Central Act and the words, "residing outside the territories to which this Act extends" used in both the sections is explicit in terms and without any ambiguity.' In other words, the provisions of Section 21 of the Act shall apply or required to be applied to the parties with reference to their solemnisation of the marriage. If the marriage between two Hindus, whether residents of the State or not, is solemnised within the territorial jurisdiction to which the State Act extends, the forum for presentation of the petition under the State Act shall be determined under Section 21 of the Act but not otherwise. If any other interpretation is put to the said section, disastrous results may follow resulting in the failure of justice on account of contradictory judgments and decrees. In a case where a non-State subject is married to a person who is governed by the provisions of the State Act, the forum of jurisdiction for seeking the relief under the Act cannot be left to the discretion of the parties inasmuch as they may choose to approach the different courts, one governed by the Central Act and the other by the State Act. In that event passing of the conflicting judgments and decrees cannot be ruled out/ This Court in that event may not be in a position even to consolidate the proceedings or transfer the same from one court to another to avoid conflicting judgments. The forum for getting relief under the Act has, therefore, to be chosen keeping in view the place of solemnization of the marriage between the parties irrespective of their permanent residence or domicile. If the marriage is solemnized within the State the provisions of Section 21 would be applicable and if the respondent at that relevant time was residing outside the territories of the State the petitioner may be

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justified in presenting the petition in any court in the State where he or she is living.

A perusal of Sub-section (2) of Section 1 of the two Acts would clearly show that the State Act is intended to be made applicable to the State of Jammu and Kashmir whereas the Central Act extends to whole of India except this State and "applies also to Hindu domicile in the territories to which this Act extends, who are outside the said territories". It is pertinent to note that the latter words used in Sub-section (2) of the Central Act as referred to hereinabove have been omitted by the State Act in Sub- section (2) of Section 1. "Domicile" has nowhere been defined either under the State Act or the Central Act but it denotes the relationship between a person and a particular territorial unit possessing his own system of law which is different from nationality or citizenship. It determines a person's personal status and the law applicable to him in the matters such as majority or minority, marriage, divorce and succession. A person can acquire a domicile of his choice by a conscientious act. Mere residence at a particular place is not the only test to determine the domicile and the court is required to consider the quality and character of residence for determining the domicile of a citizen. The territorial jurisdiction of the State Act is, however, applicable to all the Hindus, Budhists, Jains and Sikhs who have been specified in Section 2 of the Act irrespective of their residence or domicile. Point No. 1 is, therefore, decided by holding that Section 21 of the Act is applicable to persons specified in Section 2 of the State Act whose marriage is solemnized within the State of Jammu and Kashmir irrespective of their domicile."

35. 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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1. In the instant petition, petitioners seek quashment of FIR No. 248/2017 dated 30.12.2017 for offences punishable under Sections 498-A and 420 RPC, registered with the Police Station, Gandhi Nagar, Jammu, registered against them.

3. As observed above, the relationship of petitioner-Baldev Singh and Gurinder Jeet Kour as husband and wife has come to an end with the passing of the decree of divorce, once the relationship of husband and wife has come to an end, proceedings under Section 498-A Cr.P.C cannot be initiated.

Section 498-A Cr.P.C provides as under:-

"498-A. Husband or relative of husband of a woman subjecting her to cruelty-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section, "cruelty"

means -

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

4 The above Section itself talks about the cruelty by the husband or relative of the husband towards woman. It makes it clear that there should be relationship existing between the parties as husband and wife. In the absence of such relationship the provisions of Section 498 Cr.P.C cannot be invoked and person who is not the husband or who is not in relation cannot be accused of such offence.

5. As has been discussed and observed in CRMC No. 43/2018, the marriage between petitioner-Baldev Singh and Gurinder Jeet Kour stands dissolved, meaning thereby that domestic relationship between them as husband and wife has come to an end. The decree of divorce passed by the District Court Wisman, Germany has nowhere been challenged, as such, there is no such

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domestic relationship, the registration of FIR and investigation consequent upon such FIR amounts to abuse of process of law. Thus, provisions of Section 482 Cr.P.C are required to be invoked in this case.

6. Therefore, for the reasons stated hereinabove, the petition is allowed and FIR No. 248/2017 dated 30.12.2017 for offences punishable under 21 CRMC 43/2019 a/w clubbed matters Sections 498-A and 420 RPC, registered with the Police Station, Gandhi Nagar, Jammu is quashed."

In view of the same, this Court is of the opinion that the

complaint in DVC case also is not maintainable against all

the petitioners.

20. Therefore, both the FIR No.38 of 2022 of Bhongir

Women Police Station, followed with charge sheet in

C.C.No.770 of 2022 on the file of the Judicial First Class

Magistrate, Bhongir, and the complaint in DVC No.16 of

2022 on the file of the Additional Judicial First Class

Magistrate, Bhongir, are hereby quashed against

petitioners 3 & 4. Consequently, the complaint in DVC

No.16 of 2022 is hereby quashed against the petitioners 1

& 2 also. Respondent Nos.1 to 6 are directed to withdraw