<strong>IN THE HIGH COURT OF JUDICATURE AT __________</strong>
<strong>IN ITS CRIMINAL APPELLATE JURISDICTION</strong>
<strong>DISTRICT _________</strong>
<strong>Misc. CRIMINAL APPLICATION NO.牋牋牋牋 OF 2018</strong>
IN THE MATTER OF ARTICLE 226 227 OF THE CONSTITUTION OF INDIA
AND
IN THE MATTER OF SEC. 482 OF CR.P.C.
AND
IN THE MATTER OF ORDER DATED dd/yy PASSED BY THE LD. JMFC, ______. COURT, ________
1)牋 wwwwwwwww wwwwwww wwwwwwww
Age : aa years, Occupation : Service
Having his address at:
Aaaaaaaa nnnnnnnn mnnnm,
Ssssssss jjjjjjjj kkkkk
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2)牋 rrrrrrr eeeeeeeeee ffffff
Age : qq years, Occupation : Retired
Having his address at:
Aaaaaaaa nnnnnnnn mnnnm,
Ssssssss jjjjjjjj kkkkk
Aaaaaaa aaaa 牋牋牋牋牋牋爡厖..牋牋 PETITIONERS
V/S.
1)牋 pppppp kkkkkkl jhhhhk
Having her address at:
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Aaaaaaa ddddddd fffffff,
ttttttt 牋牋牋牋牋牋牋牋牋牋牋牋..燫 ESPONDENT
TO,
THE HON 払 LE THE CHIEF JUSTICE AND THE OTHER HON 払 LE COMPANION JUDGES OF THE HIGH
COURT OF JUDICATURE AT __________
<u>THE HUMBLE PETITION OF THE PETITIONERS (ORIGINAL 牋燫 ESPONDENTS NO. 1 2) ABOVE NAMED
UNDER ARTICLE 226 227 OF THE CONSTITUTION OF INDIA R/W. SEC. 482 OF CR.P.C. FOR
QUASHING THE PROCEEDINGS OF M.C.A. NO. xx/09 UNDER DOMESTIC VIOLENCE ACT PENDING ON THE
FILE OF THE LD.?/u><u>JMFC, COURT, WWWWWWWW</u>
<u>MOST RESPECTFULLY SHEWETH THAT</u>:
<ol>
<li>The petitioners submit that by way of present petition, the petitioners are
challenging the proceedings initiated by respondent herein under the provisions of
Protection of Woman from the Domestic Violence Act, 2005 (hereinafter referred to as DV
Act for the sake of brevity). Subsequent to the report of the Protection Officer under
Sec. 12 of the DV Act before the Ld. JMFC (Cccc.), MMMMMM the Ld. Court took cognizance
and initiated the proceedings. The petitioners herein had applied to the Ld. Court to
dismiss the complaint, as the respondent does not fall under the definition of 揳
ggrieved person?as her marriage is null and void as per the facts presented in the
subsequent paragraphs. The Ld. Court had declined that application by its order dated
xx/yy/zzzz. Since, the respondent has complained claiming her relationship with the
petitioner to be of wife and since by law, that status fails due to the nullity of her
marriage with the petitioner; based on the materials placed on record, this order is
bad in law and without the jurisdiction. Hence, the petitioners are filing this
petition under article 226 and 227 of the Constitution of India 1950, read with the Sec.
482 of the Code of Criminal Procedure, 1973, challenging the legality of the impugned
order.</li>
<li>The petitioners submit that the brief facts leading to filing of the present
petition are as described in the following paragraphs.</li>
<li>That the petitioner no.1 and petitioner no. 2 are son and father respectively,
and petitioner no.1 has filed a suit on dt. 15/12/2008 in the Hon. Family Court,
Xxxxxxxx under sec. 11, read with 5(i) of Hindu Marriage Act 1955 for declaration of
nullity of his marriage with the respondent, being the suit no. CA cccc/09. Annexed
hereto as<strong><em>Annexure I?/em></strong><em>is a</em>certified copy of the suit.
Before the marriage, the respondent had represented to the petitioners that she was
legally divorced and, therefore, competent to solemnise the marriage again, which was
later found to be untrue. The petitioners later revealed that she was not in possession
of decree of divorce on the date of her marriage with the petitioner no.1. On the date
of the said marriage (aa/bb/cccc), the respondent 抯 earlier divorce matter was pending
with the Hon. Family Court of MMMMMM. Annexed hereto and marked as?strong><em>Annexure
II</em></strong>爄 s the certified copy of the divorce petition of her earlier husband
under Sec. 13 and Sec. 13 B both, of Hindu Marriage Act.</li>
<li>That after said marriage, the respondent stayed with petitioners at ________
for 7 days during dd/mm/yy evening to aa/bb/cccc and left to her parental home at
MMMMMM on her own, in the evening on aa/bb/cccc. From the conduct of the respondent
during these 7 days, the petitioner was compelled to go into the past history of the
respondent, wherein it was found that she was not in possession of legal decree of her
divorce at the time of her marriage with the petitioner. Also, it was found that she
had litigations going on under Sec. 498A, 114, 420, 506 (2) etc. of CrPC with her
earlier husband and in-laws. All that within a time span of about a year, had led her
husband to prefer divorce petition under Sec. 13 of the Hindu Marriage Act at the
Family Court of MMMMMM, as is presented in<strong><em>Annexure II</em></strong>.</li>
<li>It was revealed from the Court records that the respondent had obtained from
her husband a sum of Rs. five lakhs in the form of permanent alimony in return to
consent of divorce. Annexed hereto and marked as<strong><em>Annexure III</em></strong>
爄 s the certified copy of her statement on oath admitting the facts as above before Hon.
Court.</li>
<li>It is respectfully submitted that the relationship of husband 杦 ife was also
not established between the respondent and petitioner no. 1 during those seven days.
Then shocked by all above revelations, the present petitioner no.1 took immediate
action to file the petition on dd/mm/2008, before the Hon. Family Court of Xxxxxxxx, as
mentioned before, to get declaration to the effect that this marriage is void ab-initio,
in accordance with sec. 11, read with 5(i) of Hindu Marriage Act 1955.</li>
<li>That, during this time, the respondent and her brother and sister-in-law
started giving threats on life of petitioner no.1 by phone, and also illegitimately
demanded money, for not harming him physically. Due to such threatening phones, the
petitioner no. 2 had to lodge a police complaint on dd/mm/08, against the respondent 抯
brother and his wife, under Sec. 507 of CrPC with the Bbbbbbb Police Station. Annexed
hereto and marked as<strong><em>Annexure IV?/em></strong>is a copy of this FIR and
chargesheet. The same is pending with the Ld. Court of Metropolitan Magistrate, Bbbbbbb,
Xxxxxxxx, being the case no. qq/09.</li>
<li>Subsequently, on dd/mm/yy, the respondent lodged a complaint under Sec. 498
(A) of CrPC and others against the (a) petitioner no.1, (b) his parents, (c) a married
sister and (d) maternal Grandma ?(c) and (d), though not living with the petitioner
no.1, annexed hereto as<strong><em>Annexure V</em></strong>爄 s a copy of this FIR.
After due inquiry into the complaint, the Ccccccc Police issued B summary in favour of
the petitioners in August 2009, annexed hereto and marked as<strong><em>Annexure
VI</em></strong>爄 s the certified copy of that police report, which is lying with the
LD. Court at Mirzapur, Xxxxxxxx, being the case no. www/ee.</li>
<li>That, the respondent and many of her relatives, alongwith a bunch of
criminals had assaulted the house of petitioner no.1 抯 mother on d/m/y, with a view to
physically harm the petitioner no.1 and his family. The petitioner no.1 and the family
were not in house, but due to respondent 抯 effort to break the house, they had hand
scuffle with the watchman and the neighbours of the society. A complaint for the same
was given in writing, by mother of the petitioner no.1, at Ccccccc Police station.
Annexed hereto and marked as<strong><em>Annexure VII</em></strong>爄 s a copy of the
written complaint of petitioner 抯 mother made to the Ccccccc Police Inspector.</li>
<li>That, later on, on 3/2/2009, a report came to be filed by the Protection
Officer of MMMMMM city, which was submitted to JMFC (Cccc.), MMMMMM wherein it is
inter-alia stated that the Petitioners had abused and tortured Respondent and also
demanded dowry. That the Respondent has also asked for appropriate relief pertaining to
Protection under Sec. 18, Right to Residence under Sec. 19 and monetary relief under
Sec. 20 of the DV Act. The same being the case no. dd/yy, is pending with the 燣 d.
JMFC?ddddddd) Court of MMMMMM. Annexed hereto and marked as<strong><em>Annexure
VIII?/em></strong>is a copy of the relevant case papers. It is respectfully stated that
this case and an order dated 燿 d/yy under the matter, passed by the Ld. JMFC, xxx.
Court, MMMMMM,燽 elow Ex.qq in M.C.A. No.ww/09 are the subject matters of this
petition.</li>
<li>In the above proceedings, the petitioner no.1 had applied to the Ld. Court of
JMFC (vvv.), MMMMMM, as annexed hereto and marked as?strong><em>Annexure
IX</em></strong>, that the complainant does not fall into the definition of 揳 ggrieved
person?from the capacity of wife, as per the Domestic Violence Act, as she was not
possessing legal decree of dissolution of her earlier marriage, rendering her marriage
with the petitioner no. 1 void ab-initio, hence rendering the said complaint devoid of
locus standi, as the capacity of Respondent on which the case is based, itself is non-
existent and ipso jure void, since inception. This application of the petitioners had
been declined by the Ld. Court by its order as annexed hereto and marked
as?strong><em>Annexure X</em></strong>.</li>
<li>That in reference to the above, the petitioners respectfully agree that any
woman in a defined relationship can complain under Domestic Violence Act, but since
here, the respondent has complained assuming the relationship of wife, which itself
proves to be void-since-inception by law at her own instance, results into failure of
establishing the relationship as defined in the DV Act. Thereby the respondent fails to
fall in the definition of aggrieved person in the capacity of a wife. In light of the
above argument, the said order of the Ld. Court of JMFC (zzzz.), MMMMMM is bad in law
and the said matter under the Domestic Violence Act is not maintainable, and hence is
liable to be dismissed in limine.</li>
<li>That while submitting as above, the petitioners rely on the observation made
by the Hon. High Court of Mumbai in its judgement dtd. 3rd May, 2010 of Mangala Bhivaji
Lad vs. Dhondiba Rambhau Aher, being FAMILY COURT APPEAL NO. 117 OF 2006, which is as
follows:?strong>?em>Since the institution of marriage and the very relationship of
husband and wife originates from the personal law applicable to the parties, there can
be no escape from reference to the personal law while understanding the expressions 揾
usband?and 搘 ife?used in different statutes. As far as Hindus are concerned, the law
relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore
unless the marriage is valid under the provisions of the Hindu Marriage Act the parties
entering into such a marriage cannot describe themselves as 揾 usband?and 搘 ife?for the
purposes of application of different statutes or for deriving the benefits available
under different statutes</em>.?/strong>燗 lso that, according to this judgement, since
as per law, the said marriage is void ab-initio irrespective of the declaration of the
same (which is optional), the petitioner no.1 抯 status is not subject to (and is
independent of) the Hon. Family Court 抯 declaration to that effect. Hence, on this
aspect also, the premises taken under the impugned order of Ld. Court of JMFC (mmm.),
MMMMMM, is missing in legality.</li>
<li>Since one cannot take advantage of her own wrong, and since she, not being a
legally wedded wife, could not assume the capacity of wife for the complaint under the
DV Act, it would not be in the interest of justice that this case proceeds in the said
Court, and the petitioners are further subjected to harassment. In those circumstances,
the impugned order of Ld. JMFC (nnnnn), MMMMMM, pending against the petitioners is
required to be quashed and set aside and the complaint under the DV Act is required to
be dismissed in limine.</li>
<li>That, during the course of petitioner no.1 抯 petition at Hon. Family Court,
Xxxxxxxx, the respondent had also filed a petition under Sec. 125 of CrPC, annexed
hereto as?strong><em>Annexure XI</em></strong>, against the petitioner no.1, which she
had withdrawn at her own instance, finding it devoid of locus standi, her not being a
legally wedded wife. However, later on, she filed an application under Sec. 24 of Hindu
Marriage Act, 1955, as annexed hereto as<strong><em>Annexure XII</em></strong>, against
the petitioner no.1. In the proceedings, she had intentionally suppressed the fact that
she was employed in a Govt. job presenting herself as jobless and devoid of proper
knowledge to get a job. Due to that false representation, the Family Court had ordered
interim maintenance under Sec. 24 of Hindu Marriage Act, 1955 in her application. Later
on, on getting the proofs of her job at a Govt. undertaking 搕 tttttt?(earlier 揾 hhhhh
iiiiiii lllll? and her income as annexed hereto as<strong><em>annexure
XIII</em></strong>, the petitioner no.1 has applied for the review and cancellation of
that maintenance order, and a contempt and perjury application against Respondent in
the same court. Annexed hereto and marked as?strong><em>Annexure XIV</em></strong>爄 s a
copy of these applications.</li>
<li>The petitioners further respectfully submit that, in respondent 抯 FIR under
IPC 498 (A) against the petitioners, the Investigating Officer has issued B summary,
negating the charges made by the respondent, which are of similar nature to those in
the case in question. Hence, over and above the facts mentioned before, on merit also
the respondent 抯 case does not make a prima facie case of Domestic Violence,
particularly when the respondent 抯 relation with the petitioner itself is a part of
respondent 抯 malicious design, fraught with ulterior and oblique motive of making money
by abusing the process of law. Hence, in light of the all above facts, allowing the
proceeding to continue would be an abuse of the process of the court and that the ends
of justice require that the proceeding ought to be quashed. The petitioners hereby most
respectfully and assertively would like to drive at a point that this case is
conspicuously that of a woman who by taking inappropriate advantage of the pious custom
of institution of marriage, has entered into the house of petitioner putting on a mask
of a wife, with sole intention of abusing the law for shelling out easy money from him,
as is amply evident in the history of respondent 抯 earlier marriage.</li>
<li>The Petitioners crave leave to add, amend, alter or modify the grounds urged
hereinabove.</li>
<li>The Petitioners have not filed any other petition or application previously
before this Hon 抌 le Court for the reliefs claimed herein under.</li>
<li>In light of the above, The Petitioners therefore most respectfully pray that
this HON 払 LE COURT BE PLEASED TO:</li>
<li>a)牋 Issue rule in the above petition.</li>
<li>b)Issue writ of certiorari or any other writ, order or direction in the
nature of certiorari, for quashing and setting aside the order datedmm.yyyy passed by
the Ld. JMFC, gggg Court, MMMMMM 燽 elow Ex. ee in M.C.A. No.ss/09.</li>
<li>c)Stay the further proceedings of M.C.A. No.ss/09 under Domestic Violence Act,
2005 pending on the file of the Ld.JMFC, zzzz. Court, MMMMMM, till the hearing and
final disposal of the present petition,</li>
<li>d)Issue order to pay the cost to the petitioner,</li>
<li>e)Pass such other and further orders as may be deemed just, proper and
reasonable.</li>
</ol>
AND FOR THIS ACT OF KINDNESS THE PETITIONERS HERE, AS IS DUTY BOUND, PRAY FOREVER.
PLACE: XXXXXXXX 牋牋牋牋牋牋 XXXXXX YYYYYYY ZZZZZZ
DATE:
YYYYYYY K ZZZZZZ
<strong><u>AFFIDAVIT</u></strong>
I, Xxxxxx Yyyyyyy Zzzzzz, adult, residing at ddd, trrrr eee ww, zzzzzzz, Xxxxxxxx, do
hereby solemnly affirm and state on oath that what is stated hereinabove from
paragraphs 1 to 18 is true to the best of my knowledge and information, and I believe
the same to be true and correct. The content of paragraph 19 is prayer clause.
SOLEMNLY AFFIRMED AT XXXXXXXX ON THIS ____ DAY OF September, 2010.
XXXXXX YYYYYYY ZZZZZZ
For himself and on behalf of petitioner no. 2
(DEPONENT)
<strong>IN THE HIGH COURT OF JUDICATURE AT XXXXXXXX</strong>
<strong>IN ITS CRIMINAL APPELLATE JURISDICTION</strong>
<strong>DISTRICT XXXXXXXX</strong>
<strong>CRIMINAL WRIT PETITION NO.牋牋牋牋 OF 2010</strong>
1)牋 XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY uuuuuu ZZZZZZ
.?.匬 ETITIONERS
V/S.
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牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋..厖厖 RESPONDENT
<h3>I N D E X</h3>
Dated this 牋牋牋燿 ay of September 2010
Xxxxxxxx
1) XXXXXX YYYYYYY ZZZZZZ
2) YYYYYYY ssssssss ZZZZZZ
PETITIONERS
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