Validity of marriage under the Hindu Marriage Act and the misuse or abuse of provisions of the Domestic Violence Act.

B.R. Gavai, J.

Though in this writ petition, the petitioner has prayed for various reliefs, the petitioner has restricted the claim in the writ petition for quashing the orders passed by the learned JMFC, 49th Court Vikhroli in Case No. 231/N2007 and the order passed by the learned Sessions Judge dated 4th July, 2008 passed in Criminal Appeal No. 299/2008 and for quashing and setting aside the FIR No. 170/2007 registered with Borivli Police station and consequent CC No.1326PW2009 pending before the 26th Court, Borivali, Mumbai.

2. It was the contention of the respondent No.1 herein that she got acquainted with the present petitioner which turned out into love over affair and they accordingly married on 22nd May, 1999. Even according to respondent No. 1 she is Hindu whereas the petitioner is Malyali Christian. According to her marriage was solemnized in Hindu temple according to Hindu Rites and the marriage was also registered on the same day. It was the case of the respondent that on or about 25th May, 1989, the petitioner left the respondent at her mother's home and had told her that he would later on pick her up. According to respondent, the petitioner did not come to pick her and she tried to contact the petitioner but she could not trace him. However, on 29th May, 1989 she came to know that the petitioner filed Suit No. 3957/1989 alleging that the marriage was performed by playing fraud. Contending that the petitioner may again try to marry, respondent No.1 filed MJ Petition No.A996/1990 for a decree of restitution of conjugal rights. An interim prayer for restraining the present petitioner from performing another marriage was also made in the said petition. The said proceedings were contested by the petitioner denying any such marriage between the petitioner and the respondent No.1. The detailed written statement has been filed by the petitioner in the said proceedings. It was sought to be contended by the petitioner in the said proceeding that she was previously married to one Ghanshyamdas.

3. The learned Judge of the Family Court on the basis of the evidence that was led before it framed the following issues for determination:

Issues Findings

(1) Does the petitioner prove that she contracted a valid marriage with the respondent on 22.5.1989 under the Hindu Marriage Act? No.

(2) Does the petitioner prove that she lived and cohabited with the respondent thereafter as the wife of the respondent? No.

(3) Does the petitioner prove that she is entitled for maintenance from the respondent, and if so, at what rate? No.

(4) Does the petitioner prove that she is entitled for a decree for restitution of conjugal rights as prayed for? No.

(5) What order.

4. The learned Judge of the Family Court vide judgment and order dated 6th March, 1995 dismissed the petition filed by the respondent No. 1. Being aggrieved thereby she approached this Court by way of Family Court Appeal No. 72/1996. The same was also dismissed on 26th June, 1997. After the period of more than a decade the proceedings u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Domestic Violence Act) came to be filed by the respondent No. 1 against the petitioner and his father before the learned Metropolitan Magistrate at Vikhroli, Mumbai being Case No. 231/N2007. In the said case the respondent no.1 has narrated about her marriage with the petitioner. She has stated that their marriage was opposed by the petitioner's family members. She stayed at the house of the petitioner for about 3-4 months and in that period she was subjected to untold physical, mental and emotional harassment at the hands of her in-laws. She further states that thereafter her in-laws were behaving with her properly and told her that she was like a daughter to them and that they are willing to accept her as daughter-in-law. They, however, told that her presence will come in the way of marriage of their daughter and, therefore, desired that the respondent No.