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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Manish Pitale, J.
Bhushan - Appellant
Versus
Sau. Nilesha Bhushan - Respondent
Criminal Application (Apl) No. 164 of 2017
Decided On : 09-08-2021
Domestic Violence - Protection of Women from Domestic Violence Act, 2005 - Sections 12 to 23 - The court discussed the provisions of the D.V. Act and their applicability in the context of the case. It highlighted the definition of domestic violence under Section 3 and emphasized that the respondent's invocation of the D.V. Act after adverse findings in previous proceedings amounted to an abuse of process of law.
Fact of the Case:
The applicant sought quashing of criminal proceedings under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) initiated by the respondent after adverse findings in divorce proceedings. The Family Court had granted a divorce decree to the applicant, which was confirmed by the Supreme Court. The respondent then filed an application under the D.V. Act, claiming domestic violence based on incidents already litigated.
Finding of the Court:
The court found that the respondent's invocation of the D.V. Act after adverse findings in previous proceedings amounted to an abuse of process of law. It held that the applicant's second marriage after the divorce decree did not constitute domestic violence under the D.V. Act.
Issues: The issues included the tenability of the respondent's invocation of the D.V. Act after adverse findings in previous proceedings, the applicability of the D.V. Act to the applicant's second marriage, and whether the proceedings amounted to an abuse of process of law.
Ratio Decidendi: The court's decision was based on the finding that the respondent's invocation of the D.V. Act after adverse findings in previous proceedings constituted an abuse of process of law. It also held that the applicant's second marriage did not amount to domestic violence under the D.V. Act.
Final Decision: The application was allowed, and Miscellaneous Criminal Case No. 778 of 2016 was quashed. The impugned orders dated 17/05/2016 and 01/12/2016 were set aside.
Key Points: - The DV Act invocation after adverse findings in previous proceedings constitutes abuse of the process of law. (!) - The applicant's second marriage after a divorce decree does not constitute domestic violence under the DV Act. (!) (!) - The filing of DV Act proceedings three months after Supreme Court confirmation of divorce findings, relying on the same incidents, amounts to abuse of process and should be quashed. (!) (!) (!) - The Family Court’s findings of cruelty and the divorce decree, confirmed up to the Supreme Court, bar re-litigation under the DV Act for the same issues. (!) (!) - The High Court allowed the application and quashed Miscellaneous Criminal Case No. 778 of 2016, setting aside impugned orders. (!) (!) - The respondent’s DV Act application sought relief (maintenance, compensation, etc.) based on repeated contentions from earlier litigation, which the court found to be harassment and abuse of process. (!) (!)
JUDGMENT
1. This application is listed at Sr.No.209 in the final hearing board for today. A specific note was given at the top of the cause list stating that no adjournment would be granted on any ground in the matters listed at Sr. No.201 to 210.
2. When the application was called out for hearing in the pre-lunch session, the learned counsel for the applicants appeared and argued at length. The sole respondent has been served and is represented through counsel, although none appeared for the sole respondent. The application was then kept in post lunch session at 2.30p.m. but, none appeared on behalf of the sole respondent. As noted above, the learned counsel for the applicants was heard finally.
3. By this application, the applicants have sought quashing of criminal proceedings bearing Miscellaneous Criminal Case No.778 of 2016, filed by the sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'D.V. Act'). The applicants have also prayed for setting aside the orders passed by the Court of Judicial Magistrate First Class, Akola, issuing notice in the application filed by the respondent herein and also rejecting an application filed by the applicants for dismissal of the criminal proceedings, on the ground that such proceedings were an abuse of the process of law. The applicant No.1 got married with the sole respondent on 13/03/2011 at Akola. Soon after the marriage, there was matrimonial discord between the two, as a consequence of which, the applicant No.1 file a proceeding for divorce on the ground of cruelty. The said petition filed for divorce was decreed by the Family Court at Akola on 16/09/2014, after rendering findings to the effect that the respondent had indeed inflicted cruelty on the applicant No.1. It is relevant to mention here that the Family Court, by the very same judgment and order had also rejected an application for restitution of conjugal rights filed by the respondent. Aggrieved by the said common judgment and order of the Family Court, the respondent filed Family Court Appeal Nos.7 of 2015 and 08 of 2015 before this Court. By judgment and order dated 10/08/2015, this Court dismissed both the appeals and confirmed the judgment and order passed by the Family Court. The said judgment of this Court was then challenged before the Hon'ble Supreme Court. On 15/02/2016, the Special Leave Petition stood dismissed, as a consequence of which, the divorce decree was confirmed and the dismissal of the application for restitution of conjugal rights was also confirmed. It is after the aforesaid proceedings had reached upto the Hon'ble Supreme Court and terminated in favour of the applicant No.1, that on 15/05/2016, the respondent filed an application under Sections 12 to 23 of the D.V. Act before the Court of the Magistrate, seeking various reliefs including monthly maintenance, compensation, residence order and other monetary benefits. The respondent made allegations similar to those made in the proceedings pertaining to the divorce decree and the application for restitution of conjugal rights and thereafter, claimed that the applicant No.1 had treated her with cruelty, by performing a second marriage. The respondent also stated that she had filed a complaint against the applicant No.1 for offence under Section 494 of the Indian Penal Code (IPC).
4. In this application, on 17/05/2016, the Court of Magistrate issued notice to the applicants. The applicants herein filed an application for dismissing the proceeding on the ground of tenability. It was submitted that the respondent was not entitled to invoke the provision of the D.V. Act in the backdrop of the earlier round of litigation between the parties. By the order dated 01/12/2016, the Magistrate rejected the application. Aggrieved by the same, the applicants have approached this Court seeking not only setting aside the said orders, but also quashing of the entire proceedings.
5. On 14/03/2017, t
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