IMPORTANT POINT
Petition under provisions of PWD Act, 2005 is maintainable even if acts of domestic violence had been committed prior to coming into force of Act.

JUDGMENT (CAV)

B.N. Karia, J.—This Application has been filed by the petitioners praying to quash and set aside the Order dated 16.08.2010 passed below Application Ex. 9 in Criminal Misc. Application No. 396/2010 by the learned 5th Additional Senior Civil Judge and JMFC, Bhavnagar and to drop the proceedings against the petitioners initiated by the respondent no.2 under the provisions of Protection of Women from Domestic Violence Act, 2005 (for brevity “the PWD Act”).

2. Brief facts of the case are that the respondent no.2 married with Anilsinh, son of the petitioner No.1 in the year 1993 and thereafter, it was not possible for them to continue their relationship as husband and wife and therefore and thereby, a compromise was arrived at, by and between them, according to which, the entire amount of permanent alimony was paid to the respondent no.2 herein, which was to the tune of Rs. 3,51,000/-. That, an Application under Section 13(B)(i) of the Hindu Marriage Act was submitted before the learned Civil Judge(S.D.) Bhavnagar, being HMP No. 47/2001, seeking divorce with mutual consent. The statutory intervening period of 6-18 months also expired and nobody opposed or retrieved or revoked the consent. Thus, in pursuance to the above petition for divorce by mutual consent, the decree ought to have been passed according to the petitioners in the routine course by the competent court. Thus, under the said bonafide belief, even Anilsinh did not pursue the matter. Thus, all the while, it was understood by all concerned that everything got over and decree must have been passed. However, subsequently, it come to the knowledge of the parties that for want of prosecution, the said HMP was dismissed for default vide Order dated 27.06.2007. Thereafter, respondent no.2 filed an Application under the provisions of Section 97 of the Code of Criminal Procedure inter alia seeking custody of Anilsinh ie., husband of the respondent no.2. The said application came to be allowed. Against which, a revision application came to be filed before the Sessions Court at Bhavnagar, which too came to be allowed. The respondent no.2 never challanged the said order passed in revision application and thus, the said order against the respondent no.2 attained finality. Thereafter, the respondent no.2 preferred an application, being Criminal Misc. Application No. 396 of 2010 under Sections 12, 18(b), 19, 20, 22 and 23 of the PWD Act, and therefore, the petitioners filed Application vide Ex. 9 in the said proceedings praying to drop the proceedings against them, which eventually rejected by the learned Additional Senior Civil Judge and JMFC by impugned order dated 16.08.2010. Being aggrieved by the said order, the petitioners have filed the present petition.

3. During pendency of this petition, on 08.11.2010 the petitioner No.1 passed away, and therefore, her name was deleted.

4. Heard learned advocate Mr. Parth S. Tolia for the petitioners No.2 and 3; learned advocate Mr. Mehul S. Shah for the respondent no.2 and learned APP Ms. Hansa Punani for the respondent no.1-State.

5. Learned advocate Mr. Parth S. Tolia for the petitioners No.2 and 3 submitted that in the year 2001, entire amount of permanent alimony was paid to the respondent no.2 which includes everything. It is the respondent no.2, who signed the petition for mutual consent clearly stating that she had received permanent alimony of Rs. 3,51,000/- and she will not claim anything else even from the husband towards maintenance or alimony in future, as well as acknowledged receipt of all the items received by her in the marriage from her parental home, which were returned back to her. That, both the husband and wife agreed to separate mutually and no claim against each other remained outstanding then. An agreement between the parties was arrived at way back in the year 2001 and as a matter of fact, after expiry of statutory waiting period of 6-18 months, a decree was deemed to have been passed. In any case, b