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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Rajendra Chandra Singh Samant, J.
MOHD ASHRAF KHAN - Appellant
Versus
NAJMA BANO - Respondent
Criminal Revision No. 696 of 2017
Decided On : 21-01-2020
Criminal Procedure code,1973 - Section 125 - DV Act, 2005 - Section 29 - Protection of Women from Domestic Violence Act, 2005 - Provisions of Protection of Women - commission of offence - Appeal filed by respondent has been erroneously allowed by Appellate Court- It is further submitted by applicant that respondent being a divorcee did not have any locus to file application - As relationship between them has come to an end and respondent had started living separately respondent is no longer a member of family and that being she cannot claim reliefs and protection under provisions applicant was also prosecuted by respondent for commission of offence and in said case bearing No- decided applicant was acquitted of charge- applicant has deposited amount in Sunni Muslim area receipt same is filed as Annexure and decision -Held, Court are also of opinion that be effective has to be pronounced term pronounce means to proclaim to utter formally to utter rhetorically to declare to utter to articulate See Chambers Century Dictionary New Edition - There is no proof of having taken place - What High Court has upheld as is plea taken in written statement and its communication to wife by delivering a copy of written statement - Court are very clear in our mind that a mere plea taken in written statement of a divorce having been pronounced sometime in past cannot by itself be treated as effectuating on of delivery of copy of written statement to wife- Respondent ought to have adduced evidence and proved pronouncement and if he failed in proving plea raised in written statement plea ought to have been treated as failed- Court do not agree with view propounded in decided cases referred to in their respective commentaries wherein a mere plea of previous taken in written statement though unsubstantiated has been accepted as proof bringing to an end marital relationship with effect from date of filing of written statement- A plea of previous divorce taken in written statement cannot at all be treated as pronouncement of by husband wife on date of filing of written statement in Court followed by delivery of a copy thereof to wife- So also affidavit filed in some previous judicial proceedings not inter containing a statement of respondent could not have been read in evidence as relevant and of any value no evidence from applicants side that was pronounced or formally proclaimed and same was communicated to respondent- Therefore it cannot be said that divorce law has effectively taken place between applicant and respondent- Hence on basis of this finding Court of this view that learned Appellate Court has not committed any error and impugned order needs no interference - Petition dismissed
JUDGMENT
Rajendra Chandra Singh Samant, J. - This revision has been brought challenging the legality, propriety and correctness of the order passed by the Learned Fourth Additional Sessions Judge, Bilaspur in Criminal Appeal No.49 of 2017 by which the order passed by the Judicial Magistrate First Class, Bilaspur dated 29.9.2015 was set aside and reliefs were granted to the respondent under the provisions of Protection of Women from Domestic Violence Act, 2005 (for short 'DV Act, 2005).
2. It is submitted by counsel for the applicant that the applicant got divorced with the respondent on 13.1.2009. The application under Section 12 of the DV Act, 2005 was filed by the respondent on 18.12.2012 and the learned JMFC passed the order dated 29.9.2015 rejecting the said application. The appeal filed by the respondent under Section 29 of the DV Act, 2005 has been erroneously allowed by the Appellate Court. It is further submitted by the applicant that the respondent being a divorcee did not have any locus standi to file the application under Section 12 of the DV Act, 2005. As the relationship between them has come to an end on 13.1.2009 and the respondent had started living separately; the respondent is no longer a member of the family and that being so she cannot claim the reliefs and protection under the provisions of DV Act, 2005. The applicant was also prosecuted by the respondent for the commission of offence under Section 498A of the IPC and in the said case bearing No. 274 of 2008 decided on 17.10.2012, the applicant was acquitted of the charge. The applicant has deposited the amount in Sunni Muslim Jamat, Korba area. The receipt of the same is filed as Annexure-P/3 and the decision of the Jamat is filed as Annexure-P/4.
3. Relying on the judgment of Nagpur High Court in the case of Smt. Sadhana vs. Hemant in Criminal Revision Application (REVN) No.121 of 2018 decided on 18.4.2019 by a Single Bench, it is also submitted that after the severance of matrimonial relationship between the parties, the complaint under the DV Act, 2005 would not be maintainable. There has to be a domestic relationship between the parties covered under the definition in DV Act, 2005. The respondent is already receiving maintenance under Section 125 of Cr.P.C. Therefore, it is a case in which there is no incidence of domestic violence with the respondent on the date she has filed the application under Section 12 of the DV Act, 2005. Reliance has also been placed on the judgment of Delhi High Court in the case of Harbans Lal Malik vs. Payal Malik in Criminal Revision Petition No.253 of 2010 dated 29.7.2010 and also on the judgment of Punjab & Haryana High Court in the case of Amit Agarwal and others vs. Sanjay Aggarwal and others in Criminal Misc. No. M-36736 of 2014 decided on 31.5.2016 wherein, it has been held that after the domestic relationship has come to an end, the application under Section 12 of the DV Act, 2005 shall not be maintainable.
4. Learned counsel for the respondent submits that all the facts and circumstances of this case are in favour of the respondent. The definition of aggrieved person under Section 2(A) of the DV Act, 2005 and this act very clearly mentions that the relationship between two persons can either be continuing or could have existed at one point of time; therefore, the divorce between the parties makes no difference. The applicant has not challenged the order of maintenance passed against him by the Family Court.
5. Relying on the judgments of the Supreme Court in the cases of Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and another,2014 1 SCC 736 and Shamim Ara vs. State of U.P., (2002) 7 SCC 518 , it is submitted that the revision filed is without any substance. It is also submitted that the present revision filed against the order of the Appellate Court is not maintainable as there is no provision to file any revision against the appellate order under the Protection of Women from Domestic Violence Act, 2005, as s
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