Point o Law
That a woman who is, or has been, in a domestic relationship with the respondent can invoke the provisions of “the Act”. Again referring the definition of domestic relationship, it is clear that it is a relationship, which is alive between the persons.

ORAL JUDGMENT

1. By way of present petition under Article 226 and/or 227 of the Constitution of India, the petitioner seeks quashing of the proceedings being Criminal Misc. Application No.42 of 2017 registered with Chief Judicial Magistrate, Surendranagar filed for relief under Sections 19 and 20 of the Protection of Women from Domestic Violence Act (herein after referred to as ‘the Act’), by respondent no.1.

2. Mr. A.B.Gateshaniya, learned advocate for the petitioner submitted that the marriage of the petitioner took place with the Respondent No.1 herein somewhere in the year 1984 (approximately before 35 years). The petitioner, in the year 1989, filed Hindu Marriage Petition under Section 9 of the Hindu Marriage Act against the Respondent No.1 herein for restitution of conjugal rights. However, the parties settled their dispute there at that time and obtained customary divorce. Therefore, vide an application Exh.14 in that Hindu Marriage Petition, a settlement pursis was submitted by both of them. It is mentioned in it that customary divorce obtained by them on terms of settlement pursis which is to be abided by both of them. It is further disclosed in it that since there was no possibility to reconcile their differences, they were not in a position to stay together and therefore, they have decided to part their ways. It is further mentioned in it that nothing remains to be given or taken from each other. There is no right or interest remains over each other.

3. He has further submitted that the said divorce took place in the year 1990 and based on that, Hindu Marriage Petition for restitution of conjugal rights filed by the petitioner came to be disposed of. After about 27 years of the divorce, the Respondent No.1 herein has filed the aforesaid proceedings invoking the provisions of “the Act”, that too, long after she remarried with someone else.

4. Therefore, according to Mr. Gateshaniya, learned advocate for the petitioner, the wife is not entitled to file the proceedings under “the Act” against her exhusband, who is not only divorcee but she has also contracted second marriage with someone else. According to his submission, once she has already contracted second marriage with someone else, she cannot invoke provisions of “the Act” against the petitioner with whom divorce took place before 27 years. At best, she can file proceedings under “the Act” against her existing husband but not ex-husband with whom she got divorce long back. Therefore, he has submitted that proceedings initiated by her against the petitioner be quashed and set aside, as it is an abuse of process of law.

5. Mr. Gateshaniya, learned advocate for the petitioner to support his assertion that she has contracted second marriage, drawn attention to a copy of FIR filed by her which is at page No.37 of the compilation registered as C.R.No.I-81 of 2014 for an offence under Section 143, 452 and 328 of the Indian Penal Code registered with Joravar Nagar Police Station, Surendranagar, wherein, Respondent No.1 herein has stated her status as wife of one Premjibhai Virjibhai Tundiya as first informant in it. Importantly, in the said FIR, she has stated that all three children are through her wedlock with the applicant who has died before 25 years and therefore, she has remarried with Premjibhai Tundiya. Not only that, pursuant to the filing of the FIR, Sessions Case No.93 of 2014, she was examined as witness there and on oath, she has stated that her husband’s name to be Premjibhai Virjibhai Tundiya who is rendering service as member in Dudhrej Surendranagar Nagarpalika. He has further drawn attention to the copy of statement dated 7.7.2014, recorded by police, of Premjibhai Virjibhai Tundiya wherein, Respondent No.1 is referred to as his wife. It is also mentioned in it that respondent No.1 had taken divorce from the petitioner before 25 years and therefore he had married respondent No.1. Not only that, in a deposition before the Court in Sessions Case, Respondent No