A domestic relationship under the Domestic Violence Act exists even if a divorce is claimed, provided domestic violence occurred while living together.

JUDGMENT & ORDER :

MITALI THAKURIA, J.

Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent No.1 and Mr. D. A. Kayum, learned counsel for the respondent No.2.

2. This application is filed under Section 401 of the Code of Criminal Procedure, 1973, read with Section 482 of the Cr. P.C., praying for quashing and/or suspending the impugned order dated 23.11.2022 passed by the learned Additional Sessions Judge, Kamrup, Amingaon in connection with Criminal Appeal Case No.07/2022, whereby, upholding the order dated 05.04.2022 passed by the learned Judicial Magistrate First Class No.II, Kamrup, Amingaon [in short ‘learned JMFC ‘] in connection with D. V. Case No.07/2021, wherein, the petitioner was directed to pay an amount of Rs. 3,000/- per month to the respondent No.2.

3. The brief facts of the case is that,

3.1. The respondent No. 2 filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act of 2005") before the Court of learned Chief Judicial Magistrate, Kamrup at Amingaon, seeking various reliefs under the said Act. The case was registered as D.V Case No. 07/2021. It is contended by the petitioner that after the case was endorsed, it was transferred to the learned JMFC for adjudication. Accordingly, notice was served upon the petitioner and his family members. After receiving the notice, the petitioner appeared before the learned Trial Court and accordingly he submitted a written statement, in which he denied all the allegations made by respondent No. 2. He submitted an additional written statement, bringing attention to the Notices of Talaq dated 13.08.2020, 16.09.2020, and 20.10.2020, along with the postal receipt and delivery confirmation report, which were not submitted earlier due to inadvertence on the part of the engaged counsel.

3.2. The petitioner raised a preliminary objection regarding the maintainability of the proceeding, stating that the respondent No. 2 was no longer the petitioner’s wife at the time of filing the application, as she had already been divorced according to Muslim Law. This divorce barred the petition from being entertained, as per the judgment passed by the Co-Ordinate Bench in Bismita Saikia @ Bismita Saikia Dutta vs. Pranjal Saikia and 3 Others, reported in (2018) 3 GLT 197.

3.3. Despite the irrevocable Talaq being effected, and the fact that respondent No. 2 did not challenge it despite being aware of the same, the petitioner’s preliminary objection was dismissed by the learned JMFC. The learned Trial Court passed the impugned order on 05.04.2022, directing the petitioner to pay Rs. 3,000/- per month to respondent No. 2 as interim monthly maintenance, disregarding the fact that respondent No. 2 was not entitled to relief under the Act, as per the Bismita Saikia’s case.

3.4. The petitioner, aggrieved by the impugned order dated 05.04.2022, appealed before the learned Additional Sessions Judge, Kamrup at Amingaon, seeking a stay on the order and asking for the entire proceeding arising from D.V Case No. 07/2021 to be set aside. The appeal was registered as Criminal Appeal No. 07/2022. The petitioner duly served notice upon respondent No. 2, who entered appearance and filed a written objection. Upon reviewing the written objection filed by respondent No. 2, the petitioner found certain statements contrary to the records and filed a reply. After the exchange of pleadings, the appeal was heard by the learned Appellate Court.

3.5. One of the grounds for challenging the order dated 05.04.2022 was that respondent No. 2 ceased to be the petitioner’s wife at the time of filing the petition, due to the irrevocable divorce under Muslim Personal Law, which respondent No. 2 never objected to, despite full knowledge of it. Therefore, she was not entitled to relief under the Act of 2005, and the proceedings were not maintainable.

3.6. During the hearing, the petit