The main legal point established in the judgment is that the Protection of Women from Domestic Violence Act, 2005 is intended to protect any woman in a domestic relationship as an 'aggrieved person', irrespective of the legality of the marriage.

JUDGMENT

Dinesh Mehta, J. - By way of present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner has challenged the order dated 30.06.2022, passed by the learned Judicial Magistrate, District Jodhpur (hereinafter referred to as 'the trial Court'), by which the application filed by the respondent No. 2 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act of 2005') has been allowed.

2. The order aforesaid has been challenged on the following grounds:-

(i) That the respondent No. 2 has contracted marriage with the petitioner without taking divorce from her earlier husband, viz., Vijay Khokhar and thus, she cannot be treated to be legally wedded wife of the petitioner so as to invoke the provisions of the Act of 2005;

(ii) that the order passed by the trial Court is contrary to judgment of this Court dated 02.01.2018, rendered in the case of Vinod Kumar Nathwani v. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No. 2275/2014); and

(iii) that the respondent No. 2 has not filed affidavit of her income, as has been mandated by Hon'ble the Supreme Court in the case of Rajnesh v. Neha & Anr. [ (2021) 2 SCC 324].

3. Mr. Joshi, learned counsel for the petitioner argued that the respondent No. 2 had not taken divorce from her earlier husband and thus, her marriage with the petitioner is null and void. While informing that the petitioner has taken up separate proceedings for prosecuting her for the offence under Section 494 of the Indian Penal Code, while also filing petition under Section 11 of the Hindu Marriage Act for declaring the marriage null and void, learned counsel argued that the respondent No. 2 is not entitled to any relief under the Act of 2005.

4. Mr. Joshi argued that the respondent No. 2 cannot be treated to be a legally wedded wife of the petitioner so as to maintain a petition under Section 23 of the Act of 2005, as has been held by this Court in the case of Vinod Kumar Nathwani (supra).

5. He argued that as the respondent No. 2 did not file her affidavit, hence, no maintenance could be awarded to her.

6. Mr. Gour, learned counsel appearing for the respondent No. 2, at the outset submitted that the arguments, which the petitioner has sought to raise before this Court are not available to him, as the same are in the teeth of the adjudication made in his own case (S.B. Criminal Misc. Petition No. 805/2021) whereby identical grounds raised by the petitioner have been negated by a Coordinate Bench of this Court vide its judgment dated 10.02.2021. He read the relevant part of the judgment and pointed out that the petitioner had approached this Court on exactly same ground that the petition under Section 23 of the Act of 2005 by the respondent, whose marriage with petitioner is void, is not maintainable and such petition was dismissed by a detailed order.

7. Mr. Gour also invited Court's attention towards the definition of "domestic relationship" contained in Section 2(f) of the Act of 2005 and submitted that the expression "domestic relationship" is not confined to wife and said definition is wide enough to include the present petitioner, particularly when the fact that the petitioner and the respondent No. 2 were living together as husband and wife is not in dispute.

8. In rejoinder, Mr. Joshi argued that the respondent No. 2, as a matter of fact, had deceived the petitioner and while concealing the factum of her earlier marriage with said Vijay Khokhar, she has not only committed an offence of bigamy but has also betrayed the petitioner. Such woman is not entitled to invoke the provisions of Section 23 of the Act of 2005, he added.

9. In relation to the judgment dated 10.02.2021, which has been passed in petitioner's earlier round of litigation, it was contended that the said judgment cannot come in the way of the petitioner because the earlier adjudication was in relation to maintainability of t