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2022 Supreme(HP) 374
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J.
Vijay Kumar Son of Sh. Deep Ram – Petitioner
Versus
Sanjana Kumari Daughter Of Late Sh. Laxmi Ram – Respondent
CRMMO No. 428 of 2019
Decided On : 31-08-2022
Advocate Appeared:
For the Petitioner:Mr. Sudhir Thakur, Senior Advocate With Mr. Karun Negi, Advocate
For the Respondent:Mr. Rajnish Maniktala, Senior Advocate With Ms. Rinki Kashmiri, Advocate
Point of Law: It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another.
Headnote:
Criminal Procedure Code, 1973 - Section 482 – Protection of Women from Domestic Violence Act - Sections 12, 17 to 22 - Indian Penal Code, 1860 - Section 406 or 498-A – Matrimonial dispute – Cruelty - Quash of complaint - Whether complaint filed by the respondent under provisions of Domestic Violence Act, is barred by limitation - Whether fact that marriage of petitioner stood dissolved by way of customary divorce, when complaint under Domestic Violence Act was filed, would render complaint not maintainable - If party feels that order passed by the court or a statutory authority is nonest/void, he should question validity of said order before appropriate forum resorting to the appropriate proceedings. (Para 20)
Finding of the court: There is no allegation of “domestic violence”, if any, against the petitioner or other family members qua the period starting from March, 2013 to 18.06.2018, when for the first time complaint with regard to domestic violence came to be lodged by the respondent to SHO - Respondent-wife while opposing the prayer made on behalf of the petitioner-husband for rejection of the complaint, nowhere disputed factum with regard to customary divorce dated 5.01.2014, but claimed before the court below that same was obtained under coercion and by way of undue influence. She alleged that her mother-in- law and sister-in-law pressurized her to take divorce. She also alleged that since there is no provisions of customary divorce in the area, customary divorce placed on record is of no consequence and she continues to be wife of the petitioner - A void order is necessarily not nonest. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof.
Result: Petition allowed
ORDER :
By way of instant petition filed under Section 482 Cr.P.C, challenge has been laid to order dated 31.05.2019, passed by learned Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P., in case No.3/S of 2018, titled as Sanjana Versus Vijay Kumar, whereby an application having been filed by the petitioner-husband, praying therein to dismiss/reject the complaint having been filed by the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, came to be dismissed.
2. Facts, relevant for adjudication of the case at hand are that the marriage interse petitioner and the respondent was solemnized on 11.03.2011, but no issue was born out of their wedlock. Since the parties were unable to live together happily, after some time of their marriage, respondent-wife was compelled to live at her parental house. Though, elder from both sides made an attempt for amicable settlement interse parties, but ultimately on 5.01.2014, allegedly parties decided to take mutual divorce (Apasi Talaqnama) and since then both petitioner and respondent had been living separately (Annexure P-2). Approximately, after 4 ½ years of alleged customary divorce, respondent, who had started residing with her parents, lodged complaint to SHO, police Station, Solan, stating therein that she is residing in Amit Apartment, Sunny Side, Solan alongwith her parents. She alleged that in March, 2013 after the death of her cousin, she had come to her maternal house and thereafter she was not permitted to come back to her matrimonial house. She alleged that when she went to her in laws house, her mother-in-law and sister-in-law gave beatings and thrown her out of the house. While praying for handing over Supardari report of that day, she also alleged that her husband has contracted second marriage, as a consequence of which, she is mentally upset.
3. Police after having recorded the complaint of the complainant in General Diary Details vide G.D.No.053, dated 18.06.2018(Annexure P-4), found the matter/dispute to be of Domestic Violence and as such, sent the same to CDPO Solan, for further investigation. Legal-cum- Probation Officer apprised the Child Development Project Officer with regard to domestic violence allegedly committed upon the respondent vide communication dated 30.06.2018 (Annexure P-6) and thereafter Protection Officer was appointed and domestic incident report was prepared by the Protection Officer, which has been placed on record as Annexure P-7. On the basis of aforesaid domestic incident report (Annexure P-7), matter came to be landed before the Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P.
4. Having taken note of the allegations contained in the domestic incident report, learned court below issued summons to the petitioner. After having received summons in the aforesaid case, petitioner filed an application, praying therein to dismiss the complaint filed under the provisions of Protection of Women from Domestic Violence Act (Annexure P-8) on the ground that there is no relationship of husband and wife interse petitioner and respondent and their marriage already stands annulled vide mutual divorce dated 5.01.2014. Aforesaid prayer made on behalf of the petitioner for dismissal of complaint came to be resisted on behalf of the respondent by way of filing reply (Annexure P-9), wherein she claimed that the divorce papers signed by her and her father has no legal sanctity in the eye of law as they were forced/coerced to sign the papers.
5. Taking note of aforesaid pleadings adduced on record by the respective parties, learned Judicial Magistrate, 1st Class, Kandaghat vide order dated 31.05.2019 (Annexure P-1) dismissed the application for dismissal/ rejection of the complaint filed by the petitioner and vide same order directed the petitioner to pay sum of Rs. 3000/- per month to the respondent as interim maintenance. Being aggrieved and dissatisfied with aforesaid order dated 31.05.2019, petitioner appro
