Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 284

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Sanjeev Kumar and Others – Petitioners
Versus
Sushma Devi – Respondent
Cr. Revision No. 132 of 2021
Decided On : 01-06-2023

Advocates:
Advocate Appeared:
For the Petitioner: Kulbhushan Khajuria.
For the Respondents: Neeraj Gupta, Ajeet Jaswal.

Point of Law: Section 28 of Act provides for following procedure to be followed by a Magistrate while dealing with application for reliefs.

Headnote:
Protection of Women from Domestic Violence Act, 2005 - Section 12, 28, 37, 2(f) - Code of Criminal Procedure, 1973 - Section 397, 401 - Constitution of India, 150 - Article 227 - Shunted out of matrimonial home - Legally wedded wife - Prove her marriage - Application moved by respondent primarily on ground that complainant could not prove that she was legally wedded wife of petitioner - Complainant was not made aware of points/issues framed by learned Trial Court that she was required to prove her marriage with petitioner in order to be successful in proceedings.
Findings of the Court:
Parties were required to be made aware of issues or points they needed to prove in case before directing them to lead evidence - This would have been not only in interest of justice and fair play, but would have also provided parties an opportunity to know issues required to be proved by them - In accordance with provisions of Act, demonstration by complainant of existence of a relationship in nature of marriage with petitioner would have been sufficient under Act - Complainant accordingly led her evidence - However, learned Trial Court held complainant could not establish that she was lawfully married to petitioner - Respondent was required to prove solemnization of her marriage with petitioner, then correct procedure would have been to make this issue known to parties before ordering them to lead evidence - Order passed by learned Trial Court was, therefore, justly interfered with by learned First Appellate Court - Learned First Appellate Court also correctly observed that petitioner had not signed pleadings before learned Trial Court.
Result: Petition dismissed.

JUDGMENT :

JYOTSNA REWAL DUA, J.

1. Learned Trial Court dismissed an application moved by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005, primarily on the ground that the complainant (respondent herein) could not prove that she was legally wedded wife of the present petitioner. Learned Appellate Court allowed the respondent’s appeal and remanded the matter to the learned Trial Court with a direction to give an opportunity to the parties to lead further evidence and for deciding the matter afresh. The petitioner (alleged husband) has moved this petition against the order of learned Appellate Court.

2. Facts that need to be noticed for the purpose of deciding this petition are:

(i) Respondent No. 1-Sushma Devi, instituted an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’) on 13.05.2016 for providing monetary relief, residence & protection order and compensation. She alleged that marriage between her and the present petitioner was solemnized on 01.08.1999 according to Hindu rites and ceremonies. The petitioner and his parents (proforma respondents No. 3 and 4 herein) started torturing and harassing respondent No. 1 on one pretext or the other. Respondent No. 1 tolerated their unruly behaviour for few years with hope that her husband and in-laws would mend their ways & approach towards her, but all in vain. After three years of marriage, her husband and in-laws started saying openly that respondent No. 1 will not beget any child, hence was of no use to them. She was shunted out of the matrimonial home and had to take shelter in her parental house. Respondent No. 1 further alleged that she had no source of income and was not in a position to maintain herself. The petitioner was not paying her any maintenance.

(ii) The petitioner filed reply to the application. He denied respondent No. 1 to be his legally wedded wife or that she ever resided with him. The allegations levelled against him and his parents were also refuted. The petitioner also pleaded that “it has come to knowledge of the respondents from reliable sources that the complainant is not competent to sexual relationship, hence she cannot contract a valid marriage. Due to this disability, the complainant is still unmarried and nobody is ready to marry her.” The petitioner also pleaded that Rajni Devi (respondent No. 2) was his legally wedded wife and marriage between them was solemnized on 17.01.2001.

(iii) Parties adduced evidence. Learned Trial Court vide order dated 26.09.2016 held that respondent No. 1 had failed to prove that she was legally wedded wife of the petitioner. Primarily on this basis, the application preferred under the Act was dismissed.

(iv) The appeal against the aforesaid order was filed by respondent No. 1. Learned Appellate Court held that parties were not made aware of the issues/points, which were framed and determined by the learned Trial Court in its judgment. Parties had led their evidence without issues having been framed in the matter. Procedure adopted by the learned Trial Court in framing issues in the judgment, was not proper. The approach of the learned Trial Court in focusing on the point as to whether marriage was solemnized between the contesting parties was held to be erroneous. Learned Appellate Court also observed that the petitioner had not signed the pleadings and this irregularity needed rectification. Accordingly, the case was remanded to the learned Trial Court to give an opportunity to the parties to lead further evidence on the points framed in the judgment. The petitioner was directed to take steps to rectify the irregularities i.e. putting signature on his pleadings by filing an affidavit in support of his reply. The appeal was accordingly allowed on 29.04.2021.

(v) In the above background, the petitioner has preferred the instant criminal revision petition, under Section 397 read with Section 401 of the Code o