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CALCUTTA HIGH COURT
Joymalya Bagchi, J.
Prabir Kumar Ghosh & Ors. —Petitioners
versus
Jharna Ghosh & Anr. —Opp.Parties
CRR 1301 of 2015 with CRAN 2244 of 2015 with CRAN 2202 of 2015
Decided on 20.8.2015
Counsel for the Parties:
For the Petitioners:Mr. Subrata Roy Karmakar, Advocate
For the Opp.Party No.1:Ms. Sima Ghosh, Advocate
IMPORTANT POINT
Application under Section 12 of Domestic Violence Act is maintainable against former husband.
Headnote:(A) Protection of Women from Domestic Violence Act, 2005—Section 12—Domestic violence—Expression ‘domestic relationship’ not only includes a relationship where two persons living together at present but also to a relationship where they had lived together in past being related to each other by consanguinity, adoption, marriage or relationship in nature of marriage—Once marriage is dissolved, an aggrieved person cannot claim to be in a domestic relationship any longer—However, such decree does not disentitle her from being an “aggrieved person” under Act of 2005 inasmuch as a person who had been in a domestic relationship also falls within its ameliorative reach—Application under Section 12 is maintainable against former husband—Institution of proceeding by aggrieved lady to such relief cannot be said to be impermissible on ground that she has been divorced and no domestic relationship is presently subsisting between herself and petitioners. (Paras 12, 15 and 27)
(B) Protection of Women from Domestic Violence Act, 2005—Section 17—Right to reside in a shared household—A divorced wife cannot claim right to residence under section 17 of the Act of 2005. (Para 14)
(C) Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code, 1973—Section 468—Domestic violence—Limitation—Section 468 Cr.P.C. in my considered opinion cannot have any manner of application to a proceeding under section 12 of Act of 2005—Section 468 Cr.P.C. prescribes period of limitation for Court to take cognizance of offences punishable with fine only, maximum imprisonment of year or three years respectively—Act of 2005 does not provide for initiation of prosecution for an act of domestic violence at the first instance—Limitation prescribed under Section 468 Cr.P.C. for launching prosecution in respect of offences specified therein cannot be applied to an application under Section 12 of the Act which neither partakes character of a prosecution nor reliefs envisaged therein are penal in nature. (Paras 20 and 23)
Result: Revision Application disposed of.
Joymalya Bagchi, J.—Proceeding in Miscellaneous Case No. 57 of 2014 under Section 12 read with Sections 17/18/19/20/22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘Act of 2005’) has been assailed.
2. The facts of the case are as follows:-
The parties were married to each other according to Hindu rites and customs in the year 1987. A divorce proceeding was instituted and an ex parte divorce was granted in favour of petitioner no. 1 on December 12, 1988.
3. In appeal, an Hon’ble Division Bench of this Court affirmed the said decree of divorce vide order dated August 22, 2014. The petitioner no. 1 was directed to pay a lumpsum amount of Rs.1,00,000/- (Rs. One Lakh) as alimony pendente lite. By the selfsame order, the opposite party no. 1 was also given liberty to pray for permanent alimony, if so advised.
4. During the pendency of the appellate proceeding in or about February, 2014, the opposite party instituted the impugned proceeding under Section 12 of the Act of 2005 praying for various reliefs including the monetary relief against the petitioners.
5. The instant petition has been filed for quashing of the said proceeding.
6. Mr. Subrata Roy Karmakar, learned Advocate appearing on behalf of the petitioners, submits that since the ex parte decree of divorce was passed in 1988 and admittedly the parties were not living in a shared household since then there was no scope of domestic violence after divorce, hence, the proceeding is barred by limitation and not maintainable. He relies on Inderjit Singh Grewal Vs. State of Punjab & Anr., (2012) 1 CCrLR (SC) 654. and Kishor Shrirampant Kale Vs. Sou. Shalini Kishor Kale & Ors., 2010 Cri.L.J. 4049. He, accordingly, prays for quashing of the impugned proceeding.
7. The learned Advocate for the opposite party submits that although the decree of divorce was passed, domestic violence particularly economic abuse continued and necessary averment to that effect has been made in the petition. She further submits that opposite party does not have a place of residence and, therefore, she is also entitled to a residence order in the shared household.
8. The moot question, which falls for decision, is whether the instant proceeding is under the various provisions of the Act of 2005 permissible in law.
9. It is true that the matrimonial tie had been severed by and between the parties by an ex parte order of divorce in 1988 and the same was affirmed by this Court in the year 2014.
10. It is also an admitted fact that the parties were not living together on or after 1988. However, the condition precedent for initiation of a proceeding under Section 12 is whether the unconverted allegations in the application disclose a case of domestic violence or apprehended domestic violence.
11. To appreciate such fact let me refer to the definition of the expressions “aggrieved person”, “domestic relationship”, “domestic violence” and “shared household” in the Act of 2005. The words are defined as follows:-
2 (a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
2 (f) “domestic relationship” means a relationship between two persons who liver of have , at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
2 (g) “domestic violence” has the same meaning as assigned to it in Section 3.
2(s) “shared household” means a household where the persons aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the agg
