IMPORTANT POINT
Maintainability of complaint – Domestic relationship has to be in present and not in the past.

JUDGMENT

Ajay Kumar Gupta, J.—The petitioner being the husband of opposite party no. 1 has filed this application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 seeking quashing of the proceeding being A.C. 2391 of 2022 filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘PWDV Act’) presently pending before the Court of Learned 5th Magistrate, Alipore and also praying for setting aside the orders passed therein in connection with the aforesaid proceeding.

2. The factual matrix of the instant case for filing this Criminal Revisional application is as under:

2a. The petitioner and opposite party no. 1 were the husband and wife and their marriage was held on 17.04.2009 according to the provision of Special Marriage Act, 1954. After marriage, they started residing at matrimonial home and one female child was born on 20th May, 2010. The disputes arose between the parties from the very inception of the marriage over trivial issues. The opposite party no. 1 alleged that the petitioner being a habitual drunkard used to abuse and insult the opposite party no. 1 and her family members and further denied basic necessities such as food as a result her health condition deteriorated.

2b. It is further alleged that she was forced to undergo abortion in spite of refusal by the opposite party no. 1. She was driven out on 08.02.2011 upon provocation by his mother with a single cloth along with her minor daughter. As she is unable to maintain herself and her minor daughter, she filed an application under Section 12 of PWDV Act on 24.08.2022 with a prayer for maintenance of Rs. 20,000/-for herself and Rs. 20,000/-for her minor daughter together with prayer for relief and protection under Sections 18, 19 and 22 of the PWDV Act, 2005. Upon receipt of the application, petitioner appeared before the learned Court below with a contention that the entire case is completely different and opposite party no.1/wife made the baseless allegations. She herself left her matrimonial home and started residing in her parental house with her minor daughter according to her own volition. Several efforts were made by the petitioner to resolve the disputes but opposite party no. 1/wife was so adamant and refused to reside under the same roof with her parents-in-law and demanded a separate residence. Petitioner herein further failed to convince her due to her arrogant behaviour.

2c. Having no other alternative, petitioner had instituted a suit for divorce as per the provisions of Section 27 of the Special Marriage Act, 1954 and same was registered as MAT Suit No. 560 of 2017 before the Learned District Judge, Paschim Medinipur and subsequently transferred before the Learned 7th Judge, Paschim Medinipur for its disposal. Even after notice to the opposite party no. 1, she refused to appear and contested the MAT Suit before the Learned 7th Judge, Paschim Medinipur. As a result, the learned Judge allowed the said MAT Suit and finally awarded decree of divorce in favour of the petitioner ex parte by an order dated 11.12.2018 but surprisingly the opposite party no. 1, even after passing such ex parte order almost 4 years thereafter, filed the application under the PWDV Act claiming financial assistance as maintenance for her as well as for her minor daughter though she did not contact the petitioner since long and refuse to come back to lead conjugal life. Petitioner denied all baseless allegations made by her and stated about the fact that the decree of divorce had already been granted by the learned 7th Judge, Paschim Medinipur. Upon receiving of the letter of the petitioner, the opposite party no. 1, with an oblique motive of wreaking vengeance upon the petitioner, made an allegation against the petitioner though she filed an application under Order 9 Rule 13 for setting aside the ex parte decree order dated 11.12.2018 and the same is pending for disposal before the learned Judge. The application file