A remand for protection and maintenance orders under the Domestic Violence Act is unsustainable if the marriage has been dissolved by a final decree of divorce and both parties have since re-married, as the relief becomes redundant due to changed circumstances.

Dig itally signed by NANDINI M S

Location: HIGH COURT OF KARNATAKA

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER IN CRL.APPAL NO.447/2015 OF THE LEARNED LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (ANNEXURE-A) DATED 07.09.2018 AND UPHOLD THE ORDER PASSED IN CRL.MISC.NO.95/2014 (ANNEXURE B).

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

1. This criminal revision petition under Sections 397 read with 401 Cr.PC is filed by the husband and in-laws with a prayer to set aside the judgment and order dated 07.09.2018 passed in Crl.A.No.447/2015 by the Court of LXIV Addl. City Civil & Sessions Judge, Bengaluru.

2. Heard the learned Counsel for the parties.

3. Respondent-wife had filed a petition under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short, 'D.V.Act') in Crl. Mis. No.95/2014 before the jurisdictional Court of Magistrate. After a full-fledged trial, the said petition was dismissed by the Trial Court by judgment and order dated 02.02.2015. Against the said judgment, wife had filed Crl.A.No.447/2015 under Section 29 of the D.V.Act assailing the order passed in Crl. Mis. No.95/2014.

4. The Court of LXIV Addl. City Civil & Sessions Judge, Bengaluru, vide the impugned judgment and order dated 07.09.2018, had allowed Crl.A.No.447/2015, and has remanded the matter to the Trial Court to consider the petition afresh and pass appropriate protection order and maintenance order considering the Domestic Incident Report of the jurisdictional Protection Officer. Aggrieved by the aforesaid judgment and order passed in Crl.A.No.447/2015, the husband is before this Court.

5. Learned Counsel for the petitioner submits that the marriage of the petitioner with the husband has been dissolved by a decree of divorce passed in M.C.No.2217/2015 by judgment and decree dated 05.09.2017. He submits that the criminal case registered against the petitioners for the offence punishable under Section 498A of IPC and under the provisions of the D.P.Act, has been closed and the accused in the said case have been acquitted. Petitioner and respondent, both are now re-married, and therefore, no purpose would be served by remanding the matter, since no protection order or maintenance order can be now passed in view of the changed circumstances. Accordingly, he prays to allow the petition.

6. Per contra, learned Counsel for the respondent has argued in support of the impugned judgment and order and submits that the petition under Section 12 of the D.V.Act was filed prior to the decree of divorce and even the acquittal of the accused in the criminal case is subsequent. Therefore, it cannot be said that the wife cannot be granted any relief in her petition filed under Section 12 of the D.V.Act. Accordingly, he prays to dismiss the petition.

7. The Trial Court after appreciating the oral and documentary evidence placed on record, has arrived at a conclusion that the wife had failed to prove that her husband had committed the act of domestic violence, and accordingly had dismissed her petition filed under Section 12 of the D.V.Act.

8. The Appellate Court in Crl.A.No.447/2015 has set aside the said order on three grounds,

(a) the criminal case filed against the petitioners for the offence punishable under Section 498A and Sections 3 & 4 of the D.P.Act was pending