A divorced wife cannot claim residence under the PWDV Act but is considered an aggrieved person entitled to legal recourse.

O R D E R

The respondent in M.C.No.55/2022 on the files of the Judicial First Class Magistrate Court-I, Changanacherry, has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.PC’), to quash the proceedings against him in the said case. The aforesaid petition before the Magistrate, was instituted by the respondents herein under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, ‘PWDV Act’), seeking various reliefs.

2. The facts of the case are summarised as follows:

The petitioner herein married the first respondent on 01.04.1998. The second respondent, a girl child, was born in the above wedlock. Soon the marital life of the petitioner and the first respondent ran into rough weather. The first respondent instituted a petition as C.M.P.No.344/2007 before the Jurisdictional Magistrate under Section 12 of the PWDV Act in the year 2007, seeking the reliefs of protection and residence against the petitioner. The learned Magistrate allowed the above petition and passed orders in favour of the first respondent. Though the petitioner took up the matter in appeal, the Appellate Court declined to interfere. The petitioner thereupon approached this Court in revision against the orders of the Appellate Court as well as the Magistrate. In the meanwhile, the petitioner had also approached the Family Court concerned seeking divorce on the ground of cruelty. The Family Court dismissed the petition filed by the petitioner. In the appeal filed before this Court as Mat. Appeal No.308/2007, a Division Bench of this Court reversed the findings of the Family Court and granted divorce in favour of the petitioner on the ground of cruelty attributed against the first respondent. Thereafter, at the time of hearing in the revision filed by the petitioner as Crl.R.P.No.3079/2009 against the orders passed by the Magistrate as well as the Additional Sessions Court under the provisions of the PWDV Act, a legal issue cropped up as to whether a divorced wife could claim residence order under the provision of PWDV Act. Taking note of the conflicting decisions rendered by two Single Judges of this Court inSulaiman Kunj v. Nabeesa Beevi & Another [ 2015 (3) KHC 5 ] andBipin v. Meera D S & Others [ 2016 (5) KHC 367 ], the matter was referred to a Division Bench under the orders of the Hon’ble the Chief Justice. Accordingly, a Division Bench of this Court dealt with the issue in detail in Crl.R.P.No.3079/2009 and rendered the decision on 18.03.2021, holding that a divorced wife is not entitled to the right of residence conferred under Section 17 of the PWDV Act. Thereafter, the petitioner filed C.M.P.No.1386/2021 in C.M.P.No. 344/2007 before the learned Magistrate for revocation of the earlier residence order passed by the learned Magistrate, and to direct the first respondent to hand over vacant possession of shared household to him. Within a short while, the respondents herein filed M.C.No.55/2022 against the petitioner seeking various reliefs of protection, residence and maintenance orders under the provisions of the PWDV Act. It is the above said M.C. which the petitioner seeks to quash in this proceedings.

3. According to the petitioner, the respondents instituted M.C.No.55/2022 before the learned Magistrate by suppressing materials facts relating to the decision of a Division Bench of this Court Crl.R.P.No.3079/2009, which the petitioner had filed challenging the earlier orders of the learned Magistrate in favour of the first respondent under the provisions of the PWDV Act. It is contended that the respondents instituted the above said M.C. to frustrate the execution of the orders that are to be passed by the learned Magistrate in accordance with the directions of this Court in Cr