Upgrad LLM

once divorce happened between couple dv act not applicable

Senior Partner

Once Divorce happened between Couple DV Act not applicable

 

HIGH COURT OF ANDHRA PRADESH

THE HONOURABLE SRI JUSTICE K.G.SHANKAR

CRIMINAL PETITION No.7124 OF 2008

01-04-2011

A.Sreenivasa Rao and others.

Vs.

The State of A.P., rep. by its Public Prosecutor,High Court of A.P., Hyderabad and another

Counsel for the Petitioners: Sri D.Madhava Rao

Counsel for the Respondent No.1: Public Prosecutor

Counsel for the Respondent No.2: M/s. K.Ananda Rao


:ORDER:


1. There is no representation for the 2nd respondent-wife. The petitioners are Accused Nos.1 to 5 in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. The 1st accused is/was the husband of the 2nd respondent. Alleging that A-1 to A-5 committed matrimonial offences, the 2nd respondent/wife laid D.V.A.No.18 of 2007.


2. As there is prior litigation between the parties, the 2nd respondent laid M.C.No.175 of 2003 seeking for maintenance from the 1st petitioner herein. She was indeed successful in obtaining an order from the Court granting maintenance in her favour. It would appear that the order has become final.


3. While so, the 2nd respondent laid C.C.No.226 of 2003 on the file of the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad. She made allegations against the petitioner herein in C.C.No.226 of 2003 under Section 498-A and other matrimonial offences. The case had ended in acquittal. The judgment was pronounced on 30.4.2007.


4. In the interregnum, the 1st petitioner/husband laid O.P.No.366 of 2004 on the file of the Family Court, Hyderabad seeking the dissolution of his marriage with the 2nd respondent by divorce on the ground of cruelty on the part of the wife. The learned Judge, Family Court, Hyderabad granted divorce in favour of the petitioner through orders in O.P.No.366 of 2004 on 5.5.2006.


5. It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 Cr.P.C.


6. At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.


7. I wholly agree with the contention of the learned Counsel for the petitioners that the proceedings in D.V.A.No.18 of 2007 are not maintainable in view of the divorce between the 1st petitioner and the 2nd respondent having been granted by a competent Civil Court. Proceedings against the petitioners herein are quashed in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad.


Total likes : 1 times

 
Reply   
 

The same ratio has also been relied upon the Hon'ble J. Kingaonkar of the Bombay High Court in the following case, where also the complaints, which were filed under the D. V. Act, even after the decree of Divorce has been granted by the competenet Court and therefore the Hon'ble J. Kingaonkar has rightly quashed teh complaints agaisnt the husband under D. V. Act, 2005

The Bombay High Court Judgment is reported in

2010(3) Bom.C.R.(Cri.) 939

(AURANGABAD BENCH)

Before :

Kingaonkar V.R., J.

Jayesh Uttamrao Khairnar & ors. ... Petitioners.

Versus

State of Maharashtra & ors.   ... Respondents.

 Criminal Writ Petition No. 259 of 2009, decided on 7-9-2009.

 Protection of Women From Domestic Violence Act, 2005, Secs. 12, 16, 20 & 22 - Respondent 2 filed application under sections 12, 16, 20 and 22 of Act - Asserted, she was allegedly driven out of matrimonial home by petitioners - Further petitioners were demanding Rs. 1 lac for car - Further filed complaint under section 498-A read with 34 and 504, 506 of I.P.C. - She also filed separate application for recovery of maintenance - Petitioners filed copy of judgment, which granted divorce - Complaint proceedings filed by respondent 2, after divorce decree - Further submitted, respondent 2 not preferred appeal against same - Held, in view of absence of domestic relationship of respondent 2 as on date of filing of complaint, proceedings are not maintainable and have filed with mala fide intention to harass husband and relatives. Continuance of such proceedings would amount to abuse of process of law. Petition allowed. Proceedings initiated by respondent 2 are quashed. (Para 7)

 


Total likes : 1 times

 
Reply   
 



@tajobsindia

 

yes, once divorce than nomore Dv act because afer divorce and filing Dv act it shows bad motive that cant be entertain by the court.( In this case para 


5. It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent.  which shows motive 

Anyway Tajob    Are you a family law expert?

Are you a family lawyer? As you only have Phd in family forum,Either you are a lawyer or a victim (husband)  who are you?

Because i have never seen you in another section like criminal or civil or consumer, banking etc....


Total likes : 1 times

 
Reply   
 
owner

kya puch liya Kushan ji??

 

wait for the answer missile!!!!!!!!!!!!!:P


Total likes : 1 times

 
Reply   
 
Senior Partner

@ Ld. Kushan,

 

I pitty Ld. person(s) like you who blindly follow few WOMEN here who are good only for instigating MEN here and when you remove "rainbow glasses" that you are offered to wear by HER review some of my work here in LCI under the heads commented by YOU and if you can beat my knowledge sharing then welcome to prudent men's club ld. Advocate and till that time you don’t bother me here at all J  

Salute............

 

Constitution Law:

http://www.lawyersclubindia.com/forum/Re-Powers-of-High-court-under-article-235-34686.asp

 

 

Others:-

http://www.lawyersclubindia.com/forum/LCIwhy-do-I-get-logged-out-when-I-type-a-reply-to-any-post--35809.asp

 

 

Taxation:-

http://www.lawyersclubindia.com/forum/Re-UN-consulting-and-income-tax--36029.asp

 

 

Civil Law:-

http://www.lawyersclubindia.com/forum/Re-How-to-change-the-judge-35753.asp

 
Reply   
 
owner

:)


Total likes : 1 times

 
Reply   
 
owner

rainbow glass is better than an opaque one....


Total likes : 3 times

 
Reply   
 
For justice and dignity

Originally posted by :Tajobsindia
"


@ Ld. Kushan,

 

I pitty Ld. person(s) like you who blindly follow few WOMEN here who are good only for instigating MEN here and when you remove "rainbow glasses" that you are offered to wear by HER review some of my work here in LCI under the heads commented by YOU

 

"

 

 

I'm sorry to say Mr. Tajobs,you are a suspicous person who feels women here are "instigating" you.

 

why on earth would we like to instigate you?any good reason you have?????

 

or perhaps u think that people at LCI give you too much importance.if this is wot u think,there seems to be a misunderstanding.people have definately cracked a few jokes with u here which they do with others also,but u r the only one to think that u r being given a lot of importance by way of instigations

 

now i am ready to receive missiles of acidic attacks from u....


Total likes : 1 times

 
Reply   
 
Senior Partner

@ Roshni B

Just a week ago you said to me in one forum post and I quote you "It is a promise I will not talk to you" so can't you keep your own promise .........


Now here is mind bender for you;

"When you wear new shoes for the first time, everyone will step on them !"

Also allow me to clarify your constipated upper story; "LCI is neither me nor I am LCI and LCI has some of the finest experts with whom I had the honor to share knowledge till date......"


Hence I don't even count you to bother me, so take a walk !!!


Total likes : 1 times

 
Reply   
 
For justice and dignity

i had said in the other thread that i won't "QUESTION" you any more,since you jump up from your seat whenever someone asks u abt your profession,as if it's a grave offence.i did not say anything abt talking.

 

but u gave a good suggestion......i shud not talk also...

 

FYI, i was forced to reply above,since u only provoked me to reply to you,when u hinted abt me,while addressing kushan in your above posts.u cud hve addressed kushan without referring to me also......no?

 

of course i wont interact with u henceforth,unless u provoke me to,like u did above.so u may come out of ur delusions again that i am dying to talk to you,whereas i hardly read your long long posts with a confused english...

 

goodbye..

 
Reply   
 


 

  Search Forum








×

Menu

CrPC MASTERCLASS!     |    x