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2007 DIGILAW 4025 (MAD)

V. Pounraj v. Packia Lakshmi @ Veni

2007-12-06

A.SELVAM

body2007
Judgment : 1. The Criminal Original Petition has been filed praying to quash the entire proceedings in Criminal Miscellaneous Petition No. 1607 of 2007 pending on the file of the Judicial Magistrate Court, Sivagiri. 2. The respondent herein as petitioner has filed the petition in question and the same has been taken on file in Criminal Miscellaneous Petition No. 1607 of 2007 wherein it has been specifically stated that the first petitioner has married the petitioner on 2.2.2002 at Srivilliputhur and at the time of marriage, the petitioner has been given 28 sovereigns of gold jewels, Rs.20,000/-and also household articles worth of Rs.2 lakhs by way of dowry. The first petitioner has also been given a gold chain weighing three sovereigns and a bracelet weighing 11/2 sovereigns and a gold ring weighing one sovereign by way of dowry. On 25.12.2002, the petitioner has given birth to a male child and the same has been christened as Mohana Lakshmi. Now, the respondents 1 to 6 have been making arrangements to divorce the petitioner and the first respondent has been trying to marry the sisters of one Ananda Kumar. The respondents have threatened the petitioner on so many occasions. The petitioner is living in the joint family house of the first respondent as his wife. Under the said circumstances, the present petition has been filed. 3. The Judicial Magistrate, Sivagiri has taken the petition filed by the petitioner on file in Criminal Miscellaneous Petition No. 1607 of 2007. Against the proceedings taken by the Judicial Magistrate, Sivagiri, the present Criminal Original Petition has been filed, so as to quash the entire proceedings is Criminal Miscellaneous Petition No. 1607 of 2007. 4. 3. The Judicial Magistrate, Sivagiri has taken the petition filed by the petitioner on file in Criminal Miscellaneous Petition No. 1607 of 2007. Against the proceedings taken by the Judicial Magistrate, Sivagiri, the present Criminal Original Petition has been filed, so as to quash the entire proceedings is Criminal Miscellaneous Petition No. 1607 of 2007. 4. The learned counsel appearing for the petitioners has emphatically contended that the first petitioner has married the respondent in the year 2002 and since the respondent has failed to perform her marital obligations and also deserted the first petitioner, the petitioner has filed H.M.O.P.No. 24 of 2004 on the file of the Sub-Court, Srivilliputhur for getting divorce and the Sub-Court, Srivilliputhur after considering the rival contentions raised on either side has allowed the petition and consequently, set aside the marriage between the respondent and the first petitioner and therefore, the respondent is not having the status of the wife of the first petitioner and under the said circumstances, the respondent cannot invoke any of the provisions found in the Protection of Women from Domestic Violence Act, 2005 and therefore, the entire proceedings made in Criminal Miscellaneous Petition No. 1607 of 2007 are liable to be quashed. 5. The learned counsel appearing for the respondent has also equally contended that the respondent is the legally wedded wife of the first petitioner and therefore, the marriage has been conducted in the year 2002 and the respondent has given birth to a child by name Mohana Lakshmi and since the respondent is having the status of the wife of the first petitioner, she is entitled to invoke the provisions of the Protection of Women from Domestic Violence Act, 2005 and the Court below after considering all the rival contentions raised on either side has rightly numbered the petition filed by the respondent and therefore, the present petition deserves dismissal. 6. Basing upon the divergent submissions made by either counsel, the Court has to find out as to whether the respondent (petitioner) can invoke any of the provisions of the Protection of Women from Domestic Violence Act, 2005. It is an admitted fact that the first petitioner herein has married the respondent in the year 2002. It is also equally an admitted fact that the first petitioner as petitioner has filed H.M.O.P.No. 24 of 2004 on the file of the Sub-Court, Srivilliputhur for getting divorce. It is an admitted fact that the first petitioner herein has married the respondent in the year 2002. It is also equally an admitted fact that the first petitioner as petitioner has filed H.M.O.P.No. 24 of 2004 on the file of the Sub-Court, Srivilliputhur for getting divorce. The Sub-Court, Srivilliputhur after analysing the divergent contentions raised on either side has allowed the petition. Therefore, a legal divorce has been granted against the respondent (Petitioner). Since a legal divorce has been granted against the respondent (Petitioner) in H.M.O.P.No.24 of 2004, it is needless to say that the respondent/petitioner is not having the status of the wife of the first petitioner. 7. At this juncture, it would be more useful to look into Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 and the same reads as follows:- “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.” 8. From the close reading of the said section, it is easily discernible that a woman who wants to invoke the provisions of the said Act, should have domestic relationship with the concerned respondent. 9. In the instant case, as pointed out earlier, the marriage between the respondent (petitioner) and first petitioner has already been dissolved. Therefore, the respondent (petitioner) is not having the status of the wife of the first petitioner. Since the respondent (petitioner) is not having the status of the wife of the first petitioner, she cannot invoke the provisions of the said Act. 10. The learned counsel appearing for the respondent during the course of argument has also stated that against the order passed in H.M.O.P.No.24 of 2004, the respondent herein has preferred an appeal and the same is pending. It is an acknowledged principle of law that mere pendency of an appeal does not amount to stay the operation of any decree. Therefore, it is very clear that the argument advanced by the learned counsel appearing for the petitioners is really having subsisting force and whereas the argument advanced by the learned counsel appearing for the respondent does not hold good. 11. In fine, this Criminal Original Petition is allowed and the petition filed in criminal Miscellaneous Petition No.1607 of 2007 pending on the file of the Judicial Magistrate, Sivagiri is quashed. 11. In fine, this Criminal Original Petition is allowed and the petition filed in criminal Miscellaneous Petition No.1607 of 2007 pending on the file of the Judicial Magistrate, Sivagiri is quashed. Consequently, the connected Miscellaneous Petition Nos.1 and 2 of 2007 are closed.