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2022 DIGILAW 2053 (RAJ)

Raj Kumar v. State Of Rajasthan

2022-07-19

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner has challenged the order dated 30.06.2022, passed by the learned Judicial Magistrate, District Jodhpur (hereinafter referred to as 'the trial Court'), by which the application filed by the respondent No. 2 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act of 2005') has been allowed. 2. The order aforesaid has been challenged on the following grounds:- (i) That the respondent No. 2 has contracted marriage with the petitioner without taking divorce from her earlier husband, viz., Vijay Khokhar and thus, she cannot be treated to be legally wedded wife of the petitioner so as to invoke the provisions of the Act of 2005; (ii) that the order passed by the trial Court is contrary to judgment of this Court dated 02.01.2018, rendered in the case of Vinod Kumar Nathwani v. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No. 2275/2014); and (iii) that the respondent No. 2 has not filed affidavit of her income, as has been mandated by Hon'ble the Supreme Court in the case of Rajnesh v. Neha & Anr. [ (2021) 2 SCC 324 ]. 3. Mr. Joshi, learned counsel for the petitioner argued that the respondent No. 2 had not taken divorce from her earlier husband and thus, her marriage with the petitioner is null and void. While informing that the petitioner has taken up separate proceedings for prosecuting her for the offence under Section 494 of the Indian Penal Code, while also filing petition under Section 11 of the Hindu Marriage Act for declaring the marriage null and void, learned counsel argued that the respondent No. 2 is not entitled to any relief under the Act of 2005. 4. Mr. Joshi argued that the respondent No. 2 cannot be treated to be a legally wedded wife of the petitioner so as to maintain a petition under Section 23 of the Act of 2005, as has been held by this Court in the case of Vinod Kumar Nathwani (supra). 5. He argued that as the respondent No. 2 did not file her affidavit, hence, no maintenance could be awarded to her. 6. Mr. 5. He argued that as the respondent No. 2 did not file her affidavit, hence, no maintenance could be awarded to her. 6. Mr. Gour, learned counsel appearing for the respondent No. 2, at the outset submitted that the arguments, which the petitioner has sought to raise before this Court are not available to him, as the same are in the teeth of the adjudication made in his own case (S.B. Criminal Misc. Petition No. 805/2021) whereby identical grounds raised by the petitioner have been negated by a Coordinate Bench of this Court vide its judgment dated 10.02.2021. He read the relevant part of the judgment and pointed out that the petitioner had approached this Court on exactly same ground that the petition under Section 23 of the Act of 2005 by the respondent, whose marriage with petitioner is void, is not maintainable and such petition was dismissed by a detailed order. 7. Mr. Gour also invited Court's attention towards the definition of "domestic relationship" contained in Section 2(f) of the Act of 2005 and submitted that the expression "domestic relationship" is not confined to wife and said definition is wide enough to include the present petitioner, particularly when the fact that the petitioner and the respondent No. 2 were living together as husband and wife is not in dispute. 8. In rejoinder, Mr. Joshi argued that the respondent No. 2, as a matter of fact, had deceived the petitioner and while concealing the factum of her earlier marriage with said Vijay Khokhar, she has not only committed an offence of bigamy but has also betrayed the petitioner. Such woman is not entitled to invoke the provisions of Section 23 of the Act of 2005, he added. 9. In relation to the judgment dated 10.02.2021, which has been passed in petitioner's earlier round of litigation, it was contended that the said judgment cannot come in the way of the petitioner because the earlier adjudication was in relation to maintainability of the proceedings, whereas the present petition emanates from the final order passed under Section 23 of the Act of 2005. 10. Heard. 11. It would be apt to dilate upon the preliminary objection raised by Mr. Gour that the instant petition is not maintainable in the face of earlier order dated 10.02.2021. 12. A perusal of the order dated 10.02.2021, particularly para Nos. 10. Heard. 11. It would be apt to dilate upon the preliminary objection raised by Mr. Gour that the instant petition is not maintainable in the face of earlier order dated 10.02.2021. 12. A perusal of the order dated 10.02.2021, particularly para Nos. 3 and 15 thereof, leave no manner of doubt that the plank, on which the petitioner had challenged the pending proceedings before the learned Additional Chief Judicial Magistrate in Case No. 385/2019 was the same. 13. Mr. Gour, learned counsel for the respondent No. 2 clarified that the Case No. 385/2019, which was earlier pending before the learned Additional Chief Metropolitan Magistrate, No. 5, Jodhpur Metropolitan, has now been transferred to the Court of Judicial Magistrate, Jodhpur and has been renumbered as Case No. 206/2021 and the proceedings are the same. 14. Since the petitioner's contention that his marriage with the respondent No. 2 is void and thus, she is not entitled for maintenance or interim maintenance, has been repelled by this Court, the petitioner cannot be permitted to re-agitate the same. In the opinion of this Court, the fact that earlier the very proceedings were under challenge and in the instant case the final order is challenged, hardly makes any difference. The basic issue has been held against the petitioner as follows:- "9. This Court on bare reading of Act of 2005 draws a clear conclusion that definition of 'aggrieved person' and 'domestic relationship' includes any woman, who is or has been in the domestic relationship. 10. The purport of law was to include any woman and not wife alone as it reflected from legislative intent of word "aggrieved person" and furthermore word "domestic relationship" and not "matrimonial relationship" has been consciously coined by the Legislature. 15. This Court has not been called upon to go into validity of marriage between the parties in the present case, thus, without commenting anything regarding legality of marriage, the judgment pronounced holds the complainant entitled to carry on proceedings under the Domestic Violence Act, 2005 being the "aggrieved person" meaning any woman in domestic relationship with the petitioner." 15. So far as the judgment of this Court in the case of Vinod Kumar Nathwani (supra) is concerned, the same has been discussed in the judgment dated 10.02.2021 and has held it to be per incuriam, as is evident from perusal of para No. 13. So far as the judgment of this Court in the case of Vinod Kumar Nathwani (supra) is concerned, the same has been discussed in the judgment dated 10.02.2021 and has held it to be per incuriam, as is evident from perusal of para No. 13. This Court, therefore, does not deem it necessary to deal with the judgment of Vinod Kumar Nathwani (supra). 16. Adverting to the judgment of Hon'ble the Supreme Court in the case of D. Velusamy v. D. Patchaiammal [ (2010) 10 SCC 469 ]; a reading of para No. 35 of the judgment aforesaid leaves no manner of doubt that Hon'ble the Supreme Court has in an unambiguous terms provided that the adjudication made therein would not be applicable to the cases governed by the Act of 2005. 17. As a matter of fact, in the face of para No. 35 of the judgment of D. Velusamy (supra), the judgment in the case of Vinod Kumar Nathwani (supra), which heavily relies upon the judgment in the case of D. Velusamy (supra), becomes per incuriam, as has been held by a Coordinate Bench of this Court in its judgment dated 10.02.2021. 18. As an upshot of the discussion foregoing, this Court is of the considered opinion that firstly the argument which the petitioner is advancing, is not available to him and secondly, the same has no substance and force. 19. In relation to petitioner's argument that respondent No. 2 has not filed affidavit as per judgment in the case of Rajnesh (supra), suffice it to observe that petitioner himself has not filed such affidavit. The petitioner, who himself has neglected or ignored to file affidavit, in light of judgment of the Supreme Court, cannot raise such plea. 20. Viewed from any angle, this Court finds no merit and substance in the instant petition. The same is, therefore, dismissed. 21. The stay application also stands disposed of accordingly.