Gauhati HC quashes Domestic Violence Petition as Petitioner’s First Marriage was not Dissolved at the time of Second Marriage

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The petitioner preferred the present criminal revision petition before this Court challenging in Criminal Appeal No. 83 of 2013 arising out of the judgment and order dated 01.04.2013 passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati in Misc. Case No. 116M/2013 providing the protection under Section 18/19/20(2) of the Protection of Women from the Domestic Violence Act, 2005. The respondent remarried the petitioner in 2007 without disclosing her earlier marriage with one Pulin Kumar Das, son of Pratap Ch. Das of Kahilipara, Guwahati-1.

After the solemnization of marriage, the petitioner came to know that she had a living spouse at a time of marriage with him. The respondent filed various cases including the aforesaid Misc. Case seeking monetary and residential relief under the provision of D.V. Act, 2005. The petitioner appeared and filed his written statement before the Chief Judicial Magistrate, Kamrup. In order to prove the earlier marriage of the respondent with said Pulin Kumar Das, the documents of divorce proceeding initiated by the respondent in the Family Court, Kamrup was brought on record of the said case. The respondent admitted, in her cross-examination, having filed the divorce petition against the said Pulin Kumar Das but stated that it was marriage by agreement, hence, not valid. After the recording of evidence of both parties, learned trial court passed the judgment and order providing the monthly maintenance of Rs.5,000/- and also a room for her accommodation premises Rs. 10,000/- as compensation vide the judgment and order dated 1.4.2013. The findings of both the courts below that the earlier marriage was an agreement marriage, is without any basis and proof whereas the documents filed by the respondent itself belied her case.

The facts remain that respondent/wife never replied specifically to the contention raised in the written statement neither she produce such marriage agreement nor adduced any witness to prove that earlier marriage was solemnized by way of agreement and hence, such findings of the appellate court, is perverse as the learned appellate court has failed to appreciate the Exhibit-1 (the divorce petition) filed before the learned Family Court. One cannot deny the content of a document filed before the Court of law by different explanation.

The learned counsel for the petitioner/husband vehemently argued that the respondent/wife entered into the marriage with the present petitioner by suppressing the facts of her earlier marriage with one Pulin Kumar Das and remarried the petitioner in the year 2007 and he was totally unaware about such subsisting marriage of the respondent. After such revealment of an earlier marriage of the respondent, such marriage with the petitioner is void ab initio. The respondent/wife has, however, contended that as the present petitioner and the respondent resided under the same roof after such marriage, they are under the domestic relationship u/s 2(f) of the Protection of Woman of Domestic Violence Act and it is contended that there was no valid and subsisting marriage at the time she married the petitioner and earlier marriage was only an agreement marriage. Materials on record, it reflects that both the courts have gone by the definition of the ‘domestic relationship’ as well as the ‘shared households’ defined under the Act

Issues before the Court

In this case, a short question of law falls for consideration before this Court as to whether the respondent/wife is entitled to any relief under the Domestic Violence Act in view of her earlier subsisting marriage?

The learned appellate court laid the following points for determination:

  1. Whether the relationship between the respondent and appellant can be said to be a domestic relationship under 2(f) of the Protection of Women from Domestic Violence Act, 2005 in the light of the evidence brought before the trial court with regards to the allegation of there being an already subsisting marriage of the respondent with some other person?
  2. Whether the allegation of the appellant having committed domestic violence against the appellant could be proved?

The High Court in its revisional jurisdiction can examine the records and /or order of an inferior court for the purpose of satisfying itself to the legality/regularity and correctness of the findings and it can reverse the finding only when it reaches the conclusion that the finding of the trial Court is perverse.

Gauhati HC quashes Domestic Violence Case

In the present case, a vital legal proposition has not been appreciated by the appellate authority while upholding the order of the Trial Court, which has vitiated the entire findings and the same has resulted in gross illegality in the decision rendered, necessitating interference by the revisional Court. The respondent/wife, whose earlier marriage was not dissolved on the face of her own document, cannot be permitted to handle and twist the law and the facts at her own whims, by suppressing the genesis of facts. In the given facts and circumstances and in the legal proposition enunciated above, the Court gave a considered opinion that the respondent/wife is not entitled to get any relief under the D V Act, 2005. For the reasons and discussions made above, the criminal revision petition succeeds and impugned order of the appellate court was quashed and set aside.


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