TMI Blog2011 (8) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... id in collateral proceedings, that too, criminal proceedings. 3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O M) passed by the High Court of Punjab Haryana at Chandigarh, by which the High Court has dismissed the application filed by the Appellant under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Code of Criminal Procedure') for quashing the complaint No. 87/02/09 dated 12.6.2009 filed by Respondent No. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005'). 4. Facts and circumstances giving rise to present case are as under: A. That the Appellant and Respondent No. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under Section 13B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955') for dissolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. G. Respondent No. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana. H. Respondent No. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498A, 376, 120B of the Indian Penal Code, 1860 (hereinafter called `Indian Penal Code, 1860') against the Appellant and his mother and sister. I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application filed by the Appellant. Hence, this appeal. 5. Shri Ranjit Kumar, learned senior counsel appearing for the Appellant has submitted that the High Court erred in rejecting the application of the Appellant under Section 482 Code of Criminal Procedure, as none of the relief's claimed by the Respondent No. 2 could be entertained by the criminal court while dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could not take cognizance thereof. The complaint has been filed because of malice in order to extract money from the Appellant. More so, the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on 19.9.2007 wherein she stated, inter-alia, as under: We are living separately from each other since 23.9.2005. Now there is No. chance of our living together as husband and wife. IV. Respondent No. 2 was examined in the second motion by the learned District Judge, Ludhiana on 20.3.2008, wherein she stated as under: My statement was recorded on 19.9.2007 along with the statement of my husband Inderjit Singh Grewal. Six months time was given to us to ponder over the matter but we could not reconcile. One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare of the said child. We have settled all our disputes regarding dowry articles and past and future permanent alimony. Now there is nothing left out against each other. A draft of ₹ 3,00,000/-....has been received by me towards permanent alimony and maintenance and in lieu of dowry articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that there is No. co-habitation between us. There is No. scope of our living together as husband and wife. I will remain bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant during the period of year 2005. Respondent No. 2 alleged that during that period she had not been treated well by the Appellant, thus, she had to take shelter in the house of her parents; all her belongings including the dowry articles were kept by the Appellant and his parents. She has further given details how both of them have obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the Appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the Appellant till 7.2.2009 and continued co-habitation with him. They had visited several places together during this period. The child had been forcibly snatched from her by the Appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs. 10. The question does arise as to whether relief's sought in the complaint can be granted by the criminal court so long as the judgment and decree of the Civil Court dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or voidable, the same requires to be set aside by the competent court. 14. In M. Meenakshi and Ors. v. Metadin Agarwal (dead) by L.Rs. and Ors. (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:- It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof (Emphasis added) Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup and Ors. (2009) 6 SCC 194. From the above, it is evident that even if a decree is void ab initial, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire . The court should not give up the effort of reconciliation merely on the ground that there is No. chance for reconciliation or one party or the other says that there is No. possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage. 19. In Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The court must be satisfied about the bona fides and the consent of the parties for the reason that court gets jurisdiction to make a decree fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the Respondent No. 2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On the similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage. 23. In D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469, this Court considered the expression domestic relationship under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636 and held that relationship in the nature of marriage is akin to a common law marriage. However, the couple must hold themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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