Once Marriage Stands Validly Dissolved By Foreign Court, Proceedings Under Domestic Violence Act Cannot Be Initiated : J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that once a marriage stands validly dissolved by a competent foreign court, the "domestic relationship" between the parties as husband and wife, which is necessary to invoke the provisions of the Domestic Violence Act, also ceases.

The observations were made by the bench of Justice Vinod Chatterji Koul in a verdict on the petition seeking quashing of a complaint filed under Section 12(1) of the J&K Protection of Women from Domestic Violence, Act in December 2017.

The petitioner challenged the complaint and the issuance of process on the ground that there was no relationship of husband and wife between the petitioner and respondent since passing of the decree whereby the marriage was dissolved.

The couple got married in 2007 in Jammu and post marriage they became permanent residents of Germany. After shifting to Germany, the relationship between the complainant and petitioner had become hostile.

According to the plea, the petitioner in the month of February 2014 came to India for 10 days and when he returned back to Germany, he found that the respondent-complainant had left her matrimonial house along with all gold ornaments and other goods as well as money and had went to some place. To know her whereabouts, he made efforts, but she remained untraceable.

The respondent-complainant thereafter filed a "false and frivolous case" in Germany against the petitioner and started residing separately. The Court in Germany made several attempts for reconciliation between them, but all such efforts failed and she "flatly refused to stay with him". Ultimately. he approached the District Court Wisman, Germany and filed a petition for divorce. After hearing both the parties and perusing the evidence led by them, the foreign court allowed the divorce petition in July 2017.

Adjudicating upon the matter, Justice Koul observed that under provisions of Section 14 CPC presumption is attached to the said judgment that same has been pronounced by a Foreign Court of competent jurisdiction, however, such presumption can be displaced by proving for want of jurisdiction. No such ground is alleged in this case and the complainant-respondent herein has not even made a whisper about the passing of this judgment, the court noted.

"The judgment so passed has also not been challenged separately by the complainant-respondent herein", the bench said.

The bench observed that it is clear that the petitioner and complainant-respondent were permanent residents of Germany and were subjected to the laws of that country and the District Court Wisman, Germany having jurisdiction had decided the petition filed by the petitioner for divorce and has dissolved the marriage.

By passing of the decree of divorce dated 20.07.2017, the marriage/relationship between the petitioner and complainant-respondent herein came to an end and has ceased to exist, the bench observed.

"The decree of divorce dated 20.07.2017, unless and until challenged, is binding upon both the parties. Therefore, for the reasons stated hereinabove, it is held that the judgment/decree of divorce dated 20.07.2017 passed by the District Court Wisman, Germany whereby the marriage has been dissolved is conclusive and binding upon the parties", said the court.

The bench further noted that the complainant-respondent after passing of the aforesaid decree of divorce dated 20.07.2017 had filed a complaint against the petitioners without disclosing that the marriage has been dissolved, by the District Court Wisman, Germany.

Interpreting Section 2(f) of the Domestic Violence Act which defines 'domestic relationship', the bench explained that in the instant case there is no domestic relationship existing between the parties and when the domestic relationship is not existing between the parties the provisions of the Domestic Violence Act cannot be invoked.

"Such provisions can be invoked only when such relationship exists between the parties," the bench said.

The bench added that the allegations made in the complaint would not constitute commission of any offence under the provisions of Domestic Violence, Act as the requirement existence of domestic relationship is not met.

"The allegations in the complaint thus, are absurd and inherently improbable and on the basis of such allegations there is no sufficient ground for proceeding against the petitioner-accused in the complaint. These criminal proceedings are thus, manifestly attended with mala fide and ulterior motive for wreaking vengeance on the petitioners," said the court, while quashing the complaint.

Case Title : S Rawail Singh Vs Gurinder Jeet Kour.