- (1.) The instant petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint filed under the Domestic Violence Act. It is necessary to give the factual issues before referring to the legal issues. A complaint under the Domestic Violence Act was filed by Sanjay Aggarwal, brother of Ritu Aggarwal. Ritu was married to Amit Aggarwal in October, 2003. A child was born to them in October, 2004. Allegations were levelled that there was demand of a car before marriage. The family gave Rs.2 lacs in cash, gold items besides electrical goods. There was a demand even at the time of birth of the child, the wife was beaten up and tortured and kicked out of the house finally in June, 2006. The Istridhan and the dowry articles were retained by the accused. A claim for maintenance, compensation as damages, residence in the shared house hold was made.
(2.) The petitioners are the husband, father in law & the brother in law. It was the second marriage for petitioner no.1. It is claimed that Ritu left the matrimonial home in June, 2006 to attend two functions and took all the jewellery with her to wear on the occasion at Ludhiana on 02.02.2006. It was pleaded that petitioner no.1 and his parents had made a number of calls but she refused to return till petitioner no.1 separated from his family. She was insisting for a separate residence or transfer of some property in her name. The petitioners had pleaded that petitioner no.1 got the FIR registered against respondent no.2 on 10.09.2006. A week later Ritu got a case registered under Section 498-A and 406 IPC against petitioner no.1, his parents and other relatives. The FIR against the sister and brother in law was quashed in October, 2008. The FIR qua the husband and his parents was quashed on the ground that no part of the cause of action had arisen at Batala, however, the Apex Court transferred the trial to Delhi. It was pleaded that petitioner no.1 had filed a divorce petition and Ritu failed to appear though she had been served and exparte decree of divorce was passed. An application for setting aside the exparte decree was filed after 14 months but it was dismissed for non-prosecution on 18.07.2011. Another application was filed for its restoration, which was pending. It was pleaded that since a divorce had been granted, there was no domestic relationship and the complaint under the Domestic Violence Act was not maintainable. It was pleaded that so far as the maintenance was concerned, a petition under Section 125 Cr.P.C. had been filed and maintenance was granted by the Magistrate against which an appeal had been filed, which was pending and maintenance up to October, 2014 had been paid and all the articles had been recovered by the police. Respondent no.1 filed the reply and it was pleaded that the issue of maintainability of the complaint had been raised by the petitioner before the trial Court and it was pending and the petitioner could not raise the same issue before this Court. It was pleaded that respondent no.1 had filed a complaint on 01.12.2007, which was withdrawn on 27.03.2009 as the complainant wished to withdraw the complaint and file a fresh one and a statement in that regard was made on 27.03.2009. It was pleaded that an exparte decree of divorce was passed and no service was effected and an application for setting aside the decree was filed and was pending. It was pleaded that the decree had not attained finality and the exparte decree did not wash away the previous incidents of domestic violence and respondent no.2 was pushed out of the house in June, 2006. It was pleaded that although petitioner no.3 was the brother in law of petitioner no.1 and married prior to the marriage of respondent no.2 but he was actively involved in the acts of domestic violence. It was pleaded that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person could present an application to the Magistrate under Section 12 of the Domestic Violence Act and he had filed the complaint on behalf of his sister. It was admitted that a complaint was filed and was withdrawn and no liberty was granted to file again though he had reserved his right to file again. I have heard the counsels of both the sides.
(3.) The counsel for the petitioners had contended that the complaint under the Domestic Violence Act had been filed approximately after three years from the date the wife had left the matrimonial home and the complaint had been filed by the brother. It was urged that during her total stay in Delhi, no complaint was given to the police though the police station was at a walking distance. It was urged that the brother filed a complaint and withdrew it and without disclosing that fact another complaint was filed. It was urged that in view of the provisions contained in D.V. Act, a complaint can be filed only within a period of one year of the incident and since there was a divorce, the complaint was not maintainable.;