# Shashank Pandey & Ors v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Application U/S 482 No. 12826 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashank-pandey-ors-v-state-of-u-p-anr-51418
- **Pages:** 10

## Headnote

(i) Criminal Law - Criminal Procedure
Code, 1973 - Sections 125 & 482 -
Protection of Women from Domestic
Violence Act, 2005 - Sections 2(a), 2(f), 12
& 12(1) - Hindu Marriage Act, 1955-
Sections 5(v), 11, 12 & 13-B - Indian Penal
Code, 1860 - Sections 120-B, 376, 406 &
498-A - Application under Section 482 Cr.P.C. -
challenging the legality and validity of the
impugned order - whereby the application filed
by the applicant seeking dismissal of the
complaint case u/section 12 of DV Act was
rejected - Marriage between applicant no. 1 and
opposite party no. 2 solemnized in May, 2018 -
matrimonial dispute arose - Suit u/sections 11 &
12 of the Hindu Marriage Act, instituted in 2019 -
decree passed ex-parte in March, 2021 -
marriage was declared null and void in in March,
2021 - Suit for maintenance u/s 125 Cr.P.C.
instituted in year 2019 - dismissed in April, 2023
- meanwhile, opposite party no. 2 filed a
Complaint case u/section 12 of the DV Act in
September, 2021 - opposed by applicant -
applicant filed an application questioning the
maintainability of the DV complaint - application
rejected - hence, present Application - question
of maintainability of complaint under DV Act -
contention raised that since marriage was
declared null and void, opposite party no. 2
ceased to be an "aggrieved person" under the DV
Act - however, court observed that on the date
of filing of the complaint, the marriage was
subsisting - and applicant did not dispute the
factum of marriage or the domestic relationship
with opposite party no. 2 - parties lived together
in a domestic relationship prior to separation -
therefore, relationship in the nature of marriage
existed till the decree of nullity - opposite party
no. 2 falls within the ambit of "aggrieved person"
and "domestic relationship" as defined under the
DV Act - Held - opposite party no. 2 is entitled to
invoke provisions of Section 12 of the DV Act -
complaint is maintainable - no merit found in the
preliminary objection raised by the applicant -
accordingly, Application under Section 482
Cr.P.C. stands dismissed.
(Para - 28, 29, 30, 31)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

258 INDIAN LAW REPORTS ALLAHABAD SERIES
without valid permission of Superintendent
of Police of the District.

15. In view of the above, the present
application stands dismissed.

16.

Superintendent
of
Police,
Pratapgarh is directed to ensure that the
further investigation of the case in question
be completed as early as possible and
submit a report before the Court concerned.

17. Senior Registrar of this Court is
directed to communicate this order to
Principal Secretary, Government of U.P.
and Superintendent of Police, Pratapgarh
for necessary action, forthwith.
---------
(2024) 2 ILRA 258
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 12826 of 2023

Shashank Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Shailendra Singh Rajawat, Saurabh Singh

Counsel for the Opposite Parties:
G.A.

(i) Criminal Law - Criminal Procedure
Code, 1973 - Sections 125 & 482 -
Protection of Women from Domestic
Violence Act, 2005 - Sections 2(a), 2(f), 12
& 12(1) - Hindu Marriage Act, 1955-
Sections 5(v), 11, 12 & 13-B - Indian Penal
Code, 1860 - Sections 120-B, 376, 406 &
498-A - Application under Section 482 Cr.P.C. -
challenging the legality and validity of the
impugned order - whereby the application filed
by the applicant seeking dismissal of the
complaint case u/section 12 of DV Act was
rejected - Marriage between applicant no. 1 and
opposite party no. 2 solemnized in May, 2018 -
matrimonial dispute arose - Suit u/sections 11 &
12 of the Hindu Marriage Act, instituted in 2019 -
decree passed ex-parte in March, 2021 -
marriage was declared null and void in in March,
2021 - Suit for maintenance u/s 125 Cr.P.C.
instituted in year 2019 - dismissed in April, 2023
- meanwhile, opposite party no. 2 filed a
Complaint case u/section 12 of the DV Act in
September, 2021 - opposed by applicant -
applicant filed an application questioning the
maintainability of the DV complaint - application
rejected - hence, present Application - question
of maintainability of complaint under DV Act -
contention raised that since marriage was
declared null and void, opposite party no. 2
ceased to be an "aggrieved person" under the DV
Act - however, court observed that on the date
of filing of the complaint, the marriage was
subsisting - and applicant did not dispute the
factum of marriage or the domestic relationship
with opposite party no. 2 - parties lived together
in a domestic relationship prior to separation -
therefore, relationship in the nature of marriage
existed till the decree of nullity - opposite party
no. 2 falls within the ambit of "aggrieved person"
and "domestic relationship" as defined under the
DV Act - Held - opposite party no. 2 is entitled to
invoke provisions of Section 12 of the DV Act -
complaint is maintainable - no merit found in the
preliminary objection raised by the applicant -
accordingly, Application under Section 482
Cr.P.C. stands dismissed.
(Para - 28, 29, 30, 31)

Application Dismissed. (E-11)

List of referred Cases: -

1. Amit Agarwal Vs Sanjay Aggarwal, (2016) SCC
OnLine P&H 4200,

2. Dhanraj Vs Shalini, (2017) SCC OnLine Bom
7671,

3. Inderjit Singh Grewal Vs St. of Punj., (2011)
12 SCC 588,
2 All. Shashank Pandey & Ors. Vs. State of U.P. & Anr.
259
4. D. Velusamy Vs D. Patchaiammal, (2010) 10
SCC 469,

5. S. Khushboo Vs Kanniammal (2010) 5 SCC
600,

6. Rajnesh Vs Neha, (2021) 2 SCC 324,

7. Dhanraj Vs Shalini, (2017) SCC OnLine Bom
7671,

8. Amrendra Pratap Singh Vs Tej Bahadur
Prajapati, (2004) 10 SCC 65,

9. St. of Orissa Vs Mohd. Illiyas, (2006) 1 SCC
275,

10. Amit Agarwal Vs Sanjay Aggarwal, (2016)
SCC OnLine P&H 4200,

11. Prabha Tyagi Vs Kamlesh Devi, (2022) 8
SCC 90.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. The submissions of Sri Shailendra
Singh Rajawat, the learned counsel for the
applicants and Sri Anurag Verma, the
learned AGA-I appearing for the State were
heard on 18.01.2024 and judgment was
reserved. Subsequently, on 02.02.2024 the
opposite party no.

2. appeared in person and requested
for being provided an opportunity to file
objections against the application, which
was granted. The opposite party no. 2 has
filed objections without supplying a copy
of the same to the applicant or his learned
Counsel. Moreover, the objections filed by
the opposite party no. 2 do not address the
question which has been raised by means of
the application under Section 482 Cr.P.C.
For the aforesaid reasons, although the
objections filed by the opposite party no.2
have been taken on record, the same are not
being taken into consideration in this order.
2. By means of the instant application
under Section 482 Cr.P.C., the applicants
have assailed the legality and validity of the
judgment and order dated 29.09.2022
passed by the Civil Judge (Jr. Div.)/FTC-I,
Pratapgarh in Complaint Case No. 1386 of
2021, under Sections 12 of the Protection
of Women from Domestic Violence Act,
2005, (which will hereinafter be referred to
as 'the DV Act') Police Station Kotwali
Nagar, District Pratapgarh whereby an
application dated 30.08.2022 filed by the
applicants for dismissal of the complaint as
not maintainable for the reason that the
marriage between applicant no. 1 and
opposite party no. 2 had been declared to
be null and void by means of decree dated
26.03.2021, has been rejected.

3. Briefly stated, the facts of the case
are that the applicant no. 1 got married to
the opposite party no. 2 on 12.05.2018. The
applicant no. 1 filed a Suit No. 238/2019,
under Sections 11 & 12 of the Hindu
Marriage Act, 1955 in the Court of
Principal Judge, Family Court, Dehradun,
which was decreed ex parte on 26.03.2021
and the marriage between the applicant no.
1 and opposite party no. 2 was declared to
be null and void for the reason that the
applicant no. 1 and opposite party no. 2
were sapindas and the marriage between
them was prohibited under Section 5(v) of
the Hindu Marriage Act, and that the
opposite party no. 2 was suffering from
bipolar disorder and the consent of
applicant no. 1 was obtained by concealing
this fact which made the marriage voidable.
The judgment records that the opposite
party no. 2 had put in appearance in the suit
initially but she abstained from filing a
written statement or appearing to defend
the suit and therefore, the suit was
proceeded with and decided ex parte. The
opposite
party
no.
2
had
filed
a
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Maintenance Suit No. 148 of 2019, under
Section 125 Cr.P.C., which was rejected by
means of an order dated 18.04.2023 passed
by the Additional Principal Judge, Family
Court No. 1, Pratapgarh on the ground that
the marriage between the parties having
been declared null and void, the application
was not maintainable. The opposite party
no. 2 has filed an application under Section
12 of the DV Act in the Court of Civil
Judge (Junior Division), Court No. 19,
Pratapgarh on 11.09.2019. The applicants
filed a written statement and objections
against the interim relief application stating
that the marriage had been declared to be
null and void on 27.09.2021. Thereafter the
applicants filed another application for
deciding the question of maintainability of
the application under the DV Act. The said
application has been rejected by the
impugned order dated 29.09.2022.

4. While rejecting the question of
maintainability raised by the applicants, the
learned court has held that the complaint
under Section 12 of the DV Act was filed
on 11.09.2019 whereas the decree declaring
the marriage to be null and void has been
passed on 26.03.2021. Therefore, on the
date of filing of the complaint, the marriage
subsisted.

5. Sri. Shailendra Singh Rajawat, the
learned counsel for the applicants has place
reliance upon a judgment of Hon'ble Single
Judge of Punjab and Haryana High Court in
Amit Agarwal v. Sanjay Aggarwal,
(2016) SCC OnLine P&H 4200, wherein it
was held that the provisions of the DV Act
can be invoked only when the domestic
relationship is in existence. Where the
domestic relationship ceases, the provisions
under the DV Act cannot be invoked.

6. The learned counsel for the
applicants has placed reliance on a decision
of an Hon'ble Single Judge of Bombay
High Court, Nagpur Bench in Dhanraj v.
Shalini, (2017) SCC OnLine Bom 7671,
wherein it was held that where Family
Court declared the marriage as null and
void and the order was affirmed by the
High Court in an appeal, there exists no
relationship
between
petitioner
and
respondent no. 1 as husband and wife from
the date of the order of the Family Court.

7. The learned Counsel for the
applicant also relied upon the following
passage from the decision of the Hon'ble
Supreme Court in Inderjit Singh Grewal
v. State of Punjab, (2011) 12 SCC 588: -

"33. In view of the above, we are
of the considered opinion that permitting
the Magistrate to proceed further with the
complaint under the provisions of the 2005
Act is not compatible and in consonance
with the decree of divorce which still
subsists and thus, the process amounts to
abuse of the process of the court.
Undoubtedly, for quashing a complaint, the
court has to take its contents on its face
value and in case the same discloses an
offence, the court generally does not
interfere with the same. However, in the
backdrop of the factual matrix of this case,
permitting the court to proceed with the
complaint would be travesty of justice.
Thus, interest of justice warrants quashing
of the same."

8. Before proceeding any further, it
would be appropriate to have a look at the
relevant provisions of the DV Act. Section
2 (a) of the DV Act defines "aggrieved
person" as follows: -
2 All. Shashank Pandey & Ors. Vs. State of U.P. & Anr.
261

"(a)"aggrieved person" means
any woman who is, or has been, in a
domestic relationship with the respondent
and who alleges to have been subjected to
any act of domestic violence by the
respondent;"

9. Section 2 (क) of the Hindi version
of the DV Act defines 'aggrieved person"
in the following words: -

"व्यनथि व्यनक्त" से कोई ऐसी मनहला अनभप्रेि है
जो प्रत्यथी की घरेलू िािेदारी में है या रही है और नजसका
अनभकथि है नक वह प्रत्यथी द्वारा नकसी घरेलू नहंसा का नशकार रही
है"

10. The term "domestic relationship"
is defined in Section 2 (f) of the DV Act as
follows: -

(f)
"domestic
relationship"
means a relationship between two persons
who live or have, at any point of time,
lived together in a shared household,
when they are related by consanguinity,
marriage or through a relationship in the
nature of marriage, adoption or are family
members living together as a joint family;

11. Section 2 (च) of the Hindi version
of the DV Act defines the term "domestic
relationship" in the following words: -

"घरेलू िािेदारी" से ऐसे दो व्यनक्तयों के बीच
िािेदारी अनभप्रेि है जो साझी गृहस्थी में एक साथ रहिे हैं या नकसी
समय पर एक साथ रह चुके हैं, जब वे, समरक्तिा, नववाह द्वारा या
नववाह, दत्तक ग्रहण की प्रकृनि की नकसी िािेदारी द्वारा संबंनिि हैं
या एक अनवभक्त कुटुम्ब के रूप में एक साथ रहिे वाले कुटुम्ब के
सदस्य हैं"

12. When we read the aforesaid
definitions given in the English and the
Hindi version together, it becomes clear
that the legislature has provided that any
woman who has in the past lived in a
domestic relation with the respondent, is
included in the definition of an aggrieved
person. Domestic relation includes a
relationship by marriage or through a
relationship in the nature of marriage.

13. Section 12 (1) of the DV Act
provides that: -

"12.
Application
to
Magistrate.-(1) An aggrieved person or a
Protection Officer or any other person on
behalf of the aggrieved person may present
an application to the Magistrate seeking
one or more reliefs under this Act :"

14.

In
D.
Velusamy
v.
D.
Patchaiammal, (2010) 10 SCC 469 relied
upon by the learned Counsel for the
applicant, the Hon'ble Supreme Court held
that: -

"19. Having noted the relevant
provisions in the Protection of Women from
Domestic Violence Act, 2005, we may point
out
that
the
expression
"domestic
relationship"
includes
not
only
the
relationship of marriage but also a
relationship "in the nature of marriage".
The question, therefore, arises as to what is
the
meaning
of
the
expression
"a
relationship in the nature of marriage".
Unfortunately, this expression has not been
defined in the Act. Since there is no direct
decision of this Court on the interpretation
of this expression we think it necessary to
interpret it because a large number of cases
will be coming up before the courts in our
country on this point, and hence an
authoritative decision is required.

20. In our opinion Parliament by
the aforesaid Act has drawn a distinction
between the relationship of marriage and a
262 INDIAN LAW REPORTS ALLAHABAD SERIES
relationship in the nature of marriage, and
has provided that in either case the person
who enters into either relationship is
entitled to the benefit of the Act.

21. It seems to us that in the
aforesaid Act of 2005 Parliament has taken
notice of a new social phenomenon which
has emerged in our country known as livein relationship. This new relationship is
still rare in our country, and is sometimes
found in big urban cities in India, but it is
very common in North America and
Europe. It has been commented upon by
this Court in S. Khushboo v. Kanniammal
(2010) 5 SCC 600 vide para 31.
* * *

31. In our opinion a "relationship
in the nature of marriage" is akin to a
common law marriage. Common law
marriages require that although not being
formally married:

(i)
The
couple
must
hold
themselves out to society as being akin to
spouses.

(ii) They must be of legal age to
marry.

(iii) They must be otherwise
qualified
to enter into a legal
marriage,
including
being
unmarried.

(iv) They must have voluntarily
cohabited and held themselves out to the
world as being akin to spouses for a
significant period of time.

(See "Common Law Marriage"
in Wikipedia on Google.)

In our opinion a "relationship in
the nature of marriage" under the 2005 Act
must also fulfil the above requirements, and
in addition the parties must have lived
together in a "shared household" as
defined in Section 2(s) of the Act. Merely
spending weekends together or a one night
stand would not make it a "domestic
relationship".

32. In our opinion not all live-in
relationships will amount to a relationship
in the nature of marriage to get the benefit
of the Act of 2005. To get such benefit the
conditions mentioned by us above must be
satisfied, and this has to be proved by
evidence. If a man has a "keep" whom he
maintains financially and uses mainly for
sexual purpose and/or as a servant it would
not, in our opinion, be a relationship in the
nature of marriage.

33. No doubt the view we are
taking would exclude many women who
have had a live-in relationship from the
benefit of the 2005 Act, but then it is not for
this Court to legislate or amend the law.
Parliament
has
used
the
expression
"relationship in the nature of marriage"
and not "live-in relationship". The Court
in the garb of interpretation cannot change
the language of the statute."

15. Thus it is apparent that in D.
Velusamy (Supra), the Hon'ble Supreme
Court has dealt with the question regarding
the
conditions
in
which
a
live-in
relationship would fall within the purview
of the term 'relationship in the nature of
marriage'. The question of the effect of a
marriage being declared to be null and void
after the parties had solemnized the
marriage and had lived together as husband
and wife in a shared household, was not
decided in D. Velusamy.

16. Dhanraj v. Shalini, (Supra) relied
upon by the learned counsel for the
applicant, had been decided by following
the decision of Hon'ble Supreme Court in
D. Velusamy (Supra) and the question of
the effect of a marriage being declared to
be null and void after the parties had
solemnized the marriage and had lived
together as husband and wife in a shared
household, was not decided in it.
2 All. Shashank Pandey & Ors. Vs. State of U.P. & Anr.
263

17. In Rajnesh v. Neha, (2021) 2
SCC 324, the Hon'ble Supreme Court
referred to the earlier decision in D.
Velusamy (Supra) and held that: -

"41. The DV Act stands on a
separate footing from the laws discussed
hereinabove. The DV Act provides relief to
an aggrieved woman who is subjected to
"domestic
violence".
The
"aggrieved
person" has been defined by Section 2(a) to
mean any woman who is, or has been, in a
domestic relationship with the respondent,
and alleges to have been subjected to any
act of domestic violence. Section 2(f)
defines "domestic relationship" to include
a relationship between two persons who
live, or have at any point of time lived
together in a shared household, when they
are related by consanguinity, marriage, or
through a relationship in the nature of
marriage, adoption, or are family members
living together as a joint family."

18. The question of the effect of a
marriage being declared to be null and void
after the parties had solemnized the
marriage and had lived together as husband
and wife in a shared household, was not
decided in Rajnesh versus Neha also.

19. In Inderjit Singh Grewal
(Supra), the appellant and Respondent 2 got
married on 23.09.1998 and from the said
wedlock a son was born on 05.10.1999.
They filed a suit under Section 13-B of the
Hindu Marriage Act, 1955 for dissolution
of marriage by mutual consent, which was
decreed on 20.03.2008. On 04.05.2009 the
respondent 2 filed a complaint before the
Senior Superintendent of Police, Ludhiana
against the appellant on 04.05.2009 under
the provisions of the DV Act alleging that
the decree of divorce obtained by them was
a sham transaction. Even after getting
divorce, both of them had been living
together as husband and wife. She was
forced to leave the matrimonial home. A
Superintendent of Police conducted inquiry
and found that the parties had been living
separately after divorce and no case was
made out against the appellant. The
Respondent
2
subsequently
filed
a
complaint under the DV Act on 12.06.2009.
The appellant filed an application under
Section 482 Cr.P.C. for quashing the
complaint.
In
the
meanwhile,
the
Respondent 2 filed a civil suit on
17.07.2009 seeking a declaration that the
decree of divorce had been obtained by
fraud and it was null and void and the said
suit was pending. Respondent 2 also filed
an application under the Guardians and
Wards Act, 1890 for grant of custody and
guardianship of the child and the same was
also pending. Respondent 2 also lodged an
FIR under Sections 406, 498-A, 376 and
120-B of the IPC against the appellant, his
mother and sister. The High Court
dismissed the application filed by the
appellant. In appeal, the Hon'ble Supreme
Court held that: -

"17.
It
is
a
settled
legal
proposition that where a person gets an
order/office by making misrepresentation
or playing fraud upon the competent
authority, such order cannot be sustained
in the eye of the law as fraud unravels
everything. "Equity is always known to
defend the law from crafty evasions and
new subtleties invented to evade law." It is
trite that "fraud and justice never dwell
together"
(fraus
et
jus
nunquam
cohabitant). Fraud is an act of deliberate
deception
with
a
design
to
secure
something, which is otherwise not due.
Fraud and deception are synonymous.
"Fraud is anathema to all equitable
principles and any affair tainted with fraud
264 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be perpetuated or saved by the
application of any equitable doctrine." An
act of fraud on court is always viewed
seriously. (Vide Meghmala v. G. Narasimha
Reddy, (2010) 8 SCC383, para 34.)
* * *

22. Respondent 2 herself had
been a party to the fraud committed by the
appellant upon the civil court for getting
the decree of divorce as alleged by her in
the impugned complaint. Thus, according
to her own admission she herself is an
abettor to the crime. A person alleging his
own infamy cannot be heard at any forum
as explained by the legal maxim allegans
suam turpitudinem non est audiendus. No
one should have an advantage from his
own wrong (commondum ex injuria sua
nemo habere debet). No action arises from
an immoral cause (ex turpi causa non
oritur actio). Damage suffered by consent
is not a cause of action (volenti non fit
injuria). The statements/allegations made
by Respondent 2 patently and latently
involve her in the alleged fraud committed
upon the court. Thus, she made herself
disentitled for any equitable relief".

20. The conclusion drawn in para 33
of the judgment relied upon by the learned
Counsel for the applicant was in light of the
aforesaid peculiar facts and circumstances
of the case, which are in no way similar to
the facts of the present case and, therefore,
the judgment in the case of Inderjit Singh
Grewal (Supra) is of no avail to the
applicant.

21. In Dhanraj v. Shalini, (2017)
SCC OnLine Bom 7671, the parties were
married to each other, their marriage was
declared as null and void by the competent
Court, which order had attained finality as
appeal before Division Bench of this Court
came to be dismissed. A Single Judge
Bench of the Bombay High Court held that
from the date of the order of the Family
Court, the relationship between the parties
as husband and wife ceased to exist. After
referring to the decision in D. Velusamy
(Supra), the Bombay High Court allowed
the Writ Petition and set aside the order
allowing application under Section 12 of
the DV Act, without deciding as to whether
the
parties
having
undergone
the
ceremonies of a Hindu Marriage can be
treated as having been in a live-in
relationship in case their marriage is
annulled subsequently.

22. In Amrendra Pratap Singh v.
Tej Bahadur Prajapati, (2004) 10 SCC
65, the following well settled principle of
precedents was reiterated: -

"A
judicial
decision
is
an
authority for what it actually decides and
not for what can be read into it by
implication or by assigning an assumed
intention to the judges, and inferring from
it a proposition of law which the judges
have not specifically laid down in the
pronouncement."

23. In State of Orissa v. Mohd.
Illiyas, (2006) 1 SCC 275, it was held that:
-

"A decision is a precedent on its
own facts. Each case presents its own
features. It is not everything said by a
Judge
while
giving
judgment
that
constitutes a precedent. The only thing in a
Judge's decision binding a party is the
principle upon which the case is decided
and for this reason it is important to
analyse a decision and isolate from it the
ratio decidendi. According to the wellsettled theory of precedents, every decision
contains three basic postulates: (i) findings
2 All. Shashank Pandey & Ors. Vs. State of U.P. & Anr.
265
of material facts, direct and inferential. An
inferential finding of facts is the inference
which the Judge draws from the direct, or
perceptible facts; (ii) statements of the
principles of law applicable to the legal
problems disclosed by the facts; and (iii)
judgment based on the combined effect of
the above. A decision is an authority for
what it actually decides. What is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
flows
from
the
various
observations made in the judgment. The
enunciation of the reason or principle on
which a question before a court has been
decided is alone binding as a precedent.
(See State of Orissa v. Sudhansu Sekhar
Misra and Union of India v. Dhanwanti
Devi.) A case is a precedent and binding
for what it explicitly decides and no more.
The words used by Judges in their
judgments are not to be read as if they are
words in an Act of Parliament. In Quinn v.
Leathem the Earl of Halsbury, L.C.
observed that every judgment must be read
as applicable to the particular facts proved
or assumed to be proved, since the
generality of the expressions which are
found there are not intended to be the
exposition of the whole law but governed
and qualified by the particular facts of the
case in which such expressions are found
and a case is only an authority for what it
actually decides."

24. The question of the effect of a
marriage being declared to be null and void
after the parties had solemnized the
marriage and had lived together as husband
and wife in a shared household, was not
decided in none of the cases cited by the
learned Counsel for the applicant and,
therefore, those precedents are not relevant
for deciding this question.

25. In Amit Agarwal v. Sanjay
Aggarwal, (2016) SCC OnLine P&H 4200,
a Single Judge Bench of Punjab and
Haryana High Court held that answer to the
question whether aggrieved person would
even mean a 'divorced woman', lies in the
definition provided in Section 2(a), which
says that "aggrieved person" means any
woman who is, or has been, in a domestic
relationship with the respondent and who
alleges to have been subjected to any act of
domestic violence by the respondent". The
Punjab and Haryana High Court held that: -

"19. The use of the word is any
woman 'who is' or 'has been'. Both the
expressions are in the present tense. The
legislature has not used the word 'who was'
or 'had been'. This means the domestic
relationship has to be in the present and not
in the past. The definition requires that on
the date Act come into force, the woman
should be in domestic relationship."

26. However, the Punjab and Haryana
High Court omitted to notice that the Hindi
version of the DV Act which has been
quoted above and which makes it clear that
an aggrieved person will include a woman
who has lived in the past in a domestic
relationship with the respondent. Therefore,
I am not persuaded to follow the
interpretation of the term "aggrieved
person" made by the Punjab and Haryama
High Court.

27. In Prabha Tyagi v. Kamlesh
Devi, (2022) 8 SCC 90, the Hon'ble
Supreme Court decided the question
whether, such a domestic relationship
should be subsisting between the aggrieved
person and the respondent against whom
relief is claimed at the time of claiming the
relief. Before answering the question, the
Hon'ble Supreme Court analyzed the
266 INDIAN LAW REPORTS ALLAHABAD SERIES
relationships noted in the DV Act as under:
-

"59.1.
Any
relationship
by
consanguinity is a lifelong relationship.

59.2. Marriage is also a lifelong
relationship unless a separation by a
decree of divorce is ordered by a competent
authority of law.

(i) If there is judicial separation
ordered by a court of law, that does not put
an end to marriage and hence the domestic
relationship continues between the spouses
even though they may not be actually living
together.

(ii) In the event of a divorce,
marriage would no longer be subsisting,
but if a woman (wife) is subjected to any
domestic violence either during marriage
or even subsequent to a divorce decree
being passed but relatable to the period of
domestic relationship, the provisions of this
DV Act would come to the rescue of such a
divorced woman also.

(iii) That is why, the expression
"domestic relationship" has been defined
in an expansive manner to mean a
relationship between two persons who live
or have at any point of time lived together
in a shared household when they are
related by marriage. We have also
interpreted the word "live" or "lived" in
the context of right to reside in sub-section
(1) of Section 17. The right to live in the
shared household, even when the domestic
relationship may have been severed for
instance when a woman has been widowed
owing to the death of her husband, entitles
her to have remedies under the DV Act.

(iv) Therefore, even when the
marital ties cease and there is no
subsisting domestic relationship between
the aggrieved woman and the respondent
against whom relief is claimed but the acts
of domestic violence are related to the
period of domestic relationship, even in
such circumstances, the aggrieved woman
who was subjected to domestic violence
has remedies under the DV Act.

59.3. Even in the case of
relationship in the nature of marriage,
during which period the woman suffered
domestic violence and is thus an aggrieved
person can seek remedies subsequent to
the cessation of the relationship, the only
precondition is that the allegation of
domestic violence must relate to the period
of the subsistence of relationship in the
nature of marriage.

59.4. In the same way, when a
girl child is fostered by family members
living together as a joint family as
interpreted above and lives or at any point
of time has lived together in a shared
household or has the right to reside in the
shared household being a member living
together as a joint family and has been
ousted in any way or has been a victim of
domestic violence has remedies under the
DV Act."

The Hon'ble Supreme Court
answered the question in the following
words: -

60. In our view, the question
raised
about
a
subsisting
domestic
relationship between the aggrieved person
and the person against whom the relief is
claimed must be interpreted in a broad
and expansive way, so as to encompass
not
only
a
subsisting
domestic
relationship in praesenti but also a
past domestic relationship. Therefore,
Parliament has intentionally used the
expression "domestic relationship" to
mean a relationship between two
persons who not only live together in
the shared household but also between
two persons who "have at any point of
time
lived
together"
in
a
shared
household."
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
267

28. In view of the above discussion, I
am of the considered view that any woman,
who has in the past lived in a domestic
relation with the respondent, is included in
the definition of an aggrieved person and
domestic relation includes a relationship by
marriage or through a relationship in the
nature of marriage.

29. As per the opposite party no. 2 -
complainant, she got married to the
applicant on 12.05.2018. A Suit filed by the
applicant under Sections 11 & 12 of the
Hindu Marriage Act, 1955 was decreed ex
parte on 26.03.2021 by the Family Court,
Dehradun and the marriage between the
applicant no. 1 and opposite party no. 2
was declared to be null and void for the
reasons that the applicant no. 1 and
opposite party no. 2 were sapindas and the
marriage between them was prohibited
under Section 5(v) of the Hindu Marriage
Act, and that the opposite party no. 2 was
suffering from bipolar disorder and the
consent of applicant no. 1 was obtained by
concealing this fact which made the
marriage voidable. Since that judgment is
not under challenge in these proceedings, I
am refraining from making any observation
regarding that judgment.

30. The applicant does not dispute
that he got married to the opposite party no.
2 and having been married to the applicant,
the opposite party no. 2 had lived in a
domestic relationship with the applicant,
before they started living separately. They
had been related by marriage till the
marriage was declared to be null and void.
Even though the marriage has subsequently
been declared to be null and void, when the
relationship between the applicant and the
opposite party no. 2 subsisted, it was a
relationship in the nature of marriage.
Therefore, the opposite party no. 2 is an
aggrieved person within the meaning of the
Act she has a right to present an application
under Section 12 of the DV Act.

31. I find no force in the preliminary
objection raised by the applicant against
maintainability of the application under
Section 12 of the DV Act. The impugned
order in no way defeats the ends of justice
and there is no merit in the application
under Section 482 filed by the applicant.

32. Accordingly, the application under
Section 482 Cr.P.C. is dismissed.
---------
(2024) 2 ILRA 267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2024
BEFORE
THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 4136 of 2021

Kumar Bhupendra Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Tiwari, Sri Ashok
Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Brahma Kumar Tiwari

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
9(2)
-
Disciplinary
proceeding
-
Punishment - Exchange of land with
pasture land u/s 161 of UP ZA&LR Act,
1950 was made - Petitioner, vide his
order dated 11.8.2016 directed mutation
in the revenue records implementing the
earlier
order
passed
by
Additional
Commissioner
-
Charge
of
providing
personal gain in favour of private parties
was leveled - Though the Inquiry Officer
found the order passed by the petitioner