Sudhir Lalchand Nagpal v Shammi Nagpal (alias Shammi Venkatraman)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** ## **Crl.MC.No. 5305 of 2015** **AGAINST THE ORDER/JUDGMENT IN MC 15/2015 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** ## **PETITIONER/RESPONDENT:** **SUDHIR LALCHAND NAGPAL AGED 56 YEARS S/O.LALACHAND M, 32,MEHERDAD,CUFFEPARADE, MUMBAI 400 005** **BY ADVS.** **SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN** ## **RESPONDENT/COMPLAINANT & STATE:** **1 SHAMMI NAGPAL, AGED 57 YEARS 7D, BLOCK B, CHACKOLA HABITAT, THEVARA FERRY ROAD, KOCHI 682 013** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** **BY ADVS. SRI.K.R.SAJITH SRI.SHERRY SAMUEL OOMMEN SRI.SUKUMAR NAINAN OOMMEN** ## **OTHER PRESENT:** **PP E.C BINESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.02.2019, ALONG WITH Crl.Rev.Pet.1494/2016, Crl.Rev.Pet.1667/2016, THE COURT ON 12/4/2019 PASSED THE FOLLOWING:** Crl.M.C.5305/2015 & others 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** **Crl.Rev.Pet.No. 1494 of 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 213/2016 of II ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 30-08-2016** **AGAINST THE ORDER/JUDGMENT IN MC 15/2015 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM DATED 28-05-2016** ## **PETITIONER/RESPONDENT/COMPLAINANT:** **SHAMMI NAGPAL NEE SHAMMI VENKATARAMAN,,AGED 57 YEARS, W/O MR.SUDHIR LALCHAND NAGPAL, 7 D BLOCK B,CHACKOLA HABITAT,THEVARA FERRY ROAD,KCOHI-682013.** **BY ADVS. SRI.SUKUMAR NAINAN OOMMEN SRI.K.R.SAJITH** ## **RESPONDENT/PETITIONER/RESPONDENT & STATE:** **1 SUDHIR LALCHAND NAGPAL, AGED ABOUT 57 YEARS S/O.LATE LALCHAND M.NAGPAL,OCCUPATION:JOINT MANAGING DIRECTOR,PIEM HOTELS LTD,RESIDING AT:33 MEHRDAD,CUFFE PARADE,MUMBAI-400 005.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.** **BY ADVS. SMT.B.BINDU SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN SRI.P.VIJAYA BHANU (SR.) SRI.V.M.SYAM KUMAR** Crl.M.C.5305/2015 & others 3 **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.02.2019, ALONG WITH Crl.Rev.Pet.1667/2016, Crl.MC.5305/2015, THE COURT ON 12/4/2019 PASSED THE FOLLOWING:** Crl.M.C.5305/2015 & others 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** **Crl.Rev.Pet.No. 1667 of 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 213/2016 of II ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 30-08-2016** **AGAINST THE ORDER/JUDGMENT IN MC 15/2015 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM DATED 28-05-2016** ## **REVISION PETITIONER/S:** **SUDHIR LALCHAND NAGPAL AGED 56 YEARS, SON OF LATE SRI.LALCHAND M. NAGPAL, HAVING MY OFFICE AT 105/107, VIVANTA BY TAJ PRESIDENT, 90 CUFFE PARADE, MUMBAI-400005.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.B.BINDU SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN SRI.V.M.SYAM KUMAR** ## **RESPONDENT/S:** **1 SHAMMI NAGPAL ALIAS SHAMMI VENKATRAMAN AGED 57 YEARS, ALLEGED WIFE OF SRI.SUDHIR LALCHAND NAGPAL, ALLEGEDLY RESIDING AT 7 D-BLOCK, CHACKOLA HABITAT, THEVERA FERRY ROAD, KOCHI-682013.** **2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI.K.R.SAJITH SRI.SUKUMAR NAINAN OOMMEN** Crl.M.C.5305/2015 & others 5 **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.02.2019, ALONG WITH Crl.Rev.Pet.1494/2016, Crl.MC.5305/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.5305/2015 & others 6 ## **O R D E R** **[ Crl.MC 5305/2015 ,Crl.Rev.Pet.1494/2016 ,Crl.Rev.Pet.1667/2016 ]** These proceedings arise from MC No.15/2016 pending before the Additional Chief Judicial Magistrate Court Ernakulam filed under section 23 of the Protection of Women from Domestic Violence Act.(hereinafter referred to as the “DV Act” for short). 2. In MC No. 15/2015, the case of the petitioner was that, she was Hindu by birth and religion and continued to profess Hindu religion. While she was employed as Air Hostess in an Airline Company, she met the accused in June 1986. They fell in love. Respondent was already married to one Aditi Joshi. It was informed by him that his matrimonial relationship was strained and it was on the verge of divorce. He promised to marry her after obtaining divorce from the said Aditi. He obtained divorce on 29/4/1097 and thereafter got engaged to the petitioner on 25/6/1987. They got married on 1/9/1997 at Mumbai in accordance with the Hindu vedic rites and rituals. It was followed by a lavish party attended by several guests. Marriage was also registered under the Hindu Marriage Act. Crl.M.C.5305/2015 & others 7 3. It was stated by the petitioner that respondent is a wealthy hotelier having substantial shares valued at about 44 crores, in a company which owned a chain of luxury hotels. He also owned substantial shares in several other companies and was leading a very luxurious life. According to the petitioner, relationship of the respondent with his family was not very cordial. However, she supported him, got him involved actively in the business and to help him, she herself got employed. Using her own funds, a company was independently started by him. They moved to a flat in Mumbai in 1995. In 2006, they commenced renovation work in the flat and hence they shifted to a hotel. According to the petitioner, in April 2006, she noticed that the respondent had started exhibiting some behavioral changes and the matrimonial relationship got strained. In June 2006, respondent expressed his desire to seek divorce and asked the petitioner to leave his company. On 10/8/2006, respondent shifted to his hotel and all her belongings were also removed. After completion of renovation work of the flat, she alone shifted to the flat. Respondent refused to communicate to her thereafter. Since there was no financial support to her from the respondent , she had to search for her own job. 4. In March 2007, respondent filed A/210 of 2006 before the Family Court, Bandra, Mumbai, under the Hindu Marriage Act, with a prayer to annul the marriage, on the premise that she was a practicing Christian at the time of marriage. Hence, the marriage Crl.M.C.5305/2015 & others 8 was null and void. He alternatively sought for divorce. Petitioner filed objection . By order dated 24/10/2007, the above application was dismissed. On 18/3/2008 while she was abroad in connection with her employment, she got an information that all her furniture, books and valuable personal collections were clandestinely removed in 180 containers by the petitioner from her flat in 180 containers and shifted to an unknown place. While so, respondent filed A/491/2013 before the Family Court, Mumbai seeking restitution of conjugal rights. Maintainability of the above petition was challenged under the Hindu Marriage Act, in the light of the findings in A/210 of 2006. The court below upheld the findings and dismissed the application. This is pending in Appeal No. 30/2016 before the Bombay High Court. He also canceled the joint credit card, bank account and thereby rendered her without any money. In the meanwhile, she lost her job also. She shifted to Kerala permanently in 2015 and took a house on rent at Thevara in Ernakulam. 5. In the meanwhile, petitioner got information that the respondent had married one Beryl Fernandes, who was his employee. Hence, she filed CMP No. 991/2015 invoking section 494 of IPC against the husband and is now pending before the ACJM, Ernakulam seeking relief under Sections 18 to 22 of the DV Act. Along with the application, she filed CMP No.2387/2015 in which she sought the following reliefs: Crl.M.C.5305/2015 & others 9 a). Same level of alternate accommodation enjoyed by her during matrimonial relationship. b). To restore all the personal belongings of her. c). To provide monthly remuneration of Rs.16,20,000/- for maintenance which included Rs.3,00,000/- for her monthly maintenance, Rs.2,00,000/- for household affairs, Rs.7,20,000/- for legal expenses and Rs. 4, 00,000/- for holiday expenses. 6. The respondent appeared and denied the allegations. It was asserted by him that, petitioner was not an aggrieved person since she was not the legally wedded wife of the petitioner and that since she was not a Hindu, there was no matrimonial relationship in the eye of Law. He had only a business transaction with her. It was further contended that, they had no relationship since 2006 and consequently the application was barred by limitation. Yet another contention was that, the petitioner was residing in Singapore holding a Singapore passport and that ACJM, Ernakulam had no jurisdiction to try the matter. It was further contended that, she was in an affluent condition and did not require a monetary support. 7. The learned ACJM, by an interim order allowed the CMP and granted monthly maintenance of Rs. 3 Lakhs per month. This was challenged by the respondent in Crl.Appeal No. 213/2016 before the Additional District and Sessions Court, Ernakulam. The lower appellate court set aside the order and held that the trial court did not consider the question of limitation and remanded the Crl.M.C.5305/2015 & others 10 matter for consideration of the preliminary issues involved. 8. The above order is challenged by the husband in Crl.R.P.No.1667/2016 contending that appeal ought to have been allowed and the impugned order is liable to be set aside. 9. Wife, aggrieved by the order, to the extent of setting aside the impugned order of the trial court and challenging the remand, has filed Crl.R.P.No.1494/2016. 10. Challenging the proceedings in MC No.15/2015 on the ground of jurisdiction and that proceedings did not make out any incident of domestic violence, the husband has sought to quash the proceedings invoking section 482 Cr.P.C.,by filing Crl.M.C.No.5305/2015. Parties will hereinafter be referred to as petitioner and respondent in accordance with their status in MC No.15/2015. 11. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 12. It is not in dispute that the parties have undergone a form of marriage on 1/9/1987 preceded by a ceremony of engagement on 25/6/1987. It is also not in dispute that , they lived together till 2006. It is also borne by record that the specific contention of the respondent was that, there was no legal marriage between the petitioner and the respondent, since the respondent was a Hindu and the petitioner was a Christian by birth. However, in the application filed under the DV Act, petitioner has specifically affirmed that she was Hindu by birth Crl.M.C.5305/2015 & others 11 and professed Hindu faith. It is also not in dispute that the marriage was in accordance with the Hindu vedic rites and rituals, as insisted by the parents of the respondent herein. 13. Evidently, relationship between the parties was strained. Respondent had filed M.J. petition A/210 of 2006 before the Family Court, Bandra, Mumbai, under sections 5 B(a) of the Hindu Marriage Act and the relevant provisions of the Family Court Act. In that petition, he had admitted that he had married the petitioner on the First September 1987, according to the Hindu vedic rites and rituals. He further admitted that, thereafter they had lived together and cohabited at Mumbai and Singapore. It was also admitted that matrimonial relationship got strained in 2006 and they started to live separately. He alleged that the petitioner was a Syrian christian and was baptised in a church. Consequently, he claimed that the form of marriage which they had undergone on 1/8/1997 was not a marriage recognised by the Hindu Marriage Act and consequently there was no marriage in the eye of Law. He sought to declare the marriage as null and void or in the alternative to dissolve the marriage. 14. Respondent appeared before the Family Court and contended that the allegation that the petitioner was a Christian and that the marriage under Hindu Marriage Act was not legally valid was not sustainable. The Family Court held that in the light of the admitted facts, marriage was not valid. The court held that respondent ought to have sought his reliefs under the Special Crl.M.C.5305/2015 & others 12 Marriage Act and he was directed to make necessary amendments to the petition. It is evident from the order of the Family Court that, he struck to his claim under the Hindu Marriage Act and consequently, MJ A/210 of 2006 was held to be not tenable under the Hindu Marriage Act and was dismissed. 15. Thereafter the petitioner filed A/491/2013 before the Family Court, Bandra seeking restitution of the conjugal rights. Maintainability of that petition was challenged by the respondent on the ground of issue estoppel and constructive res-judicata. It was contended that plea of restitution of conjugal rights was not sustainable in the light of the order in A/210 of 2006. Specific contention was that in the light of the admission of the petitioner that, she was a practicing Christian, there was no marriage in the eye of Law under the Hindu Marriage Act and the consequential finding of the Family Court in A/210 of 2006 on those issues will estop the petitioner from raising that contention again by the issue estoppel and by the principle of res-judicata. 16. Both sides extensively relied on several decisions of various courts, regarding the status of the spouses in a marriage under the Hindu Marriage Act. Under section 2(c) of the Hindu Marriage Act, all persons domiciled in India other than a person who is not a Muslim, Christian, Parsi or Jew by religion, are governed by the Hindu Marriage Act. Under section 5 of the Hindu Marriage Act, for a valid marriage, one of the essential condition is that, the parties to the marriage should be Hindus. Crl.M.C.5305/2015 & others 13 Relying on this proposition, learned counsel for the respondent contended that, petitioner was a Christian by birth and continued to profess that religion and hence, the marriage under the Hindu Marriage Act was null and void. Learned counsel relied on the decision in **Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipili Pavani ((2009)1 SCC 714)** to support it **.** It was held in that case that, marriage of a Hindu with a person professing a different faith, although solemnized in accordance with Hindu customs, was void and registration of such marriage under section 8 of the Hindu Marriage Act will not validate the same. In **Vijayakumari v. Devabalan (2003(3) KLT 695)** the Division Bench of this Court held that a marriage of a Christian with a Hindu was not valid under the Hindu Marriage Act 1955. Per contra, learned counsel for the petitioner relied on the decision reported in **Perumal Nadar represented by Legal Representative v. Ponnuswami Nadar (1970 KHC 429)** to contend that, even in the case of a person born and professing any religion other than Hindu, if converted to Hindu and embraces Hinduism, any marriage thereafter with a Hindu can only be governed by the Hindu law. To contend that, no formal ceremony of purification or expiation is necessary to effectuate conversion, learned counsel relied on the decision in Perumal Nadar v. Ponnuswami Nadar (supra). In **Kailash Sonkar v. Smt. Maya Devi ((1984)2 SCC 91)** the question arose whether a Crl.M.C.5305/2015 & others 14 child born to convert Christian baptized and grown up as a Christian, when later embraced his original caste, would it revive and whether the views of the members of the community has any greater significance in determining his status. In that decision, it was held that, although the views of the members of the community would be an important factor, their views alone should not prevail to lead to a complete loss of the caste, to which that person belonged. In **S.Anbalagan v. B.Devarajan and Ors. ((1984)2 SCC 112)** , it was held that, ordinarily a person who had embraced another religion regains his caste unless the community does not accept him. For re-conversion to Hinduism, no particular ceremony such as expiatory rites need be performed, unless the practice of the caste makes it necessary. The Honourable Supreme Court in **Dhannulal and Ors. v. Ganeshram and Another (AIR 2015 SC 2382),** has held that, if the facts lead to a strong presumption in favour of the validity of the marriage, legitimacy of the child can be drawn, if the relationship of parties is recognized by all persons concerned. 17. The Division Bench of this Court in **Betsy and Another v. Nil (2009(4) KHC 560)** had held that regarding the validity of a marriage under the Hindu Marriage Act between persons of whom one was alleged to be not a Hindu by birth, the question to be determined was the religion and status of the wife during her marriage before concluding the validity of the marriage. It was held that, before a decision was arrived at by Crl.M.C.5305/2015 & others 15 the Family Court holding that, there was no valid marriage in existence, the Court should have given an opportunity to the parties to adduce evidence regarding the religion and status of the wife during the marriage. 18. The above decisions clearly show that, both parties should be Hindus at the time of marriage. In the case at hand, there is no dispute that the marriage took place in accordance with the Hindu Religious rites. Thereafter, it was got registered under the Hindu Marriage Act also. The question as to what was the actual status of the wife at the time of marriage seems to have not been considered by any of the Courts. 19. The Family Court, in A210 of 2006 and A491 of 2013 had held that, the marriage was not governed by the Hindu Marriage Act. The Family Court in the first proceeding, which is A210 of 2006, had proceeded on the basis that the petitioner herein had admitted that, she was a Christian. In A491 of 2013, the Family Court relied on the order in A210 of 2006 and concluded that, in the light of the earlier finding in A210 of 2006, the parties were precluded from raising a contention to the contra by the principle of issue estoppel and res judicata. The Family Court in A491 of 2013 further proceeded to consider the materials placed by the respondent herein. Court noted that, petitioner herein was born in Thiruvananthapuram, that birth certificate showed that her parents were Christians, she was baptized in a Church in Thiruvananthapuram, her Christian name Crl.M.C.5305/2015 & others 16 was Sara and confirmation was held during her childhoood in a Church in Bandra, Mumbai. The school admission certificate also showed that, parents had made statements that, she was a Christian. Based on these materials and applying the principle of issue estoppel as well as principle of resjudicata, Court concluded that the marriage was not valid under the Hindu Marriage Act. Evidently, the question as to the status of the wife at the time of marriage was not considered by both Courts nor decided . It is also to be noted that the decision of the Family Court in A491 of 2013 has not become final, since it is stated to be pending in appeal before the High Court of Mumbai. 20. The specific contention of the petitioner herein was that, she had never admitted that, she was a Christian and that she had professed Hinduism. She also asserted that, even in the proceeding in A210 of 2006, she had not admitted that, she was a Hindu. According to her, both the decisions proceeded on a premise that, she had admitted that, she was a Christian. In fact, she had not admitted in the objection that, she was a Christian. It was also contended that, both the Family Court's did not answer the real issue as to what was the status of the petitioner at the time of her marriage and proceeded on presumptions. It was also contended that the above issues were not considered by the court below on merits nor adjudicated and hence, principle of issue estoppel and resjudicata cannot apply in the facts of this case. Crl.M.C.5305/2015 & others 17 21. As mentioned above, Family Court in A210 of 2006 exclusively relied on the objection filed by the petitioner herein in that proceeding. Court proceeded to hold that, she had indicated that, she was a Christian. In A210 of 2006, the respondent has moved the court under the provisions of Hindu Marriage Act and sought for a declaration that the marriage was null and void. Petitioner herein filed an objection based on which, Family Court proceeded to hold that she was a Christian. To substantiate the contention that she had never admitted that she was a Christian, petitioner placed a copy of the objection filed before the court below in the form of an application for preliminary hearing, on the issue of maintainability. A perusal of it shows that, she had only stated that the respondent herein had contended that, she was a Christian and hence, marriage was void. She only had stated that, sections 2 to 5 of the Hindu Marriage Act will apply only if the parties to marriage were both Hindus. The above pleadings do not show that the petitioner had specifically, impliedly or categorically stated that, she was a Christian. 22. In fact, this is further clear from the fact that, even in the order A210 of 2006, the Court not say that she had admitted that, she was a Christian. This is also clear from the order of the Family Court in A491 of 2013, wherein the Family Court at page 6 of the order had stated that, petitioner never admitted that, she was a Christian. However, Family Court held that, she remained silent and that silence amounted to an Crl.M.C.5305/2015 & others 18 admission that she was a Christian. Evidently, it was based on presumptions. A perusal of the order in A210 of 2006 shows that the Court proceeded from the admitted facts that the marriage was not valid. The Court opined that the petitioner should claim a declaration that the marriage was void under the Specific Relief Act, r/w section 5 of the Hindu Marriage Act. Court suggested to the petitioner that, he can make necessary amendments to the petition. He refused to apply for amendment and stuck up to the relief under the Hindu Marriage Act. Hence, the Court held that petition was not tenable under the Hindu Marriage Act. It clearly shows that, Court's view was that, relief ought to have been sought under the Specific Relief Act r/w section 5 of the Hindu Marriage Act. Evidently, there was no decision on the status of the petitioner herein at the time of the marriage. Hence, the above decision cannot be said to be one on merits and a conclusive decision on the question of status of the parties during marriage.Petition was dismissed on technical ground. That was not pursued by the respondent herein and hence it is binding as against him. 23. The order in A491 of 2013 shows that, court below essentially referred to the decision in A210 of 2006. Though it referred to certain documents, there was no conclusive material regarding the status of petitioner on the date of marriage. Hence, the decision of the Family Court in A491 of 2013 also cannot be held to be a conclusive decision on the issue of status Crl.M.C.5305/2015 & others 19 of petitioner at the time of marriage. Even other wise, that judgment has not become final, since it is pending consideration before the trial court. Suffice to say that , both the decisions are not conclusive as to the issue of status of the petitioner as on the date of marriage. 24. Honourable Supreme Court in **Mohammad Safi v. the State of West Bengal (AIR 1966 SC 69)** had occasion to consider the question of autrefois convict and autrefois acquit. It was held that, it will apply if there is a final adjudication of an issue by a competent court, which will act as an estoppel against the subsequent trial on the same issue. In **Dr.S.S.Khanna v. Chief Secretary, Patna and Another (AIR 1983 SC 595)** the question arose whether on dismissal of the complaint against one of the persons complained against, subsequent proceedings under section 202 Cr.P.C on the same material, against him will be barred on the principle of issue estoppel. It was held that an inquiry under section 202 Cr.P.C was not in the nature of a trial, for, there can be in law only one trial in respect of any offence and that a trial can commence only after the process is issued to the accused. It was held that, having regard to the nature of proceedings under section 202 Cr.P.C, it may be difficult to hold that there was a legal bar based on the principle of issue estoppel to proceed against a person complained against, on the same material, if the Court had dismissed the complaint under section 203Cr.P.C. Crl.M.C.5305/2015 & others 20 ## 25. In **Ravinder Singh v. State of Haryana (AIR 1975** **SC 856)** the question of issue estoppel was considered in detail. It was held that, there was an issue estoppel, if it appeared from record itself or as explained by proper evidence, that the point was determined in favour of a person in a previous criminal trial which was brought in issue on a second criminal trial of the same person. It was held that, to invoke the rule of issue estoppel, not only the parties in the two trial must be the same, but also the fact in issue proved or not in earlier trial must be identical with what is sought to be reagitated in the subsequent trial. The principle was reiterated by the Supreme Court in **Jatinder Singh and Ors. v. Ranjit Kaur (AIR 2001 SC 784)** . It was held that, if a dismissal of the complaint was not on merit, but on default of the complainant to be present, there is no bar in the complainant moving the magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under section 203 of Cr.P.C was on merits, situation would be otherwise. 26. These principles clearly indicate that for the principle of issue estoppel to apply, there must be an adjudication of the earlier issue. It seems that, prima facie, both the Family Court decisions revolved on technical question. Hence, it cannot prima facie be held to be a decision on merits, arrived at after letting in evidence in a detailed enquiry. Even assuming that, either of the decision was on merit, the crucial question regarding the status of the petitioner as on the date of marriage Crl.M.C.5305/2015 & others 21 seems to have not been finally decided by the court below. Hence, both the decisions do not appear to operate against the claim made by the petitioner herein. 27. Next ground of attack was that MC was not sustainable since ACJM, Ernakulam lacked the territorial jurisdiction to try the matter. It was contended that the petitioner herein did not have a permanent residence at Ernakulam and she was permanently settled in Mumbai. It was contended that only Mumbai court had jurisdiction and all the proceedings were initiated by her against the respondent in various courts in Mumbai. She had no permanent residence at Ernakulam and residence now claimed has been artificially created for the purpose of initiating litigation by her choice, after having failed in her attempt to get relief from the courts in Mumbai. It was also contended that, she was a permanent resident of Singapore and was issued with Singapore ID card. She was conducting business at Singapore. All the legal proceedings initiated by her showed her address at Mumbai and the proceedings initiated by the respondent herein was defended by her from her at Mumbai . 28. Petitioner had specifically pleaded that she was economically exhausted and was completely drained of funds, that she had to fce hostilities from the respondent including removal of her movables, continued harassment by the respondent and hence she was forced to shift to Kerala permanently in 2015. It was Crl.M.C.5305/2015 & others 22 specifically pleaded by her that she took a house on rent at Thevara in Ernakulam, in February 2015. She had given the detailed address of her Ernakulam residence along with the statement of facts in Crl.M.C. No.5305/2015. A copy of the rent deed was also produced. It was stated that, the rent deed dated 11/2/2015 showed that building was taken on rent for her residence. Along with the document, she had also produced telephone bills issued to her at the above residence from February 2015 onwards. Postal envelops were also produced by her to evidence that she has received them in her address at Thevara. It was pleaded by her that, she had stopped business at Singapore and she had no other source of income. 29. It is pertinent to note that respondent has no case that petitioner is not residing in Thevara now. It seems that she is staying at Thevara and all the proceedings after 2015 seems to have been initiated in Kerala. It is true that, she had initiated several proceedings and contested several proceedings at various courts in Mumbai. However, all were during the period prior to 2015. Respondent also could not point out that she was staying at any place other than Thevara after 2015. It seems that there were sufficient materials to indicate prima facie that she has set up her residence within the jurisdiction of Ernakulam Court. 30. It was contended by the learned counsel for the respondent that mere residence or even a temporary residence at a place was not sufficient to confer jurisdiction on any court. Crl.M.C.5305/2015 & others 23 However, this contention does not apply in the present case, since from the nature of her residence, prima facie it appears to be a case where she has set up something more than a temporary stay. Considering these aspects, the Hon'ble Supreme Court in **Smt.Jeewanti Pandey v . Kishan Chandra Pandey(1981 KHC** **712)** had held that in order to give jurisdiction on the ground of residence, something more than a temporary stay was required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, should be his natural forum. The expression “resides' means to “make an abode for a considerable time: to dwell permanently or for a length of time: to have a settled abode for a time”. It was the place where a person had a fixed home or abode. 31. The above principle was considered by the Full Bench of the Hon'ble Supreme Court in **Jagir Kaur and Another v. Jaswant Singh(1963 KHC 649).** The apex court held that the word “resides” cannot give a meaning different from the meaning from the word “resided” and therefore a wider meaning for the terms residence has to be given. 32. It has been held by the Supreme Court that if due to economic abuse and physical abuse, the wife is forced to leave the matrimonial home, the place where she resides will also give a cause of action. This has been considered by the Supreme Court in **Sunita Kumari Kashyap v State of Bihar (Criminal Appeal** Crl.M.C.5305/2015 & others 24 **No.917 of 2011)(2011) 11 SCC 301)** . wherein the apex court held that due to ill-treatment of the husband, the wife had to leave the matrimonial home and to set up at a home which was an incident of continuing offence, the place where she had set up residence will also get jurisdiction for the purpose of initiating criminal proceedings. The court relied on the decision reported in Sujata Mukherjee v. Prashant Kumar Mukherjee(1997 5 SCC 30) to support this decision. The same position was reiterated in **Kunapareddy @ Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Another (AIR 2016 SC 2519)** and **Shalini v. Kishor and Ors(AIR 2015 SC 2605).** 33. The recent judgment of the Hon'ble Supreme Court in **Rupali Devi v. State of Uttar Pradesh(CA No.71/2012 and connected cases)** dated 9[th] April 2019 holding that when the wife takes shelter at a place, after leaving or being driven away from the matrimonial home, on account of cruelty of husband or relatives, the court within whose jurisdiction she sets up residence, would, depending on the factual situation, also have jurisdiction to entertain a complaint alleging offence under section 498A IPC is also relevant in the facts of the case. Hence, the above contention of the learned counsel for the petitioner cannot survive. 34. Yet another contention of the learned counsel for the petitioner was that there was considerable delay in initiating the proceedings under the DV Act. It was stated that only two acts of 25 Crl.M.C.5305/2015 & others domestic violence were mentioned which were of the year 1987 and 2006. Parties were living separately since August 2006. Considerable delay that has occurred in the meanwhile has also not been explained. 35. The above contention is evidently misleading. In the petition, the petitioner has specifically referred to two instances of physical violence. It was stated that parties were living separately since 2006. Admittedly, matrimonial relationship was not resumed by the respondent. It is also on record that the respondent has left the company of the wife. Admittedly, the marriage has not been annulled by any decree of the court. Materials on record also indicate that the petitioner was never looked after by the husband and was not paid any maintenance. She has also approached the court at Bombay for getting back her possession of the articles which were allegedly removed by the husband. On this basis, she has stated that she was subjected to contumacious violence, which included physical, sexual and economic abuses. This seems to be in the nature of continuous offence. Even now that abuses continue. Hence, the contention on the ground of limitation cannot survive. 36. The trial court at para 24 of the impugned order had noted that the petitioner was subjected to domestic violence including physical, sexual , verbal emotional and economic abuses from 10/6/2006 onwards and economic and emotional abuse persist. The court has also referred to the decisions in **Balakrishna S.P. Waghmare v. Shree Dhyanrshwar Maharaj** Crl.M.C.5305/2015 & others 26 **Sansthan (AIR 1959 SC 978). M.R.Gupta v. Union of India and others (1995 (5) SCC 628), Raja Bhadur Singh v. Providend Fund Inspector and others(1984) 4 SCC 222), State of Bihar v. Deokaran Nenshi and another (1972) 2 SCC 890)** and In **Sarawathy v. Babu(2014) 3 SCC 712)** 37. In the light of the decision of the Supreme Court referred to above, the question of limitation and jurisdiction does not arise. In fact, the question of limitation and jurisdiction were not seriously raised by the respondent in the objections also. Hence, the direction of the lower appellate court that this question needs to be answered by the Magistrate again and consequential remand for that purpose was unwarranted is liable to be interfered. 38. Learned counsel for the petitioner in Crl.M.C.No.5305/2015 submitted that in the light of the filing of Criminal Appeal No.213/2016 and the filing of R.P.No.1667/2016, the Crl.M.C.has become infructuous and is not pressed. This was opposed by the learned counsel for the respondent contending that he is entitled for cost for that. Even on merits none of the contentions for quashing the proceedings do not survive. Hence, Cr.M.C.No. 5305/2015 is dismissed on merits. 39. The Trial Court has granted a sum of Rs. 3 Lakhs as monthly maintenance. The lower appellate Court held that respondent has valid contention on the question of limitation and Crl.M.C.5305/2015 & others 27 jurisdiction and, held that above issues will have to be considered first on evidence and then the question of interim maintenance can be answered. 40. The above finding in palpably mistaken on the facts of the case. Interim maintenance is not a charity. But it is intended to avoid vagrancy. In **Sajuveria Abdul Majid Patni v. Atif Iqbal Mansoori and Another (2014) 10 Supreme Court Cases** **736) and in Bhanot V.D. v. Savita Bhanot (2012) 3 SCC 183)** , the Supreme Court has held that if prima facie the instances of domestic violence is established, the court is bound to grant relief. In the above case, it is admitted that parties have been living together for 21 years. Petitioner cannot be left at the mercy of the respondent. 41. Petitioner had claimed Rs.16.2 Lakhs as monthly maintenance. Trial Court granted Rs. 3 Lakhs as monthly maintenance. It is seen from the records that the husband is extremely rich having substantial shares in a chain of hotels which is valued at Rs. 44 Crores. Materials on record shows that he is rich, affluent and leading a luxurious life. Couple were living in luxurious hotels and moving around the world. Husband has also not admitted exactly the nature of their relationship. Initially before the Family Court at Mumbai husband had stated that they had married and lived together. However, later he shifted his stand contending that it was only a business arrangement. Having Crl.M.C.5305/2015 & others 28 considered this, the conclusion of the trial court that the petitioner is entitled for maintenance at Rs. 3 Lakhs is liable to be sustained. Hence, the order of the Trial Court is liable to be restored setting aside the judgment in Crl.Appeal No. 213/2016. In the result, Crl.M.C.No. 5305 of 2015 dismissed. Cr.R.P. No.1667/2016 is also dismissed. R.P.No.1494/2016 is allowed restoring the order of the trial court in MC No.2387/2016. The respondent in MC shall pay monthly maintenance of Rs. 3 Lakhs to the petitioner in CMP 2387/2016 from the date of that petition. The entire arrears till now shall be paid in two months from today. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** Crl.M.C.5305/2015 & others 29 ## **APPENDIX OF Crl.MC 5305/2015** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMPLAINT PREFERRED UNDER SECTION 12 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 BY THE 1ST RESPONDENT HEREIN AGAINST THE PETITIONER HEREIN BEFORE THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCE), ERNAKULAM DATED 29-05-2015 ALONG WITH THE APPLICATION PRESCRIBED UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006** **ANNEXURE B TRUE COPY OF THE APPLCIATION PREFERRED BY THE PETITIONER HEREIN BEFORE THE FAMILY COURT NO.IV BANDRA ,MUMBAI AGAINST THE 1ST RESPONDENT** - **ANNEXURE C COPY OF THE ORDER DATED 24-10-2007 IN PETITION NO.A/210 OF 2007** **ANNEXURE D TRUE COPY OF THE ORDER DATED 09-102014 IN APPLICATION NO.A 491/2013 PASSED BY THE FAMILY COURT, BANDRA ,MUMBAI** - **ANNEXURE E TRUE COPY OF THE MEMORANDUM OF FAMILY COURT APPEAL NO.30 OF 2015 PREFERRED BY THE 1ST RESPONDENT HEREIN AGAINST THE PETITIONER BEFORE THE HIGH COURT OF JUDICATURE,BOMBAY** **ANNEXURE F TRUE COPY OF THE ORDER DATED 06-052008 OF THE HIGH COURT OF JUDICATURE, BOMBAY** ## RESPONDENTS EXHIBITS: : ANNEXURE R1: COPY OF APPLICATION A-210 OF 2007 OF PETITIONER BEFORE FAMILY COURT NO. 4 MUMBAI. ANNEXURE R2: COPY OF CERTIFICATE OF MARRIAGE. ANNEXURE R3: COPY OF WEDDING PHOTOGRAPHS TAKEN AT MARRAIGE ON1/9/1987 ANNEXURE R4: COPY OF PRELIMINAARY OBJECTION OF RESPONDENT IN APPLICATION A - 210 F 2007. Crl.M.C.5305/2015 & others 30 ANNEXURE R5: COPY OF ORDER DATED 24/10/2007 IN APPLICATION A - 210 OF 2007 OF FAMILY COURT NO. 4 MUMBAI. ANNXURE R6: COPY OF APPLICATION A - 491 OF 2013 OF RESPONDENT BEFORE FAMILY COURT NO. 7 MUMBAI. ANNEXURE R7: COPY OF PRELIMINARY OBJECTION OF PETITIONER IN APPLICATION A - 491 OF 2013. ANNEXURE R8: COPY OF ORDER DATED 9/10/2014 IN APPLICATION A - 491 OF 2013 OF FAMILY COURT NO. 7 MUMBAI. ANNEXURE R9: COPY OF OBITUARY NOTICE PUBLISHED IN TIMES OF INDIA AROUND 18/4/2013 ANNEXURE R10” COPY OF DECLARATION OF 2ND RESPONDENT BEFORE ROC, MUMBAI. ANNEXURE R11: COPY OF LEASE DEED DATED 11/2/2015 ANNEXURE R12: COPY OF TELEPHONE BILS FROM FEB 2015 ANNEXURE R13: COPY OF POSTAL DETAILS