In a very significant development which will definitely go a long way in clearing the air on whether marriage validly dissolved by foreign court will have legal implications in India, the Jammu and Kashmir and Ladakh High Court in an extremely laudable, learned, landmark and latest judgment titled S Rawail Singh Vs Gurinder Jeet Kour in CRMC No. 43/2018 (IA 1/2018) CrlM 1281/2019) and connected petitions and cited in 2022 LiveLaw (JKL) 190 that was pronounced finally on September 1, 2022 has ruled most decisively 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 Single Judge Bench comprising of Hon’ble Mr Justice Vinod Chaterji 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. It must be mentioned that the couple got married in 2007 in Jammu and post marriage they became permanent residents of Germany. It is stated before stating anything else in this remarkable judgment that:
As the issue involved in all the afore-captioned petitions is identical in nature, therefore, all have been clubbed, heard together and are being decided by a common order.

CRMC No. 43/2018

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Vinod Chaterji Koul of the Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost putting forth in para 1 that:
Petitioners in the instant petition seek quashment of the complaint titled Gurinder Jeet Kaur Versus S. Baldev Singh and Ors. filed under Section 12(1) of the J&K Protection of Women from Domestic Violence, Act (for brevity ‘impugned complaint’) which is pending before the Court of Learned JMIC, Sub-Judge, Jammu (for brevity ‘trial Court’), wherein process has been issued by the trial Court against the petitioners herein.

Needless to say, the Bench then states aptly in para 2 that:
The aforesaid complaint has been filed by the respondent-complainant- Gurinder Jeet Kaur on 20.12.2017, wherein she complained about being subjected to domestic violence by the accused-petitioners herein.

To put things in perspective, the Bench then envisages in para 3 that:
In brief, the acts of domestic violence are that she and the petitioner No. 4-Baldev Singh were married on 19.01.2007 as per the Sikh rites (Anand Karaj) and rituals at Gurudwara Shri Guru Singh Sabha, Greater Kailash Kunjwani, Jammu and out of the said wedlock one child, namely, Gurshish Singh has born. She alleges in the complaint that at the time of solemnizing of the marriage sufficient dowry in the shape of articles, i.e., Refrigerator, washing Machine, Air-conditioner, TV and Gold ornaments were given to the petitioners and in addition to the said articles, cash amount of Rupees one lac was also given to them.

She alleges that after solemnizing of marriage she was residing in H.No.98 Sector No. 9, Nanak Nagar, Jammu with the petitioners and their attitude from the very beginning was cruel and unbecoming towards her. They used to taunt her for bringing fewer dowries and were pressurizing her to fulfill other demands of dowry. The petitioners started torturing and harassing her on one pretax or another and also not being provided proper food and cloths and other basic amenities. Even after the birth of the child, their attitude did not change, but turned bad to worst.

Her husband-Baldev Singh who is working in Germany, used to come to Jammu after 4-6 months and when she asked him to accompany her, he used to abuse and beat her, she was thus, maltreated by the accused-Baldev Singh. In the complaint it was further alleged that complainant was thrown out of her house on 02.09.2010 and was threatened not to come back unless she brings Rs. 02 lacs for them. She on hearing that her husband Baldev Singh was leaving for Germany on 10.10.2010 she also booked her tickets and went to Germany along with her son. On reaching Germany, she was not treated properly by her husband-Baldev Singh and was not allowed to reside with him. She was compelled to live in a separate accommodation.

It was alleged that all the articles of Stridhan have been retained by the petitioners herein. She completed her studies in Jammu in the month of November, 2017 and now she is residing at Jammu and her minor son is studying in Class-IIIrd in Germany and his expenses are incurred by her and her daily needs and that of minor child are approximately one lac per month which are being borne by her. She claims in the complaint that petitioner-Baldev Singh is doing his business in Germany and earning Rs. 02 lac per month and has no liability except to maintain her and child.

As it turned out, the Bench then mentions in para 4 that:
The petitioners have challenged the complaint as well as the process issued by the trial Court precisely, on the ground that there is no relationship of husband and wife between the petitioner No. 4-Baldev Singh and respondent-Gurinder Jeet Kaur. The petitioners submit that the allegations contained in the complaint filed by her under the Domestic Violence, Act are false and frivolous.

It is submitted that after the marriage both the complainant-respondent herein and petitioner No. 4-Baldev Singh shifted to Germany where Baldev Singh was settled and working since 2002 on account of his employment. Both of them became the permanent residents of Germany, in support of their contention they have placed on record copy of the divorce issued by the District Court Wisman, Germany.

It is stated that after shifting to Germany the relationship between the complainant and petitioner No. 4-Baldev Singh became hostile. Petitioner No. 4-Baldev Singh 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 and 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 No. 4-Baldev Singh and started residing separately. The Court at Germany made several attempts for reconciliation between them, but all such efforts failed and she flatly refused to stay with him and ultimately he approached the District Court Wisman, Germany and filed a petition for divorce.

The respondent-complainant thereafter caused her appearance, he filed her objections, the Court after hearing both the parties and the perusing the evidence led by them allowed the divorce petition under Section 98 Sub-Clause 261 No. 2, Family Law and under Sections 122, 113 of Family Law, 261 Sub-Clause 261 Sub-Clauses 3 No.2 Zivil Process Act, and passed a Decree of Divorce vide Judgment and Decree dated 20.07.2017.The said decree of divorce passed by the said Court has been placed on the record of the instant petition.

To be sure, the Bench then states in para 25 that:
In the present case, the husband-Baldev Singh filed a divorce petition before a competent Court of law in Germany and the judgment has been passed on merits, after due service of summon upon the wife- Gurinder Jeet Kaur as well as after hearing both the parties.

As we see, the Bench then rightly points out in para 26 that:
The decree of divorce dated 20.07.2017, unless and until challenged, is binding upon both the parties. The child born out of the said wedlock as stated by the complainant-respondent herein is still residing in Germany, where he is undergoing studies.

Quite significantly, the Bench then mandates in para 27 that:
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. The said judgment/decree has not been challenged by the complainant-respondent herein, therefore, it is held that the relationship of husband and wife between petitioner No. 4-Baldev Singh and respondent - Gurinder Jeet Kaur has come to an end.

Be it noted, the Bench then observes in para 34 that:
While having regard to the facts and circumstances of the case, the case in hand falls under rarest of the rare cases in which the discretion is required to be exercised, because there is no domestic relationship between the parties and in the absence of such domestic relationship provisions of Domestic Violence, Act cannot be invoked.

Most significantly, the Bench then holds in para 35 that:
Therefore, the allegations made in the complaint would not constitute commission of any offence under the provisions of Domestic Violence, Act which requires existence of domestic relationship. 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. Thus, the grounds taken in the petition made out a case in favour of the petitioners for quashing of the proceedings. Accordingly, the complaint as well as the proceedings initiated thereon are quashed.

In conclusion, we thus see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that once marriage stands validly dissolved by the foreign court, the proceedings under Domestic Violence Act cannot be initiated. So there can be no gainsaying that this must be adhered to by the lower courts as directed in this leading case. There can be just no denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi,  82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh