1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1982 OF 2010 Amerendra Moreshwar Laud & Anr. ...Applicants vs. The State of Maharashtra & Anr. ...Respondents Ms.Manorama Mohanty i/b. M/s.S.K. Srivastav & Co. for the Applicants. Mrs.P.P. Bosale, APP for the State. CORAM : V.M. KANADE, J. DATED : JUNE 7, 2010 P.C. :- 1 Heard Counsel for the applicants and respondent no.1 who is appearing in person. 2 This criminal application has been filed under Section 482 of the Cr.P.C. The applicants had challenged order passed by the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, dated 24th November, 2009 rejecting the applicants 2 application for dismissal of the complaint filed by respondent no.2. This order was challenged by the applicants in the Sessions Court by filing criminal revision application No.1675/2009. The Sessions Court also dismissed the said revision application. Being aggrieved by the said order, the applicants have filed this application under Section 482 of the Cr.P.C. 3 Brief facts are that respondent no.2 filed a complaint under Section 12 read with Sections 18 to 22 of the Protection of Women from Domestic Violence Act against her husband and his brothers. During the pendency of the complaint, respondent no. 2 s husband expired. In the said complaint, the respondent has made various allegations against her husband and his brothers. The various instances of harassment are mentioned in para 5 of the said complaint. In para 4, respondent no.2 has alleged that from 30th March, 2005, she was illegally prevented and restrained by the applicants from 3 entering the matrimonial house. 4 The learned Counsel for the applicants submitted that respondent no.2 was residing with her parents since 1992 and therefore, the complaint itself was not maintainable since it was filed in the year 2007. It was secondly submitted the respondent no.2 s husband expired during the pendency of the application and therefore, on that count also, the present complaint could not be continued against the brothers of her deceased husband. In support of the said submission, the learned Counsel has relied on the judgment of the learned Single Judge of this Court in the case of Jayesh Uttamrao Khairnar and others vs. State of Maharashtra and others, reported in 2010(3) Mh.L.J. Page 305. 5 In my view, there is no substance in the submission made by the learned Counsel for the applicants. In the complaint, there is specific 4 averment that respondent no.2 was prevented from entering the matrimonial house from 30th March, 2005. The applicants will have to prove that the respondent - original complainant was residing in her parents house since 1992 as such it was submitted that in a notice given by the complainant, it was submitted that she was residing in the matrimonial house. This fact is denied by respondent no.2 who is appearing in person. This being the position, this fact will have to be established by the applicants during the trial. So far as judgment on which reliance is placed by the learned Counsel for the applicants, the ratio of the said judgment will not apply to the facts of the present case. In the said case, the decree of divorce was already granted in favour of the wife by the competent court and therefore, on that count, the learned Single Judge came to the conclusion after the decree of divorce was granted by the competent court. The petition under the said Act of Protection of Women from Domestic Violence Act would not be 5 maintainable. The ratio of the said judgment would not apply to the facts of the present case since admittedly on the date of filing of the complaint under the said Act, no decree of divorce was granted by the competent court. Under these circumstances, it is not possible to interfere with the orders passed by the lower courts. 6 The Criminal application, accordingly, is dismissed. All contention of the applicants and respondent no.2 are kept open. (V.M. KANADE, J.)