1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.259 OF 2009. Jayesh Uttamrao Khairnar ...Petitioners. and others VERSUS. The State of Maharashtra. ...Respondenta. and others. ------------------------------------------ Mr. Amol S.Sawant,Advocate for petitioners Mr. K.S.Patil,A.P.P.for the respondents. ------------------------------------------ (CORAM : V.R.KINGAONKAR, J ) DATE : 7th September,2009. PER COURT : 1. Heard. 2. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the petitioners and learned A.P.P. 3. The respondent no.2 filed an application under sections12,16,20 and 22 of the Protection of Women From Domestic Violence act,2005,she asserted that, she married to petitioner no.1 on 14th May,2003 and was residing with him in the matrimonial home, uptil 25.11.2006. She was allegedly driven out of of matrimonial home by the petitioners. She is residing with her parents, since then. She alleged that after about 7/8 months of the consortium she was subjected to matrimonial cruelty by the petitioners. The husband his relatives were demanding Rs. One lac for purchasing one Indica Car. She filed a 2 complaint for the offense under sections 498-A read with section 34 and 504,506 of the Indian Penal Code. On the basis of which the charge sheet is already filed. She has also filed separate application for recovery of maintenance allowance. 4. The respondent no.2 sought protection from the petitioners, maintenance allowance at the rate of Rs. 10,000/- per month and amount of Rs.20,000/- by way of costs. 5. Though, served with notice yet the respondent no.2 did not appear in this court. 6. The petitioners have filed a copy of the judgment rendered by the learned III Additional Senior Civil Judge at Vadodara in Hindu Marriage Petition No. 27/2007.. the court has granted divorce deed under section 13-1(i-A) of the Hindu Marriage Act infavour of the petitioner no.1, by the said judgment dated 03.11.2007. It is pertinent to note that, the complaint proceedings were filed by the respondent no.2 on 29.12.2007, after the divorce decree. The petitioner no.1 made it clear in his reply to the application that though divorce petition is granted yet respondent no.2 has not preferred any appeal against the same. Thus, as on the date of filing of the application under the provisions of the Protection of Women from Domestic Violence Act,2005, the respondent no.2 was not woman in domestic relationship with the petitioners. The respondent no. 2 was not residing with petitioners since 25th November,2006. Obviously, during the relevant period of one year or before filing of the application under said act, there was no conjugal relationship between the 3 petitioner no.1 and respondent no.2. It is manifest that during the period of said one year the respondent no.2 had no occasion to suffer any kind of mal treatment at the hands of petitioners. There is no question of giving her protection when she is not residing with petitioners in the common house. She did not demand any separate residential accommodation in the common house of the petitioners. So far as her demand for maintenance allowance is concerned, separate proceedings are going on. Even as a divorced wife she may be entitled to recover maintenance allowance under section 125 of Cr.P.C. The prayer in the application filed by the respondent no.2 would show that except relief of protection and maintenance allowance no other relief is claimed. As stated before, there is no question of seeking protection by the respondent no.2 in as much as she does not reside with petitioners nor any domestic violence is reported during the period of about two years before filing of the said application. The application does not indicate that her case would fall within any of the sub-clauses of section 20(1),except subsection 1(a) of the Act. The respondent no.2 appears to have filed the said proceeding in addition to criminal complaint for the offense under section 498-A read with section 34 of I. P. Code and the maintenance proceedings under section 125 of the cr.P.c. 7. Considering the peculiar fact, situation of the present case, in view of absence of domestic relationship of the respondent no.2 as on the date of filing of the complaint/proceedings, I am of the opinion that the proceedings are not maintainable and have been filed with malafide intention to harass the husband and his relatives. The continuance of such proceeding would therefore amount to abuse of the process of law. Hence, the petition is 4 allowed. The proceedings initiated by respondent no.2 under the provisions of the Protection of Women From Domestic Violence Act, 2005 are quashed. Rule is made absolute accordingly. ( V.R.KINGAONKAR, J ) MTK/cri.W.P.259.09