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Bombay High Court

MOMME KARL JAKOB LUSTIGversusTHE STATE OF GOA AND ANR

Disposal
Allowed

Holding

The court held that the DV proceeding is barred because the mutual‑consent divorce decree settled all claims and the parties no longer share a domestic relationship, rendering the petition an abuse of process.

Summary

The petitioner sought to quash a Domestic Violence proceeding filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which sought various reliefs including restraining orders, monetary compensation, and custody of their child. The parties had married in Denmark, obtained a mutual‑consent divorce decree in Austria on 29 May 2020, and the decree expressly settled all reciprocal claims, including child and spousal support, and required the respondent to withdraw any complaints after receiving a €3,000 compensation, which she had already received. The respondent later alleged economic and physical abuse and filed the DV complaint after the petitioner initiated execution proceedings for non‑payment of maintenance. The court examined whether a subsisting domestic relationship existed and whether the decree barred any further domestic‑violence claims, also considering the doctrine of estoppel and abuse of process. Relying on precedent that post‑divorce violence related to the marital period may be actionable but noting the parties’ settlement and waiver of claims, the court held that the DV proceeding was not maintainable. Consequently, the writ petition was allowed and the DV proceeding was dismissed as an abuse of process.

Issues considered

  • Whether a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is maintainable when the parties have obtained a mutual‑consent divorce decree that settles all claims.
  • Whether the respondent is estopped from raising domestic‑violence allegations after having accepted the terms of the divorce settlement.
  • Whether the reliefs claimed (custody, monetary compensation, rent) fall within the jurisdiction of a magistrate under the DV Act.
  • Whether the DV proceeding constitutes an abuse of process of law.

Legislation cited

Subjects

  • Domestic Violence Act
  • mutual consent divorce
  • estoppel
  • abuse of process
  • child custody
  • economic abuse
  • execution of foreign decree
  • jurisdiction

Judgment

2026:BHC-GOA:1922
                                                  (1)                        cwp-338-2026.odt



                              IN THE HIGH COURT OF BOMBAY AT GOA
                              CRIMINAL WRIT PETITION NO.338 OF 2026

                                 MOMME KARL JAKOB LUSTIG
                                             VERSUS
                                 THE STATE OF GOA AND ANR.
                                                  …
               Mr. Parul Vedak (through VC) with Ms. Natasha Kerkar, Advocates for
               Petitioner.
               Mr. S. G. Bhobe, Public Prosecutor for Respondent No.1/State.
               Mr. Aadarsh Kothari (through VC) with Ms. Rajlaxmi Bhatkar,
               Advocates for Respondent No.2.
                                                 …
                                         CORAM : S. G. CHAPALGAONKAR, J.
                                         DATED : 28th SEPTEMBER, 2026.
               FINAL ORDER:-

               1.          The petitioner seeks quashment of Domestic Violence Proceeding

               bearing No.28/DVA/2024/A/C pending before Judicial Magistrate First

               Class, ‘B’ Court, Mapusa filed by respondent against petitioner.


               2.          The respondent instituted DV proceeding under Section 12 of

               Protection of Women from Domestic Violence Act, 2005 (hereinafter

               referred to as ‘DV Act, 2005’) for various reliefs under Sections 18 to

               22, which are as under:

                    (i)      Order restraining petitioner from stalking her child or from

                             entering in her residence;

                    (ii)     Order restraining petitioner from interfering with her and

                             her child Koan repeating acts of domestic violence, from

                             having unchaperoned access to her child, and any kind of

                             access to her and family members, relatives, etc.
                                    (2)                       cwp-338-2026.odt



     (iii) Order directing petitioner to pay rent amount due in respect

              of residence of respondent and child;

     (iv)     Order directing petitioner to pay sum of Rs.1,50,000/- to

              respondent;

     (v)      Order directing petitioner to pay sum of Rs.6,00,127.10/-

              towards compensation for non-payment of maintenance in

              terms of order of Court at Salzburg Austria dated

              29.05.2020;

     (vi)     Order directing petitioner to pay compensation of Rs.2

              crores for mental and physical torture;

     (vii) Order directing maintaining custody of child with

              respondent and restraining petitioner from taking forcible

              custody.


3.          It is contention of respondent that she had married with petitioner

in Denmark, Europe. Out of matrimonial relationship, Master Koan is

born on 19.02.2015.            He is in custody of respondent.            During

matrimonial relationship, petitioner used to assault her, break things

around house, endanger child etc.. In month of July 2018 on account of

violent attack by petitioner, she was constrained to call police. On

29.05.2020, an agreement of consensual divorce was signed by her.

Eventually, decree dated 29.05.2020 was passed by Court at Salzburg,

Austria. An agreement governing consequences of divorce was signed,
                               (3)                        cwp-338-2026.odt



by which primary custody of child was given to her with access to

petitioner every other Saturday and during holidays. The petitioner was

put under obligation to pay sum of EUR 320 per month as child support

for minor Koan prior to 5th day of every month and further obligation to

pay sum of EUR 300 per month towards spousal support until son Koan

reached age of 10.


4.    Around December 2020 respondent moved to India which is her

place of origin as maintenance amount determined in terms of order

dated 29.05.2020 was insufficient to meet expenses in Europe. The

petitioner failed to pay amount as ordered by Austrian Court, but seeks

to exert his right qua child. He was never regular as far as his visitation,

particularly as per schedule fixed under order. The petitioner filed an

Execution Application before Principal District Judge at Panjim, Goa

alleging that respondent left Europe in clandestine manner without

giving information to petitioner altough petitioner himself remained

absent for birth days of child, falsely alleged respondent to have blocked

his access to child.


5.    In year 2021 child was put in Goa European School after having

consultation with petitioner. The petitioner had been visiting Goa and

temporarily residing in Goa and suddenly disappeared for period of

about 9 months and ceased all contacts with respondent and child. He

blocked maintenance.       Thereafter, he arrived in Goa and started
                              (4)                       cwp-338-2026.odt



harassing and threatening her. He used to change his addresses every

month. She obliged him, out of courtesy and on humanitarian grounds,

and permitted him to reside with her in shared household for brief

period, in year 2022.     However, there was no resumption of any

physical or mental relationship between her and petitioner during period

of such cohabitation. By end of year 2022, she refused to accommodate

petitioner any further. The petitioner threatened her that he would take

child to Europe and would not return. On 05.04.2024, while she was

waiting at school bus stop, petitioner arrived on scene and created big

ruckus by shouting and abusing in presence of minor and other people

waiting at bus stop. On 07.04.2024, she reported incident to police.


6.    In month of June 2024, she received notice of Application

No.57/2024 filed by petitioner seeking execution of decree passed by

Austrian Court. From June 2024 he completely stopped depositing

maintenance. He owes her 6638 Euros upto July 2024. The petitioner

likely to stop maintenance completely in year 2025 when child turns 10.

The cause of action to file complaint under DV Act, 2005 arose when

petitioner harassed, assaulted and humiliated respondent after marriage

and coerced her to sign Agreement of Consensual Divorce and defaulted

in paying maintenance as ordered by Austrian Court and then filed

Execution Proceeding 57/2024 before Principal District Judge, Panaji.
                              (5)                       cwp-338-2026.odt



7.    Ms. Parul Vedak, learned Advocate appearing for petitioner

would submit that parties residing separately since 2018 i.e. two years

prior to mutual consent divorce decree. On 29.05.2020, Austrian Court

passed decree for divorce by mutual consent, which includes agreement

governing consequences of divorce. In December 2020, respondent

shifted to India from Austria alongwith minor son and relocated hereself

to Goa since 2021. The petitioner filed Application No.57/2024 for

execution of decree. The present DV complaint is filed by way of

counter blast to Execution Proceeding. The respondent has accepted

consent decree, received all benefits. Under terms of decree, parties

have specifically agreed to withdraw all claims made against each other

including police reports. She has received maintenance until 2025 and

enjoyed benefits of consent terms without objection thereto, at the same

time raising allegations of coercive consent. She has never raised any

challenge to consent decree before Competent Court of law. Parties

continues to be governed by mutual consent decree passed by Austrian

Court. Eventually, there is no domestic relationship between parties.


8.    The allegations made in complaint pertains to incident prior to

mutual consent decree, wherein all such grievances were fully settled.

Parties have never been in domestic relationship for over 9 years, which

is necessary under DV Act, 2005. The respondent has no locus to file
                                (6)                      cwp-338-2026.odt



complaint for relief sought under DV Act, 2005. In support of her

contentions, she relies upon following judgments:

     1.    Reji Baby Vs. Subi Mary & Ors.1

     2.    Adil & Ors. Vs. State and Anr.2

     3.    Inderjit Singh Grewal Vs. State of Punjab & Anr.3

     4.    X Vs. Y4

     5.    D. Sudheer Vs. Anusha R. Nair5

     6.    Aditya Nigam & Anr. Vs. State (NCT of Delhi) & Anr.6


9.        Per contra, Mr. Aadarsh Kothari, learned Advocate appearing for

respondent no.2 would submit that respondent has suffered domestic

violence at the hands of petitioner in Austria as well as in Goa.

Therefore, she filed complaint application under Section 12 of DV Act,

2005 before Judicial Magistrate First Class at Goa. The petitioner with

intention to defeat custodial right of respondent with whom child has

been assimilated filed Execution Proceeding before District Court. The

petitioner and respondent shared domestic relationship not only in

Austria, but also in Goa. The various instances of domestic violence

have been specified in complaint even after divorce proceeding. By

inviting attention of this Court to definition of Domestic Violence,

particularly economic abuse, he submits that deprivation of all or any


1    2026 INSC 918.
2    2010:DHC:4656.
3    (2011) 12 SCC 588
4    2021 All.M.R.(Cri) 3402
5    2025 KER 1842.
6    2026 SCC OnLine Del 106
                                   (7)                    cwp-338-2026.odt



economic or financial resources to which aggrieved person is entitled

under any law or custom whether payable under order of Court or

otherwise would constitute Domestic Violence. He would submit that

petitioner indulged in economic abuse rendering cause of action to file

complaint under DV Act. In support of contentions, he relies following

judgments:

      1.     Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori7.

      2.     Krishna Bhattacharjee Vs. Sarathi Choudhury8.

      3.     Lalita Toppo Vs. State of Jharkhand and Another9.

      4.     Prabha Tyagi Vs. Kamlesh Devi10.

      5.     Aradhana Walkade Vs. Chandrashekar Vaidya & Anr.11.

      6.     Prabir Kumar Ghosh and others Vs. Jharna Ghosh and

             another12.

      7.     Puneet Rastogi Vs. State of U.P. Thru. Prin. Secy. Home

             Lko. And Antoher13.

      8.     Ramachandra Warrior Vs. Jayasree and Another14.

      9.     Vinay P. D. Vs. Conica Shambaya15.


10.        Having considered submissions advanced by learned Advocates

appearing for respective parties and on perusal of record tendered into

service, it can be observed that petitioner and respondent had married in
7    (2014) 10 SCC 736.
8    (2016) 2 SCC 705.
9    (2019) 13 SCC 796.
10   (2022) 8 SCC 90.
11   2014 SCC OnLine Bom 5326.
12   2015 SCC OnLine Cal 7149.
13   2026 LiveLaw (AB) 373.
14   2021 SCC OnLIne Ker 1444.
15   2020 SCC OnLine Kar 1577.
                              (8)                        cwp-338-2026.odt



year 2015.   Master Koan born on 15.02.2015 out of matrimonial

relationship. The matrimonial ties have been dissolved by decree of

divorce by mutual consent passed by Austrian Court on 29.05.2020. The

decree contains agreement governing consequences of divorce. The

relevant terms of agreement pertaining to share custody of minor son,

contact rights, child support payment and spousal support payment,

which reads thus:

        Agreement governing the consequences of the divorce
                           I. Parental custody
   Both parents have shared custody of their minor son, Koan
   Lustig Kelaiya, date of birth: 19 February 2015.
                         II. Primary Residence
   Koan Lustig Kelaiya's (dob 19 February 2015) primary
   residence will be with his mother who will also principally care
   for him.
                           III. Contact Right
   As at 30 May 2020, the child's father is entitled to pick up his
   son Koan from the mother's home every other Saturday at 10 am.
   and to bring him back to his mother on Sunday at 4 p.m.
   Furthermore, as of 2 June 2020, the father may pick up his son
   every Tuesday and Thursday around 2 p.m. from kindergarten
   and return him to his mother at 6.30 p.m.
   Holidays:
   First Petitioner may take his son Koan on a holiday for one week
   in August 2020. First Petitioner is generally entitled to see his
   son for 2 weeks during the summer holidays.
   Koan will spend the entire Christmas holidays 2020 with Second
   Petitioner in India. First Petitioner will be there at the same time
   and will be allowed to see Koan for 3 days during those 2 weeks.
   In 2021, Koan will spend the entire Christmas holidays 2021
   with First Petitioner, and Second Petitioner will be allowed to
   see him for 3 days.
                      IV. Child Support Payments
   First Petitioner, Momme Karl Jakob Lustig (dob 8 September
   1979) undertakes to pay a sum of EUR 320.00 per month as
   child support for the minor Koan Kelaiya (dob 19 February
   2015), payment to be made on pain of execution on or prior to
                         (9)                       cwp-338-2026.odt



the 5th day of a month, at the latest, to Second Petitioner Nidhi
Kelaiya, the child's mother.
It is noted that this child support agreement is based on a
monthly average net income of currently EUR 2,000.00 and on
the fact that Momme Karl Jakob Lustig does not have make
support payments for any other children.
                  V. Spousal Support Payments
First Petitioner undertakes vis-ã-vis Second Petitioner to pay a
sum of EUR 300.00 per month as of June 2020 as spousal
support (fixed support payments) until his son Koan has reached
the age of 10. An application of the change of circumstances
clause is ruled out.
Monme Karl Jakob Lustig (dob 8 September 1979) and Nidhi
Kelaiya (dob 9 September 1978) mutually waive any support
payments whatsoever, past and future, as of the date on which
their son Koan reaches the age of 10, in case of distress and
hardship through their own fault or no fault of their own,
changes in circumstances or changes in legislation.
Furthermore, they explicitly waive the application of the change-
of-circumstances clause and declare that they do not wish to
derive any entitlements to spousal support from any
responsibility for the divorce which was intentionally not
examined.
                     VI. Couple's Apartment
First Petitioner is the sole tenant of the former couple's
apartment at Hoglstrasse 11 Top 3 in 5020 Salzburg. The lease
will be terminated as of 31 August 2020, and Second Petitioner
and the couple's son Koan will live, and First Petitioner
explicitly and irrevocably agrees that they live, there until 15
August 2020, at the latest. First Petitioner undertakes to be
solely responsible for the monthly rental payments, including
ancillary costs, which amount to approximately EUR 1,300.00.
He explicitly waives any right to assert any claims whatsoever
from the lease or the actual use of the apartment by Second
Petitioner. Second Petitioner undertakes to vacate and hand over
the apartment to First Petitioner, free and clear of any chattel,
until 15 August 2020 at the latest.
                        IX. Compensation
First Petitioner undertakes to pay a compensation of EUR
3,000,00, payment to be made on pain of execution within 14
days of the date on which this order has become final to Second
Petitioner’s lawyer, Dr. Christian Schubert (account number
IBAN AT84 4501 0000 0320 7271).
                       X. General Clause
                               (10)                      cwp-338-2026.odt



      This settlement resolves and settles all reciprocal claims
      whatsoever, including but not limited to the claims in the
      proceedings 43 C 13/20 w pending before Bezirksgericht
      Salzburg (District Court Salzburg) (Plaintiff: Second Petitioner,
      Defendant: First Petitioner). Second Petitioner undertakes to
      withdraw the complaint and to waive any claims thereunder
      after compliance with the provisions of Section IX. of this
      Agreement.


11.     Plain reading of aforesaid terms depicts that both parents have

agreed for shared custody of their minor son keeping primary residence

with mother.     The petitioner was given right to pick up son from

mothers’ home every other Saturday at 10.00 am till Sunday at 4.00 pm

and during summer holidays he was given right to see his son for two

weeks. The visitation rights were given during Christmas holidays. The

petitioner was under obligation to pay sum of 320 euros per month as

child support by 5th day of every month to respondent. The petitioner

was to pay spousal support payment of 300 euros per month until son

Koan reached age of 10. From date on which son Koan reaches age of

10 years, respondent mutually waived support payment, so also

explicitly waive application of change of circumstances clause and

declared that they do not wish to derive any entitlements to spousal

support from any responsibility for divorce. The petitioner had agreed

to pay compensation of EUR 3000. The general clause specifically

states that settlement resolves and settles all reciprocal claims. The

respondent agreed to withdraw complaint and waive claims thereunder

after receiving compensation of EUR 3000.
                              (11)                      cwp-338-2026.odt



12.   The prayer clause in present complaint would suggest that

respondent raised her claim under DV Act based on aforesaid agreement

while accepting divorce by mutual consent, it can be observed that most

of part of complaint relates to incidents prior to passing of decree by

mutual consent. Rest of claims are relating to either default in payment

of maintenance or regarding dispute over custody of child between

petitioner and respondent. In case of Prabha Tyagi (supra), Supreme

Court in paragraph no.59.2(ii) and (iv) observed as under:

       “(ii) In event of a divorce, marriage would be no longer
       be subsisting, but if a woman (wife) is subjected to any
       domestic violence either during marriage or even
       subsequent to divorce decree being passed but relatable to
       period of domestic relationship, provisions of this D.V. Act
       would come to rescue of such divorced woman.
       (iv) Therefore, even when the marital ties cease and
       there is no subsisting domestic relationship between
       aggrieved woman and respondent against whom relief is
       claimed but acts of domestic violence are related to period
       of domestic relationship, even in such circumstances,
       aggrieved woman who was subjected to domestic violence
       has remedies under the D.V. Act.”

13.   In present case looking to averments in complaint and prayers

incorporated therein suggests that respondent is not seeking relief based

on any incident that occurred during subsistence of marriage with

petitioner. The consensus agreement recorded at the time of divorce

decree clearly suggests that respondent has waived off and settled all

reciprocal claims and gave specific undertaking to withdraw complaints

after receiving compensation of EUR 3000, which she has already

received. In that view of matter, respondent is estopped from raising
                              (12)                      cwp-338-2026.odt



any claim based on allegations of domestic violence during subsistence

of her marriage. Pertinently, from 29.05.2020 i.e. date of divorce no

complaint regarding domestic violence was made till filing of present

complaint in hand in year 2024 and particularly it has been filed on

service of notice of execution of divorce decree at the instance of

petitioner.


14.   Pertinently, there is sufficient material to demonstrate that

respondent had received all benefits under decree, without any demur,

till date of filing of complaint and claiming various reliefs by alleging

incidents of domestic violence, despite fact that domestic relationship

between parties had been severed by mutual consent through divorce.

The petitioner cannot invoke jurisdiction of Magistrate under DV Act,

2005 for execution of claims under decree. Pertinently, respondent had

right to receive spousal support till Master Koan reaches age of 10

years. Prima facie, it can be observed that she has already received

amount as per her entitlement. Of course, in case of any default it

would be open for her to seek execution of decree. However, in any

case, proceeding under DV Act, 2005 cannot be permitted to be utilized

to coerce divorced husband to bow down and fulfill demands which

does not emerge from acts of domestic violence.


15.   In present case, prayers in complaint clearly demonstrates that

petitioner is seeking reliefs in relation to custody of child, which are
                                 (13)                       cwp-338-2026.odt



inconsistent to the agreed terms under consensual decree. Apart from

that, she is seeking recovery of amount spent by her towards rent for her

stay in State of Goa, for which there is no basis.           The claim for

compensation of Rs.2 crores for mental and physical torture due to non-

payment of maintenance in terms of divorce order etc. would be beyond

jurisdiction of Magistrate under DV Act, 2005. In that view of matter,

apparently complaint appears to be counter blast to Execution

Proceeding instituted by petitioner husband and in no way reliefs

claimed in complaint would fall within meaning of Domestic Violence

particularly in absence of subsisting domestic relationship between

parties. In result continuation of proceeding in complaint would amount

to abuse of process of law.


16.      In result, Writ Petition is allowed in terms of prayer Clause (A).



                                           (S. G. CHAPALGAONKAR)
                                                    JUDGE
Devendra/September-2026


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