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
- Protection of Women from Domestic Violence Act, 2005 — s. 12, 18, 19, 20, 21, 22
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
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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.
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(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,
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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
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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.
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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
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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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