Gauhati High Court
Gulzar Hussain Bhuyan And 2 Ors vs Rekiba Ahmed on 22 May, 2020
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010190232019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 328/2019
1:GULZAR HUSSAIN BHUYAN AND 2 ORS.
S/O SADIKULLA BHUYAN, R/O JAMUNAMUKH TOWN, HOUSE NO. 89, P.S.
AND P.O.-JAMUNAMUKH, DIST-HOJAI, ASSAM, PIN-782428
2: SADIKULLAH BHUYAN
S/O LATE ALI ARJAN BHUYAN
R/O JAMUNAMUKH TOWN
HOUSE NO. 89
P.S. AND P.O.-JAMUNAMUKH
DIST-HOJAI
ASSAM
PIN-782428
3: FATEMA BEGUM
W/O SADIKULLAH BHUYAN
R/O JAMUNAMUKH TOWN
HOUSE NO. 89
P.S. AND P.O.-JAMUNAMUKH
DIST-HOJAI
ASSAM
PIN-78242
VERSUS
1:REKIBA AHMED
W/O GULZAR HUSSAIN BHUYAN, D/O RAFIK ALI, R/O SIX MILE,
PANJABARI ROAD, DARANDA, HOUSE NO. 125, P.O.-KHANAPARA, P.S.-
DISPUR, DIST-KAMRUP(M), ASSAM, PIN-781022
Advocate for the Petitioner : MD. M H CHOUDHURY
Advocate for the Respondent : MR. J A AHMED
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 22-05-2020 Heard the learned counsel Mr. M.H. Choudhury appearing for the petitioners. Also heard the learned counsel Mr. J.A. Ahmed appearing for the sole respondent.
2. By filing the present petition under Section 397/401 and under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the order dated 10.05.2019 passed by the Judicial Magistrate, Kamrup in Misc. (DV) Case No. 09 n of 2019 and the order dated 17.07.2019 passed by the Sessions Judge, Kamrup (M), Guwahati in Criminal Appeal No. 113/2019.
3. The petitioner herein is the husband of the respondent. They developed matrimonial disputes for which the respondent filed two cases against the petitioner at Hojai. Thereafter the respondent came to Guwahati and the petitioner also went to Mumbai for cardiac problems of his father. The petitioner went to Mumbai along with his father and his mother.
4. The petitioner has stated that his house was under lock and key and at that time the respondent filed the petition before the Court of Judicial Magistrate, 1 st Class seeking maintenance. The order dated 02.03.2019 passed by the Magistrate discloses that the petitioner could not be found in his house as because he had gone out of the station. But the Magistrate held that the notice was served upon the petitioner and proceeded ex parte.
5. Thereafter on 10.05.2019 the Court of the Magistrate at Guwahati passed an order directing the petitioner to pay a certain amount of money to the petitioner as interim maintenance.
6. On being aggrieved by the aforesaid order the petitioner filed an appeal before the Sessions Judge, Kamrup (M), Guwahati. By the impugned order dated 17.07.2019 the Sessions Judge directed the petitioner to pay the maintenance on the ground that the petitioner did not take the plea that the respondent is not his wife. The Sessions Judge fixed a particular date for payment of the interim maintenance and kept the appeal pending. It was directed by the Sessions Judge that if on the aforesaid fixed date the petitioner failed to pay the maintenance, then the appeal would be dismissed.
7. On being aggrieved by the aforesaid two orders the present petition has been filed.
8. The relevant provision of law on the point is Section 12 of the Protection of Maintenance from Domestic Violence Act, 2005. Section 12 reads as under:
12. Application to Magistrate.--
Page No.# 3/5 (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after s uch set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
9. A brief visit to Section 13 of the aforesaid Act of 2005 would be fruitful. Section 13 reads as under:
13. Service of notice.--
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.
10. The mode of service of notice is given in Rule 12 of the Protection of Women from Domestic Violence Rules, 2006. Rule 12 reads as under:
12. Means of service of notices.--
(1) The notices for appearance in respect of the proceedings under the Act shall contain the names of the person alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of person concerned.
(2) The service of notices shall be made in the following manner, namely:--
(a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the Protection Officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the Page No.# 4/5 respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be.
(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises.
(c) For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted.
(d) Any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908 (5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.
(3) On a statement on the date fixed for appearance of the respondent, or a report of the person authorised to serve the notices under the Act, that service has been effected appropriate orders shall be passed by the court on any pending application for interim relief, after hearing the complainant or the respondent, or both. (4) When a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered as waiving the restraint imposed on the respondent, by the order of the court, unless such protection order is duly modified in accordance with the provisions of sub-
section (2) of
11. Why a notice is required to be issued to a party when another party files a case against him/her. Audi alterem partem is a Latin phrase and it means "listen to the other side". This is the principle of natural justice. The rules of natural justice say that no one may judge without giving a fair hearing. In fact the other party is entitled to a right of being heard. That is why notice is required to be served. Rule 12 of the aforesaid Rules of 2006 speaks about adoption of the procedure under Order 5 of the Code of Civil Procedure etc. But the Civil Procedure Code also puts emphasise on service of notice.
12. In my considered opinion the order dated 02.03.2019 passed by the Judicial Magistrate, Kamrup in Misc.(DV) Case No. 09 n of 2019 is absolutely bad in law. Therefore, the impugned order dated 10.05.2019 is also bad in law.
13. So far as the order dated 17.07.2019 passed by the Sessions Judge in Criminal Appeal No. 113/2019 is concerned, this order is prima facie bad in law. Section 29 of the Act of 2005 states that there shall lie an appeal to the Court of Sessions Judge from the orders made by the Magistrate. The Appellate Court has the duty to see that the lower Court had passed the order in accordance with the procedure of law. Here the order dated 17.07.2019 shows that the Appellate Court acted as the Court of execution of the order passed by a Court subordinate to it.
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14. Under aforesaid circumstances the impugned order dated 10.05.2019 passed by the Judicial Magistrate, 1st Class in Misc.(DV) Case No. 09n of 2019 and the order dated 17.07.2019 passed by the Sessions Judge in Criminal Appeal No. 113 of 2019 are not sustainable in law. Both the orders are set aside.
15. The petitioner is allowed to contest the Misc.(DV) Case No. 09 n of 2019. It is further directed that after giving due opportunity of being heard to the present petitioner, the Judicial Magistrate, 1st Class in Misc.(DV) Case N. 09 n of 2019 shall pass a judgment in accordance with the provisions of law.
16. The present petition stands disposed of, accordingly.
JUDGE Comparing Assistant