Gauhati High Court
Nur Mohammad Ali vs Rashida Begum on 12 September, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010162732022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./905/2022
NUR MOHAMMAD ALI
SON OF CHANBAR ALI
VILL- FUTURI, ROUMARI
P.S. AND P.O. CHAYGAON
DIST. KAMRUP, ASSAM
VERSUS
RASHIDA BEGUM
D/O RIYAJ ALI
VILL- SATRAPARA, P.S. PALASHBARI
DIST. KAMRUP, ASSAM
PIN-781128
Advocate for the Petitioner : MR. N H MAZARBHUIYAN
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 12.09.2022 Heard Ms. L. Wazeeda, learned counsel for the petitioner.
2. The respondent herein is the complainant no. 1 in a complaint Page No.# 2/8 case filed under section 12 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as the "DV Act" for short), which is registered and numbered as D.V. Case No. 77/2019. The minor daughter of the petitioner and respondent has been arrayed as the complainant no. 2 in the said case. The said case is pending for disposal before the Court of the learned Judicial Magistrate First Class, Kamrup at Amingaon. The petitioner herein is arrayed as the opposite party no. 1 (accused) in the said case. The learned trial Court, by an order dated 11.09.2019, as an interim measure, ordered the petitioner to pay an amount of Rs.4,000/- per month to the aggrieved from the date of the order.
3. The said order was challenged by the petitioner by filing an appeal under section 29 of the DV Act. The learned Addl. Sessions Judge, by its judgment and order dated 10.01.2022, passed in Crl. Appeal No. 31/2019, had dismissed the said appeal and affirmed the order of maintenance passed by the learned trial Court.
4. By filing this petition under section 482 Cr.P.C., the petitioner has prayed for quashing of (i) the said order dated 11.09.2019, passed by the learned Judicial Magistrate, First Class, Kamrup, Amingaon, as well as (ii) judgment and order dated 10.01.2022, passed by the learned Addl. Sessions Judge, Kamrup, Amingaon in Crl. Appeal No. 31/2019.
5. The learned counsel for the petitioner has submitted that the petitioner and the respondent had entered into an agreement for dissolution of marriage and thereby the liability of the petitioner was only to the extent of Rs.5,000/- as mohar (dower money) and it was agreed that apart from the dower money, no maintenance was required to be paid by the petitioner. By Page No.# 3/8 referring to the medical documents of the father of the petitioner, it was submitted that he is 75 years of age and is suffering from kidney disease and required urgent surgery and that as the petitioner is a day labourer, he did not have adequate income to meet his own daily needs and medical needs of his father and therefore, was not in a position to pay maintenance to the respondent. It was submitted that the financial condition of the petitioner and the agreement was not properly considered by both the learned Courts below. It is also submitted that the learned trial Court had issued distress warrant, which was also liable to be stayed.
6. Having heard the learned counsel for the petitioner, the Court has carefully examined the present petition as well as documents appended thereto.
7. At the outset, this petition is not maintainable because of the fact that in the proceeding of DV Case No. 77/2019, there are two aggrieved persons, i.e. the respondent and the minor daughter of the petitioner and the respondent. By the impugned order, the learned trial Court had directed the petitioner to pay an amount of Rs.4,000/- (Rupees Four thousand only) to the aggrieved from the date of the order till disposal of the case. The learned trial Court had not apportioned compensation amount between the respondent and her minor daughter and therefore, the maintenance amount appears to be consolidated. In the proceeding of Crl. Appeal No. 31/2019, the minor daughter was not arrayed as a respondent and even in this criminal petition, the minor daughter of the parties has not been arrayed as a party respondent. Therefore, on the principle that one cannot be condemned unheard, the present criminal petition is not maintainable as one of the two beneficiary of impugned order Page No.# 4/8 dated 11.09.2019 in DV Case No. 77/2019 has not been made respondent in this petition.
8. Nonetheless, the points urged by the learned counsel for the petitioner has been examined.
9. The other point raised by the petitioner is that his father is ill and requires medical attention. The same cannot be a ground to permit the respondent to remain as a destitute with the burden of a minor daughter as well. Therefore, the illness of the father of the petitioner is not the only relevant factor which is required to be considered by ignoring the requirement of the respondent and her daughter to be maintained by the petitioner. Therefore, this point is devoid of any merit at this stage, when the Courts below have directed the petitioner to pay interim maintenance of Rs.4,000/- to both aggrieved persons.
10. The last point argued by the learned counsel for the petitioner was that there was an agreement between the petitioner and the respondent for dissolution of marriage, which had limited the liability of the petitioner to the extent of dower amount of Rs.5,000/- (Rupees five thousand) with no further liability to maintain the aggrieved persons. This point is also devoid of any merit. The said agreement has not been signed by the minor daughter of the parties in the first place and moreover, the said agreement cannot be construed as if it was for the benefit of the said minor daughter. Moreover, the legal liability awarded and/or awarded under the DV Act would override the agreement between the parties, because the benefit to which the aggrieved is entitled to under the provisions of DV Act cannot be taken away, whittled away and/or diluted by any agreement between the parties. It is seen that the Page No.# 5/8 provisions of section 20 of the DV Act confers right of the aggrieved women to monetary reliefs. Moreover, the provisions of section 26 makes it abundantly clear that the claim to relief under the DV Act is in addition to and not in derogation of any law for the time being in force, and it is only provided that if any relief has been obtained by the aggrieved person in any other proceeding, such person is bound to inform the Magistrate of the grant of such relief. Therefore, the Court is constrained to hold that in this case in hand, the entitlement of the respondent under the agreement would have to be construed to and not in derogation of the provisions of the DV Act.
11. In the said regard, it would be relevant to quote the provisions of section 12 of the DV Act, which is as under:-
12. Application to Magistrate.- (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 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 such 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 Page No.# 6/8 subsection (1) within a period of sixty days from the date of its first hearing.
12. Thus, the petitioner has not been able to demonstrate that the learned trial Court had no jurisdiction and/or authority to pass the impugned order dated 11.09.2019. It could not be shown that the impugned order was in violation of the provisions of section 12 of the DV Act. The learned counsel for the petitioner has not been able to refer to any case citation to support her submissions. Therefore, not only the impugned order dated 11.09.2019, passed by the learned trial Court, but the appellate judgment dated 10.01.2022, both do not warrant any interference by this Court in exercise of power under section 482 Cr.P.C.
13. Thus, the points urged by the learned counsel for the petitioner are found to be devoid of any merit. Therefore, the submissions made by the learned counsel for the petitioner deserves to be and are hereby rejected. It is held that the learned Court of Judicial Magistrate First Class, Kamrup, Amingaon, has the jurisdiction, power and authority to adjudicate the complaint filed by both the aggrieved persons including the respondent under section 12 of the DV Act. Thus, the learned counsel for the petitioners has not been able to successfully demonstrate that the impugned judgment and order dated 10.01.2022, passed by the learned Addl. Sessions Judge, Kamrup, Amingaon in Crl. Appeal No. 31/2019 is bad and/or not sustainable in law or on facts.
14. Accordingly, as the provisions of section 20 of the DV Act confer a right of the aggrieved person to monetary reliefs, the learned counsel for the petitioner has not been able to show why no case has been made out by the respondent under the provisions of DV Act. Thus, in the absence of any adverse material on record, the Court is inclined to hold that under the facts of this case, Page No.# 7/8 the complaint made by the aggrieved party under section 12 of the DV Act was maintainable and that the impugned orders do not warrant any interference by the Court. The proceeding cannot be said to be an abuse of the process of law.
15. Before parting with the records, it may be mentioned that in the case of Prabha Tyagi v. Kamlesh Devi, 2022 SCC OnLine SC 607, the Supreme Court of India in para 65 thereof had held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the DV Act and it was also clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the DV Act. Earlier on point of time, the coordinate Bench of this Court in the case of (i) Monjit Talukdar v. Rita Talukdar & Anr., Crl. Rev.P 86/2020, decided on 10.12.2021: (ii) Nilakanta Malakar @ Santo & 4 others v. The State of Assam & Anr., Crl.Pet.483/2020, decided on 25.04.2022 , had also held to the effect that it was not mandatory for the Magistrate to call for Domestic Incident Report before passing any order under DV Act and moreover, it was further held that the receipt of Domestic Incident Report was not a pre-requisite for issuing a notice to the respondent.
16. From the discussions above, the said proceeding is not found to be barred by any law for the time being in force. The case cannot be said to be abuse of the process of Court. The existence of agreement for dissolution of marriage would not deter the learned trial Court having jurisdiction to try the complaint filed under section 12 of the DV Act.
17. Thus, all the submissions made by the learned counsel for the petitioner are repelled. Hence, the impugned order and judgment passed by Page No.# 8/8 both the learned Courts below do not warrant any interference. Resultantly, this criminal petition is dismissed in the "motion" stage without issuance of notice on the respondent.
18. The Registry shall transmit a copy of this order to the Court of learned Addl. Sessions Judge, Kamrup, Amingaon and to the Court of learned Judicial Magistrate, First Class, Kamrup, Amingaon so as to make it a part of the record of Crl. Appeal No. 31/2019 and DV Case No. 77/2019 respectively.
JUDGE Comparing Assistant