Gauhati High Court
Ketab Ali vs The State Of Assam And Anr on 10 December, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/4
GAHC010197102021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./717/2021
KETAB ALI
S/O LATE NUR HUSSAIN MUNSI
R/O NAYARALGA PART-II,
P.O. NAYARALGA, P.S. BILASIPARA
DIST. DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:ABEDA PARBIN
D/O LATE AKHTAR HUSSAIN
R/O BOYZERALGA PART-III
P.O. NAYARALGA
P.S. BILASIPARA
DIST.DHUBRI
ASSAM
PIN-78334
Advocate for the Petitioner : MR. N AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
10.12.2021 Heard Mr N J Dutta, learned counsel for the petitioner.
Page No.# 2/4 The State is a formal party.
The learned counsel for the petitioner has contended that two simultaneous proceedings are pending before the learned trial Court between the parties, i.e., the petitioner and respondent No. 2, one is pertaining to maintenance under Section 125 CrPC, vide MR(Misc) Case No. 53/2019 and another is CR(DV) Case No. 252/2017, pending before the learned JMFC, Bilasipara. It is submitted that the maintenance case was passed ex-parte against the petitioner, vide order dated 17.08.2019. Thereafter, on being challenged by the petitioner's side vide Criminal Revision No. 14/2019, before the learned Additional District and Sessions Judge, Bilasipara, the said order was set aside and the matter was remanded for fresh disposal. Apart from maintenance case, the respondent No. 2 has also filed the aforesaid DV Case before the learned trial Court, which is now at the stage of evidence.
Now, the petitioner has come forward with the present petition under Section 482 CrPC, praying for quashing of the proceeding under DV Act. Referring to the evidence given by the respondent No. 2, that she has admitted about divorce by the present petitioner and hence, the DV Case cannot proceed against him.
Referring to a decision of the Patna High Court, rendered in Santosh Kumar -Vs- State of Bihar & Anr., dated 06.10.2017, it has been submitted that as the respondent/wife has already been divorced, she is no more in the domestic relationship with the present petitioner in terms of Section 2 (a) of the DV Act, as the expression that has been given under Section 2(a) of the DV Act, indicates the woman having the present status of wife and/or the woman, who is or has been in a domestic relationship only claim relief under the Act; and a divorced wife living separately cannot claim maintenance.
Thus, primarily, on the basis of the evidence by the respondent/wife, the petitioner intends to challenge the aforesaid proceeding pending before the Court that further proceeding of the same is bad in law and it is nothing but the abuse of the process of Page No.# 3/4 law.
I have gone through the documents that have been annexed and the evidence of the respondent/wife, that has already been recorded in the DV Case, vide Annexure-2.
On due perusal of the materials on record, it appears that both the proceedings are still pending before the appropriate Court and the evidence of the respondent/wife was recorded on 11.05.2018, and in her cross-examination, she has stated that the marriage between them was solemnized about 7 years ago and they continued their conjugal life for 4 (four) years. That apart, she has also admitted that the present petitioner has divorced her, but no any specific date and year has been mentioned regarding the divorce. It is also noted that the respondent/wife, in her cross-examination, has stated that in the month of February, 2017, she returned from her husband's house, but no any specific date as regards divorce has been mentioned.
On due consideration of the matter, although the respondent/wife has stated about her divorce and also that she is living separately since 2017, but nothing specific has been made out to find out the actual status of the respondent/wife as a divorcee.
This Court is of the view that appreciation of the evidence is always a matter of trial Court, on the basis of the pleadings and the evidence adduced before the Court. This Court on a petition under Section 482 CrPC cannot appreciate the evidence and decide disputed facts. On the other hand, the petitioner is in a position to raise the issue before the learned trial Court in due manner by adducing proper evidence from their side as well as advancing arguments on the factual aspect as well as, the law point that has been indicated that the divorced wife is not entitled to any relief under the Act.
Persuaded by what has been discussed above, this Court is of the opinion that the petitioner should move the matter before the learned trial Court by way of filing applications, at an appropriate stage and the learned trial Court will consider and dispose of the same in accordance with law.
Page No.# 4/4 Accordingly, the criminal petition stands disposed of.
JUDGE Comparing Assistant