Gauhati High Court
Page No.# 1/13 vs The State Of Assam And Anr on 7 April, 2025
Page No.# 1/13
GAHC010264542022
2025:GAU-AS:4265
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./601/2022
ABDUS SATTAR
S/O LATE RAHMAN ALI
R/O BEJORSUTI
P.S. BOKO
DIST. KAMRUP, ASSAM
CONTACT NO. 9859043615 (M)
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:HASINA PARBIN
W/O ABDUS SATTAR
D/O HANIF ALI
R/O BHALUKABARI
P.O. TOPAR PATHER
P.S. CHHAYGAON
DIST. KAMRUP
ASSAM
PIN-78112
Advocate for the Petitioner : MR A ALI
Advocate for the Respondent : PP, ASSAM, MR. D A KAIYUM (R-2) .
Page No.# 2/13 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 03.01.2025 Date of Judgment : 07.04.2025 JUDGMENT & ORDER (CAV) Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent No.1 and Mr. D. A. Kayum, learned counsel for the respondent No.2.
2. This application is filed under Section 401 of the Code of Criminal Procedure, 1973, read with Section 482 of the Cr. P.C., praying for quashing and/or suspending the impugned order dated 23.11.2022 passed by the learned Additional Sessions Judge, Kamrup, Amingaon in connection with Criminal Appeal Case No.07/2022, whereby, upholding the order dated 05.04.2022 passed by the learned Judicial Magistrate First Class No.II, Kamrup, Amingaon [in short 'learned JMFC '] in connection with D. V. Case No.07/2021, wherein, the petitioner was directed to pay an amount of Rs. 3,000/- per month to the respondent No.2.
3. The brief facts of the case is that, 3.1. The respondent No. 2 filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act of 2005") before the Court of learned Chief Judicial Magistrate, Kamrup at Amingaon, seeking various reliefs under the said Act. The case was registered as D.V Case No. 07/2021. It is contended by the petitioner that after the case Page No.# 3/13 was endorsed, it was transferred to the learned JMFC for adjudication. Accordingly, notice was served upon the petitioner and his family members. After receiving the notice, the petitioner appeared before the learned Trial Court and accordingly he submitted a written statement, in which he denied all the allegations made by respondent No. 2. He submitted an additional written statement, bringing attention to the Notices of Talaq dated 13.08.2020, 16.09.2020, and 20.10.2020, along with the postal receipt and delivery confirmation report, which were not submitted earlier due to inadvertence on the part of the engaged counsel.
3.2. The petitioner raised a preliminary objection regarding the maintainability of the proceeding, stating that the respondent No. 2 was no longer the petitioner's wife at the time of filing the application, as she had already been divorced according to Muslim Law. This divorce barred the petition from being entertained, as per the judgment passed by the Co-Ordinate Bench in Bismita Saikia @ Bismita Saikia Dutta vs. Pranjal Saikia and 3 Others, reported in (2018) 3 GLT 197.
3.3. Despite the irrevocable Talaq being effected, and the fact that respondent No. 2 did not challenge it despite being aware of the same, the petitioner's preliminary objection was dismissed by the learned JMFC. The learned Trial Court passed the impugned order on 05.04.2022, directing the petitioner to pay Rs. 3,000/- per month to respondent No. 2 as interim monthly maintenance, disregarding the fact that respondent No. 2 was not entitled to relief under the Act, as per the Bismita Saikia's case.
3.4. The petitioner, aggrieved by the impugned order dated 05.04.2022, appealed before the learned Additional Sessions Judge, Kamrup at Amingaon, seeking a stay on the order and asking for the entire proceeding arising from Page No.# 4/13 D.V Case No. 07/2021 to be set aside. The appeal was registered as Criminal Appeal No. 07/2022. The petitioner duly served notice upon respondent No. 2, who entered appearance and filed a written objection. Upon reviewing the written objection filed by respondent No. 2, the petitioner found certain statements contrary to the records and filed a reply. After the exchange of pleadings, the appeal was heard by the learned Appellate Court.
3.5. One of the grounds for challenging the order dated 05.04.2022 was that respondent No. 2 ceased to be the petitioner's wife at the time of filing the petition, due to the irrevocable divorce under Muslim Personal Law, which respondent No. 2 never objected to, despite full knowledge of it. Therefore, she was not entitled to relief under the Act of 2005, and the proceedings were not maintainable.
3.6. During the hearing, the petitioner also submitted that the alleged incidents of 04.03.2020, 16.09.2020, and 15.10.2020 could not have occurred because after the incident on 15.01.2020, respondent No. 2 had been at her parent's house, and the petitioner had never visited her there. Moreover, respondent No. 2 had never resided with the petitioner's family in Bejorsuti. The petitioner also pointed out that the incident reported in the Ejahar dated 19.08.2019 culminated in Chhaygaon P.S Case No. 874/2019 under Sections 120-B/143/312 of IPC, after respondent No. 2 miscarried a baby, she conceived out of a pre- marital illicit affair with one Halim Uddin. She confessed to this before a public panchayat on the same day, 19.08.2019.
3.7. The petitioner further stated that the Ejahar dated 15.01.2020 pertained to an incident where respondent No. 2 and her family members assaulted the petitioner at her parent's house, resulting in injuries. As a result, Chhaygaon PS Case No. 62/2020 was registered against respondent No. 2 and her family Page No.# 5/13 members under Section 120-B/342/307/324/325/506 of IPC. Respondent No. 2's elder brother and father were arrested by the police following the petitioner's Ejahar. He further added that the second Notice of Talaq, dated 16.09.2020, nullified the allegations made in the Ejahar dated 16.09.2020, as a husband who has sent a Talaq notice would not commit such an offence on the same day. Respondent No. 2 later filed several Ejahars against the petitioner and his family members with similar allegations, which were intended to harass them. The petitioner also referred to D.V Case No. 22/2021, where he alleged that he was subjected to domestic violence by respondent No. 2 and her family. Respondent No. 2 entered appearance but later remained absent, failing to dispute the allegations.
3.8. The petitioner emphasized that the fact that respondent No. 2 remained absent in D.V Case No. 22/2021 after entering appearance supports the petitioner's claims of domestic violence. This, in turn, undermines the allegations made by respondent No. 2 in D.V Case No. 07/2021, which required proper evidence before the impugned order of 05.04.2022 was passed. The petitioner also submitted before the learned Appellate Court that when respondent No. 2 filed the petition before the learned JMFC, she had already been divorced by the petitioner, which remained unchallenged. Therefore, the learned JMFC-II had no jurisdiction to pass the impugned order on 05.04.2022, as per the Bismita Saikia (supra) case, and the order warranted interference for being ultra vires. However, the learned Appellate Court dismissed the appeal by the impugned order dated 23.11.2022.
4. Being highly aggrieved and dissatisfied with the impugned order dated 23.11.2022 passed by the learned Additional Sessions Judge, Kamrup, Amingaon in connection with Criminal Appeal Case No.07/2022, whereby, Page No.# 6/13 upholding the order dated 05.04.2022 passed by the learned Judicial Magistrate First Class No.II, Kamrup, Amingaon in D. V. Case No.07/2021, the petitioner has preferred this revision petition praying for setting aside of the same.
5. Mr. Ali, learned counsel for the petitioner has submitted that the petitioner having no alternative is seeking relief from this Court on the grounds that the learned Appellate Court made grave errors in law and fact, as outlined below:
5.1. The learned Appellate Court failed to appreciate that the order of 05.04.2022 was ultra vires because the petitioner had already irrevocably divorced respondent No. 2, and therefore, she was no longer his wife or an "Aggrieved Person" under the Act of 2005.
5.2. The learned Appellate Court relied on assumptions and presumptions, failing to consider the facts and the law, especially in light of the Bismita Saikia (supra) case.
5.3. The learned Appellate Court did not consider the fact that no domestic violence had occurred after respondent No. 2 had already been divorced by the petitioner.
5.4. The learned Appellate Court's findings were contradictory to the provisions of Muslim Personal Law, and it failed to recognize that the alleged incidents could not have occurred after the divorce.
6. He further submits that both the learned Trial Court and the learned Appellate Court failed to consider the domestic violence inflicted upon him by respondent No. 2 and her family, particularly on 15.01.2020, when he was severely injured. As a result of these injuries, the petitioner became incapable of pursuing hard labour, as documented in D.V. Case No. 22/2021. Despite evidence presented to the courts, these facts were not taken into account when Page No.# 7/13 the impugned orders were passed. Therefore, he prays that the impugned order dated 23.11.2022, passed by the learned Additional Sessions Judge, Kamrup, Amingaon, in Crl. Appeal Case No. 07/2022, which upheld the order dated 05.04.2022 directing the petitioner to pay maintenance to respondent No. 2, be set aside, as they are illegal and unjust. He accordingly prays for appropriate relief.
7. In support of his submission, he relies on the decision passed by the Hon'ble Karnataka High Court in Crl.RP No.262/2015 dated 25.07.2023 [Lakshmamma vs. Rajegowda], and stressed mainly on paragraph 10 of the said judgment which read as under:
"10. On careful reading of the above provisions and the definitions assigned under the DV Act, it clarifies that, one who seeks the remedy under the D.V. Case must establish the "domestic relationship" and "shared household" against whom they sought for relief."
8. On the other hand, Mr. Kayum, learned counsel for the respondent No.2 has submitted that the respondent No.2 married the petitioner on 12.09.2017, as per Muslim rites, with a dowry of Rs. 1,00,000/- (Rupees one lakh) only. They lived together in a rented house and later in the petitioner's house. They have a son, Master Habibor Rahman Joy, born on 8.11.2019. Initially, the respondent No.2 lived peacefully with the petitioner for about a year, but after that, the petitioner started torturing her both physically and mentally and also demanded money. Despite this, she continued her married life. However, the petitioner insulted and ridiculed her and hid the fact that he was already a married person having children and wife from his first marriage. Eventually, the petitioner, along with his family, physically and mentally tortured the respondent No.2 and threw her and the child out of their home. The respondent No.2 now Page No.# 8/13 resides at her parents' house along with her minor child. Accordingly, she filed a case under Act of 2005, which was registered as D.V. Case No. 07/2021. The learned Trial Court, vide its order dated 05.04.2022, directed the petitioner to pay the interim maintenance of Rs. 3,000/- (Rupee three thousand) only per month for the respondent No.2 and her child, which the petitioner appealed. However, the learned Appellate Court dismissed the appeal on 23.11.2022, upholding the learned Trial Court's decision. The petitioner now filed a Crl. Rev. Petition, which is groundless and should be dismissed.
9. He further submits that the learned Appellate Court's decision is correct and does not contain any errors. The petitioner's cited case (Bismita Saikia Dutta vs. Pranjal Dutta) is irrelevant to this matter. He also submits that the respondent No.2 and petitioner lived together in a domestic relationship, satisfying the DV Act's definition of a domestic relationship. The petitioner's allegations against the respondent No.2 are false and baseless, as shown by previous Court decisions, including dismissals of cases filed by the petitioner. It is submitted that the respondent No.2 has no income and is facing financial hardship, struggling to support herself and her child, including the educational expenses. The petitioner has not paid any maintenance despite the Court's order. Thus at this stage, respondent No.2 prays the Court to direct the petitioner to pay the arrears with interest. He further submitted that the petitioner has attempted to use triple talaq (Talaq-e-Hassan) to escape responsibility, but the process is incomplete. The petitioner has not provided any proof of the respondent's No.2 acceptance of the divorce. Therefore, the claim of Talaq-e-Hassan is baseless and not legally valid and thus at this stage he prays for dismissal of the instant petition with costs.
10. In addition to his submission, he relies on the decision passed by the Page No.# 9/13 Hon'ble Supreme Court in Criminal Appeal No. 2069/2014 [arising out of SLP (Crl) No.8056/2013] dated 18.09.2014 [Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori] and relies on paragraph 21 of the said judgment which read as under:
"21. Chapter IV of the Domestic Violence Act, 2005 deals with "Procedure for obtaining the orders of reliefs". Section 12 relates to the application to Magistrate, which reads as follows:
"Section 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 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 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 Page No.# 10/13 under sub-section (1) within a period of sixty days from the date of its first hearing."
11. From the pleadings and the submissions made by the learned counsels for both sides, it is seen that there is no dispute regarding the marriage and the paternity of the child. The petitioner's primary contention is that the marriage between him and respondent No.2 was not in existence, and they were not in a marital relationship at the time of filing the D. V. Case No. 7/2021. The petitioner claims that, prior to the institution of the said D.V case, he issued notices of talaq on three consecutive occasions i.e. on 13.08.2020, 16.09.2020, and 20.10.2020. However, the delivery confirmation report and other relevant documents were inadvertently not submitted earlier before the learned Trial Court. Furthermore, the petitioner stated that a divorced woman cannot claim maintenance or other protections under the Act of 2005 when no marital relationship exists between the parties. In this regard, as mentioned above, the learned counsel for the petitioner has relied on the decision in Bismita Saikia (supra), wherein, in paragraph 10 of the said judgment, it has been held that "on an anxious consideration of the rival contentions made by both the parties to the instant petition, this Court is of the considered opinion that as the marriage between the petitioner/alleged aggrieved person and the respondent No.1 stood dissolved by a decree of divorce, the domestic relationship automatically came to an end. Therefore, in the instant case, as along before filing of the application under Section 12 of the D. V. Act, by the applicant/petitioner, on 18.11.2015, against the respondents, their marriage stood dissolved by a decree of divorce on 15.09.2014 and thereby, there domestic relationship got terminated, the application has become not maintainable in law". Further, it is an admitted position that the respondent was Page No.# 11/13 not residing with the petitioner at the time of filing the case under the Act of 2005, wherein she sought maintenance along with other reliefs.
12. On the other hand, the respondent claims that due to mental and physical torture inflicted upon her, she was compelled to leave the petitioner's house and take shelter at her parents' residence. Subsequently, she lodged a case under the Act of 2005, along with other criminal cases against the petitioner. The petitioner, however, contends that he attempted to invoke triple talaq (talaq-e- hasan) to escape from his responsibilities, but the process of talaq was never completed. He further submitted that she neither received nor accepted any divorce notice, which he claimed to have been sent to the respondent No.2. Therefore, he submits that the claim of talaq is baseless and not legally valid. During the course of arguments, the learned counsel for the respondent raised the point that, at the time of filing the D.V. case, both parties were sharing the same household and that their marital relationship still existed. As per Section 2(f) of the D.V. Act, a domestic relationship is defined as:
"A relationship between two persons who live or have, at any point in time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or as family members living together as a joint family."
13. Accordingly, the learned counsel for the respondent submitted that, prior to lodging the D.V. case, the respondent No.2 had been residing with the petitioner until January' 2021 and had shared the same household.
14. Thus, the primary issue to be determined is whether a marital relationship existed between the parties at the time of filing the case under Act of 2005, wherein the respondent No.2 sought maintenance and other reliefs. To substantiate the delivery of the talaq notices, the petitioner has annexed certain Page No.# 12/13 track consignment reports along with his petition. However, upon examining the track consignment reports, it is seen that the deliveries were confirmed on 21.04.2021 and 24.03.2021. It remains unclear whether these reports pertain to the talaq notices, as no postal receipt has been annexed to confirm their relevance. Furthermore, even if the track consignment reports are accepted as proof of talaq notices, the D.V. case proceeding was initiated in January' 2021 before the alleged acceptance of the talaq notices, as claimed by the petitioner. Additionally, there is no evidence to establish that the respondent No.2 was aware of the talaq notices at the time of filing the D.V. case or that she had accepted them in accordance with the legal requirements for triple talaq.
15. In the case of Bismita Saikia (supra), relied upon by the learned counsel for the petitioner, this Court observed that the process of talaq had been completed one year prior to the filing of the D.V. case, and at the time of filing, no marital relationship existed between the parties. However, the present case is distinguishable, as there is no conclusive proof of talaq prior to the institution of the complaint under the Act of 2005. Moreover, the respondent claims that all her documents, including her Aadhaar Card, list her address as Bejorsuti, where her matrimonial home is located. The learned Appellate Court also discussed the Hon'ble Supreme Court's decision in the case of Juveria Abdul Majid Patni (supra) case, wherein it was observed that:
"An act of domestic violence, once committed, cannot be nullified by a subsequent decree of divorce. Such a decree does not absolve the respondent from liability for the offence committed, nor does it deny the aggrieved person the benefits to which she is entitled under the Domestic Violence Act, 2005."
16. Furthermore, from the submissions of the learned counsels for both sides, it is evident that the respondent No.2 alleged domestic violence while residing Page No.# 13/13 with the petitioner and sharing the same household. She further claims that she was forced to take shelter at her parents' house after being driven out by the petitioner. In the same time the petitioner could not substantiate the plea that the notices of talak was received or accepted by the respondent No.2
17. In view of the above discussion, this Court is of the opinion that the learned Additional Sessions Judge, Kamrup, Amingaon, committed no error or mistake while passing the impugned order dated 23.11.2022 in Criminal Appeal Case No. 07/2022, thereby affirming the order dated 05.04.2022 passed by the learned JMFC No. II, Kamrup, in DV Case No. 07/2021, whereby, the petitioner was directed to pay a monthly maintenance of Rs. 3,000/- (Rupees three thousand only) to respondent No. 2 and her child. Accordingly, no interference is required, and the instant revision petition stands dismissed.
18. With above observation, this revision petition stands disposed of.
JUDGE Comparing Assistant