Gauhati High Court
Page No.# 1/ vs Musstt Sufia Khatun And Anr on 3 June, 2025
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GAHC010286702023
2025:GAU-AS:7166
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./554/2023
MD NURUL ISLAM
S/O LATE EUSUF ALI
R/O TINSUKIA
PS. JURIA
DIST. NAGAON, ASSAM
PIN-782124
VERSUS
MUSSTT SUFIA KHATUN AND ANR
D/O MD. ASIRUDDIN
R/O VILL SINGIAGAON
P.O. AND P.S. JURIA
DIST. NAGAON, ASSAM
PIN-782124
2:THE STATE OF ASSAM
REP. BY THE LEARNED PP
ASSA
Advocate for the Petitioner : S AHMED, MS. R DEVI,MR M RAHMAN,MS A HUSSAIN
Advocate for the Respondent : PP, ASSAM, A W AMAN (R-1),MR. SURAJIT DAS (R-1),MR.
SARFRAZ NAWAZ(R-1),SAMIM RAHMAN (R-1) Page No.# 2/11 :::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 29.04.2025 Date of Judgment & Order : 03.06.2025 JUDGMENT & ORDER (CAV) Heard Mr. Darakullah, learned counsel for the petitioner. Also heard Mr. S. Nawaz, learned counsel for the respondent No. 1 and Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent No. 2.
2. This is an application under Sections 397/401 of the code of Criminal Procedure, 1973, against the impugned judgment and order dated 16.10.2023 passed by the learned Additional Session Judge No. 2, Nagaon in Criminal Appeal No. 42/2023 in connection with DV Case No. 609/2018 under Section 29 of the Protection of Women from Domestic Violence Act, 2005 whereby, the appeal was admitted for hearing subject to payment of 50% of the maintenance amount to the aggrieved till disposal of the appeal.
3. The case of the petitioner, in brief is that, the respondent No. 1 and the petitioner are husband and wife, having married in the year 2016 under Mohammaden Law. However, allegations were made against the present petitioner, stating that the respondent No. 1 was subjected to physical and mental torture by the petitioner and other family members in various ways. Accordingly, the respondent No. 1 filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and the learned JMFC, Nagaon, took cognizance of the said petition and issued processed accordingly.
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4. On receipt of the process, the petitioner appeared before the learned Court below, filed his written objection, and after hearing both sides, the learned JMFC passed an order dated 15.09.2023, whereby, Rs. 5000/- (Rupees Five thousand) was granted towards monthly maintenance for the respondent No. 1 and directed the petitioner to pay compensation of Rs. 40,000/- (Rupees Forty thousand) to the aggrieved/respondent No. 1.
5. On being aggrieved and dissatisfied with the order of the learned trial Court below dated 15.09.2023, the present petitioner preferred an appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 for setting aside the aforesaid judgment and order by the learned Court below.
6. The learned Appellate Court i.e., the learned Additional Session Judge No. 2, Nagaon had accordingly admitted the appeal subject to payment of 50% of monthly maintenance to the aggrieved/respondent No. 1 till disposal of the appeal without giving any due consideration to the contention of the petitioner.
7. The petitioner, being highly aggrieved and dissatisfied with the impugned order dated 16.10.2023 passed by the learned Additional Session Judge No. 2, has preferred the present petition.
8. Mr. Darakullah, learned counsel for the petitioner, submitted that the payment of Rs. 5000/- (Rupees Five thousand) as maintenance and Rs. 40,000/- (Rupees Forty thousand) as compensation was fixed based on unsubstantiated assertions by respondent No. 1, without considering the petitioner's source of income. Furthermore, the learned trial Court below also failed to consider that respondent No. 1 as PW-1, had deposed before the Court that she was previously married to one, namely, Sirajuddin of Rangaloo, prior to her marriage with the present appellant, and had lived with him as husband and Page No.# 4/11 wife for about 14 years. Moreover, she had neither obtained a decree of divorce nor applied for divorce before any competent Court or Kazi office from her ex- husband prior to solemnization of marriage with the petitioner which already means that her earlier marriage is still subsists.
9. He further submitted that as per Mohammaden Law or any other law, a woman cannot marry another person during subsistence of earlier marriage, and the subsequent marriage is considered to be void. Further the admission of marriage of the respondent No. 1 is subsequently corroborated by PW-2, who is the sister of the respondent No. 1 and thus, the Domestic Violence Act shall not come into play in these circumstances and therefore, respondent No. 1 is not entitled to any kind of relief under this act. He further submitted that the order of the learned Appellate Court dated 16.10.2023, arising out of DV Case No. 609/2018 is liable to be set aside and quashed.
10. Mr. Darakullah, learned counsel for the petitioner, further relied on the decision of the Hon'ble Supreme Court reported in (1991) SCC 2 375 (K. Vimal vs. K. Veeraswamy) to substantiate his plea, wherein, it has been held that "Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term wife in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term wife consistent Page No.# 5/11 with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, CrPC, for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant. We are, therefore, unable to agree that the appellant is not entitled to maintenance".
11. Accordingly, he submitted that it is a fit case for setting aside the order passed by the learned Appellate Court, which directed the present petitioner to pay 50% of maintenance amount as fixed by the learned Court below.
12. Mr. S. Nawaz, learned counsel for the respondent No. 1, submitted in this regard that the order passed by the learned Appellate Court is completely an interlocutory order and hence, by applying provision of Sections 397/401 of the Cr.P.C. cannot be interfered with. To substantiate his plea, Mr. Nawaz has also relied on the decision of Hon'ble Supreme Court reported in (2017) 14 SCC 809 and basically emphasized on paragraph Nos. 16, 17 and 18, which is held as under:
"16. There are three categories of orders that a court can pass - final, intermediate and interlocutory. There is no doubt that in respect of a final order, Page No.# 6/11 a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
17. The concept of an intermediate order first found mention in Amar Nath v. State of Haryana, (1977) 4 SCC 137 in which case the interpretation and impact of Section 397(2) of the Cr.P.C. came up for consideration. This decision is important for two reasons. Firstly, it gives the historical reason for the enactment of Section 397(2) of the Cr.P.C. and secondly considering that historical background, it gives a justification for a restrictive meaning to Section 482 of the Cr.P.C.
18. As far as the historical background is concerned, it was pointed out that the Cr.P.C. of 1898 and the 1955 amendment gave wide powers to the High Court to interfere with orders passed in criminal cases by the subordinate courts. These wide powers were restricted by the High Court and this Court, as matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse." This led to the courts being flooded with cases challenging all kinds of orders and thereby delaying prosecution of a case to the detriment of an accused person."
13. Wherein, the Hon'ble Supreme Court expressed the view that "there are three categories of orders that a court can pass - final order, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order".
14. Mr. S. Nawaz further submitted that as per definition of Section 2(f) in the Protection of Women from Domestic Violence Act, 2005, which reads as follows:
(f) domestic relationship means a relationship between two persons who live or have, at any point of 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 are family members living together as a joint family ;
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15. Accordingly, he submitted that, as per the definition of Section 2(f) of Domestic Violence Act, the definition of wife is wider than under Section 125 of the Cr.P.C. In this context, he also relied on the decision of the Hon'ble Supreme Court reported in (2010) 10 SCC 469 (D. Velusamy vs. D. Patchaiammal) wherein, the Hon'ble held that as per Section 2(f) of 2005 Act, embraces a wider concept by affording protection not only to a legally wedded wife but also to a woman who is having domestic relationship which may not strictly be marriage but in the nature of marriage.
16. Furthermore, paragraph 31 of the said judgment reads as follows:
"31. In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married: -
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one-night stand would not make it a 'domestic relationship".
17. Mr. Nawaz further submitted that, it is a fact that there was no legal divorce or Talaq with her earlier husband, but from her statement it is very much evident that she has not filed any application before Kazi office in order to obtain Talaq nor there was any divorce suit filed by her. But they had a compromise in the Court through understanding, and, after consulting with an advocate, by her guardian, she was not allowed to file any divorce petition. Accordingly, it is submitted by Mr. Nawaz that though there was no legal divorce Page No.# 8/11 nor the respondent No. 1 obtained a legal Talaq, the respondent No. 1 was separated from her earlier husband through a compromise and understanding. Moreover, the petitioner failed to prove the subsistence of her earlier marriage while adducing evidence. Accordingly, he submitted that, even in a living-in- relationship, the respondent No. 1 is entitled to maintenance, as held by the Hon'ble Supreme Court.
18. In that context, he also cited the decision of the Hon'ble Supreme Court passed in criminal appeal arising out of SLP (Crl.) No. 7660/2017 (Smt. N. Usha Rani and Anr. vs. Moodudula Srinivas). Relying on these judgments, Mr. Nawaz, the learned counsel for the respondent No. 1, submitted that the petition is not maintainable in this form and there cannot be any reason for making any interference in the order passed by the learned Appellate Court while admitting the appeal, which was filed against the judgment and order dated 15.09.2023 passed by the learned JMFC, Nagaon.
19. Mr. Darakullah, learned counsel for the petitioner, submitted in this regard that the order passed by the learned Appellate Court cannot be considered purely as an interlocutory order, where the right of the present petitioner has been curtailed. Accordingly, he submitted that the judgment relied by the learned counsel for the respondent is not applicable in the present case and the present revision petition is maintainable.
20. He further submitted that the judgment of Smt. N. Usha Rani and Anr. vs. Moodudula Srinivas (supra), as relied by the respondent No. 1, is not applicable in the present case, as the plea of separation was not raised by the party.
21. Mr. D. P. Goswami, learned Additional Public Prosecutor submitted in this Page No.# 9/11 regard that the learned Appellate Court had rightly passed the order directing the present petitioner to deposit 50% of the maintenance allowances until disposal of the appeal. Thus, he submitted that there cannot be any reason to interfere with the order passed by the learned Appellate Court.
22. Hearing the submissions made by the learned counsel for both sides, I have also perused the case record and the annexures filed along with the petition as well as the judgments relied by the learned counsels for both the parties.
23. The petitioner had preferred an appeal challenging the order of learned JMFC wherein, he was directed to pay monthly maintenance of Rs. 5000/- (Rupees Five thousand) as well as the compensation of Rs. 40,000/- (Rupees Forty thousand) to the respondent No. 1. The learned Appellate Court while admitting the appeal had passed the order directing the petitioner to pay 50% of the maintenance allowances passed by the learned Court below in DV Case No. 609/2018. But the petitioner's main plea is that the respondent No. 1 is not entitled for any maintenance, as she is not the wife of the present petitioner and she suppressed her marriage with her earlier husband prior to the marriage with the present petitioner. It is also the contention of the petitioner that she did not obtain a legal decree of divorce or Talaq from her earlier husband prior to solemnization of marriage with the present petitioner.
24. On the other hand, it is the contention of the respondent that she got separated from the husband with an understanding and compromise, and thereafter, she got married with the present petitioner and stayed with him as husband and wife. Thus, she entitles for maintenance as well as compensation under the Domestic Violence Act. But the question of entitlement of the Page No.# 10/11 maintenance as well as the compensation is the subject matter of the Appeal, as the petitioner had already filed an appeal challenging the order passed by the learned JMFC in DV Case No. 609/2018. Thus, this Court does not find any necessity to discuss in detail in regards to right of the respondent No. 1 or her entitlement for maintenance and compensation as directed by the learned JMFC. But only point to be determined is to whether the order passed by the learned Appellate Court can be interfered or whether the order passed by the learned Appellate Court is purely an interlocutory order.
25. From the submission made by the learned counsels for both sides and from the pleadings of the cases, it is seen that the petitioner challenged the legality and validity of the judgment passed by the learned JMFC. Wherein, he basically stressed on the point that the respondent No. 1 is not entitled for any maintenance on subsistence of her earlier marriage. She cannot be considered as a wife of the present petitioner to claim for maintenance or neither compensation nor she can be recognized as an "aggrieved" party.
26. Coming to the issue raised by the respondent No. 1, in regards to maintainability of the present petitioner, it is seen that the order passed by the learned Appellate Court cannot be considered purely as an interlocutory order wherein, he was directed to pay 50% of maintenance allowances, when he challenged the order of learned Court below with a plea that she cannot be considered as his wife. Thus, the order of learned Appellate Court cannot be considered as purely an interlocutory order and hence, it is the opinion of the Court that the petition is maintainable in its present form.
27. Coming to the order passed by the learned Appellate Court directing the petitioner to pay 50% of the maintenance allowances, it is seen that the Page No.# 11/11 marriage between the parties is not disputed and it is also not disputed that they stayed together for a considerable period as husband and wife. The question of subsistence of her earlier marriage etc., came when she filed the case under the Domestic Violence Act as an aggrieved party and then only the issued brought by the petitioner in regards to subsistence of her earlier marriage.
28. Furthermore, as discussed above, the Hon'ble Apex Court has held that "the definition of Section 2(f) of 2005 Act, gives a wider concept by affording protection not only to a legally wedded wife but also to a woman who is having domestic relationship which may not strictly be marriage but in the nature of marriage". Thus, this Court is of the opinion that till the disposal of the appeal, the order passed by the Appellate Court directing the present petitioner to pay 50% of the monthly maintenance should not be interfered at this stage. The Appellate Court will also determine the respondent No.1's status and her entitlement to maintenance by considering all the pros & cons of the case.
29. With the above observation, the present criminal petition stands dismissed and disposed of.
JUDGE Comparing Assistant