Tripura High Court
Revision vs Sri Subal Das on 26 November, 2021
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No. 38 of 2020
Smt. Mousumi Saha (Das),
Wife of Sri Subal Das, Daughter of Sri Shakti Ranjan Saha, Of
Khudirampally, Amarpur, P.S. Birganj, Dist.-Gomati, Tripura
-----Revision Petitioner(s)
Versus
1. Sri Subal Das,
Son of Lt. Jahar Lal Das, Of Sachindra Nagar Colony, Jirania, P.S-
Jirania, Dist. West Tripura
Presently posted at Chakmaghat under C/O. Commandant 12th
Battalion TSR, Chakmaghat, Teliamura, Khowai, Tripura.
-----Respondent(s)
2. The State of Tripura
-----Proforma Respondent(s)
For Petitioner(s) : Mr. Dhiman Gope, Adv.
Ms. P. Chakraborty, Adv.
For Respondent(s) : Mr. Raju Datta, Adv.
Mr. S. Debnath, Addl. P.P.
Date of Hearing : 1st October, 2021.
Date of Pronouncement : 26th November, 2021.
Whether fit for reporting : NO
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
This criminal revision petition is directed against the
judgment dated 27.01.2020 passed in case No. Criminal Appeal No. 21
of 2019 by the Sessions Judge, Gomati Judicial District, Udaipur setting
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aside the impugned order dated 13.05.2019 passed by the Judicial
Magistrate 1st Class, Amarpur, Gomati in case No. CR (DVA) 01 of 2018
whereby the learned Judicial Magistrate rejected the petition of the
respondent husband who challenged the maintainability of the
proceedings under the Protection of Women from Domestic Violence
Act, 2005 pending before the Magistrate.
[2] Factual background of the case is as under:
The undisputed facts are that petitioner is the wife of the
respondent who were married on 18.07.2011 according to Hindu rites
and customs. After marriage, they also obtained a marriage certificate
from the marriage recording officer, Sadar, West Tripura and on
03.08.2011. A wedding reception was organized at the parental house
of the petitioner at Birganj, Amarpur. During marriage, petitioner‟s
father gave valuables including cash sum of Rs.70,000/-. After
marriage, petitioner accompanied her husband to his place where they
lived together as husband and wife. After few days, her respondent
husband started committing torture on her for dowry. Her in-laws also
joined her husband in committing torture on her. At that time, she was
carrying six months‟ pregnancy. On 19.11.2013, she prosecuted her
husband and in-laws under section 498A IPC. The matter was thereafter
settled between them. On 11.02.2014, a female child was born to the
petitioner who was later named Chandni Das. For nursing and postnatal
care of the new born baby, she lived with her parents for few months.
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On 04.06.2014, she returned to her matrimonial home. On 27.09.2014,
she was brutally tortured by her husband and in-laws at her
matrimonial home. As a result, petitioner again left her matrimonial
home on 28.09.2014 along with her new born daughter. Thereafter, she
filed a petition under section 125 Cr.P.C claiming maintenance in which
she was given monthly maintenance of a sum of Rs.5,000/-.
Subsequent thereto, she filed a petition before the Judicial Magistrate
1st Class, Amarpur under section 12 of the Protection of Women from
Domestic Violence Act („the DV Act‟ hereinafter) claiming various
relieves available under the said act. Her petition would demonstrate
that she claimed the following relieves before the learned Judicial
Magistrate First Class:
"(i) To pass a protection order under section 18 of the
Protection of Women from Domestic Violence Act, 2005.
(ii) To pass an order under section 19(3) of the Act directing
the respondent to execute a bond for preventing the
commission of domestic violence.
(iii) To pass an order under section 19(5) of the Act directing
the Officer-in-Charge of Birganj P.S to give protection to
the aggrieved petitioner and also assist the aggrieved
petitioner for implementation of protection order.
(iv) To pass an order under section 19(8) directing the
respondent to return all the articles given by the parents
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and relatives of the aggrieved petitioner including her
stridhan as described in the schedule of the petition.
(v) To pass an order under section 19(f) directing the
respondent to pay @ Rs.2,000/- per month to the
aggrieved petitioner to secure same level of alternative
accommodation in a rented house at Amarpur, Khudiram
Pally, Birganj P/S.
(vi) To pass an order under section 20(1)(b) directing the
respondent to pay Rs.1,000/- per month to the aggrieved
petitioner as medical expenses of her minor daughter."
[3] Her petition was registered as case No. CR(DVA) 01 of
2018 and the respondent was summoned to appear and file his
response.
[4] Respondent husband submitted his written objection
asserting that his mother committed suicide at the instigation of his
petitioner wife. The respondent stated that after his mother finished her
life by jumping under a train, Jirania PS case No. 47 of 2015 was
registered under section 306 IPC and after investigation, charge sheet
was also filed under section 306 read with section 109 IPC against his
petitioner wife and his relatives and the trial of the case is pending. It
was also stated by the respondent husband of the petitioner wife that
his petitioner wife made his life miserable by lodging multiple cases
against him on frivolous grounds. The present petition, according to the
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respondent was filed by the petitioner with a mala fide intention of
saving herself from the charge of section 306 IPC. The respondent
husband also contended in his written objection that his wife had
withdrawn herself from his company long back which was also
established in T.S.(RCR) 31 of 2015 which was filed by him against his
wife for restitution of conjugal rights. Despite direction of the court to
resume conjugal life with him, petitioner did not pay any heed to the
said judicial order. The husband further contended that she previously
filed another petition on same set of allegations against him which was
registered as CR (DVA) 05 of 2014 and the matter was disposed of on
17.05.2014. It was, therefore, stated by the respondent husband that
there could be no second trial with regard to the same allegations made
by his wife. Since his wife did not resume conjugal life with him, he filed
a suit for divorce against her on the ground of cruelty and desertion
which was registered as T.S. (Divorce) 13 of 2018 and in that case
divorce was granted by dissolving their marriage on the ground of
cruelty and desertion by the District Judge, Gomati Judicial District by
his judgment and order dated 15.11.2019 in T.S. (Divorce) 13 of 2018.
Finally, the respondent husband contended that the proceedings under
DV Act was not maintainable against him because his petitioner wife
suppressed all these material facts. Since, she brought similar
allegations against him which were once tried in case No. CR (DVA) 05
of 2014, there could not be any second trial with regard to the same set
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of allegations. The respondent, therefore, challenged the maintainability
of the proceedings.
[5] The trial court by the impugned order dated 13.05.2019
has held that the contentions raised by the respondent husband in his
written objection cannot be decided without taking evidence. Therefore,
the learned trial court discarded the objection of the respondent
husband against the maintainability of the case and listed the matter for
evidence viewing as under:
"..................................It is an admitted fact that in this case
no separate petition has been filed from the side of
respondent challenging the maintainability of this case.
The respondent in his written objection raised the
question of maintainability of this case on the grounds of
non filing of this petition in the prescribed form, secondly,
non-availability of domestic violence and thirdly,
suppression of material facts. The learned counsel for the
respondent mainly emphasized on the first point that,
since this petition has not been filed in the prescribed
proforma therefore it is not maintainable in the eyes of
law. I this regard, I could not agree with the argument
advanced by learned counsel Mr. Roy for the respondent
for the reason that section 12(3) of Protection of Women
from Domestic Violence Act, 2005 lays down the every
application under sub-section (1) of section 12 of the said
act shall be in such form and contain such particulars as
may be prescribed or as nearly as possible. The use of the
term „as nearly as possible‟ implies that it is substances of
the application that matters and not the form. The
Protection of Women from Domestic Violence Act, 2005 is
a beneficial legislation made for securing easy and speedy
justice to the person in need. Therefore, in a case under
this law, substance would matter more than the
procedure. Hence, I do not find any justification to reject
the petition on this ground.
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The other grounds raised from the side of respondent are
required to be looked into on merit. The proceeding under
section 12 of the Protection of Women from Domestic
Violence Act, 2005 is quasi-civil in nature. Therefore, the
code of Civil procedure may not apply directly but the
principles under it certainly apply. Hence, only on the
question of law, the petition of this nature can be
disposed of at this stage of proceeding without taking
evidence.
Since the other grounds like non-availability of domestic
violence and suppression of material facts are raised by
the learned counsel for the respondent relates to facts, it
cannot be decided without taking proper evidence. The
respondent has raised those points in his written objection
which relates to the facts and no law. Hence, those facts
are required to be proved by the respondent by leading
evidence. At this stage, there is no scope to decide the
fate of the instant petition on those grounds as raised in
the written objection. Therefore, the prayer of the
respondent stands rejected."
[6] Aggrieved husband challenged the order of the trial court
in Criminal Appeal No. 21 of 2019 in the court of the learned Sessions
Judge, Gomati Judicial District, Udaipur. The learned Sessions Judge
considered the submissions made at the bar and he was of the view
that the respondent wife filed CR (DVA) 05 of 2014 on the same
allegations relating to the same period of time which was tried and
disposed of on 17.05.2014. Therefore, a second trial was barred. The
learned Sessions Judge recorded the following findings while allowing
the appeal and dismissing the respondent wife‟s CR (DVA) 01 of 2018:
"9. Though it is a beneficial legislation for the protection
of women as has been observed by the trial court, but
since the Act itself postulates the filing of the application
in prescribed proforma and further that the Magistrate has
to consider the domestic incident report filed by the
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protection officer, I am of the view that non-compliance of
the same is a legal infirmity which cannot be over-looked.
Accordingly I am of the view that the trial court was
wrong in holding that the case is maintainable despite
non-fling of the petition under section 12 in prescribed
proforma and no-filing of domestic incident report.
10. Further, this DV case was filed before the trial court
on 20.01.2018 alleging that the marriage between the
petitioner and respondent was held on 18.07.2011 on
which they eloped out of their love affairs and got married
on the same day as per Hindu rites and custom at Surya
Para, AD Nagar, Agartala and subsequently on 03.08.2011
a social marriage function was performed in support of
their marriage which was attended by parents and
relatives of both sides and various articles as narrated in
the petition were given by the parents of the petitioner.
But after a few days of marriage the respondent-husband
and his relatives started creating pressure upon the
petitioner for bringing money from her father and they
started physical and mental torture upon her. On
17.10.2013 respondent and his relatives assaulted her
and drover her out from the matrimonial house and she
took shelter in the house of her parents. On 19.11.2013
she filed a complaint case in the court of SDJM, Amarpur
against the respondent-appellant vide No. PRC 247/2013
under section 498A/506/34 of IPC. The case was
subsequently compromised and she resumed matrimonial
life in the house of the respondent-appellant. On
11.02.2014 her daughter was born and on 04.06.2014
she came to the matrimonial house along with the child
but again she was tortured mentally and physically for
non-fulfillment of the demand of money and on
27.09.2014 she was tortured and on 28.09.2014 she left
the matrimonial house for the last time.
11. But from the record of the case it appears that before
filing this DV case on 20.01.2018, the petitioner, earlier
filed another DV Case No. CR (DVA) 05 of 2014 on the
same allegation for the same span of time. The said DV
case was disposed of on 17.05.2014 on compromise in the
trial court suggesting thereby that, whatsoever happened,
stood condoned by her as on 17.05.2014 and prior
thereto. Situated thus, I find force in the submission of
Ld. Counsel for the appellant that the respondent-wife
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filed the instant case by suppressing the fact of the earlier
case No. CR(DVA) 05 of 2014 which is against the
principle of Criminal Jurisprudence in the sense that a
person cannot be tried twice for the same cause of action.
Therefore, the instant case filed by the petitioner is not
maintainable. The learned trial erred by holding it
maintainable.
12. In the light of the above discussion and the non-filing
of the petition in prescribed proforma and there being no
domestic incident report filed by the Protection Officer as
required under section 12(1) Proviso of the Act and
suppression of the fact of filing of an earlier DV case on
the same cause of action by the petitioner, I am of the
view that the case of the petitioner is not maintainable
and the Ld. Trial court fell into error by holding it as
maintainable.
ORDER
13. In the result, the appeal is allowed.
The order dated 13.05.2019 passed by the Ld. Judicial Magistrate First Class, Amarpur, Gomati in case No. CR(DV) 01 of 2018 is hereby set aside."
[7] Heard Mr. Dhiman Gope, counsel appearing for the petitioner wife. Also heard Mr. Raju Datta, counsel appearing for the respondent husband.
[8] It is contended by the counsel of the petitioner that there is no bar in filing a second application because domestic violence is a continuing offence. Petitioner‟s counsel contends that without a full hearing on merit, the contentions raised by the husband in his written objection cannot be decided. Counsel, therefore, urges the court to set aside the impugned order passed by the Sessions Judge in appeal with a direction to the trial court to hear the matter on merit. Crl. Rev. P. No. 38 of 2020
Page - 10 of 12 [9] Counsel appearing for the respondent husband vehemently opposes the contention of the counsel of the petitioner. It is submitted by the counsel of the respondent husband that the learned appellate court dealt with the matter in detail and by a detailed and elaborate judgment, the learned appellate court decided the matter on merit. Therefore, there is no reason to interfere with the judgment of the appellate court.
[10] Section 12 of the Protection of Women from Domestic Violence Act, 2005 provides that the aggrieved person who wants to claim a relief available under the act has to present the application before the competent Magistrate and 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. As to the form of application, sub section (3) of section 12 provides that the application under section 12(1) shall be in such form and contain such particulars as may be prescribed. The Protection of Women from Domestic Violence Rules, 2006 has prescribed such form in Form-II and the said rules under rule 6(1) provides that every application of the aggrieved person under section 12 shall be in Form-II or as nearly as possible which implies that case of an aggrieved person cannot be discarded only on the ground that application under section 12 of the Act is not filed in Form-II, if the aggrieved person provides the required information.
Crl. Rev. P. No. 38 of 2020
Page - 11 of 12 [11] Application filed by the aggrieved person (petitioner) under section 12 of the act would demonstrate that her application contains the details of previous litigations and almost all other information which are required to be furnished as per the prescribed form. Therefore, she can be said to have substantially complied with section 12(3) of the Act and sub rule (1) of rule 6 of the said rules because her application is near to the application prescribed under the rules. But the appellate court was correct in holding that the earlier case i.e. case No. CR (DVA) 05 of 2014 instituted by the wife for same cause of action was finally decided on 17.05.2014 and therefore, the petitioner was debarred from instituting a second case under the act until new cause of action arose. Moreover, it was also observed by the learned Sessions Judge in the appeal that immediately after filing of CR (DVA) 05 of 2014 in the court of SDJM, Amarpur, the streedhans of the petitioner were returned to her. Viewing that a case cannot be tried twice for the same cause of action, the appellate court interfered with the impugned order dated 13.05.2019 passed by the learned Judicial Magistrate 1st Class, Amarpur and set aside his decision to continue with the proceedings of CR (DVA) 01 of 2018. By this time, the marriage between the parties have also been dissolved by a decree of divorce granted on 15.11.2019 by the District Judge, Gomati, Udaipur. [12] For the reasons stated above, I do not find any ground at all to interfere with the impugned judgment dated 27.01.2020 of the Crl. Rev. P. No. 38 of 2020 Page - 12 of 12 Sessions Judge, Gomati Judicial District, Udaipur passed in Criminal Appeal No. 21 of 2019 and accordingly the criminal revision petition against the said order stands dismissed.
[13] In terms of the above, the case is disposed of.
Send down the LC record. Pending application(s), if any, shall also stand disposed of.
JUDGE Rudradeep Crl. Rev. P. No. 38 of 2020