Gauhati High Court
Page No.# 1/3 vs The State Of Assam And Anr on 26 July, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/3
GAHC010098232021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./352/2021
SAIKH MD. SABAH AL-AHMED AND 2 ORS.
S/O. LT. ALHAJ MALIK HAFIZUR RAHMAN, R/O. HOUSE NO.1 DEBDARU
PATH, DISPUR, P.S. DISPUR, DIST. KAMRUP (M), ASSAM, PIN-781006.
2: NOOR MEHRAB BEGUM
W/O. LT. ALHAJ MALIK HAFIZUR RAHMAN
R/O. HOUSE NO.1 DEBDARU PATH
DISPUR
P.S. DISPUR
DIST. KAMRUP (M)
ASSAM
PIN-781006.
3: NOOR FARAJHDIBA SHAHBANU
W/O. MD. SOHAIL SHEIKH
D/O. LT. ALHAJ MALIK HAFIZUR RAHMAN
R/O. HOUSE NO.1 DEBDARU PATH
DISPUR
P.S. DISPUR
DIST. KAMRUP (M)
ASSAM
PIN-781006
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:ELDRIN NAHAR
W/O. SAIKH MD. SABAH AL-AHMED
D/O. LT. ALHAJ MUHIBUR RAHMAN
R/O. HOUSE NO. 1 DEBDARU PATH
DISPUR
P.S. DISPUR
Page No.# 2/3
DIST. KAMRUP (M)
ASSAM
PIN-781006
Advocate for the Petitioner : MR S M ABDULLAH P
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
:: O R D E R ::
26- 07-2021 Heard Mr. SM Abdullah P, learned counsel for the petitioner and Ms. S Jahan, learned counsel for the State appearing for respondent No.1.
The grievance raised in the present petition is that the respondent No.2, who is the wife of petitioner No.1 filed the DV case No.56M/2021 only after filing of the divorce case by the petitioner No.1 on the ground of cruelty resulting extreme hardship caused by her, to her husband and his family and that learned trial court without proper application of mind has passed the impugned order dated 07.04.2021 whereby the learned trial court has issued notice to all the petitioners and passed ex-parte interim order.
Referring to the bunch of documents that has been annexed, the learned counsel for the petitioner has submitted that the respondent/wife has filed the DV case intentionally after receipt of notice of divorce case from her husband to take revenge upon the entire family. The marriage between the parties took place far back in the year 2010 and a child has also been born out of their wedlock and no such complaint has been made regarding cruelty/ harassment on the part of the wife but suddenly this DV case was filed only after filing of the divorce case to resist the claim of the husband.
Furthermore, contention of the learned counsel for the petitioner is that the impugned order of the learned trial court suffers impropriety, inasmuch as it has not complied the mandate of Section 12 of DV Act.
I have gone through the documents annexed and the pleadings between the parties in the family court as well as the petition of the DV Act which reflects that the present DV act has been filed Page No.# 3/3 only after service of notice of the divorce case and the learned trial court being quite aware, about such divorce case between the parties (as discussed in the impugned order itself) has passed an ex- parte order without obtaining any report from any protection officer about any domestic violence incident which is a mandate of Section 12 of the Act. The considered opinion of this Court is that passing of such ex-parte order without adhering the proper procedure is not at all proper.
I have also heard Ms. S Jahan, learned counsel for the State who has submitted that such domestic violence report has not been discussed in the impugned order.
This Court has also noted that in the last part of the order the leaned court has opined that the petitioner/aggrieved party "may have been subjected to domestic violence" by the respondent which indicates that the court is not sure about the domestic violence, while passing the ex-parte order.
Let notice be issued to the respondent No.2 by registered post with A/D and usual process, returnable by 6 weeks and furnish copy to respondent No.1.
Call for the LCR from the concerned court and till returnable date, proceeding against the present petitioners shall remain suspended.
JUDGE Comparing Assistant