Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 10 August, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010046442018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./360/2018
MUSTAFIZUR RAHMAN AND ANR.
S/O- LATE MATIUR RAHMAN, R/O- VILL- DANGARKUCHI, P.O. SAUKUCHI
COLONY, P.S. AND DIST- BARPETA (ASSAM)
2: MARIAM RAHMAN
W/O LATE MATIUR RAHMAN
R/O VILL DANGARKUCHI
PO SAUKUCHI COLONY
PS AND DIST. BARPETA (ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PUBLIC PROSECUTOR, ASSAM
2:REJINA BEGUM
D/O RUKUNUDDIN AHMED
PERMANENT R/O VILL-KALIKAJARI
PO NAGABANDHA
PS-MIKIRVITA
DIST. MORIGAON (ASSAM
Advocate for the Petitioner : MR. A R SIKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 10-08-2022 Page No.# 2/7 Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. Bhaskar Sarma, learned Addl. PP for the State respondent no.1 as well as Mr. J.I. Borbhuiya, learned counsel for the respondent no.2.
2. The respondent no.2 herein is the first party/ complainant in C.R. (DV) Case No.1136/2017, filed under section 12 of the Protection of Women from Domestic Violence Act, 2005, which is pending for disposal before the learned Court of Additional Chief Judicial Magistrate, Morigaon. The two petitioners herein are the second parties in the said proceeding. The respondent no.2 is the estranged wife of the petitioner no.1.
3. By filing this application under section 482 Cr.P.C., the petitioners have prayed for quashing of the said domestic violence case.
4. The learned counsel for the petitioners has submitted that the respondent no.2 had left the matrimonial home on 01.02.2010 and that several attempts of reconciliation was made by the petitioners' family and the villagers but failed to bring her back. Later on, the respondent no.2 had initiated a proceeding under section 107 Cr.P.C., followed by filing of a criminal complaint case under sections 498-A/34 IPC, which was registered and numbered as CR Case no. 1938/2011. It was submitted that in the meanwhile, the petitioner no.1 through a Kazi issued a notice of first talak on 07.07.2011. On receipt of the same, the respondent no.2 gave her reply. Thereafter, notice of second talak dated 08.08.2011, and notice of the third talak dated 10.09.2011 was sent to the respondent no.2 through the Sadar Kazi, Muslim Marriage and Divorce Registrar, Barpeta, Sadar.
5. It is further submitted that after trial, the petitioner was Page No.# 3/7 acquitted in the proceedings of CR Case No. 1938/2011 by judgment and order dated 18.12.2015. Accordingly, it was submitted that there was no matrimonial relationship between the petitioner no.1 and respondent no.2 and that the domestic relationship between the two had irretrievably snapped on 01.02.2010, the date when the respondent no.2 had voluntarily left the matrimonial home. Accordingly, it is submitted that the present proceeding of domestic violence, being CR (DV) Case no. 1136/2017 was not maintainable and was liable to be quashed.
6. Opposing the prayer made in this petition, the learned counsel for the respondent no.2 has submitted that there was a suppression of material facts in this petition and it was suppressed that against the order of acquittal in CR 1938/2011, the respondent no.2 had preferred an appeal which was registered as Crl. A. 101/2017. It has also been submitted that by filing a writ petition which is registered as WP(C) 8890/2018, the respondent no.2 had challenged the legality of the notice of the talak as well as the power of the Kazi to grant talak. It was submitted that the respondent no.2 was driven out of the matrimonial home after mental and physical torture and demand of dowry and therefore, it cannot be said that the respondent no. 2 had herself left the matrimonial home. In this regard reliance is placed on the evidence-in-chief of the respondent no.2, which was recorded on 26.12.2012, in connection with MR case no. 275/ 2011, being an application by the respondent no. 2 for maintenance under section 125 Cr.P.C.
7. It has also been submitted that in MR case no. 275/ 2011, the learned trial Court had granted monthly maintenance of Rs.3000/- per month in favour of the respondent no.2, which was subsequently enhanced to Rs.6000/-
Page No.# 4/7 per month vide order dated 12.03.2020 passed by the learned Additional Chief Judicial Magistrate, Morigaon in MR case no.118/2017. It was further submitted that the said order dated 12.03.2020 has been challenged by the petitioner no.1 by filing Criminal Revision Petition no.188/2020, which is also on board today.
8. On a query of the Court, relating to section 28 of the Prevention of Women From Domestic Violence Act, 2005, the learned counsel for the respondent no.2 has submitted that the said Act does not provide for any period of limitation and therefore, the provision of section 468 Cr.P.C will not apply in the present case. It was also submitted that as the talak granted to the respondent no. 2 has been challenged by the respondent no.2, the offence would be a continuing offence and therefore, there is no period of limitation for enforcement of civil liability. In support of his submissions, the learned counsel for the respondent no.2 has placed reliance on the case of Kamatchi v. Lakshmi Narayanan, Crl. Appeal No. 627/2022, decided by the Supreme Court of India on 13.04.2022.
9. It is seen that under section 28 of the Prevention of Women from Domestic Violence Act, 2005 makes reference to the Criminal Procedure Code. However, it is seen that this Court by judgment passed in the case of T. Armstrong Changsan v. Neikol Changsan, 2018 (2) GLT 411 , had held that concept of continuing offence gets attracted to economic abuse. It is further seen that in the case of Kamatchi (supra), the Supreme Court of India had made reference to the concept of continuing offence and having taken noted that the complaint was filed after 10 years, was of the view that the matter will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered and it was further observed Page No.# 5/7 that an exercise has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing offence.
10. In this regard, the stand of the respondent no.2 is that the petitioner no.1 is not paying the maintenance as awarded by the trial Court in MR Case No. 275/2011. Moreover, the said maintenance has now been enhanced from Rs.3,000/- to Rs.6,000/- by order dated 12.03.2020, passed by the learned Additional Chief Judicial Magistrate, Morigaon in MR case no.118/2017, which has been challenged by the petitioner no.1 by filing Criminal Revision Petition no.188/2020. It is further seen that the divorce granted by the petitioner no. 1 to the respondent no. 2 has also been challenged by filing WP(C) 8890/2018.
11. Thus, notwithstanding the statements made by the parties in any of the several proceedings between the parties, which have been referred to herein before, it appears that all the contentious issues between the parties are still sub judice. Therefore, when the contentious issues between the parties are sub judice, the Court in exercise of jurisdiction under Section 482 Cr.P.C., would be slow to examine factual matrix, which requires examination of evidence. The scope of notice under section 12 of the Prevention of Women from Domestic Violence Act, 2005 has been explained in the case of Kamatchi (supra). The paragraph nos. 20 to 24 of said the case of Kamatchi (supra) are quoted below:-
"20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution.
Page No.# 6/7 In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.
22. Lastly, we deal with the submission based on the decision in Adalat Prasad. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad would not get attracted at a stage when a notice is issued under Section 12 of the Act.
23. We, therefore, allow this appeal and set aside the view taken by the High Court. Crl. O.P. No.28924 of 2018 is accordingly, dismissed. The husband shall file his response before the Magistrate within two weeks and the matter shall thereafter be considered by the Magistrate in terms of the provisions of the Act.
24. We must clarify that we have considered the instant matter from the perspective whether the application preferred under Section 12 of the Act was rightly considered by the High Court for reckoning the period of limitation. We have not and shall not be taken to have expressed any view on merits of the matter which shall be gone into independently at every stage."
12. Therefore, as contentious issues between the parties are sub judice, as morefully indicated herein before, no case has been made out for quashing of the proceedings of C.R. (DV) Case No.1136/2017. Therefore, this petition stands dismissed.
13. The petitioners and the respondent no.2, who are duly represented by their respective counsel, shall appear before the Court of the Page No.# 7/7 learned Additional Chief Judicial Magistrate, Morigaon on 09.09.2022 at 10.30 am, and by producing a certified copy of this order, await further instructions from the said learned Court.
JUDGE Comparing Assistant