Allahabad High Court
Saddam Hussain @ Pintu vs State Of U.P. And Anothers on 25 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2293
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 02.11.2020 Delivered on 25.11.2020 Court No. - 87 Case :- CRIMINAL REVISION No. - 1336 of 2020 Revisionist :- Saddam Hussain @ Pintu Opposite Party :- State Of U.P. And Anothers Counsel for Revisionist :- Sadaful Islam Jafri Counsel for Opposite Party :- G.A.,Hemant Kumar Dubey,Hemant Kumar Pandey Hon'ble Raj Beer Singh,J.
1. This Revision has been preferred against order dated 03.07.2020 passed by the in-charge Principal Judge, Family Court, Kushinagar at Padrauna in Maintenance Case No. 975 of 2020 (Gulabsa Khatun Vs. Saddam Hussain @ Pintu) under Section 125 Cr.P.C. and Section 12 of Protection of Women From Domestic Violence Act (hereinafter referred as D.V. Act), whereby the revisionist has been directed to provide one room accommodation for residence to the respondent no.2 and also to pay interim maintenance @ Rs.1,000/- per month. It was further directed that if this protection order is not complied by the revisionist, he shall be liable for one year imprisonment or fine of Rs.20,000/- or by both under Section 31 of D.V. Act.
2. Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri Sadaful Islam Jafri, learned counsel for revisionist, Sri Hemant Kumar Dubey, learned counsel for opposite party no.2 and learned AGA for State.
3. It has been argued by learned Senior Counsel that impugned order is against facts and law and beyond jurisdiction and thus, liable to be set aside. It was submitted that revisionist was married with opposite party no.2 as per Muslim rites and customs on 01.02.2019, however, thereafter the revisionist went to Kuwait on 20.11.2019 for his job and he came to know that respondent no.2 was suffering from serious ailment but this ailment was not disclosed to him before marriage and thus, a notice was sent to respondent no.2. On 30.06.2020 the family members of respondent no.2 assaulted family members of revisionist, damaged their house hold articles and took away cash and jewellery from their house and regarding that incident, the father of revisionist has filed an application under section 156(3) Cr.P.C. Thereafter, on 02.07.2020 the respondent no.2 has filed an application under section 125 Cr.P.C. against the revisionist before court of Principal Judge, Family Court, Kushinagar. The court issued notice to revisionist and the next date was fixed for 06.08.2020. On the same day, on which the application under Section 125 Cr.P.C. was filed, the respondent no.2 has also filed an application under Section 12 of D.V. Act and on the next day i.e. 03.07.2020, the impugned order was passed on said application without providing any opportunity of hearing to the revisionist. The application of respondent no.2 under Section 12 of Domestic Violence Act was not supported by any affidavit, which is mandatory as per Rule 7 of Domestic Violence Rules. Learned Senior Counsel submitted that no separate case was registered under D.V. Act, rather the said application under Section 12 of D.V. Act was filed in proceedings under section 125 Cr.P.C. and thus, the court below has not followed the procedure prescribed by law. It was submitted that once the court below on 02.07.2020 had fixed the next date for 06.08.2020 issuing notice to revisionist, the court below committed serious error in entertaining an application under Section 12 of D.V. Act on the same day and that too in proceedings under Section 125 Cr.P.C and passed the impugned order without providing any opportunity of hearing and even the sentence was pronounced on the same day for non-compliance of the said order. It was submitted that the court below has not passed any 'protection order' in accordance with law and thus, the court below committed serious error by pronouncing the sentence in total disregard to the provisions of law. It was submitted that impugned being against facts and law, liable to be set aside.
4. Learned counsel for respondent no.2 has argued that there is no error in the impugned order. The court below was competent to pass an order under Section 12 of D.V. Act and to direct the revisionist to provide residence to the respondent no.2 and also to award interim maintenance. It was submitted that for granting these relief, the court below was not bound to provide an opportunity of hearing to the revisionist. It was submitted that the respondent no.2 is legally wedded wife of revisionist and she has a right to reside in her matrimonial home and as she was harassed by the revisionist, thus, she was also entitled for maintenance.
5. I have heard learned counsel for parties and perused the record.
6. It is apparent from perusal of record that on 02.07.2020 the opposite party No. 2 has filed case under section 125 Cr.P.C. The court below passed an order that case be registered and notice be issued to revisionist for 06.08.2020. On the same day, the opposite party No. 2 has filed one application under Section 12 of D.V. Act in the said proceedings under section 125 CrPC, which was decided by the court vide impugned order dated 03.07.2019 and the revisionist was directed to provide a room in his house for accommodation of the opposite party No. 2 and to pay interim maintenance @ Rs,1000/ per month. It was further directed that if this protection order is not complied with by the revisionist, he shall be punished with imprisonment of one year or with fine of Rs 20,000/ or with both. At this stage it would be relevant to peruse the provisions of Section 12 of D.V. Act, which reads as under:
''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 under sub-section (1) within a period of sixty days from the date of its first hearing.''
7. In the instant matter it is apparent the application filed by the opposite party No. 2 was neither on the required format nor it was supported by any affidavit. Further no date was fixed for hearing on said application. It would be pertinent to mention here that as per the provisions of Section 12 and 13 of D.V. Act, a notice of the date of hearing fixed on application under section 12 of D.V. Act was required to be given by the Court to the Protection Officer, who has to get it served on the respondent (revisionist herein), but this provision was not followed by the court below.
Further, by the same order dated 03.07.2019 the court below has directed that if the said protection order is not complied with by the revisionist, he shall be be punished with imprisonment of one year or with fine of Rs.20,000/- or with both. This procedure adopted by the court below in pronouncing the sentence is against the provisions of law. The provisions of section 18 of D.V. Act reads as under:
18. Protection orders.--The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from--
(a) committing any act of domestic violence;
b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
8. In the instant case the direction made by the court below does not fall within the ambit of ''Protection Order' as envisaged in section 18 of D.V. Act. In fact the court below has not observed any where that any protection order is being passed. One of the astonishing fact is that the court below has even passed sentence in anticipation of violation of its order. The scheme of D.V. Act regarding 'Protection order' is that it has to be passed in contingency provided under section 18 of D.V. Act after following due procedure of law prescribed under D.V. Act. As per provision of section 31(1) D.V. Act the breach of protection order, or of an interim protection order, by the respondent shall be an offence punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. Section 32 (1) of D.V. Act clarifies that the offence under sub-section (1) of section 31 shall be cognizable and non-bailable. Thus, in case of breach of protection order, such offence has to be tried like any other cognizable offence. However, quite surprisingly in the instant case on the application of opposite party no. 2 under section 12 of D.V. Act, without issuing any notice to the revisionist and without providing any opportunity of hearing to the revisionist, in a single stroke the court below has passed the alleged 'Protection order' and also pronounced the sentence for breach of the same. It appears that the court below has been oblivious to the relevant provisions of D.V. Act. Thus, the impugned order is against the provisions of D.V. Act and therefore liable to be set aside.
9. In view of aforesaid. the impugned order is set aside and the matter is remitted back to the court below to decide the application of opposite party No. 2 under Section 12 of D.V. Act in accordance with law.
10. Revision is allowed in above terms.
Order Date :- 25.11.2020 Mohit