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Date : 21-01-2025 Heard Mr. S. Nawaz, the learned counsel for the petitioners. Also heard Mr. S. Saikia, the learned counsel for the sole respondent.

2. This is a petition u/s 482 Cr.PC praying for quashing of the proceedings in D.V. Case No. 357 of 2022 and all the consequential orders passed therein.

3. In brief the case of the petitioners is that on 13.03.2024 the respondent got married to the petitioner no. 1 who is the son of the petitioner no. 2 and petitioner no. 3 is the brother of the petitioner no. 1. After marriage they stared their conjugal life and one male child is also born out of the wedlock on 07.02.2005. But, thereafter, issues cropped up between the parties and finally on 23.01.2011 the respondent wilfully deserted her matrimonial home and returned to her paternal house leaving behind petitioner no. 1 and her 6 year old child. After more than 11 years, she filed an application u/s 12 of the Protection of Women from Domestic Violence Act, (hereinafter referred to as PWDV Act) before the learned CJM, Nagaon with some allegation of physical and mental abuse and also brought the allegation of demand of dowry. But the petitioners never received any notice from the learned Court below and on the basis of the track consignment report submitted by the respondent it has been held that notice has been sent on the petitioners and considering their non- appearance the case proceeded ex-parte. Thereafter, the respondent filed her evidence on affidavit as PW-1 and she also filed an evidence of affidavit of her Page No.# 3/9 mother as PW-2. The learned Trial Court below accordingly heard the matter ex- parte and passed the order on 31.12.2022 directing the petitioner no. 1 to pay Rs. 5,000/- per month towards maintenance for the respondent and also directed to pay Rs. 20,000/- as compensation along with cost of Rs. 3,000/-. On 14.03.2023 while the case was for final execution, notices were issued on the petitioners for releasing of the maintenance amount and also for the compensation. But the petitioners never received any notice for execution of the order but on the basis of the track consignment report the learned Trial Court below has issued Bailable Warrants of Arrest of Rs. 5,000/- against all the petitioners. After issuance of the Bailable Warrants of Arrest, the petitioner came to know regarding the pendency of this case and accordingly they applied for the certified copies and after receiving the certified copies, the petitioners were shocked to find about the disposal of the case and the reliefs granted to the respondent.

15. Heard the entire submission made by learned counsel for both sides and I have also perused the case record and the annexures filed along with the petition. From record it is seen that the case proceeded ex-parte considering the proper service of notice by the learned Trial Court below after perusal of the track consignment report. But, it is a fact that the notice was not issued in compliance of Section 13 of the PWDV Act and at the same time it is also the Page No.# 8/9 plea of the petitioner that he never received any summon of the notice from the learned Trial Court below. In the same time it is also seen that at the time of filing of the petition under the PWDV Act which was filed on 01.09.2022 the decree of divorce was already passed by the learned Additional District Judge No. 3, Nagaon in Matrimonial Suit (D) No. 24 of 2019 dated 22.08.2022. It is a fact that there is a mention in the petition filed by the respondent under the D.V. Act regarding the divorce proceeding but it is seen that at the time of filing the said petition she already obtained decree of divorce ex-parte in her favour wherein the order of permanent anomaly was also made to the tune of Rs. 4 lacs. It is also an admitted fact that there is a provision u/s 29 of the PWDV Act to prefer appeal against any order passed under the D.V. proceeding if either of the parties if aggrieved by the said order but without preferring any appeal the present petitioner had preferred the petition u/s 482 Cr.PC for setting aside and quash of the D.V. Case No. 357/2022 and all the subsequent orders. But, as stated by learned counsel for the petitioners and also considering the view of the Apex Court it cannot be denied that in spite of availability of the recourse u/s 29 of the D.V. Act a petition u/s 482 Cr.PC also cannot be stated to be not maintainable. But, considering the entire facts and circumstances of this case, I find that without passing any order of quashing of the proceeding etc. the matter may be remanded back to the learned Trial Court below giving a chance to the present petitioners to file their written objection and to raise the issue of maintainability before the learned Trial Court below as it is alleged that the application u/s 12 of the D.V. Act was filed after obtaining the decree of divorce ex-parte by the respondent.