Gauhati High Court
Page No.# 1/9 vs Juri Baishya on 21 January, 2025
Page No.# 1/9
GAHC010123462023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./557/2023
PRANAB ACHARJEE AND 2 ORS
S/O HARINARAYAN ACHARJEE
R/O VILL- HATIMARA BHRAHMAN GAON, P.S. BIHARA, DIST. CACHAR,
ASSAM
2: RITA ACHARJEE
W/O HARINARAYAN ACHARJEE
R/O VILL- HATIMARA BHRAHMAN GAON
P.S. BIHARA
DIST. CACHAR
ASSAM
3: PRASENJIT ACHARJEE
S/O HARINARAYAN ACHARJEE
R/O VILL- HATIMARA BHRAHMAN GAON
P.S. BIHARA
DIST. CACHAR
ASSA
VERSUS
JURI BAISHYA
D/O LT. JATIN BAISHYA
R/O DIMORUGURI AMTOL,
P.S. NAGAON SADAR
DIST. NAGAON, ASSAM
Advocate for the Petitioner : MR A W AMAN, MR S A BARBHUYAN,MS SURAYA
RAHMAN,MR. SURAJIT DAS,MR SARFRAZ NAWAZ
Advocate for the Respondent : MR. S SAIKIA,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
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
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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.
4. The petitioners also came to know that the respondent also filed a
Matrimonial Suit (D) No. 24 of 2019 seeking divorce u/s 13(1)(1a)(1b) of the
Hindu Marriage Act and vide order dated 22.08.2022, the learned Additional
District Judge No. 3, Nagaon had decreed the suit ex-parte and the marriage
between the petitioner No. 1 and the respondent had been dissolved by decree
of divorce. However, the petitioners had no grievances for the decree of divorce
as the respondent wilfully deserted the petitioner no. 1 as well as her son in
way back 2011 but the petitioners are aggrieved by the final order passed in
D.V. Case No. 357 of 2022 as the same had been obtained by suppressing the
actual fact and also for non-consideration of material facts which go to the root
of the case.
5. Mr. Nawaz further submitted that hence the present petition has been filed
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u/s 482 Cr.PC praying for quashing of the D.V. Case No. 357/2022 and all the
consequential orders passed therein.
6. It is further submitted by Mr. Nawaz that the petitioners did not prefer for
appeal u/s 29 of the PWDV Act and the instant petition u/s 482 Cr.PC has been
preferred as the same is also maintainable on the account that the proceedings
under PWDV Act being initiated and all consequential orders have been obtained
by suppressing the material facts which misled the learned Trial Court below. He
further submitted that the Section 482 Cr.PC begins with a non-obstante clause
to state: “Nothing in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of the
Court or otherwise to secure the ends of justice.”
7. In this context, Mr. Nawaz also relied on a decision of the Hon’ble Apex
Court which is reported vide (2009) 2 SCC 370 Dhariwal Tobacco
Products Ltd. and Ors. v. State of Maharashtra and Another, emphasised
on para 12 of the said judgment which is read as under:-
“12. It is interesting to note that the Bombay High Court itself has taken a different view. In a
decision rendered by the Aurangabad Bench of the Bombay High Court, a learned Single Judge in
Vishwanath Ramkrishna Patil (supra), where a similar question was raised, opined as under :-
“10. ..It is difficult to curtail this remedy merely because there is a revisional
remedy available. The alternate remedy is no bar to invoke power under Article 227. What is
required as to see the facts and circumstances of the case while entertaining such petition
under Article 227 of the Constitution and/or under Section 482 of Criminal Procedure
Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way
expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent
power as contemplated under Section 482 of Criminal Procedure Code and/or the
discretionary or the supervisory power under Article 227 of the Constitution of India they
may approach to the revisional Court, against the order of issuance of process.
11. Taking into consideration the facts and circumstances of those cases, the
learned Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate
for the parties to file revision application against the order of issuance of process. There is
nothing mentioned and/or even observed that there is total bar to file petition under Section
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India.
12. The Apex Court’s decision already referred above, nowhereprohibited or expressly
barred to invoke Section 482 of Criminal Procedure Code or Article 227 of the Constitution
of India against the order of issuance of process.”
8. He also relied on another decision of the Apex Court passed in Prabhu
Chawla v. State of Rajasthan & Another, reported in (2016) 16 SCC 30
wherein also it is expressed duly by the Apex Court that mere availability of an
alternate remedy is not a ground to disentitle relief u/s 482 Cr.PC. Mr. Nawaz
further submitted that the same issue was also raised regarding the non-
maintainability of the petition u/s 482 Cr.PC especially in the case of D.V.
proceeding before the Hon’ble Calcutta High Court and the matter was dealt by
the Hon’ble High Court in case of Chaitanya Singhania & Another v.
Khusboo Singhania, reported in (2021) SCC OnLine Cal 2602 wherein also
it has been held that the petition u/s 482 Cr.PC is maintainable for a proceeding
under PWDV Act despite existence of appellate remedy u/s 29.
9. Mr. Nawaz further submitted that the application u/s 12 of the PWDV Act
was filed by the respondent on 01.09.2022 by suppressing the decree of divorce
dated 22.08.2022 whereby the marriage between the petitioner no. 1 and the
respondent had already been dissolved by a decree of divorce. Thus it is seen
that the petition u/s 12 of the PWDV Act was filed suppressing the decree of
divorce dated 22.08.2022. So the petition under PWDV Act was filed when there
was no existence of marital relationship between the parties. The co-ordinate
Bench of this Court in case of Bismita Saikia @ Bismita Saikia Dutta v.
Pranjal Dutta, reported in 2018 (3) GLT 197 has held that if marriage
between the parties stood dissolve by a decree of divorce, the domestic
relationship automatically would come to an end. Thus the petition u/s 12 of the
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PWDV Act is not maintainable as there was no marital/domestic relationships
between the parties at the time of filing the present petition.
10. Mr. Nawaz further relied on a decision of the Apex Court reported in
(2011) 12 SCC 588 Inderjit Singh Grewal v. State of Punjab and
Another wherein para 33 of the said judgment read as under:-
“In view of the above, we are of the considered opinion that permitting the Magistrate to
proceed further with the complaint under the provisions of the Act 2005 is not compatible
and in consonance with the decree of divorce which still subsists and thus, the process
amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the
court has to take its contents on its face value and in case the same discloses an offence, the
court generally does not interfere with the same. However, in the backdrop of the factual
matrix of this case, permitting the court to proceed with the complaint would be travesty of
justice. Thus, interest of justice warrants quashing of the same.”
11. Citing those above referred judgments it is submitted by Mr. Nawaz that
the present petition for quashing and maintainability u/s 482 Cr.PC and the case
under the PWDV Act and other subsequent orders are liable to be set aside and
quashed.
12. Mr. Saikia, the learned counsel for the respondent submitted in this regard
that the proceeding is not pending before the learned Trial Court below and the
final judgment was passed wherein the present petitioner was directed to pay
maintenance as well as the compensation and cost of the proceeding. The
proper remedy lies u/s 29 of the Domestic Violence Act and there cannot be any
reason to take recourse of Section 482 Cr.PC. The 482 Cr.PC is applicable only
when there is no other remedy is available. But, there is a specific provision in
the D.V. Act u/s 29 for preferring an appeal if either of the parties is aggrieved
with the order passed in any DV proceeding.
13. Accordingly, the present petition is not maintainable u/s 482 Cr.PC. He
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further submitted that there was a proper service of notice in case of the DV
proceeding as well as in the matrimonial suit but the petitioners intentionally
avoided the service of notice and did not appear in the proceeding. He further
submitted that there was no suppression of fact and the proceeding of the
divorce case is also mentioned in the application u/s 12 of the PWDV Act and in
para 7 the proceeding of the divorce case is also mentioned by the petitioners.
Accordingly, it is submitted by Mr. Saikia that the learned Trial Court below
rightly passed the order ex-parte considering the proper service of notice and no
illegality has been committed by the learned Trial Court below while granting the
maintenance as well as the cost of the proceeding and the compensation. Mr.
Saikia accordingly submitted that the petition may be dismissed accordingly.
14. Mr. Nawaz submitted in this regard that the service was not completed and
it was not issued in compliance of Section 13 of the D.V. Act. There is no service
of notice and more so the process of execution has been initiated after three
months of the date of order, that too, after the decree of divorce wherein there
was no existence of any marital or domestic relationship between the petitioner
and the respondent. However, Mr. Nawaz submitted that matter may be
remanded back to the learned Trial Court below to decide the issue of
maintainability giving chance to the present petitioner to contest the same by
filing their written statement.
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
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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.
16. With the above observations, the present criminal petition stands disposed
of with a direction to both the parties to appear before the learned Trial Court
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below on or before 03.03.2025 and the learned Trial Court below accordingly fix
a date as per convenience of the Court as well as the parties.
JUDGE
Comparing Assistant
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