Gauhati High Court
Page No.# 1/8 vs Bratati Chakraborty on 10 September, 2024
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/8 GAHC010103782023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./463/2023 APARNA CHOUDHURY AND 2 ORS W/O NIHARENDU CHOUDHURY R/O WARD NO. 09, GAUTOM ROY LANE, HAILAKANDI, P.O., P.S. AND DIST. HAILAKANDI PIN-788155 2: NIHARENDU CHOUDHURY S/O LT. NITYA GOPAL CHOUDHURY R/O WARD NO. 09 GAUTOM ROY LANE HAILAKANDI P.O. P.S. AND DIST. HAILAKANDI PIN-788155 3: NANDITA CHOUDHURY W/O PAPPU DEB PERMANENT RESIDENT OF 1ST FLOOR 1A PROGRESSIVE MANSION RANGIRKHARI P.O. AND P.S. SILCHAR DIST. CACHAR ASSAM PIN-788005 PRESENT RESIDENT- 3RD FLOOR F-136 F BLOCK MANSAROVAR GARDEN NEW DELHI PIN-110015 Page No.# 2/8 VERSUS BRATATI CHAKRABORTY D/O PROMOTHESH KANTI CHAKRABORTY W/O SAMAR CHOUDHURY R/O CENTRAL ROAD, WARD NO. 09, HAILAKANDI, P.O., P.S. AND DIST. HAILAKANDI, PIN-788151 Advocate for the Petitioner : MR. T A CHOUDHURY, MR. A Y CHOUDHURY Advocate for the Respondent : MR. H I CHOUDHURY, MS. P ADHIKARI,MR. REZABUL HOQUE,MD. G UDDIN BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER
Date : 10.09.2024
Heard Mr. A.Y Choudhury, learned counsel for the petitioners. Also heard
Mr. G. Uddin, learned counsel for the respondent.
2. This is an application under Section 482 Cr.P.C. praying for quashing the
proceeding against the petitioners in connection with M.R.(D.V.) Case No.
163/2022, pending in the court of learned JMFC, Hailakandi.
3. The brief facts of the case is that the respondent/wife filed a case under
Section 12 of Protection Women from Domestic Violence Act, 2005 (herein after
D.V. Act) before the learned CJM, Hailakandi vide M.R.(D.V.) Case No. 163/2022
against her husband and the present petitioners. On 26.06.2017, the marriage
between the respondent and her husband took place. After their marriage, they
lived together as husband and wife and out of their wedlock, one child was
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born. It was alleged that after the birth of their female child, the respondent’s
husband, who had previously an affair with another woman, fell in love with her
again. At the instigation of the petitioners, the husband began to torture the
respondent, demanding Rs. 2,00,000 and pressurizing her to obtain the said
money from her parental home. As the parents of the respondent failed to meet
the demand of the husband of the respondent and the petitioners, the husband
started to torture her more as a result of which she was compelled to leave her
matrimonial house. It is further alleged that though she was taken back by her
husband on several times with promise to lead happy conjugal life but the
petitioners and the husband of the respondent did not change their attitude.
Since then the respondent is staying along with her parents.
4. After taking cognizance by the learned trial court, notice was issued to
the petitioners. The learned counsel for the petitioners submits that the
petitioner No. 1 is the respondent’s mother-in-law, petitioner No. 2 is her father-
in-law, and petitioner No. 3 is her sister-in-law. The respondent along with her
husband used to live in the first floor of the residential building which belongs to
elder brother of her husband and the petitioner Nos. 1 and 2 used to stay in
Assam type building which is situated to the eastern side of the respondent’s
matrimonial house.
5. According to the learned counsel for the petitioners, the husband of the
respondent, being the son of the petitioner Nos. 1 and 2, generally extend
monetary assistance and take care of his parents while the other brother
residing in other places. From the very beginning of the marriage, the
respondent has been attempting to prevent her husband from visiting his
parents i.e. petitioner Nos. 1 and 2, and from taking care of them. It is quite
unnatural for petitioner to live apart from his parents and to arrange separate
accommodation as demanded by the respondent.
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6. It is further submitted that the respondent in the year 2021 went to her
parent’s house on social visit with her child and suddenly after some days, she
came with some police personnel on her matrimonial house with a search
warrant and take away the marriage articles as per order of the court and since
03.12.2022, the respondent has been staying in her parents’ house without any
valid reason. The learned counsel for the petitioners further contended that the
claim of the respondent is totally false, baseless and imaginary one. The
respondent is a lady of hot temper and always misbehaved with petitioner Nos.
1 and 2 and always creates pressure towards her husband to leave his parents,
either to arrange a separate rented house nearby of her father’s house or to
shift in his father’s house. The petitioners being the parents-in-law and sister-in-
law of the respondent are no way connected with alleged offence. As such, the
case of the respondent i.e. the proceeding of D.V. Case pending against the
petitioners is liable to be quashed.
7. On the other hand, the learned counsel for the respondent submits that
the petitioners on receipt of the notice have preferred this application under
Section 482 Cr.P.C. for quashing of the proceeding of D.V. Case. The trial is yet
to commence as such, at this stage it is not possible to prove the allegation
made by the respondent against the petitioners and which can only be possible
during trial. Hence, the learned counsel for the respondent prays for dismissal of
the criminal petition.
8. The Protection of Women from Domestic Violence Act, 2005 is a
legislation enacted to shield the rights of women which are enshrined and
guaranteed under the Constitution of India, besides paving way to deal with the
matters connected to and arising out of the family disputes in an effective and
efficacious manner.
9. When the provisions contained in the said legislation i.e. the Protection of
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Women from Domestic Violence Act, 2005 are looked into, it is very clear that
the proceedings that would be conducted are more civil in nature. The
protection orders that would be granted under Section 18, the residence orders
that would be granted under Section 19, the monetary reliefs that would be
granted under Section 20, the custody orders that would be granted
under Section 21 and the compensation orders that would be granted
under Section 22, would be based on the applications that would be filed by the
aggrieved persons, the domestic incident reports and the defence taken by the
respondents therein. All those proceedings are civil in nature. No doubt, Section
28 (1) of the Act of 2005 lays down that the proceedings shall be governed by
the provisions of Code of Criminal Procedure. However, it is specifically
mentioned under Section 28(2) of the Act of 2005 that the Court is empowered
to lay down its own procedure for disposal of the applications filed by the
aggrieved persons or the Protection Officers. May be due to the fact that the
power to deal with the domestic violence cases is given to the Magistrate, the
litigant public are under the impression that the proceedings initiated under the
Act of 2005 are purely criminal in nature.
10. Section 2(i) of the Act of 2005 states that “Magistrate” means Judicial
Magistrate of First Class or the Metropolitan Magistrate, as the case may be,
exercising jurisdiction under the Code of Criminal Procedure. However, as
indicated earlier, the proceedings under the Act of 2005 are more civil in
nature. Section 31 of the Act of 2005 is the only provision which makes the
breach committed within the purview of the Act of 2005 punishable. As
per Section 31 of the Act of 2005, breach of a protection order or an interim
protection order is a punishable offence. Further, Section 31(3) of the Act of
2005 empowers the Magistrate to frame charges under Section 498-A IPC or any
of the provisions of the Indian Penal Code or the Dowry Prohibition Act while
framing charge for the offences punishable for breach of the protection order or
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interim protection order. May be due to that reason i.e., to deal with the offence
committed by breaching the protection order or an interim protection order and
the connected offences punishable under the Indian Penal Code and the Dowry
Prohibition Act, the legislature by all its wisdom has empowered the Judicial
Magistrate of First Class to deal with the matters pertaining to other provisions
and for issuance of required orders as enumerated under Sections 18 to 22 of
the Act of 2005. That does not mean that the entire proceedings that would be
conducted by the Magistrate under the Act of 2005 are criminal in nature. Thus,
when the orders that would be granted in domestic violence cases, basing on
the material produced, are civil in nature, it has to be seen how far it is
justifiable on part of the parties against whom the aggrieved person or the
Protection Officer has initiated proceedings to seek quash of proceedings under
Section 482 Cr.P.C.
11. Law is well settled that in a petition filed under Section 482 Cr.P.C., the
High Court is required to examine whether its intervention is required for
prevention of abuse of law or otherwise to secure the ends of justice. It is only
in extremely extraordinary cases that the courts can exercise its jurisdiction
conferred under Section 482 C.P.C. to quash the proceedings under
the Protection of Women from D.V. Act, 2005. Only on the sole ground that the
parties arrayed as respondents by the aggrieved person were unnecessarily
roped in, the proceedings against them cannot be quashed.
12. None of the reliefs claimed in D.V. Act vide No. M.R.(D.V) No. 163/2022
by the respondent/wife can be called crimes. Though the Act empowers a
Magistrate to entertain the complaint of an aggrieved person under Section
12 of D.V. Act. and makes it incumbent on the Magistrate to make enquiry of the
same under the Code of Criminal Procedure Code, 1973 reliefs under Sections
18 to 22 of the Act are in the nature of civil reliefs only. It is only violation of the
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order of the Magistrate which becomes an offence under Section 31 of the Act
and which attracts penalty for breach of protection order by any of the
respondents. Similarly, Section 33 of the Act provides for penalty for discharging
duty by protection officer. Except under Sections 31 and 33 of the Act which
occur in Chapter V, all the reliefs under Chapter IV of the Act are not offences
and enquiry of rights of the aggrieved person under Sections 18 to 22 of the Act
cannot be termed as trial of a criminal case. Therefore, it is clear that the
proceedings conducted till passing of the order under Sections 18 to 22 are only
civil in nature to provide civil remedy.
13. So far as the procedure is concerned, no doubt, the above reliefs are to
be provided by a Judicial Magistrate First Class. A close perusal of Section
28 would show that though as per this Section the proceedings
under Sec.12, 18 to 23 and offences under Section 31 are governed by the Code
of Criminal Procedure, 1973 but that is not an inscrutable rule inasmuch
as Section 28(1) is having a saving clause and also subject to sub-section(2).
14. Having regard to the facts that the scheme of the Act which provide civil
reliefs and the Magistrate can lay his own procedure by not taking coercive
steps in general course and the enquiry being not the trial of a criminal offence,
the petitioners cannot rush with Section 482 Cr.P.C. petition seeking quashment
of the proceedings on the ground that they were unnecessarily roped in. They
can establish their non-involvement in the matter and non-answerability to the
reliefs claimed by participating in the enquiry. It is only in exceptional cases like
without their existing any domestic relationship as laid under Section 2(f) of the
D.V. Act between the parties, the petitioner filed D.V case against them or a
competent Court has already acquitted them of the allegations which are
identical to the ones levelled in the Domestic Violence Case, the petitioners can
seek for quashment of the proceedings since continuation of the proceedings in
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such instances certainly amounts to abuse of process of Court.
15. To sum up the findings, since remedies under D.V. Act are civil remedies,
the Magistrate in view of his powers under Section 28(2) of D.V. Act shall issue
notice to the parties for their appearance and in case of non appearance of the
parties despite receiving notice can conduct enquiry and pass ex-parte order
with the material available. In is only in the exceptional cases where the
magistrate feels that the circumstance requires that he can insist the presence
of the parties even by adopting coercive measures.
16. In the case in hand, a perusal of the complaint would show that the
allegations have been made by the wife/respondent against her husband and
the present petitioners i.e. father-in-law, mother-in-law and sister-in-law to
torture her both physically as well as mentally by demanding money. The
learned trial court issued notice against the petitioners after taking cognizance.
At this juncture, no any special grounds have been shown to quash the
proceeding of the D.V. Case vide M.R.(D.V) Case No. 163/2022.
Hence, the criminal petition is found to be devoid of any merit and accordingly
dismissed. The learned trial court will proceed with the case in accordance with
law.
JUDGE
Comparing Assistant