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2012 DIGILAW 1240 (GAU)

Arti Agarwal (Goenka) v. Amit Goenka

2012-11-01

P.K.SAIKIA

body2012
JUDGMENT P.K. Saikia, J. 1. This revision proceeding is directed against the order dated 17.05.2011, passed by 1st Class Magistrate, East Khasi Hills, Shillong, in Maintenance case No. 13(T) 2010, dismissing the aforesaid proceeding on holding that the Magistrate at Shillong has no jurisdiction to try the proceeding under Section 125 CrPC since Smti Arti Agarwal, applicant therein, did not reside at any place over which said Magistrate could exercise its jurisdiction. Heard Mr. M.F. Quershi, learned counsel for the petitioner as well as Mr. S. Chakravarty, learned counsel for the respondent. 2. The brief facts necessary for disposal of present proceeding are that Smti Arti Agarwal was married by Shri Amit Goenka, at Guwahati on 2.05.2007 as per Hindu rights and customs. For convenience of discussion, Smti Arti Agarwal and Shri Amit Goenka would be referred to hereinafter as the petitioner and respondent respectively. 3. After the marriage, they started to live as husband and wife in her matrimonial house at Saptagram in the District of Dhubri in Assam. However, their marriage soon ran into rough weather as the husband of the petitioner Smti Arti Agarwal allegedly started torturing her both mentally and physically. Having found no other way out, she came to her parental house and thereafter started living in Shillong at a place which has been properly described in her application under Section 125 CrP.C. 4. Since her parents were poor persons and since she was unable to maintain herself, she has filed an application under Section 125 CrPC before the Addl. Deputy Commissioner, Shillong, which was transferred to 1st Class Magistrate Shillong for disposal in accordance with law. The learned Magistrate, on the receipt of the application and on being requested, was pleased to grant the petitioner Rs. 2000/- per month as being interim allowance till the disposal of the case or until further order. 5. The respondent in due course entered appearance and having filed a petition challenged the maintainability of such a proceeding on the ground that the Magistrate has no jurisdiction to try the same. Learned Magistrate thereafter heard the parties and vide order dated 17.05.2011, dismissed the proceeding on holding that he has no jurisdiction to try the same as petitioner did not have any residence in any place over which he could exercise his power conferred on him by law. Learned Magistrate thereafter heard the parties and vide order dated 17.05.2011, dismissed the proceeding on holding that he has no jurisdiction to try the same as petitioner did not have any residence in any place over which he could exercise his power conferred on him by law. At the same time, he allowed the petitioner to file such an application in the Court of competent jurisdiction. 6. Being aggrieved by aforesaid order, the petitioner has come up before this Court with the present revision proceeding alleging that the petitioner does reside at Happy Valley Shillong and ignoring such a fact Magistrate came to conclusion that the petitioner is not a resident of East Khasi Hills District but of Ri Bhoi District instead. In arriving in such conclusion, he places reliance on some documents which are not at all the part of the proceeding aforesaid. Such a conclusion is therefore in complete contradictions to the arrangement made in Section 126 CrPC which governs the place where a proceeding under Chapter-IX of CrPC needs to be instituted. 7. Notice of this proceeding was served on the respondent. He entered appearance and contested this proceeding contending that the order impugned was passed strictly in accordance with law since there were materials before the Magistrate to show that petitioner resides not at Happy Valley, Shillong but at Barapani, a place within the District of Ri-Bhoi. Being so, the learned Magistrate commits no wrong/illegality, whatsoever, in dismissing aforesaid proceeding and as such, aforesaid decision cannot be faulted. 8. According to learned counsel for the respondent this proceeding before the Magistrate at Shillong is not maintainable for other reason as well. In that connection, it has been pointed out Hon'ble Gauhati High Court, in its order dated 10.05.11, passed in Case No. Tr. P (C) 41 of 2010, ordered the transfer of the Divorce proceeding (registered as TS (D) No. 33/2010) from the Court of District Judge at Dhubri to the Family Court at Guwahati for disposal of the same in accordance with law. 9. In that Divorce proceeding, the petitioner and respondent herein were arrayed as respondent and plaintiff respectively. In view of the order, dated 10.05.11, passed in Case No. Tr. 9. In that Divorce proceeding, the petitioner and respondent herein were arrayed as respondent and plaintiff respectively. In view of the order, dated 10.05.11, passed in Case No. Tr. P (C) 41 of 2010, now, no Court other than Family Court, Guwahati, can entertain any dispute which is covered by Chapter IX of Code of Criminal Procedure 1973 and where parties hereto find themselves arraigned against each other. 10. In elaborating his argument on this count, learned counsel for the respondent submits that once this Court in exercise of its power under Section 24 of the Civil Procedure Code (in short, CPC) read with Article 227 of the Constitution of India, passed an order investing the Family Court at Gauhati to try and dispose matrimonial dispute between the aforesaid parties, authority of the Family Court, Guwahati stands extended automatically to all matrimonial and other related disputes between those parties including a proceeding under Section 125 of the CrPC. 11. Learned counsel for the respondent further submits that Section 8 coupled with Section 7 of the Family Court Act and order dated 10.05.2011, passed in case No. Tr. P (C) 41 of 2010 oust the jurisdiction of all other Courts save and except the Family Court at Gauhati to entertain any dispute, covered by Section 7 of the Family Court Act which clearly includes a proceeding under Section 125 of the Cr.PC. Basing on the above submissions, the learned counsel for the respondent has urged this Court not to pass any order interfering the order dated 17.05.2012 passed by the Magistrate in Maintenance Case No. 13(T) of 2010. 12. I have carefully perused the pleadings of the parties keeping an eye on the materials on record, more particularly the order impugned as well as the petition under Section 125 CrPC seeking maintenance allowance from the respondent/husband. Such an exercise is made to know if the order dated 10.05.2011, passed in case No. Tr. P (C) 41 of 2010 on its own and also coupled with Section 8 of the Family Court Act of 1984 come in the way of invoking jurisdiction by the Magistrate at Shillong over the dispute which was the subject matter of the Maintenance Case No. 13(T) 2010. 13. P (C) 41 of 2010 on its own and also coupled with Section 8 of the Family Court Act of 1984 come in the way of invoking jurisdiction by the Magistrate at Shillong over the dispute which was the subject matter of the Maintenance Case No. 13(T) 2010. 13. In order to appreciate argument, advanced by the Learned counsel for the respondent appropriately and accurately, I propose to reproduce the relevant part of order aforesaid herein below:- By making this application under Section 24 of the Code of Civil Procedure read with Article 227 of the Constitution of India, the petitioner, who is defendant in Title Suit (D) No. 33 of 2010, presently pending in the Court of the learned District Judge, Dhubri, has sought for transfer of the suit from Dhubri to Shillong on the ground, inter alia, that she has been staying with her maternal grandfather at Shillong, because neither she nor her father is capable of maintaining her and that it would cause great hardship to her if she is required to undertake journey to Dhubri for the purpose of contesting the suit, which her husband has instituted, seeking dissolution of marriage. Considering, therefore, the matter in its entirety and in the interest of justice, Title Suit (D) No. 33/2010, presently pending in the Court of learned District Judge, Dhubri. is hereby transferred to the Court of the Principal Judge, Family Court, Kamrup, Guwahati, for disposal in accordance with law subject to the condition that the opposite party herein, i.e., the plaintiff in the suit, shall pay a sum of Rs. 3,000/- (rupees three thousand only) per day as expenses for the travelling lodging and fooding of the petitioner and her escort on each day on which the petitioner is required to come to Guwahati and attend the proceedings, in the suit, at the Family Court, Kamrup, Guwahati. 14. On a careful perusal of the above order, I have found that it is true that petitioner herein preferred an application under Section 24 of the CPC r/w Article 227 of the Constitution of India requesting this Court to transfer TS (D) No. 33/2010 from the Court of District Judge Dhubri to the Court at Shillong. 14. On a careful perusal of the above order, I have found that it is true that petitioner herein preferred an application under Section 24 of the CPC r/w Article 227 of the Constitution of India requesting this Court to transfer TS (D) No. 33/2010 from the Court of District Judge Dhubri to the Court at Shillong. It also true that as stated above, this Court transferred the case to the Family Court at Guwahati instead of transferring the same to the competent Court at Shillong as prayed for by the petitioner/wife herein. 15. But then while exercising the power conferred on it by Section 24 of the CPC r/w Article 227 of the Constitution of India, this Court was greatly influenced by the plight, predicament and difficulties which parties thereto would have to face had they been allowed to fight out their dispute in the forum where the husband/respondent had filed the proceeding or where the wife petitioner desired to have the case transferred. To put it slightly differently, the concern of this Court to mitigate the inconvenience/difficulty of the parties before it in attending aforesaid forum led it to pass such an order. 16. Being so, in my considered opinion, the directions rendered in the order, above, is proceeding specific and it, by no stretch of imagination, can be said to have the effect of ousting the jurisdiction of all other Courts save and except the Family Court at Guwahati to take up all the present or future disputes between the parties above which are covered by Section 7 of the Family Court Act, more so, when such an order was passed having regard to the special facts and circumstances spelled out in the proceeding aforesaid. 17. In so far the claim of the respondent that with the passing of the order, dated 10.05.2012 on case No. Tr. P (C) 41 of 2011, Section 8 of the Family Court Act too come in the way to oust the jurisdiction of all other Court except the Family Court at Guwahati to entertain any matter, covered by Section 7 of the aforesaid Act is concerned, I have found that such an argument is too, too farfetched one. P (C) 41 of 2011, Section 8 of the Family Court Act too come in the way to oust the jurisdiction of all other Court except the Family Court at Guwahati to entertain any matter, covered by Section 7 of the aforesaid Act is concerned, I have found that such an argument is too, too farfetched one. A careful perusal of Section 8 of the Act of 1984 reveals that where a Family Court is established, no Magisterial Court or Civil Court, as specified in Section 7 of the Act of 1984 itself, would deal with the matters, so enlisted in the said Section of the law. 18. However, for a Family Court to exercise jurisdiction over some dispute(s) covered by Section 7 of the Act, the party parties before it must satisfy some condition/conditions, so specified in Section 126 of the Cr.P.C. since procedures, prescribed in the Cr.PC, are generally followed in the proceedings before the Family Court as well although the Act of 1984 empowers the Family Court to fix it own procedure. Section 126 Cr.P.C., amongst other things, speaks of the forum (5) where the proceedings under chapter IX Cr.P.C. are to be filed. 19. In order to appreciate the requirements of Section 126 Cr.P.C. better, I find it necessary to have a look at it and for that purpose, Section- 126 Cr.P.C. is reproduced below:- Procedure:- (1) Proceedings under Section 125 may be taken against any person in any district- - where he is, or - where he or his wife resides, or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (Emphasis supplied by me) 20. A bare perusal of Section- 126 Cr.PC. reveals that residence is one of the important components of such a Section and it alone decides the forum where proceedings under Chapter IX of the Cr.PC needs to be filed. Therefore, unless such a vital condition is fulfilled, in normal circumstance, a party cannot approach the Family Court seeking redressal to his/her grievances. 21. Position under the law being such, the contention of learned counsel for respondent that on the cumulative effect of Section 8 of the Act of 1984 as well as the order dated 10.05.2011 passed in Tr. Therefore, unless such a vital condition is fulfilled, in normal circumstance, a party cannot approach the Family Court seeking redressal to his/her grievances. 21. Position under the law being such, the contention of learned counsel for respondent that on the cumulative effect of Section 8 of the Act of 1984 as well as the order dated 10.05.2011 passed in Tr. P (C) 41 of 2010, no Court other than the Family Court at Guwahati could exercise jurisdiction over any dispute between the parties hereto which are covered by Section 7 of the Act, in my considered view, is not founded on law and logic. 22. I have already found that as per Section 126 of the Cr.PC, residence of the party/parties is one of the conditions, nay vital condition, for the Family Court to exercise its power(s) over some matter(s), covered by Section 7 of the Act 1984. However, in our instant case, I have found that the respondent herein is admittedly not a resident of any place over which Family Court, Guwahati exercises its jurisdiction. On the other hand, there is no materials on record to show that petitioner before this Court too has any residence in the place within the territorial jurisdiction of the aforesaid Court. 23. In the teeth of above revelations, I am to hold that the Family Court at Guwahati has no jurisdiction to decide the dispute which is the subject matter of the Maintenance case No. 13 (T) 2010 though the parties in TS (D) No. 33/2010 and the Maintenance case No. 13 (T) 2010 are same and although the matters in dispute in both those proceeding covered Section 7 of the Act of 1984. Being so, I am unable to persuade myself to accept any of the views, expressed by learned counsel for the respondent. 24. So situated, let us see whether learned Magistrate in dismissing the proceeding in question on 17.5.12 had acted in accordance with requirement of law. I have already found that the term "resides" occupies the centre stage of Section 126 of the Cr.PC. Being so, in order to understand the term "resides" as used in Section 126 of the Cr.PC accurately and correctly, one needs to know how the legislators expected the Court to interpret such a word. 25. I have already found that the term "resides" occupies the centre stage of Section 126 of the Cr.PC. Being so, in order to understand the term "resides" as used in Section 126 of the Cr.PC accurately and correctly, one needs to know how the legislators expected the Court to interpret such a word. 25. Here, it needs to be stated that whatever may be the meaning of the word aforesaid, the Court is duty bound to give that interpretation which is in tune with the object of the Act for which such an Act was enacted and which advances the cause of those persons who stand to gain from such an Act, more particularly, Section 125 Cr.P.C. being a social legislation, aimed at giving protection to the people whom the destiny does not treat well. 26. In that connection, we can profitably peruse the decision rendered by the Hon'ble Supreme Court in the case of Darshan Kumari Vs. Surinder Kumar reported in 1995 Supp (4) SCC 137. In that case, the Magistrate rejected the application under Section- 125 Cr.P.C. on holding that the applicant, therein who resided with her brother cannot be said to be a resident of the place, stated in her application for the purpose of 126 CrPC. 27. The matter was ultimately taken up to the Hon'ble Supreme Court and Hon'ble Supreme Court having rendered a decision in favour of the applicant before the Magistrate held as follows:- We have heard the counsel and gone through the entire record. We find that there is clear averment made by the appellant that she has been residing with her brother at Nuh. However, the High Court as well as the learned Magistrate have come to the conclusion that she was not residing at Nuh because according to them that was not her permanent residence. There is also a misreading by the High Court of the petition filed by her for divorce. The High Court has stated that in the said petition she has given her address of Delhi. We have gone through the record and a copy of the petition filed by her and find that the address given by her is of Nuh. Even ignoring the said misreading, we find that Section 126 of the Code requires that the proceedings under Section 125 may be taken against any person in any district where he or his wife resides. Even ignoring the said misreading, we find that Section 126 of the Code requires that the proceedings under Section 125 may be taken against any person in any district where he or his wife resides. The section does not require permanent residence at the said place. Even a temporary residence, so long as it is not casual, is sufficient to confer jurisdiction on the Magistrate at that place or of the district concerned. In this view of the matter, we are of the view that the High Court's finding was incorrect. The appellant was entitled to prosecute the application in the Court of the learned Magistrate at Nuh where as per her averment in the application, she was residing and still resides. We, therefore, set aside the impugned decision of the High Court. We are informed that pursuant to the interim order of this Court dated 14.2.1994, the proceedings before the Magistrate have already commenced. The learned Magistrate will proceed with the case and decide the same according to law. The appeal is allowed accordingly. (emphasis supplied by me) 28. Hon'ble Allahabad High Court in the case of Pyare Vs. Siawati, reported in 1997 CriLJ 2662 (All) has followed the view, so expressed by Hon'ble Supreme Court in the case of Darshan Kumari (supra). In the case of Sadasivani Vs. Divakar reported in 1986 CriLJ 437it also been held that the words "resides" means place of residence at the time of filing a petition. As held by the Apex Court of the country, even a wife with temporary residence in a particular place may approach a Magistrate exercising jurisdiction over the place where such a wife so resides. 29. It is in those backdrops, let me consider if the act of the Magistrate in dismissing the proceeding in question on the ground that he had no jurisdiction to try the same was justified. In order to get an answer to the above query, I have very carefully perused the application under Section 125 CrPC. On such perusal, I have found that there is a clear and specific statement in the petition under Section 125 CrPC to the effect that the petitioner is the resident of Happy Valley, PS Madanriting Shillong. In order to get an answer to the above query, I have very carefully perused the application under Section 125 CrPC. On such perusal, I have found that there is a clear and specific statement in the petition under Section 125 CrPC to the effect that the petitioner is the resident of Happy Valley, PS Madanriting Shillong. The relevant part of the application is reproduced below:- That your petitioner is an Indian national housewife by profession presently a resident of Happy Valley C/o Ram Avtaar Agarwal, PS Madanriting Shillong. That your petitioner was a resident; within the jurisdiction of this Hon'ble Court prior to the solemnization of her marriage on 2nd May 2007, since being compelled to leave her matrimonial home, is a resident within the jurisdiction of this Hon'ble Court and as such this Hon'ble Court has jurisdiction to determine the issue and there is no legal impediment in granting the relief as prayed of. 30. The above statements when read in between the lines, it would appear more than clear that the petitioner, even if she is not a permanent resident of Happy Valley in Shillong, she is undoubtedly a temporary resident of the place aforesaid. It is also found evident from the impugned order itself. As such, in my considered opinion, on the date of filing of application in question, petitioner resides at Happy Valley in Shillong and therefore, Magistrate at Shillong has the jurisdiction to try the proceeding, which she initiated before him on preferring an application under Section 125 Cr.PC. 31. My view that the petitioner had a residence in Shillong finds support from the order dated 10.05.11 passed in Case No. Tr. P (C) 41 of 2011 as well. On the perusal of order, above, I have found that the petitioner has prayed for transfer of TS (D) No. 33/2010 from the Court of District Judge at Dhubri to the competent Court at Shillong meaning thereby that she has a residence in Shillong too. This is, in turn, a clear testimony to the fact that the present petitioner (applicant in Maintenance Case No. 13(T) 2010) is a resident of Shillong. 32. This is, in turn, a clear testimony to the fact that the present petitioner (applicant in Maintenance Case No. 13(T) 2010) is a resident of Shillong. 32. The facts and circumstances in the present case being as above, the decision, rendered in case of Darshan Kumari (supra) on the facts and circumstances which are strikingly similar to the case under consideration, squarely covers the dispute in the present proceeding and on applying the same to our case, I have found that at least for the purpose of Section 126 Cr.PC, the petitioner is a resident of the place, mentioned in her petition under Section 125 Cr.PC and the Magistrate at Shillong has jurisdiction try the same. 33. However, the learned Magistrate instead of concentrating his attention to the statements, made in the application under 125 CrP.C. chose to ignore the same and placed enormous reliance on some documents pertaining to CR case No. 17 (A) 2010 to founded his conclusion that petitioner is not the resident of Happy Valley, Shillong but a resident of Ri-Bhoi District though those documents were not made part of the proceedings in question and although such reliance was not permissible. Unfortunately, such a reliance on impermissible documents only led him to a wrong decision. 34. In view of what I have discussed herein before and what have emerged thereafter, I am of the opinion that learned Magistrate while dismissing the proceeding in question committed illegality which now requires this Court to set aside the same since it has caused serious injustice to the petitioner herein. 35. In the result, this proceeding is allowed and the order dated 17.5.2011 passed in Maintenance Case No. 13(T) 2010 is set aside as same is found unsustainable. Consequently, the proceeding in question stands restored to the file with its original number. 36. Let LCR be returned forthwith. 37. On the receipt of LCR, the learned Magistrate would dispose of the proceeding in question in accordance with law. 38. Consequently, the proceeding in question stands restored to the file with its original number. 36. Let LCR be returned forthwith. 37. On the receipt of LCR, the learned Magistrate would dispose of the proceeding in question in accordance with law. 38. Before I part with the record, I like to make it clear that this Court is alive to the difficulties of the parties herein, more particularly, the difficulties faced by the respondent since this Court has already transferred the suit, he filed, from the Court of District Judge, Dhuburi to the Family Court, at Guwahati and also required him to pay the expenses of petitioner herein which she has to incur in attending the proceeding at Family Court in Guwahati. 39. His difficulty, problem and trouble would, now, increase many folds since he has to attend the Court at Shillong as well in defending the proceeding initiated by the petitioner. But then, this Court exercising revisional jurisdiction could do nothing to minimize the trouble which he has to face in attending the Court at Shillong. However, he may, if so advised, approach this Court with appropriate prayer once again to transfer this case to any Court of competent jurisdiction, more particularly the Family Court at Guwahati. With the above observations, the proceeding is allowed. Petition allowed