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2015 DIGILAW 706 (ORI)

SADANANDA v. NANDITA

2015-12-16

RAGHUBIR DASH

body2015
JUDGMENT : Raghubir Dash, J. 1. This is an application under Section 482 of Cr.P.C. intended to get the order dated 29.10.2015 passed by the learned Sessions Judge, Cuttack (Annexure-7) in Criminal Appeal No. 58 of 2015 set aside and to quash the proceeding in C.M.C. No. 133 of 2014 pending in the Court of J.M.F.C., Cuttack. Petitioner is the husband and opposite party is the wife. A divorce case between the parties is now before the Court of learned Judge, Family Court, Cuttack registered as C.P. No. 457 of 2012. During pendency of the divorce case the wife made a complaint under Section 12 of the Protection of Women from Domestic Violence Act (in short, 'the Act') claiming that she, having been driven out her matrimonial home on 8.8.2011, is entitled to maintenance from her husband, who is working in the office of the Director, D.M.R.L. (DRDO), Hyderabad as a Scientist (B). That complaint now stands registered as P.W.D.V. Misc. Case No. 571 of 2012 in the Court of J.M.F.C.(S), Cuttack. Not only the husband but also his parents and some other in-laws have been arrayed as opposite parties in the proceeding. The husband filed a petition before the learned J.M.F.C. contending that the proceeding under the Act is not maintainable. Having heard the parties, learned J.M.F.C. rejected the petition vide order dated 18.5.2015 (Annexure-5). That order was challenged before the learned Sessions Judge, Cuttack in Criminal Appeal No. 58 of 2015 which has been dismissed vide order dated 29.10.2015 (Annexure-7). 2. The petitioner-husband challenges the maintainability of the proceeding under the Act on the following grounds: (i) The conjugal relationship between the spouses having been cut off on and from 8.8.2011 the proceeding under Section 12 of the Act initiated after expiry of one year counted from 8.8.2011 is time-barred. In this regard, reliance has been placed in the case of Inderjit Singh Grewal v. State of Punjab & Anr., reported in 2011(3) DMC 7 (SC). (ii) Since one divorce proceeding is pending before the learned Judge, Family Court, Cuttack, an independent proceeding under the Act initiated before another Court is an abuse of process and results in multiplicity of proceeding. It is asserted that the same proceeding could have been initiated before the Family Court in seisin over the divorce case. (ii) Since one divorce proceeding is pending before the learned Judge, Family Court, Cuttack, an independent proceeding under the Act initiated before another Court is an abuse of process and results in multiplicity of proceeding. It is asserted that the same proceeding could have been initiated before the Family Court in seisin over the divorce case. (iii) Since maintenance has been claimed from the husband the proceeding under the Act as against the in-laws, who are neither necessary nor proper parties, is illegal. (iv) Before proceeding against the petitioner-husband under Section 12 of the Act, learned Magistrate ought to have called for one Domestic Incident Report from the protection officer. 3. All these grounds were also raised before the learned Sessions Judge who dismissed the appeal mostly on the ground that the proceeding under the Act has progressed substantially, with further observation that the wife could not have been compelled to initiate the proceeding under the Act before the Family Judge inasmuch as she has a right to initiate an independent proceeding. Regarding the cessation of domestic relationship between the spouses learned Sessions Judge observed that being purely a question of fact it can be adjudicated upon the evidence of the parties. 4. Opposite party-wife has entered appearance. Written objection has been filed by the opposite party. It is contended, inter alia, that the divorce proceeding has already been dismissed by the Family Court vide order dated 9.11.2015, that there being no divorce as yet the domestic relationship cannot be said to have ceased to exist, that no independent proceeding under the Act can be initiated before the Judge, Family Court as decided in the case of Smt. Kumari Behera v. State of Orissa & Ors., reported in AIR 2010 Orissa 68 and some other decisions of this Court, and that domestic incident report (Annexure-B/1) is already available in the case before the learned Magistrate. It is further submitted that the Magistrate is not required under the law to wait for such report before issuing notice to the other side on the institution of the proceeding under Section 12 of the Act. It is further submitted that the Magistrate is not required under the law to wait for such report before issuing notice to the other side on the institution of the proceeding under Section 12 of the Act. As regard arraignment of the in-laws, it is contended that they have been made parties to the proceeding under Section 12 of the Act inasmuch as there are series of allegations as to how they have tortured the wife both physically and mentally, besides the fact that the reliefs sought for in the petition under Section 12 of the Act have got nexus with the in-laws as well. Objection as to the maintainability of the present CRLMC under Section 482, Cr.P.C. has also been raised on the ground that since only maintenance has been claimed in the proceeding initiated under the Act and there is no allegation of commission of any offences constituting the alleged domestic violence, Section 482 of Cr.P.C. is not attracted. 5. As claimed by the opposite party and not disputed by the petitioner the divorce case has been dismissed by the learned Judge, Family Court. Therefore, it is not considered necessary to give a finding on Ground No. (ii). Since the prayer for divorce has been refused and the marital relationship continues to exist, it cannot be said that the conjugal relationship between the parties has seized to exist since 8.8.2011. The proceeding under Section 12 of the Act is for maintenance and some other financial assistance sought for by the wife from her husband. There is no allegation that any offence has been committed by the husband. In Inderjit Singh's case (supra) Section 468 of Cr.P.C. is made applicable inasmuch as in the said case the wife had filed a criminal complaint before the competent Court under the PWDV Act to initiate criminal proceedings against her husband. Therefore, the affricated judgment is not applicable to this case. Ground No. (i) is answered accordingly. In respect of Ground No. (iv) it is to be stated that it is not made sine qua non to call for a Domestic Incident Report from the Protection Officer before proceeding under Section 12 of the Act. Therefore, the affricated judgment is not applicable to this case. Ground No. (i) is answered accordingly. In respect of Ground No. (iv) it is to be stated that it is not made sine qua non to call for a Domestic Incident Report from the Protection Officer before proceeding under Section 12 of the Act. In this regard, the learned Counsel for the opposite party has rightly placed reliance on this Court's judgment in Namita Mohanty v. Pankaja Kumar Mohanty, reported in 2014(2) DMC 343 wherein it is held that it is not necessary to call for a Domestic Inquiry Report from the Protection Officer but if such an inquiry report is available, the Court should take the same into consideration. As regards Ground No. (iii) the objection raised by the petitioner in this regard appears to be quite tenable. In the proceeding under Section 12 of the Act the wife has unnecessarily impleaded her in-laws. The complaint before the learned Magistrate (Annexure-1) reflects that there is clear averment asserting the liability of the husband to pay the amounts claimed in the petition. There is no averment as to why the in-laws have been arrayed as parties. Therefore, the proceeding before the learned J.M.F.C. as against the in-laws (respondent Nos. 2 to 7) is liable to be quashed. 6. On behalf of the opposite party there is submission that Section 482 of Cr.P.C. is not attracted to quash the proceeding before the learned J.M.F.C. In support of this contention, reliance has been placed on a judgment of the High Court of Gujarat (Narendra Kumar v. State of Gujarat). In that judgment the question raised was whether Domestic Violence Act predominantly provides for civil remedies and if so whether Section 482 of Code of Criminal Procedure can be applied for quashing of such civil proceedings. In that case it is held that Section 482 of Cr.P.C. can be applied in relation to offences and not in relation to civil proceedings. In that case it is held that Section 482 of Cr.P.C. can be applied in relation to offences and not in relation to civil proceedings. Since the wife has sought for maintenance from the husband (besides some other financial assistance) which is akin to an application under Section 125 of Cr.P.C. and it is also on record that interim maintenance has already been granted and in such a proceeding in-laws have been found to have been unnecessarily impleaded inherent powers of the High Court can be invoked so as to prevent abuse of process of Court and miscarriage of justice. In the result, the Criminal Misc. Case is allowed in part. The impugned order dated 29.10.2015 passed in Criminal Appeal No. 58 of 2015 by the learned Sessions Judge, Cuttack is set aside and the proceeding registered as C.M.C. No. 133 of 2014 in the Court of the learned J.M.F.C., Cuttack as against respondent Nos. 2 to 7 therein stands quashed. The CRLMC is accordingly disposed of.