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2015 DIGILAW 796 (JHR)

Vijay Pratap Sinha v. State of Jharkhand

2015-07-13

RONGON MUKHOPADHYAY

body2015
Order Heard the parties. 2. In this application, the petitioner has prayed for quashing the order dated 28.08.2014, passed by Shri Nikesh Kumar Sinha, learned Additional Sessions Judge, VII, Dhanbad in Cr. Appeal No. 83 of 2014, whereby and whereunder the order dated 6.6.2014, passed by learned Chief Judicial Magistrate, Dhanbad in connection with C.P. Case No. 1533 of 2012 was affirmed and the appeal was dismissed. 3. A complaint was filed by the opposite party no. 2 before the learned Chief Judicial Magistrate, Dhanbad on 19.04.2012, in which it was alleged that the marriage between the petitioner and the opposite party no. 2 had been solemnized on 20.05.1999 and out of the said wedlock, one son and a daughter was born. It has been alleged that at the time of marriage, gift worth Rs.2 lacs had been given but subsequently the complainant’s father had been compelled to give Rs. 2 lacs in the year 2000 and from the earning of the opposite party no. 2 and also with the financial help of the family, a land had been purchased, on which the present house/nursing home is situated. It has further been alleged that after few days of marriage, torture had started upon the opposite party no. 2. In the complaint petition, the complainant has stated that the complainant had to bear the expenses on the education and upbringing of her children and the petitioner did not spend a single farthing. It has also been alleged that the petitioner started leading an adulterous life with several women. Since the complainant is a doctor by profession, she was forced to keep a whole time governess for proper upbringing of the children but the petitioner had developed illicit relationship with the said girl also. On 4.5.2011, the complainant had reported the fear she was having with regard to danger to her life but somehow the matter was pacified. 4. An application was filed in C.P. Case no. 1533 of 2012 praying for monetary relief under section 20 of the Protection of Women from Domestic Violence Act, 2005 and the learned Chief Judicial Magistrate, Dhanbad vide order dated 5.1.2013 directed that the opposite party (petitioner) shall bear the amount of Rs.1.5 lacs per annum for the educational and other expenses incurred for their children. 1533 of 2012 praying for monetary relief under section 20 of the Protection of Women from Domestic Violence Act, 2005 and the learned Chief Judicial Magistrate, Dhanbad vide order dated 5.1.2013 directed that the opposite party (petitioner) shall bear the amount of Rs.1.5 lacs per annum for the educational and other expenses incurred for their children. An application was filed by the complainant for amendment with respect to monetary relief under Section 20 of the Act and on 19.08.2013, an order was passed in the said amendment application by the learned Chief Judicial Magistrate, Dhanbad, wherein the same was allowed and the opposite party no. 2 was directed to incorporate the amendment in the relief portion. Against the aforesaid order of amendment, the petitioner preferred an appeal under section 29 of the Act being Cr. Appeal No. 324 of 2013 and the learned Sessions Judge at Dhanbad vide judgment dated 7th February, 2014 was pleased to dismiss the said appeal. It further appears that the petitioner had filed an application under section 25(2) of the Act, in which it was prayed that the order dated 5.1.2013 in view of the changed circumstance be revoked. To the said application, a rejoinder was also filed by the opposite party no. 2 and finally vide order dated 6.6.2014, the said application was dismissed by the learned C.J.M., Dhanbad holding that the issue regarding majority of the children has already been considered in the earlier order dated 5.1.2013 and since there was no changed circumstance, the said application was dismissed. Being aggrieved by the order dated 6.6.2014, the petitioner preferred an appeal being Cr. Appeal No. 83 of 2014, which was, however, dismissed on 20th August, 2014 by the learned Additional Sessions Judge-VII, Dhanbad. 5. Learned counsel for the petitioner has submitted that the proceeding initiated under the provisions of the Protection of Women from Domestic Violence Act, 2005 is for protecting the right of women, who are victims of domestic violence within the family but as it appears that monetary relief had been sought for and was granted for the son and daughter and in such circumstances, the initiation of the case itself was not maintainable. Learned counsel for the petitioner has further referred to Section 12 of the Act and has submitted that no application under section 20 of the Act was maintainable in absence of a report received from the Protection Officer. It has further been submitted that Section 20 of the Act empowers the Magistrate to direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and since a child has been defined in section 2(b) of the Act to be a person below the age of 18 years and admittedly since the son had already attained majority in the year 2010, no order could have been passed with respect to the same. Mr. M.B. Lall, learned counsel for opposite party no. 2, on the other hand, has submitted that the son of the petitioner namely Kumar Aanjaneya has been admitted at University of Michigan and the daughter of the petitioner is still completing her MBBS course. It has further been submitted that the initial order dated 5.1.2013 was never challenged by the petitioner and only on account of delay, an application under section 25(2) of the Act was filed, which was rejected on 6.6.2014 and subsequently dismissed in appeal. It has, therefore, been submitted that in view of the facts and circumstances of the present case, the present case is also liable to be dismissed. 6. Initially, the opposite party no. 2 had prayed for monetary relief under section 20 of the Domestic Violence Act, in which an order was passed on 5.1.2013 directing the petitioner herein to bear the amount of Rs.1.5 lacs per annum for the education and other expenses incurred for their children namely Kumar Aanjaneya and Aparajita Sinha. Subsequently, an amendment application was filed by the opposite party no. 2 herein with a prayer for amending the monetary relief claimed under section 20 of the Act. The said amendment application was allowed by the learned Chief Judicial Magistrate, Dhanbad vide order dated 19.08.2013. Against the order dated 19.08.2013, the petitioner herein preferred an appeal being Cr. Appeal No. 324 of 2013, which was, however, dismissed on 7.2.2014. 2 herein with a prayer for amending the monetary relief claimed under section 20 of the Act. The said amendment application was allowed by the learned Chief Judicial Magistrate, Dhanbad vide order dated 19.08.2013. Against the order dated 19.08.2013, the petitioner herein preferred an appeal being Cr. Appeal No. 324 of 2013, which was, however, dismissed on 7.2.2014. Petitioner herein thereafter filed an application under section 25(2) of the Act, in which it was prayed that in view of the changed circumstances, the earlier order dated 5.1.2013 be revoked since one of the child was already a major when the order dated 5.1.2013 was passed, whereas the other child had attained the age of majority in the meantime. The learned Chief Judicial Magistrate, Dhanbad vide order dated 6.6.2014 rejected the application of the petitioner herein under section 25(2) of the Act, which order was challenged in Cr. Appeal No. 83 of 2014 and the same was also dismissed on 28.08.2014. 7. The factual aspect reveals that when the order dated 5.1.2013 was passed by the learned Judicial Magistrate, Dhanbad in Complaint Case No. 1533 of 2012, the son of the parties had already attained majority. The monetary relief, which was granted by the learned Magistrate was to the aggrieved party, who was a victim of the domestic violence to meet the expenses and losses suffered. The order dated 5.1.2013 was never challenged by the petitioner herein before any Forum and as such the order dated 5.1.2013 has already attained finality. 8. Since the petitioner has accepted the order dated 5.1.2013, when admittedly the son of the parties was a major and both the children being dependent were continuing with their studies, the attaining of the age of majority by the daughter of the parties does not create a new case for interference, nor does it make any difference. Moreover, at the cost of repetition, it must be indicated that never did the petitioner herein challenge the order dated 5.1.2013 and in such circumstances, it was rightly held by learned Chief Judicial Magistrate, Dhanbad while passing the order dated 6.6.2014 that any interference in the order dated 5.1.2013 would virtually mean review of the said order, which is not legally permissible. The appellate order has also taken into consideration every aspect of the matter and had thereafter dismissed the appeal preferred by the petitioner herein. 9. The appellate order has also taken into consideration every aspect of the matter and had thereafter dismissed the appeal preferred by the petitioner herein. 9. The orders dated 6.6.2014 passed by the learned Chief Judicial Magistrate, Dhanbad and the order dated 28.08.2014 passed in Cr. Appeal No. 83 of 2014 by learned Additional Sessions Judge, VIIth Dhanbad being in accordance with law do not call for any interference and in such circumstances, the present application being devoid of any merit is hereby dismissed.