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Meghalaya High Court · body

2016 DIGILAW 30 (MEG)

Woston Hynniewta v. Kyntiew Akor Suchiang

2016-09-23

S.R.SEN

body2016
JUDGMENT AND ORDER : S.R. Sen, J. Heard Mr. B. Bhattacharjee, learned counsel for the petitioner as well as Mr. S. Jindal, learned counsel for the respondent. 2. Brief facts of the case in a nutshell is that: The opposite party filed an application under section 125 Cr.P.C., 1973 against the petitioner before the learned court below for grant of maintenance for herself and her two children and the same was registered as C.R.Case No. 1024 (S) of 2015. Before the filing of the said application for grant of maintenance, the opposite party no.1 was in receipt of maintenance allowance of Rs. 6000/- per month by virtue of an agreement executed between the parties before the Meghalaya State Commission for Women. There also exist a divorce case pending between the petitioner herein and the opposite party no.1 in the court of Ld. Judge, District Council Court bearing Divorce suit No. 45 of 2013. However, in the present matter the petitioner is assailing the action of taking cognizance of C.R. Case No. 1024 (S) of 2015 under section 125 Cr.P.C. by the learned court of the Judicial Magistrate, Shillong without considering the law of jurisdiction with regard to the litigation between two tribals residing in a tribal areas and by wrong assumption of jurisdiction and issued process to the petitioner vide order 14.03.2016 and passed subsequent orders in blatant disregard to the law without adhering to the constitutional provision of paragraphs 4 and 5 of the Sixth Schedule to the Constitution of India and assumed jurisdiction not vested on it by law. Subsequent to the issuance of the notice by the learned court below, the petitioner entered appearance and filed his show cause in the matter wherein he specifically raised the plea of jurisdiction on the ground of both the parties being tribal and the District Council Court is the appropriate court to take up the matter. The matter was taken up for hearing on the point of jurisdiction by the learned court below on 28.04.2016 and the learned court below in utter disregard to the settled position of law passed the impugned order dated 02.06.2016 rejecting the plea of jurisdiction of the petitioner. As both the contesting parties in the said application filed by the opposite party before the learned lower court belongs to schedule tribe, the learned lower court could not have entertained the said application. As both the contesting parties in the said application filed by the opposite party before the learned lower court belongs to schedule tribe, the learned lower court could not have entertained the said application. Since the impugned orders dated 14.03.2016 and 02.06.2016 are illegal, the petitioner has approached this Hon'ble Court for preventing miscarriage of justice for want of jurisdiction in the matter. Hence this criminal revision petition. 3. Learned counsel for the petitioner submits that petitioner and respondent both belong to the Khasi Hills Scheduled Tribe, thus, any dispute between two tribals should be tried and determined by the District Council Courts as specifically provided at para 4 and 5 of the Sixth Schedule under the Constitution of India. Learned counsel further contended that respondent choose the District Court as a forum to determine the issues and address her grievances. The same was challenged by the petitioner on the ground that the District Court, Shillong has no jurisdiction as both the parties are tribals. However, the District Court came to the conclusion that since the AG Office is one of the respondent in the maintenance case and the office of the AG is non-tribal, so the matter can be tried and disposed by the District Court. Learned counsel further submits that the view taken by the learned Magistrate, District Court, Shillong is totally wrong and contrary to the provision of law and so it needs to be set aside and necessary order maybe passed to transfer the case to the District Council Court. 4. On the other hand, learned counsel on behalf of the respondent submits that it is an undisputed fact that both the parties are tribals but since AG office has been made as one of the respondent, in such circumstances there is no harm if the case is tried by the District Court as AG is considered as non-tribal. Learned counsel also further contended that though both the parties are tribals but they are residing within the jurisdiction of two District Councils, one in Jowai and one in East Khasi Hills. He also further submits that as per the judgment and order given by the Hon'ble Gauhati High Court, when two parties reside within two District Councils, it is the District Court to decide the matter. 5. He also further submits that as per the judgment and order given by the Hon'ble Gauhati High Court, when two parties reside within two District Councils, it is the District Court to decide the matter. 5. After hearing the submission advanced by the learned counsels for the parties, I have perused the impugned order dated 14.03.2016 and 02.06.2016 passed in C.R.Case No. 1024 (S) of 2015. On perusal of the said impugned orders, it is understood that the learned Magistrate has come to the conclusion regarding jurisdiction only on the basis that AG is one of the respondent and is a non-tribal. In my considered view, the concept of the learned Magistrate is totally wrong because the core issue involved in the C.R. Case No. 1024 (S) of 2015 pertains to maintenance and the issue is between the petitioner and the respondent and AG Office has nothing to do with the issue involved in the maintenance case. Office of the AG has been made a party maybe just to direct them to deduct the maintenance from the petitioner's salary which was not necessary. In this instant case, as per the submission advanced by the learned counsels for the parties, it is an admitted fact that the petitioner is still in service in the office of the AG and after decision and determination of the maintenance, the Court could have directed his employer, the AG Office to deduct the maintenance from his salary and to deposit the same in favour of the respondent. Thus, I do not find any logic that merely because AG is one of the respondent, the District Court has the jurisdiction to determine the maintenance between two tribals. 6. On further perusal of the impugned orders, it is also observed that there is some interference from the Women's Commission where they have settled the maintenance of Rs. 6000/-. So far as my knowledge goes there is no law or provision that Women's Commission had been empowered to settle the maintenance. Therefore, the question arise that under what authority the Women's Commission determined or settled the maintenance between the parties. In my view, that too is beyond jurisdiction of Women's Commission and Women's Commission in future must restrain themselves from interfering with the matters which are purely within the jurisdiction of the Courts. Therefore, the question arise that under what authority the Women's Commission determined or settled the maintenance between the parties. In my view, that too is beyond jurisdiction of Women's Commission and Women's Commission in future must restrain themselves from interfering with the matters which are purely within the jurisdiction of the Courts. Therefore, I find that the impugned orders dated 14.03.2016 and 02.06.2016 are both bad in law. Accordingly, the impugned orders are hereby set aside. Learned Magistrate concerned is directed to remand the case to the District Council, East Khasi Hills to adjudicate the matter independently without being influenced by any order passed by the Women's Commission. 7. Learned CGC, Mr. R. Deb Nath appeared on behalf of the AG and submits that he has nothing to submit in this case. 8. With this observation and direction, the instant petition is allowed and stands disposed of. Registry is directed to send a copy of this judgment and order immediately to the concerned Magistrate. 9. Matter stands disposed of. No order as to cost.