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2019 DIGILAW 1021 (GAU)

Fazlul Karim v. Mallika Khatun

2019-09-10

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. A. Ali, learned counsel appearing for the petitioner/husband and Mr. AK Purkayastha, learned counsel appearing on behalf of the sole respondent/wife. 2. By this petition under Section 482 CrPC read with Section 397 CrPC, the petitioner has challenged the order dated 12.2.2018 passed by the learned Additional Sessions Judge, Nagaon in Criminal Revision No.38(N)/2016. 3. Briefly stated, the case of the petitioner is that the respondent/wife filed the D.V. Case No.27/2015 under Section 12 of the Domestic Violence Act against the petitioner/husband seeking various reliefs including interim relief under Section 23 of the Act. The learned trial court, accordingly, issued Notice to the respondent (petitioner herein) to appear before the court and to submit written statement but as the petitioner/husband did not turn up before the court, the case was proceeded exparte and after recording the evidence of the respondent/wife, the court vide order dated 8.10.2015 passed the order directing the petitioner to pay sum of Rs.2,000/- to his wife/respondent and minor child and also directed to pay sum of Rs.2,000/- as compensation under Section 20 of the Act. 4. The petitioner herein did not prefer any appeal against the aforesaid order and subsequent to the Notice issued by the learned trial court to pay maintenance, the petitioner herein make a prayer before the court to allow him some time to file his response and subsequently the learned trial court by its order dated 8.9.2016 rejected the prayer made by the petitioner. The petitioner herein preferred a revision against the aforesaid order dated 8.9.2016 before the revisional court and the revisional court has set aside the aforesaid order with a direction to the learned trial court to decide the matter afresh. 5. Learned trial court after receipt of the direction from the revisional court again passed an order dated 5.8.2017 wherein the learned trial court has held that without vacating the ex-parte final order, the petitioner cannot be allowed to file written statement as the final order cannot be altered/reviewed by same court in terms of provision of Section 362 CrPC. On the same date, the petitioner has also filed another petition praying time to pay maintenance as he could not arrange the money. The court, accordingly, allowed time for payment fixing 6.9.2017. 6. On the same date, the petitioner has also filed another petition praying time to pay maintenance as he could not arrange the money. The court, accordingly, allowed time for payment fixing 6.9.2017. 6. The petitioner herein again moved another petition before the revisional court vide Revision Petition No.55(N)/2016 challenging the order so passed by the learned trial court dated 5.8.2017. The learned revisional court after appreciating all the maters on record, has dismissed the petition holding that revisional court cannot interfere with the merit of the case i.e. the final order dated 3.10.2015 as only the appellate court under Section 29 of the D.V. Act can interfere with the final order passed by the trial court. 7. In the said revision petition, the petitioner raised the question of non-receipt of Notice prior to passing such ex-parte order and the learned revisional court held that the court is not in a position to appreciate such matter like an appellate court. By the order dated 12.2.2018, the learned revisional court has dismissed the petition of the petitioner. Now, challenging the aforesaid order dated 12.2.2018 passed by the revisional court, the present petition is preferred under Section 482 CrPC. 8. The bone of contention of the petitioner is that he was never served with Notice prior to passing such order and respondent/wife filed a false case despite there was discontinuation of their marital life for last 27 years (as mentioned in the petition). Thus, it is a submission of the learned counsel for the petitioner that such an order is liable to be vacated and set aside so passed against the petitioner, otherwise he will be deprived of his right for non-service of Notice upon him. 9. I have heard learned counsel for the respondent, Mr. AK Purkayastha, who has contended that there is no scope to challenge such orders of the learned revisional court and the trial court in this criminal petition inasmuch the final order, passed by the learned trial court cannot be interfered by revisional court and only the appellate court under Section 29 of the D.V. Act can deal with such matter and the same cannot be a subject matter of quashing, which is not provided under the law. 10. Due consideration is given to the submission of the learned counsel for the parties and also gone through the entire LCR that has been produced before this Court. 11. 10. Due consideration is given to the submission of the learned counsel for the parties and also gone through the entire LCR that has been produced before this Court. 11. Record reveals that after missing of the original LCR, record of D.V. Case No.27/2015 was reconstructed by the learned Magistrate after obtaining due permission from the Sessions Judge concerned. Accordingly, there can be no denial that the present LCR is not the original one as reconstructed, which has the same effect of that of original one. 12. After going through the orders so passed by the learned trial court, it appears that the learned trial court has issued Notice to the respondent and as per order dated 18.5.2015, Notice was duly served to the respondent but he remained absent without steps. On the next, on 26.6.2015, the court proceeded ex-parte fixing 1.8.2015 for ex-parte evidence due to absence of respondent despite service of Notice. Accordingly, on the subsequent dates, the court examined the witnesses ex-parte and delivered the judgment accordingly on 3.10.2015. Such a finding of the learned trial court regarding service of Notice cannot be discarded to be not authenticated one as has been contended by the learned counsel for the petitioner that no Notice was served upon the petitioner. 13. Learned trial court has passed the final order dated 3.10.2015 on the basis of evidence on record and there being no illegality or irregularity in the proceeding of the case so as to call for interfere into. That apart, the contention of the petitioner was not given opportunity to file his written statement, which cannot be decided by this Court and as per the provision of Section 29 of the D.V. Act, one can prefer an appeal against any order/judgment of the trial court so passed under the D.V. Act. But the petitioner nowhere approached before appropriate Forum but has challenged the subsequent orders passed by the court whereas he never challenged the final order dated 3.10.2015 passed by the trial court. 14. That being so, whatever contentions raised before this Court cannot be entertained by way of this proceeding. Accordingly, this Court is not inclined to interfere into the matter in hand. The petitioner has efficacious remedy to prefer an appeal under the law and this Court is not the proper authority to interfere into such matter. 15. 14. That being so, whatever contentions raised before this Court cannot be entertained by way of this proceeding. Accordingly, this Court is not inclined to interfere into the matter in hand. The petitioner has efficacious remedy to prefer an appeal under the law and this Court is not the proper authority to interfere into such matter. 15. Accordingly, the petition stands dismissed with liberty to the petitioner to approach the appropriate Forum, as per law. Interim order, if any passed earlier stands vacated. 16. As the maintenance order is still in force, the learned trial court is in a position to proceed with the matter, as per law.