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Rahul Singh vs State Of U.P. And Another on 4 January, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 70

Case :- APPLICATION U/S 482 No. – 9681 of 2017

Applicant :- Rahul Singh

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Siddhartha Srivastava

Counsel for Opposite Party :- G.A.,A.B. Sinha

Hon’ble Sanjay Kumar Singh,J.

1. Heard Sri Siddhartha Srivastava, learned counsel for the applicant, Sri A.C.Tewari, Advocate, assisted by Sri Shekhar Dwivedi and Sri A.B.Sinha, learned counsels for opposite party no.2 and learned Additional Government Advocate and perused the record.

2. The applicant has filed this application under Section 482 Cr.P.C. assailing the order dated 22.12.2016 passed by Additional Chief Judicial Magistrate, Court No.8, Allahabad, in Case No.1733 of 2015 (Shambhavi Singh vs. Rahul Singh), whereby learned Additional Chief Judicial Magistrate has allowed the application dated 22.12.2016 of the opposite party no.2 directing the opposite party no.2 to live in her matrimonial House No.K-273 near Power House Crossing, Ashiyana, District Lucknow alongwith her minor daughter Katyani pursuant to order dated 19.11.2016 and further directed the applicant not to create any hindrance in peaceful living of the opposite party no.2 alongwith her daughter in his aforesaid house.

On 01.05.2017, this Court passed the interim stay order issuing notice to the opposite party no.2, which is reproduced herein-below:-

“Supplementary affidavit filed today by learned counsel for the applicant is taken on record.

Challenging the legality and correctness of the order dated 22.12.2016 passed by learned A.C.J.M., Court No. 8, Allahabad in Case No. 1733 of 2015 (Shambhavi Singh Versus Rahul Singh) the applicant by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the aforesaid order. 

Heard learned counsel for the applicant and learned A.G.A.

Perused the record. 

Learned counsel for the applicant has contended that opposite party no. 2 had filed a maintenance case under Section 125 Cr.P.C. before the Principal Judge, Family Court, Allahabad on 21.9.2015 and another case under Protection of Women From Domestic Violence Act on 28.9.2015 before the court of A.C.J.M., Court No. 8, Allahabad. The case under Section 125 Cr.P.C. was decided on 6.9.2016 by the Principal Judge, Family Court, Allahabad whereby the applicant was directed to pay Rs. 10,000/- per month to his wife and Rs. 5000/- per month to his minor daughter Km. Katyayani Singh. Thus, the applicant was directed to pay Rs. 15,000/- in all per month as maintenance to his wife and minor daughter. Learned counsel has further submitted that the applicant was regularly paying the aforesaid amount of maintenance to his wife and daughter, in proof, copies of the bankdrafts and the bank statements have been filed today by means of a supplementary affidavit. It is further contended that the application under Section 23(2) of Protection of Women From Domestic Violence Act was decided by the learned A.C.J.M. vide order dated 19.11.2016 granting Rs. 15000/- to the wife and minor daughter of the applicant with condition that if the wife and daughter were getting maintenance in any other case, the same shall be adjusted/set off in the amount granted in this case. 

Learned counsel has submitted that as the amount of Rs.15000/- was the same in both the cases and the applicant was regularly paying the said amount in the case under Section 125 Cr.P.C. and moreover, the wife had never moved any execution application against the applicant in maintenance case under Section 125 Cr.P.C. the applicant ever even imagined that he has done any wrong against the opposite party no. 2 i.e. his wife. However, the opposite party no.2 (wife) concealing the aforesaid facts, from the court, moved an application before the court of A.C.J.M. in the case under Domestic Violence Act, seeking interim maintenance which was allowed ex-parte by granting Rs. 15000/- per month to the wife and daughter vide aforesaid order dated 19.11.2016. Thereafter the opposite party no. 2/wife moved another application under Section 31 of Protection of Women From Domestic Violence Act on 22.12.2016 alleging non compliance of the order dated 19.11.2016, again without disclosing the fact that she is already receiving Rs. 15,000/- per month in the case under Section 125 Cr.P.C. which is to be set off in the amount awarded in case under Domestic Violence Act. In this regard, learned counsel has drawn the attention of this Court to the copy of the application moved by the wife under Section 31 of Protection of Women From Domestic Violence Act to show that there is even no whisper in this application about the fact that she is receiving of Rs. 15000/- regularly as maintenance in the case under Section 125 Cr.P.C. Thereafter she moved another application for execution of the order dated 19.11.2016 once again concealing the fact that the interim maintenance amount was ordered to be set off against any amount, she was already receiving and made a new prayer that she may be permitted to reside in her matrimonial home. 

Learned counsel has contended that this application was allowed on the same day by the learned Magistrate without even giving any opportunity of hearing to the applicant, directing the applicant not to create any hindrance in the residing of the wife with her daughter in her matrimonial home. Learned counsel has contended that the applicant has never made any default in payment of maintenance amount to his wife, therefore, Section 31 of the Protection of Women From Domestic Violence Act is not applicable to his case. Moreover, there is no provision under Section 31 of Protection of Women From Domestic Violence Act to pass order regarding the right of residence in matrimonial home, therefore, the impugned order is liable to be set aside. 

Learned A.G.A. has opposed the application but he could not point out anything relevant to contradict the aforesaid submissions.

  The matter requires consideration. 

Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. 

Issue notice to opposite party no. 2 returnable at an early date. Steps be taken within 10 days. 

Let counter affidavit be filed within four weeks.

Rejoinder Affidavit, if any, may be filed within two weeks thereafter.

  Learned A.G.A. may also file counter affidavit within the said period. 

List after expiry of the aforesaid period before the regular Court.

 

Meanwhile the effect and operation of the order dated 22.12.2016 passed in Case No. 1733 of 2015 (Shambhavi Singh Versus Rahul Singh) shall remain stayed subject to condition that the applicant shall continue to pay regularly the maintenance amount awarded under Section 125 Cr.P.C. to his wife and minor daughter. In case of default, the court below may proceed against him in accordance with law.”

3. Since relevant facts of this case for just decision of the case has already been disclosed in the above mentioned order dated 01.05.2017, therefore, there is no necessity to repeat the same.

4. Pursuant to order dated 01.05.2017 of this Court, the opposite party no.2 filed her counter affidavit dated 31.07.2017 alongwith stay vacation application.

5. It is submitted by the learned counsel for the applicant that since relevant facts raised on behalf of the applicant has neither been properly replied nor specifically denied, therefore, he does not propose to file rejoinder affidavit.

6. On the joint request made by learned counsel for the parties, I have heard the arguments of learned counsels for the parties on merit.

7. Assailing the impugned order dated 22.12.2016, the learned counsel for the applicant submitted that:-

(i) The maintenance case under section 125 Cr.P.C. filed by opposite party no.2 before the Principal Judge, Family Court, Allahabad was decided on 06.09.2016 by the Principal Judge, Family Court directing the applicant to pay Rs.15,000/- in all as maintenance to his wife and minor daughter. The applicant did not prefer to challenge the order dated 06.09.2016 and regularly paying the aforesaid amount of maintenance to his wife and minor daughter. Specific averment in this regard has been mentioned by the applicant in Para 7 of the application which has not been disputed by the opposite party no.2 in her counter affidavit.

(ii) In another pending Case no.1733 of 2015 under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (herein-after-referred as Act No.43 of 2005) filed by opposite party no.2, an application dated 28.09.2015 was moved by the opposite party no.2 under section 23(2) of the aforesaid Act of 2005, which was decided ex-parte by the learned Additional Chief Judicial Magistrate vide order dated 19.11.2016 granting interim maintenance of Rs.15,000/- to the wife and minor daughter of the applicant subject to condition that if wife and daughter are getting any maintenance in any other case, such amount of maintenance shall be adjusted/set off in the amount of maintenance granted in this case. Referring the order dated 19.11.2016, much emphasis has been given on the issue that opposite party No.2 at the time of passing order dated 19.11.2016, did not inform the concerned court about the order dated 06.09.2016 passed by the Principal Judge, Family Court in case under section 125 Cr.P.C. about granting maintenance of Rs.15,000/- to the opposite party no.2  and her minor daughter, as such, opposite party no.2 procured the order dated 19.11.2016 by concealment of material facts which was very much in her knowledge.

(iii) Another submission of learned counsel for the applicant is that on 22.12.2016 opposite party no.2 moved two separate applications in pending Case No.1733 of 2015 under section 12 of the said Act No.43 of 2005. First application dated 22.12.2016 was moved for issuing recovery warrant of maintenance against the applicant pursuant to order dated 19.11.2016 without disclosing the relevant facts and direction given by the Principal Judge, Family Court in the above order dated 06.09.2016. Second application dated 22.12.2016 was also moved on the same day by the opposite party no.2 without giving reference of order dated 06.09.2016 and direction issued therein. In the second application dated 22.12.2016, prayer has been made by the opposite party no.2 that in compliance of order dated 19.11.2016, suitable direction be issued under section 19 of the aforesaid Act No.43 of 2005 directing the applicant to permit the opposite party no.2 alongwith her daughter to live in her matrimonial House K-273 near Power House Crossing, Ashiyana, Lucknow. The aforesaid application dated 22.12.2016 was allowed ex-parte on the same day i.e. 22.12.2016 by the Additional Chief Judicial Magistrate, Court No.8, Allahabad without giving opportunity of hearing to the applicant directing the opposite party no.2 to live in her matrimonial House No.K-273 near Power House Crossing, Ashiyana, Lucknow alongwith her minor daughter Katyani pursuant to order dated 19.11.2016 and further directed the applicant not to create any hindrance in peaceful living of opposite party no.2 alongwith her minor daughter in his aforesaid house.

(iv) It is further submitted that the impugned order dated 22.12.2016 is ex-parte as well as violating the principle of natural justice also because the impugned order dated 22.12.2016 has been passed on the same day of moving application dated 22.12.2016 by the opposite party no.2, without giving opportunity of hearing to the applicant or making objection on the application dated 22.12.2016 of the opposite party no.2 while it is admitted facts on record that opposite party no.2 was not residing in the house of the applicant since long and case of domestic violence in question is pending since 28.09.2015. As such there was no emergent situation to pass ex-parte impugned order dated 22.12.2016 on the same day.

(v) Another submission on behalf of the applicant is that since in the  order dated 19.11.2016 under section 23(2) of the Act 2005, there is only direction about payment of interim maintenance to the opposite party no.2 and her minor daughter, therefore, in compliance or pursuant to order dated 19.11.2016, further direction for living opposite party no.2 in her matrimonial house could not be granted, as such, the impugned order dated 22.12.2016 is not sustainable under the facts and circumstances of the case and is liable to be quashed.

8. Though several other grounds have been raised in the application by the applicant but no other grounds have been pressed by the learned counsel for the applicant.

9. Per contra, learned counsel for the opposite party no.2 has tried to demonstrate that infact the second application dated 22.12.2016 filed by opposite party no.2 is a separate application under section 19 of the Act No.43 of 2005 and has no concerned with the order dated 19.11.2016 passed under section 23(2) of Domestic Violence Act, 2005. It is submitted that for compliance of order dated 19.11.2016 another application dated 22.12.2016 under section 31 of above Act No.43 of 2005 was filed on behalf of the opposite party no.2. It is further submitted that under section 19 of the said Act No.43 of 2005, permission can be granted to live opposite party no.2 alongwith her minor daughter in her matrimonial house. It is further submitted that the opposite party no.2 has been forcibly ousted from the house of her in-laws and has no roof  for her living. It is next submitted that on 02.03.2017 Additional Chief Judicial Magistrate, Allahabad has also issued letter to Commanding Officer, 56-APO, 7 Infantry Brigade, Kanpur Nagar for execution of order dated 22.12.2016 from his level. Lastly, it is submitted that there is no illegality in the impugned order dated 22.12.2016, therefore, the present application is liable to be dismissed in the interest of justice.

10. In the light of argument advanced by the learned counsel for the parties, it would be relevant to quote the provisions of Sections 19, 23 and 31 of the Protection of Women From Domestic Violence Act, 2005, which are reproduced hereinbelow:-

19. Residence orders-

(1) While disposing of an application under sub- section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c ) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides :

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household or encumbering the same;

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the Court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

23.Power to grant interim and ex parte orders –

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavits in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, section 22 against the respondent.

31. Penalty for beach of protection order by respondent –

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) the offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

11. After having heard the arguments of learned counsel for the parties and perusing the record, I find that at the time of passing the order dated 19.11.2016 under section 23 (2) of Domestic Violence Act, the opposite party no.2 was having full knowledge about the order dated 06.09.2016 passed in a case under section 125 Cr.P.C. filed by her but it appears that same was not brought in the knowledge of the court. From the pleadings, it is also apparent that the stand taken by the applicant in Para 7 of the application that in compliance of the order dated 06.09.2016, the applicant started paying maintenance of Rs.15,000/- to the opposite party no.2 has been accepted by the opposite party no.2 in Para 6 of her counter affidavit. The fact that opposite party no.2 filed application dated 22.12.2016 without disclosing the order dated 06.09.2016 has also not been specifically replied or denied in Para 8 of the counter affidavit. 

12. On perusing the application dated 22.12.2016 of opposite party no.2 and the impugned order dated 22.12.2016, it is clear on the face of record that the impugned order has been passed on 22.12.2016 on the day of moving application dated 22.12.2016 of the opposite party no.2 without giving opportunity of hearing to the applicant which is clear violation of principle of natural justice under the facts and circumstances of this case because opposite party was not residing in the house of the applicant since long and case under Domestic Violence Act 2015 is pending since 28.09.2015. So far as the issue between the parties whether application dated 22.12.2016 is a separate application under section 19 of the Domestic Violence Act or is an application for execution/compliance of order dated 19.11.2016 passed under section 23(2) of Domestic Violence Act 2005 is concerned, it is relevant to mention here that in third paragraph of the application dated 22.12.2016, it is mentioned by the opposite party no.2 that she want to live in her matrimonial house pursuant to order dated 19.11.2016, therefore, it will be in the interest of justice to pass suitable direction in this regard under section 19 of the Act 2005 but subsequently in prayer clause a request has been made to issue a suitable direction in compliance of order dated 19.11.2016 for living the opposite party no.2 alongwith her minor daughter in her matrimonial house.

13. It appears that the applicant has raised technical objection taking the benefit of the content of the application dated 22.12.2016 that the opposite party no.2 has requested for a direction to live in her matrimonial house in compliance of order dated 19.11.2016.

14. Considering the rival submissions of the parties following three facts are crystal clear :-

(1) The opposite party no.2 did not disclose the order dated 06.09.2016 passed in her favour under section 125 Cr.P.C. in her application dated 22.12.2016.

(2) Opposite party no.2 is getting maintenance Rs.15,000/-per month pursuant to order dated 06.09.2016. The stand of the applicant about payment of the aforesaid maintenance regularly to the opposite party no.2 as stated in Para 7 of the application as well as Paras 5, 6, 7 8 of the supplementary affidavit have not been specifically denied by the opposite party no.2 in Para-6 and 13 of her counter affidavit.

(3) The impugned order dated 22.12.2016 has been passed by the learned magistrate on the same day of moving application dated 22.12.2016 by the opposite party no.2 without giving opportunity of hearing to the applicant and without recording any emergent situation for passing ex-parte order, though the application under section 12 of Act 2005 was pending since 28.09.2015, which is violative of principle of natural justice, hence, liable to be quashed being not sustainable in the eye of law.

15. In view of above, the order dated 22.12.2016 is not sustainable and is hereby quashed. The application under section 482 Cr.P.C. of the applicant is allowed with the direction to Additional Chief Judicial Magistrate, Court No.8, Allahabad to pass afresh order on the application dated 22.12.2016 of the opposite party no.2, in which opposite party no.2 has prayed to issue a suitable direction for living her alongwith her daughter in her aforesaid matrimonial house, after giving full opportunity of hearing to the parties concerned in accordance with law within three weeks from the date of production of certified copy of this order.

Order Date :- 4.1.2019

SKD

 

 

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