HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 77

Case :- APPLICATION U/S 482 No. – 20843 of 2016

Applicant :- Som Prakash Rawat @ Sanni And 4 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Kamlesh Kumar Dwivedi,Sandeep Kumar Keshari

Counsel for Opposite Party :- G.A.,Puneet Srivastava

Connected with

Case :- APPLICATION U/S 482 No. – 16296 of 2016

Applicant :- Som Prakash Rawat And 2 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Kamlesh Kumar Dwivedi,Satyendra Nath Tripathi

Counsel for Opposite Party :- G.A.,Puneet Srivastava

Hon’ble Ram Krishna Gautam,J.

This application under Section 482 Cr.P.C. has been filed by Som Prakash Rawat @ Sanni and 4 Ors. against State of U.P. Anr. with prayer for allowing this application and thereby quashing the order dated 16.04.2016 passed by learned Additional Chief Judicial Magistrate, Court No.4, Aligarh in Complaint Case No.584 of 2013 (SectionSarita vs. Som Prakash Rawat @ Sanni and Ors., under Sections 12, Section18, Section19, Section21 and Section22 and Protection of Women from SectionDomestic Violence Act, 2005 of Police Station Sasani Gate, District Aligarh with order dated 24.06.2016 passed by learned Sessions Judge, Aligarh in Criminal Appeal No.81/2016 (Som Prakash Rawat @ Sanni Ors. vs. State of U.P. Ors.) with a further prayer for staying effect of those two orders till disposal of this proceeding.

Learned counsel for the applicants argued that an application under Section 12, Section18, Section19, Section21 and Section22 of Protection of Women from SectionDomestic Violence Act of Police Station Sasani Gate, District Aligarh was moved before the court of Additional Chief Judicial Magistrate by Sarita wife of Som Prakash Rawat @ Sanni with a prayer for grant of Stridhan, maintenance and residence in the house where her husband and in-laws were residing. Marriage in between, was performed on 18.11.2010 and Rs.7,00,000 were spent in this marriage by her father. Vipin Kumar gave a list of articles to be purchased at Agra by money to be given by her parents and this list was having mention of double bed, Sofa set, LED 32 inch T.V., A.C., Fridge, utensils, clothes, drawing table, dining table, dressing table, motor-cycle and others. Rupees 5 lakhs in cash was paid to Vipin Kumar, who is brother-in-law of her husband but only motor-cycle was shown at the time of engagement. Rest money for purchase of articles was said to be deposited at shops and after marriage those articles will be at their residence but after 15 days of marriage, those articles could not be there. The relationship became strained, accusation of torturing for demand of dowry and violence, in form of domestic violence, were said to be given to the applicant, then after, the ornaments and Stridhan were snatched by her in-laws and she was ousted from her house. She went to her parents, narrated the occurrence and made a complaint to police. Persuasion was made by in-laws and assurance for no further torture was made and the applicant was taken by her husband. Her husband was working in L.G. Service Centre at Badaun and was earning Rs.1,80,000/- per month. On the basis of compromise entered in between, she went to her in-laws house on 07.08.2012, she was taken at Ujhiani, Badaun and was residing in a rented portion. She lived there with her husband from 7.8.2012 to 10.9.2012, but relations were strained. Again she was sent to house of Aligarh and she was not taken by her husband. Again persuasion was made with her in-laws and her husband, father-in-law and Vipin Kumar came on 12.6.2013, then, demanded that unless the demand is being fulfilled, no ‘Bidai’ will take place. Thereafter, some hot talk and scuffled took place. Accused-persons abused her and an application under Protection of Women from SectionDomestic Violence Act was moved on 13.6.2013, wherein, prayer was made for protection. Payment of Rs.5,00,000/- which was paid in the marriage with further maintenance of Rs.5,000/- per month. In addition to it, an accommodation for her at her in-laws house. This was objected by her husband. Marriage on 18.11.2010 was admitted fact but payment of dowry and earning as engineer in L.G. Company thereby earning Rs.80,000/- per month as salary was denied. He was with earning of Rs.5,200/- per month. Applicant never resided with him after 18.09.2011. Husband is an employee at L.G. Service Centre at Badaun. No physical relation was ever established by his wife and Magistrate after hearing both sides concluded with passing of judgment, whereby direction for payment of Rs.5,00,000/- within two month form the date of judgment, in lieu of, ‘Stridhan’ with a further payment of Rs.5,000/- per month as maintenance was ordered. Beside this, room for accommodation in the house situated in Radhaswami Hajuri Bhawan, Pipal Mandi, Agra along with its amenities of toilet was directed, whereas, the above house, in which in-laws were residing was of Radhaswami Trust and it was handed over to it. Marriage too was dissolved by decree of divorce passed by family court, against which application for restoration was dismissed on merit and the defective appeal is pending before High Court. There was no stay by any Court against above decree of dissolution of marriage between both sides. Husband got married and he was blessed with two kids, with whom he is residing and under above chain of circumstances, there was no possibility for accommodating applicant in that house wherein he is residing. Because she herself would not like to be with family of husband, who is having a second wife with her children. The house which was directed to be given is no more in possession of her in-laws, rather, it was surrendered on 20.06.2017 to the above trust. The grant of Rs.5,000/- per month as maintenance was also not with any basis even then in compliance of order of above court as well as order of this Court passed in defective criminal appeal, the same is being paid to applicant Rs.5,00,000/- was ordered to be paid without any basis and it was beyond the capacity of applicant. Hence, this order was challenged before the appellate court, wherein learned Sessions Judge, Aligarh in Criminal Appeal No.81 of 2016, heard learned counsel for both sides and then after dismissed appeal whereby confirmed order of Magistrate. Above facts which were raised before both of the courts, could no be taken notice of. It was misuse of process of law, hence, this application under Section 482 Cr.P.C. with above prayer for its allowance and thereby setting aside both of impugned order along with proceeding filed under Protection of Women from SectionDomestic Violence Act.

Learned counsel for applicant-respondent vehemently opposed the argument with this contention that this was a proceeding under Protection of Women from SectionDomestic Violence Act, 2005 which is a socio-economic legislation and other proceeding under family court or before this Court is not of any effect of this proceeding because it was admitted that applicant is wife of opposite party No.1. The alleged decree of divorce was ex-parte decree, obtained under fraud and there was no service of process, hence, when it came in the knowledge, immediately restoration application was moved and trial court was kind enough to allow application for condonation of delay, but restoration application was dismissed for which appeal has been filed before this Court and the same is pending for disposal. Hence, dissolution of marriage is sub judice. More so, an application was moved before Superintendent of Police and it was referred before mediation centre, where, both sides appeared continuously for more than two months and husband always assured by extending his inclination for taking his wife with him and at no point of time, this was disclosed that he had got a decree of dissolution of marriage and he had married second time. This fact was got hidden by him. This itself shows by which way he was operating, on one way, he was appearing in mediation centre for taking back his wife to show his inclination for his innocence, on the other way, he was having a decree of dissolution of marriage, obtained ex-parte, by way of fraud, but it was not being disclosed. Applicant being legally wedded wife, was being extended cruelty and she moved application for Protection from Domestic Violence under above Act of 2005, wherein report from District Probation Officer was obtained and it was in respect of above application, both sides were given opportunity of producing their evidences, evidences were furnished and trial court passed judgment for protecting applicant by way of direction for delivery of Stridhan, by way of Rs.5,00,000/-, with further maintenance at the rate of Rs.5,000/- per month, and an accommodation for residence in company of in-laws. Though, it is there that above premises has been surrendered and the order regarding it cannot be complied with. Because in-laws are not residing in above premises and the second wife with two kids is residing with husband, hence, applicant will not be in a position to reside under above circumstances, but she had been protected from domestic violence by impugned order which was confirmed by appellate court, hence, in exercise of inherent power of this Court, under Section 482 of Cr.P.C., it is not expected that Court will analyse factual evidence and will replace finding of appellate court, treating itself to be a second appellate court. Hence, power under Section 482 is to be used where there is abuse of process of law and for doing justice and for ends of justice, this Court is to exercise above jurisdiction, but by way of this application, a prayer for exercise of appellate court has been made. Hence, this application be dismissed.

Having heard learned counsel for both sides and gone through the material placed on the record.

It is apparent that Protection of Women form SectionDomestic Violence Act, 2005 was passed with an object to provide more effective protection to the rights of women, guaranteed under the Constitution, who are victim of violence of any kind occurring within the family, and for matters connected therewith or incidental thereto. That is the constitutional mandate was to be fulfilled by this legislation to protect a women, who is being subjected to cruelty or violence, within a family. This act is other than other acts and procedure given therein like SectionFamily Court Act, Section 125 of Cr.P.C. etc. It being an act for providing effective protection, besides there being other provisions of protection, too, and under this exercise, this application was moved. Admittedly, applicant is legally wedded wife and her husband has admitted that, while he was married with her, he was in Class-IV job at Agra University, meaning thereby, he was an employee of Class-IV at Agra University and able to maintain his wife, that is why applicant was married with her. Subsequent to it, he is busy in the job at L.G. Shop Centre, but the above shop has been said to be of the same Vipin Kumar to whom worth Rs.5,00,000/- were given at the time of marriage. Strained relation is there. Applicant in her statement has categorically said about the cruelty being meted to her. She has been cross-examined, wherein, she has said about the violence given to her. This was reported by District Probation Officer too. The payment of Rs.5,00,000/- , in lieu of dowry, was said on oath and it was said to be for dowry and articles of households. Husband in his cross-examination has admitted to be registered owner of motor-cycle which was said to be given in this marriage, but he could not say as to when and how this motor-cycle in his name got registered. This motor-cycle has been said to be given in dowry. In all Rs.5,00,000/- cash for household articles to be used by applicant, was said to have been given in this marriage and it amounted to ‘Stridhan’. Hence, the Trial Court Magistrate, after examining testimony of both sides, concluded that applicant was legally wedded wife of opposite party No.1 and she was entitled for her maintenance for coping with circumstances for which Rs.5,000/- is being paid per month regularly which has been admitted before this Court and confirmed by this appellate court. In above appeal, instituted against order, dismissing restoration application moved for restoration of divorce decree. There is no dispute hence, husband, may be a worker at L.G. Shop, or, he may be in private job, is making payment Rs.5,000/- per month as maintenance and he is to maintain his wife, hence, this meager amount of Rs.5,000/- per months was a genuine amount and just maintenance awarded by the Magistrate and this was affirmed by appellate court.

Regarding Rs.5,00,000/- this was proved to be given in the marriage by parents of applicant for her household articles which was usurpt by husband and in-laws, hence, direction to pay back above amount as ‘Stridhan’ was also with all substance and evidence on record.

Regarding residence, it is admitted that there is no possibility of applicant to reside with her husband where he is residing with his second wife and its in another rented accommodation, hence, that relief itself, being left over by applicant, hence, the same is not being pressed, accordingly for that no adjudication is needed.

In all above facts and circumstances, it is apparent that husband, who got this ex-parte divorce decree was appearing before mediation centre in the reference made by Superintendent of Police and he didn’t disclose above fact that he had got an ex-parte dissolution of marriage decree rather he continued to assure that he will take his wife back. He showed inclination to keep her, whereas, he had filed a divorce suit and obtained ex-parte divorce decree and subsequently got married with second wife. Hence, on the basis of facts and evidence on record, order of trial court Magistrate as well as appellate court is based on above facts and was of correct perspective of law.

Apex Court in State of Andra Pradesh vs. Gour Sheety Mahesh J.T. 2010 (6) SCC 588 has propounded that while exercising jurisdiction under Section 482 Cr.P.C. of Court, High Court could not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it, accusation could not be sustained rather that is the function of trial judge.

SectionIn Hamida vs. Rashid (2008) 1 SCC 474, Apex Court has propounded that ends of justice would be better served if valuable time of court is expand in hearing those appeals other than entertaining petition under Section 482 Cr.P.C. at an interlocutory stage, which are profiled with some oblique motive in order to circumvent prescribed procedure or to delay the trial which enable to win over the witness or disinterested in giving evidence ultimately resulting in miscarriage of justice.

Apex Court further in SectionMonika Kumar vs. State of Uttar Pradesh (2008) 8 SCC 781 has propounded that inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

Section 482 Cr.P.C. provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Meaning thereby, inherent jurisdiction under this Section provides this Court’s power to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of process of law or otherwise to secure the ends of justice. Hence, to secure ends of justice, to prevent abuse of process of any law, this Court has been given this inherent jurisdiction, beside being any other provision in this Code. Whereas, Protection of Women from SectionDomestic Violence Act, 2005 is special Act to provide for more effective protection to the right of women guaranteed under the Constitution where a women is victim of violence. Hence, it’s a self contained Code having procedure and power of appeal, wherein, Magistrate after exercising due procedure, has passed impugned order against which appeal was preferred and this appeal was decided by appellate court, hence, there remains nothing for any indulgence, in exercise of inherent power, under Section 482 Cr.P.C. for assessing judgment of appellate court, being its second appellate court.

This application lacks merit and is accordingly dismissed.

However, a portion of order regarding residence has become in-executable, in above changed circumstances, for which Magistrate will take notice and will act in accordance with law.

Order Date :- 20.11.2019

Ravi Kant