IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
The Hon’ble Justice Md. Mumtaz Khan
CRR No. 2981 of 2018
Sri Chandan Kumar Sahoo Ors.
Smt. Putul Sahoo
For the petitioners : Ms. Minoti Gomes
Mr. Supriyo Chattopadhyay
Mr. Sudip Maiti
For the O.P. : Mr. Suman De
Mr. Debanshu Ghorai
Heard on : 04.12.2018
Judgment on : 22.01.2019
Md. Mumtaz Khan, J. :
The instant revision has been preferred by the petitioners under Section
401 read with 482 of the Code of Criminal Procedure praying for quashing of the
proceeding under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 being Misc. Case No. 92/2018 pending before the Court of learned
Judicial Magistrate, 2nd Court at Tamluk.
It was submitted by Ms. Minoti Gomes, the learned advocate for the
petitioners that the proceeding under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 brought out by the opposite party no.2 against
the petitioners is not maintainable since there was no existence of marital
relations either with her husband or the other family members of the petitioner
no.1namely the present petitioners since the year 2010 when she lodged the
complaint against them before the Magistrate under section 498A IPC. She also
submitted that in the year 2011 opposite party No.2 brought out one application
under Section 125 Cr.P.C. praying for maintenance and the maintenance was
granted in her favour and the husband (Petitioner no.1) is regularly paying the
maintenance which the opposite party no.2 has suppressed in her application
under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
Ms. Gomes further submitted that in the year 2010 opposite party no.2
lodged a complaint against the petitioners before the learned CJM, Purba
Mednipur alleging cruelty under section 498A IPC which the learned Magistrate
found the charge against the petitioners not sustainable and acquitted them.
But in spite of that and after a long gap of eight years opposite party no.2 has
initiated the instant proceeding under Domestic Violence Act, 2005 over the self
same facts. According to Ms. Gomes, initiation of proceeding under Domestic
Violence Act with an identical allegations, from which petitioners were acquitted,
after a long time without any satisfactory explanation for such inordinate delay is
not maintainable and such proceeding is abuse of process of law and is liable to
Ms. Gomes relied upon the decisions of Kishan Singh Vs. Gurpal Singh
reported in AIR 2010 Supreme Court Cases 3624, Jai Singh and Ors. Vs.
Municipal Corporation of Delhi and Anr. reported in (2010)9 Supreme Court Case
385, Vijaya Vasant Sawant Vs. Subhangi Shivling Parab reported in 2013 0 CrLJ
3592, Amit Agarwal and Ors. Vs. Sanjay Aggarwal and Ors. reported in 2017(1)
AICLR 741 (Pubjab and Haryana High Court) and of Shibanikar and Ors. Vs. State
of Assam and Ors. reported in 2017(2) GauLT 622 in support of her submissions.
Learned advocate appearing for the opposite party no.2 while admitting
that since 2010 opposite party no.2 is not residing with the petitioners submitted
that marital tie of the opposite party no.2 with the petitioner no.1 has not yet
been dissolved by any decree of divorce and the domestic relation between the
parties is still subsisting and as such proceeding under the Domestic Violence
Act,2005 is quite maintainable.
He further submitted that the proceedings under Section 498A IPC and
under Section 12 of the Protection of Women from Domestic Violence Act, 2005
are quite different, standing on different footings and acquittal of the petitioners
from the charge under Section 498A IPC will have no bearing on the proceeding
under Section 12 of the Domestic Violence Act, 2005. According to him, the
application under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 shall be dealt with in the same manner as applicable to a proceeding
under Section 125 Cr.P.C. and as there is no limitation for initiation of the
proceeding under Section 125 Cr.P.C., the same is equally applicable to the
proceeding under Section 12 of the Domestic Violence Act, 2005.
I have considered the submissions of the learned Advocates appearing for
the respective parties and gone through the materials on record and the relevant
provisions of law.
Section 2(a) of the Protection of Women from Domestic Violence Act, 2005
has defined ”aggrieved person” which means any women who is, or has been, in
a domestic relationship with the respondent who alleges to have been subjected
to any act of domestic violence by the respondent.
“Domestic relationship”, as defined in Sub-Section (f) of Section 2 of Act,
2005 means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family.
Section 3 of the Act 2005 defines the expression ”domestic violence”. This
section enumerates those acts, omissions, commissions or conduct which will be
treated as ‘domestic violence’ for the purpose of the Act.
Section 12 of the Act, 2005 has given right to the aggrieved person or a
protection Officer or any other person on behalf of the aggrieved person to
present an application to the Magistrate seeking one or more reliefs under the
Act. So, an aggrieved person as defined in Section 2(a) of the Act is entitled to
initiate proceeding under the Domestic Violence Act, 2005 seeking different
remedies like orders for protection, residence, monetary reliefs, custody orders,
compensation or damages etc. as available under Sections 18, 19, 20, 21, 22 and
23 of the Act respectively. The proceeding under the Protection of Women from
Domestic Violence Act, 2005 is to provide civil remedies to the aggrieved person.
Admittedly, marital tie of the opposite party no.2 with the petitioner no.1,
has not been dissolved by any decree of divorce though the opposite party
no.2/wife had no contact with her husband and the in-laws and presently she is
not residing with them in the same household for a long time. So, legally opposite
party no.2 is still the wife of the petitioner no.1 and there exists domestic
relationship between the parties despite desertion. As such the proceeding under
the Domestic Violence Act, 2005 is quite maintainable.
It is well settled that the proceedings under Section 498A IPC and under
Section 12 of the Protection of Women from Domestic Violence Act, 2005 are
quite different, standing on different footings. A proceeding under Section 12 of
the Domestic Violence Act, 2005 is not a criminal Proceeding even if there are
allegations of facts which constitute one or more offences in the Penal Code. A
proceeding under Section 12 of the Domestic Violence Act, 2005 is not a criminal
Proceeding even if there are allegations of facts which constitute one or more
offences in the Penal Code. Whereas, proceeding under section 498A IPC is
criminal in nature and the object is to try the perpetrators and punish the guilt
while proceeding under Domestic Violence Act, 2005 is to provide civil remedies
to the victims of domestic violence which is not available in the criminal law
under section 498A IPC. Standard of proof required in two proceedings are
entirely different. In civil cases preponderance of probabilities would be sufficient
to discharge the onus while in a criminal case the entire burden lies on the
prosecution and the proof beyond reasonable doubt has to be given. In a criminal
trial the degree of proof is stricter than what is required in a civil proceeding. A
proceeding under the Domestic Violence Act, 2005 is quasi-criminal in nature
and not criminal proceeding so as to attract Section 300 of the Code of Criminal
Procedure. Under such circumstances door can not be shut to the aggrieved
person simply because of identical facts being pleaded in the previous proceeding
under Section 498 A IPC which ended in acquittal.
Rule 6 of the Protection of Women from Domestic Violence Rules, 2006
provides that every application of the aggrieved person under Section 12 shall be
in Form II or nearly as possible thereto and such application shall be dealt with
and the orders enforced in the same manner as laid down in Section 125 of Code
of Criminal Procedure, 1973 (2 of 1974). It is not in dispute the instant
proceeding under Section 12 of the Domestic Violence Act, 2005 was initiated by
opposite party no.2 after long time of her desertion but when the marital ties
between her and the petitioner No. 1 are still subsisting, despite desertion and
when no time limit has been prescribed in the Act, 2005 for presenting such
application, such delay cannot stand in the way of seeking various civil remedies
available under that Act.
Undoubtedly, Domestic Violence Act, 2005 has not created any absolute
substantive right in favour of the aggrieved person. At the root of an application
under Section 12 of the Act there must be allegation of commission of domestic
violence by the respondent and for the purpose of determining such domestic
violence, the whole facts and circumstances of the case shall be taken into
consideration. It is a different matter whether the opposite party No.2 will
succeed in getting any remedy under the Act or not is a question depending on
the facts and circumstances of the case which can only be decided by the
It is settled law that no court should come in aid of the party who
deliberately conceals some material facts. The courts of law are meant for
imparting justice between the parties and one who comes to the court must come
with clean hands. In the case at hand, it is evident that the fact of getting
maintenance under Section 125 Cr.P.C. do not figure in the proceeding under
Domestic Violence Act, 2005. But such omission/non disclosure can not be
termed as deliberate concealment of material facts which can render the
proceeding under Domestic Violence Act in effective especially when there is no
specific bar in maintaining simultaneous proceedings both under Section 125
Cr.P.C. and under the Domestic Violence Act.
The decisions cited by the petitioners in the matter of Amit Agarwal
(Supra), Vijaya Vasant Sawant (Supra), Shibanikar(Supra), Kishan Singh(Supra)
and Jai Singh (Supra) do not help the petitioners in the facts and circumstances
of the case.
Therefore, taking into account the entire facts and circumstances of the
case and the discussions made herein above, I find no merit in the claim of the
petitioners to quash of the proceeding of the Case.
Accordingly, the instant revision stands dismissed.
No order as to costs.
Urgent photostat certified copy of this judgement, if applied for, be given to
the parties expeditiously upon compliance of necessary formalities in this regard.
(Md. Mumtaz Khan, J.)