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Sri Chandan Kumar Sahoo & Ors vs Smt. Putul Sahoo on 22 January, 2019

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Md. Mumtaz Khan

CRR No. 2981 of 2018

Sri Chandan Kumar Sahoo Ors.
Vs.
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

be quashed.
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

Magistrate concerned.

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.)

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