Dismissed

Sujit Dutta and Anr. v. the State of Assam and Anr.

Gauhati HC5 Sept 2022Crl.Pet./153/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a petition under Section 482 Cr.P.C seeking quashing of proceedings under the Domestic Violence Act. The court held that the marriage remained subsisting and the domestic relationship persisted despite the wife leaving the matrimonial home, rejecting the claim of abandonment.

What did the court decide?

The petition is dismissed. Proceedings are remanded to the court below to proceed.

Sujit Dutta and Anr. Vs the State of Assam and Anr. — Domestic Violence | Gauhati HC (2022)

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Page No.# 1/9

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GAHC010036022022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./153/2022

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SUJIT DUTTA AND ANR

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S/O LATE TANKESWAR DUTTA, R/O SOMARIGAON BARUAJAN, DHOLI TEA ESTATE, TITABOR, P.O.-BARUAJAN, P.S.-TITABOR, DIST- JORHAT, ASSAM, PIN-785630

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2: LUCID DUTTA S/O LATE TANKESWAR DUTTA R/O SOMARIGAON BARUAJAN DHOLI TEA ESTATE TITABOR P.O.-BARUAJAN P.S.-TITABOR DIST- JORHAT ASSAM PIN-78563

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VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:SMT. PAPORI KAKATI W/O SUJIT DUTTA D/O SRI HARBILASH KAKATI R/O AZARA KALITAPARA P.O. AND P.S.-AZARA GUWAHATI-781017 DIST-KAMRUP(M) ASSA

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Advocate for the Petitioner : MR. M K BORAH

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Advocate for the Respondent : PP, ASSAM

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Page No.# 2/9

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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JUDGMENT

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Date : 05-09-2022

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1. This petition, under Section 482 of the Code of Criminal Procedure, is preferred by petitioner No. 1- Shri Sujit Dutta, and petitioner No. 2. Shri Lucid Dutta, for quashing the proceeding of D.V. Misc. Case No. 150M/2021 and all consequential orders, pending before the Judicial Magistrate First Class, Kamrup (M) Guwahati., instituted by the respondent No.2 - Smti. Papari Kakati, under section 12 of the Domestic Violence Act, 2005.

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2. The factual background, leading to filing of this petition, is briefly stated as under: -

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“The respondent No. 2, - Smti. Papari Kakati, had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, against the petitioner No. 1- Shri Sujit Dutta and petitioner No. 2- Shri Lucid Dutta, before the court of learned Judicial Magistrate, Kamrup (M) Guwahati, alleging inter-alia amongst others that her marriage was solemnized with petitioner No.1, as per Hindu rites and rituals and thereafter, it was registered before the Marriage Officer, Kamrup (M) on 07.03.2015, and thereafter, they lived together as husband and wife at her matrimonial

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home at Dholi, Sonarigaon, and also at Dubai, where the petitioner No.1 was working in a company. They were blessed with one baby girl on 01.03.2016. It is stated that after leading a happy married life for some months the petitioner No.1 started subjecting her to both physical and mental cruelty and harassed her demanding dowry under the influence of liquor. The petitioner No.1 also subjected her to physical abuse at Dubai and also at her matrimonial home, even at the time of her ailment. And the petitioner No.2 who is the elder brother of the petitioner No.1, also often abused her in some way under the influence of liquor and when she reported the matter to petitioner No.1, he never reacted to the same. She also alleged that the petitioner No.1 had failed to take care of her and her daughter while she and her daughter were suffering from ailments and her father has provided them treatment with his meager pension amount and her father also given money to the petitioner No.1 on many occasions. Despite, the petitioner continued to subject her to both physical and mental harassment demanding more money from her father and when she failed to comply with his demand the petitioner and his family members intensified the torture upon her and then being unable to bear the harassment meted out to her she left the matrimonial home on 17.08.2021 and taking shelter in her parental abode. Thereafter, being left with no other option, she approached the learned court below by filing a D.V. Misc. Case No.

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Page No.# 4/9

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150M/2021, seeking protection order under section 18 and residence order under section 16, monetary relief under section 20 and relief under section 21 and order of compensation under section 22 and also other reliefs as the court deemed fit and proper.”

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3. Being aggrieved, the present petitioners, approached this Court for quashing the proceeding of D.V. Misc. Case No. 150M/2021, on the ground that the respondent No.2 had voluntarily left the matrimonial home on 17.08.2021 and deserted the petitioner No.1 and residing in her parental abode, and since then there is no continuous and persisting domestic relationship between the petitioner no.1 and respondent No.2 on the date of filing the petition.

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4 . I have heard Mr. M.K. Borah, learned counsel for the petitioners and also heard Ms. M. Choudhory, learned counsel for the respondent No. 2.

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5. Mr. M.K. Borah, learned counsel for the petitioners, submits that the petitioners are being aggrieved by filing of application under Section 12 of the Domestic Violence Act, 2005, have approached this court by filing the present application. Mr. Borah further submits that the domestic relationship between the parties ceased to exist as and when the respondent No.2 deserted the petitioner No.1 and left the matrimonial home on 17.08.2021. According to Mr. Borah in absence of such relationship, the application filed by the respondent No.2, under section 12 of the Domestic Violence Act, is not maintainable, and therefore, it is contended to allow this petition. Mr. Borah also referred on judgment of Madras High Court – Thirumoorthy and Others vs. The State, represented by Inspector of Police All Women Police Station

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Thiruvannamalai reported in 2021(1) MLJ (Criminal) 33, where it has been held that ‘when wife was not living with husband or in the house of her in laws or separately and stayed only in her natal home, domestic proceeding is liable to be quashed’, in support of his submission.

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6. On the other hand, Ms. N. Choudhury learned counsel for the respondent No. 2, submits that the petition under Section 482 Cr.P.C is not maintainable at this stage. Ms. Choudhury further submits that law is well settled in respect of quashing of the complaint or F.I.R and that this Court is not entitled to see whether the allegation made in the petition are true or false and roving enquiry is not permissible at this stage, and further, Ms. Choudhury submits that domestic relationship between respondent No.2 and the petitioner No.1 still persists and therefore, it is contended to dismiss the petition. Ms. Choudhury also referred the case of State of Haryana another vs. Bhajanlal and others, reported in 1992 Suppl. (1) SCC 335, to contend that the petitioners have failed to make out very exceptional case, so to exercised the inherent jurisdiction under section 482 of the Code of Criminal procedure. It is to be mentioned here that in the said case Hon’ble Supreme Court has given the following instances by way of illustration, where the extra-ordinary power under section 482 Cr.P.C. can be exercised to quash the FIR/Complaint, in order to secure the end of justice:-

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1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

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2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a

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cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

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3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

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4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

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7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge;

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7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the record of the learned Court below.

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8. There is no quarrel at the Bar that respondent No.2 is the legally wedded

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wife of the petitioner No. 1 and they are still husband and wife in the eye of law. There is also no quarrel at the Bar that the respondent No.2 left the matrimonial home on 17.08.2021, and living in her parental abode and as stated in the application, being unable to bear the torture meted out to her by the petitioner No.1 and 2, on account of failing to meet the demand of dowry. It is to be noted here that to a pointed query of this court Mr. M. K. Borah, the learned counsel for the petitioners fairly submits that the marital tie between the petitioner No.1 and respondent No.2 is not snapped by a decree of divorce granted by a court of competent jurisdiction. In the given factual scenario, can it be said that the domestic relationship between the petitioners and respondent No.2 ceased to exist, once she left the matrimonial home on 17.08.2021.

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9. It is to be noted here that ‘Domestic Relationship’ is defined in section 2 (f) of the said Act which is read as under-

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(f) "domestic relationship" 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;

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10. Here in this case there is no dispute that respondent No.2 and petitioner No.1 are related by marriage and lived together as husband and wife at Dholi Sonarigaon and also at Dubai. Said marriage is still persisting and never been dissolved by a decree of divorce granted by a court of competent jurisdiction. She was subjected to both physical and mental harassment demanding dowry in

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Page No.# 8/9

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the matrimonial home by the petitioner No.1 and his elder brother - petitioner No.2. She left the matrimonial home on 17.08.2021, having been unable to bear the harassment meted out to her and she approached the learned court below seeking the reliefs mentioned herein above, by filing an application, to which she is entitled to, under the Domestic Violence Act, 2005. And as such it cannot be said that it is an abuse of the process of court, as submitted by Mr. M.K. Borah, learned counsel for the petitioners.

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11. Further, it appears that the case is pending in the initial stage before the learned Court below and at this stage the facts are hazy and this Court while dealing with the petition under Section 482 Cr.P.C cannot embark into a roving enquiry as to the truthfulness of the allegations made in the petition filed under section 12 of the Domestic Violence Act. Therefore, and also in view of the submission of the learned counsel for the respondents, this Court is of the view that the extra-ordinary power under Section 482 Cr.P.C cannot be invoked to quash the complaint filed under Section 12 of the Domestic Violence, Act, 2005, so preferred before the learned Court below, by the respondent No. 2.

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12 . I have considered the submission of Mr. M.K. Borah, the learned counsel for the petitioner and also gone through the case law referred by him and I am left unimpressed by his submission and the case law referred by him also would not come into his aid. Whereas, I find sufficient force in the submission of Ms. Choudhury and I record concurrence with the same. To the considered opinion of this court the case of the petitioners does not fall in any of the categories of the instances mentioned in the case of Bhajanlal (supra). During argument Mr. Borah, learned counsel for the petitioner, during argument, also submits that the petitioner No.1 is willing to take bake the respondent No.2. However, such a

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prayer, to the opinion of this court, has to be made before the learned court below, if so advised.

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In the result, I find no merit in this petition and accordingly, the same stands dismissed. Stay, if any granted earlier, stands vacated. The matter is remanded to the learned Court below with a direction to proceed with the same in accordance with the law. The parties shall appear before the learned court below within 15 days from today. The parties have to bear their own costs.

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JUDGE

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Comparing Assistant

Sujit Dutta and Anr. v. the State of Assam and Anr.

Case brief

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Sujit Dutta and Anr. v. the State of Assam and Anr.

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