Ruby Kumari Alias Ruby Jaiswal Vs the State of Jharkhand

[2025:JHHC:22311]

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 400 of 2025

Ruby Kumari @ Ruby Jaiswal, aged about 30 years, W/o Abhishek Subham @ Abhishek Shubham and daughter of Srawan Prasad Jaiswal, R/o Village-Murpa, P.O. and P.S.-Balumath, District-Latehar, at present Village Jhakhra, P.O. and P.S.-Lohardaga, District-Lohardaga (Jharkhand).

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Versus

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The State of Jharkhand.

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Abhishek Subham @ Abhishek Shubham, aged about 40 years, S/o Late Sacchidanand Jaiswal.

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Bhanu Jaiswal @ Bhanumati Devi, W/o Late Sacchidanand Jaiswal.

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Both R/o Village-Murpa, P.O. and P.S.Balumath, District-Latehar (Jharkhand).

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..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : In Person. For the State : Mr. Rajneesh Vardhan, A.P.P. For the O.P. Nos. 2 & 3 : Mr. Pratiush Lala, Advocate.

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08/ 07.08.2025 Heard the petitioner, who is appearing in person, Mr. Rajneesh Vardhan, learned A.P.P. for the State and Mr. Pratiush Lala, learned counsel appearing for the O.P. Nos. 2 and 3.

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This revision petition has been preferred for setting aside the order dated 28.02.2025, passed by the learned Additional Sessions Judge-II, Latehar, in connection with Criminal Appeal No. 21 of 2023, whereby, the learned appellate court has modified the order dated 23.02.2023 of the learned Chief Judicial Magistrate, Latehar, passed in connection with complaint Case No. 392 of 2022, by way of setting aside the maintenance part of the said order, however, the petitioner

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was allowed to remain in the same house in terms of the order passed by the learned Chief Judicial Magistrate, Latehar.

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The petitioner, who is appearing in person submits that her marriage was solemnized with O.P. No. 2 on 30.11.2019 as per the Hindu rites and customs and relationship was good till one month and thereafter O.P. No. 2 demanded Rs. 30 lakhs and one SUV in the form of dowry and when the demand was not fulfilled, the O.P. Nos. 2 and 3 started humiliating and abusing the petitioner without any reason and even the allegation of assault is also there. She further submits that she also filed a case being Original (Matrimonial) Suit No. 516 of 2021 under Section 125 of the Cr.P.C. and simultaneously a complaint was also filed under the provisions of Protection of Women from Domestic Violence Act, 2005 before the learned Chief Judicial Magistrate, Latehar. She also submits that the learned Chief Judicial Magistrate, Latehar by way of order dated 23.02.2023, directed the petitioner to remain in the residential house and further directed to pay Rs. 20,000/per month for the maintenance including all expenses and further Rs. 50,000/- as litigation cost and compensation. She submits that Rs. 20,000/- was directed to be paid with effect from 29.09.2022 i.e. the date of filing the complaint petition.

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She further submits that aggrieved with the said order, the O.P. Nos. 2 and 3 herein have preferred criminal appeal No. 21 of 2023, whereby the learned first appellate court has decided the said appeal by the judgment dated 28.02.2025 by way of partly allowing the said appeal and setting aside the maintenance part of the order, however, the residential part of the order has not been interfered with. She submits that she is aggrieved with that part of the order to that effect that the maintenance part has been set aside by the learned first appellate court,

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which is not in accordance with law. She further submits that the provisions are there of allowing the maintenance under the said Act and the order of the first appellate court has wrongly passed the said order. She also submits that she has got no means to maintain herself, as such, the impugned order may kindly be set aside.

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Mr. Lala, learned counsel appearing for the O.P. Nos. 2 and 3, who are the husband and mother-in-law respectively of the petitioner has opposed the prayer and submits that the mandatory provisions of notice in light of Section 13 of the Protection of Women From Domestic Violence Act, 2005 has not been followed by the learned court and ex-parte order has been passed by the learned Chief Judicial Magistrate, Latehar. He submits that the petitioner after knowing about the pendency before the case before the learned the learned Chief Judicial Magistrate, Latehar, filed a petition under Section 25 of the Protection of Women From Domestic Violence Act, 2005 for duration and alternation of the order, however, the said has been rejected by the learned court and the case has been decided ex-parte. He further submits that thereafter the O.P. Nos. 2 and 3 have preferred an appeal before the learned first appellate court, which has been allowed in the above terms. He submits that when the mandatory provisions of notice has not been complied with, the order itself is not sustainable in the eyes of law. As such, both the orders are not in accordance with law.

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It is an admitted position that the petitioner and O.P. No. 2 are wife and husband respectively. The wife has filed a petition under Section 125 Cr.P.C., which has been withdrawn later on, after passing of the judgment by the learned Chief Judicial Magistrate, Latehar. The Trial Court Records have already been received in this case pursuant to the earlier order passed by this court and from the trial court records, it

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transpires that it is recorded in the order dated 21.11.2022 that the notice upon the opposite parties has not been effected, as the execution report was not there, however, the learned court on the same day has posted the matters for evidence on behalf of the complainant / petitioner.

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It has been pointed out that after the delivery of judgment by the learned Chief Judicial Magistrate, Latehar, the petition filed under Section 125 Cr.P.C., the petitioner, who is appearing in person has withdrawn that proceeding

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From the records, it transpires that the learned Chief Judicial Magistrate, Latehar has not taken any further efforts for service of notice upon the opposite parties either by way of paper publication or any other mode and holding that the notice has not been effected, posted the matter on the same day for the evidence of complainant / petitioner, as such, the mandatory provisions in light of Section 13 of the Protection of Women From Domestic Violence Act, 2005 has not been followed. It is an admitted position that the ex-parte order has been passed by the learned Chief Judicial Magistrate, Latehar in absence of any valid service of notice.

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It is apparent from the record and the order dated 21.12.2022 itself that thus that order is without valid service of notice upon the opposite parties. The first appellate court has set aside the maintenance part of the order on the ground that the notice has not been effected, however, at the same time, the first appellate court has allowed the petitioner to remain in the residential house. If the order was not found to be valid, the first appellate court on the ground of not service of notice properly, the entire proceeding was vitiated and the learned first appellate court was not required to modified the order and was

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competent to restore the said complaint to the learned court to decide afresh, however, the learned first appellate court has not adopted the said procedure.

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It is well settled that a procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law, as has been held by the Hon'ble Supreme Court in the case of Saiyad Mohammad Bakar El-Edroos (dead) by LRS v. Abdulhabib Hasan Arab and others ; [(1998) 4 SCC 343].

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Further the Protection of Women From Domestic Violence Act, 2005 provides in light of Section 28 that the court can lay its own procedure for disposal of an application under Section 12, however, that Section is also not giving any lenience so far as service of notice in light of Section 13 of the said Act. In view that the court finds that both the orders are not in accordance with law.

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Accordingly, the order dated 28.02.2025, passed by the learned Additional Sessions Judge-II, Latehar, in connection with Criminal Appeal No. 21 of 2023 and the order dated 23.02.2023 of the learned Chief Judicial Magistrate, Latehar, passed in connection with complaint Case No. 392 of 2022, are hereby, set aside.

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The complaint filed by the petitioner / complainant before the learned Chief Judicial Magistrate, Latehar is restored to its original file and the learned court will decide the same expeditiously in accordance with law after providing full opportunities to both the sides. The petitioner, who is appearing in person and the O.P. No. 2 will

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remain present before the learned Chief Judicial Magistrate, Latehar on 25.08.2025 at 10.30 A.M.

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In course of the arguments, learned counsel appearing for the O.P. Nos. 2 on instruction submits that the O.P. No. 2 is voluntarily ready to give Rs. 5000/- monthly maintenance to the petitioner.

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In view of the above and considering the provisions and the petitioner is already residing in the residential house, the petitioner will not be dispossessed from the residential house without following the due procedure of law and the O.P. No. 2 will go on paying Rs. 5000/per month to be started from this month itself as maintenance till the final decision taken by the learned Chief Judicial Magistrate, Latehar.

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It is made clear that if the O.P. No. 2 will not appear before the learned court on the date fixed by this court, the learned court will proceed in accordance with law, as fresh notice is not required to be issued to the O.P. No. 2.

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This petition is allowed in above terms and disposed of. Pending I.A., if any, stands disposed of.

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Let the trial court records be sent back to the learned court forthwith.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

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[A.F.R.]

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Ruby Kumari Alias Ruby Jaiswal v. the State of Jharkhand

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Ruby Kumari Alias Ruby Jaiswal v. the State of Jharkhand

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