HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC. WRIT PETITION No. - 8400 of 2015 Petitioner :- Pravesh Koshta Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shashank Tripathi Counsel for Respondent :- Govt.Advocte Hon'ble Naheed Ara Moonis,J.
Supplementary affidavit has been filed today which is taken on record.
Heard Sri Shashank Tripathi, learned counsel for the petitioner as well as learned A.G.A. and also perused the material placed on record.
The instant writ petition has been filed with a prayer to issue writ of certiorari quashing the order dated 8.1.2015 passed by the learned Additional Sessions Judge, Court No.4, Jhansi in Criminal Appeal No.60 of 2014, under Section 23 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred as an "Act") and the order dated 30.8.2014 passed by the Judicial Magistrate, Court No.10, Jhansi in Case No.3677 of 2014, under Sections 12,17,18,19,20,21,22,23 of the Act, police station Kotwali, District Jhansi.
The submission of the learned counsel for the petitioner is that the orders passed by the two courts below are vitiated in law when the mandatory provision, as prescribed under the Act, has not been followed. Learned counsel has elaborated his argument by submitting that the learned Magistrate has not followed the procedure as prescribed under Section 12 of the Act provides for that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider before passing any order on the application moved under Section 23 of the Act and thus the order granting interim maintenance to the respondent no.2 is perse illegal, unwarranted and liable to be quashed.
The prosecution case in nut-shell is that respondent no.2, who is the wife of the petitioner, moved an application under Sections 12,17,18,19,20,21,22,23 of the Act on 25.3.2014 against her husband, mother-in-law and father-in-law contending therein that she was married with the petitioner on 2.12.2007 according to the Hindu Custom and Rights. At the time of marriage her parents have spent Rs.7 lacs and at the time of engagement i.e. ten months prior to the marriage gold and silver ornaments as well as cash was given on the demand of the petitioner. For a period of 14-15 days after marriage respondent no.2 live along with the husband-petitioner at her matrimonial house and after sometime the in-laws had taken all the ornaments including Mangalsutra on 8.11.2010. Out of their wedlock a son was born who was three years at the time of moving the application. Since last 3-4 years the respondent no.2 fell ill and the husband-petitioner did not take any care. When her condition became deteriorated and the money was demanded from the husband and his parents they bluntly refused to give any financial support. The parents of the respondent no.2 got her treated at Medical Hospital Jhansi as well as District Hospital, Jhansi and spent Rs.4-5 lacs. The child was also taken by the husband hence on account of facing untold hardship at the hands of husband and his family members she moved the application claiming all the articles given at the time of her marriage, Rs.5 lacs for her treatment, Rs.2 lacs as compensation for facing mental hardship, custody of her minor child, Rs.3000/- per month towards rent of the house and Rs.20,000/- as interim maintenance. It was also contended that the petitioner has sufficient means as he owns a hole made factory situated in Kalpi Jalaun and he owes a big house in Kalpi, Jalaun. He has also four houses at Kanpur and several shops which are on rent. With the aforesaid sources the husband-petitioner has income of Rs.10 lacs per month and as such the husband-petitioner is capable to fulfill the aforesaid demands.
The case was registered by the Chief Judicial Magistrate, Jhansi as Case Crime No.3677 of 2014 on 25.3.2014 in which report was called from the office of D.P.O. Notice was issued to the petitioner and further fixed the date on 22.4.2014 for final hearing. The petitioner filed his objection on 5.7.2014 by filing a written statement. The petitioner denied the allegations made in the application filed by his wife-respondent no.2. The wife of the petitioner moved an application under Section 23 of the Act on 16.6.2014 claiming interim maintenance of Rs.20,000/- during the pendency of the case and for custody of her minor child. This interim application moved under Section 23 of the Act was also objected by the petitioner by filing an affidavit on 5.7.2014.
The learned Magistrate after hearing both the sides decided the application under Section 23 of the Act by order impugned dated 30.8.2014 by holding that the petitioner has committed domestic violence with his wife, who is living separately from him. The wife-respondent no.2 is suffering from T.B. and kidney disease. It has not been denied by the petitioner that he is not having any factory and his income is not Rs.10 lacs per month. Learned Magistrate passed the order with the direction to the petitioner to pay Rs.5000/- as interim maintenance and Rs.50,000/- one time maintenance to the wife-respondent no.2 by 10th day of each month. Further fixing 28.9.2014 for final hearing.
The petitioner preferred an appeal, which was registered as Criminal Appeal No.60 of 2014, under Section 29 of the Act (Pravesh Koshta and others Vs. State and another)against the interim order passed by the learned Magistrate. The grounds taken in the objection were again reiterated in the grounds of appeal and made a prayer that the order passed by the Judicial Magistrate, Jhansi dated 30.8.2014 may be set aside and the appeal be allowed. The appeal was allowed by the learned court below vide order dated 8.1.2015 and the order passed by the learned Magistrate was set aside directing the appellant-petitioner to pay amount of Rs.3000/- per month as interim maintenance and Rs.20,000/- one time maintenance. The petitioner alone has preferred the instant writ petition before this Court challenging the order passed by the two courts below.
Submission is that the order dated 30.8.2014 was passed by the learned Magistrate without appreciation of material on record and the appellate court has also committed manifest error of law in modifying the order when the order was passed without following the due process of law as provided under Section 12 of the Act. Proviso of Section 12(1) of the Act provides that before passing any order on such application the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. This proviso is mandatory as it directs that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider, thus the report of the Protection Officer is mandatory before passing any order on the application moved under this Act. The order passed on the application under Section 23 of the Act is illegal, arbitrary, capricious and liable to be quashed. The proceeding has been initiated with frivolous allegations against the petitioner and his family members to cause unnecessary harassment and to victimize them when the act and conduct of respondent no.2 is itself illegal as she is residing with her parents leaving her minor son without any rhyme and reason and when she is residing with her parents the demand of house rent is wholly unsustainable. She has not demanded sharing of the house which itself shows that she is not willing to live along with her husband and her minor son. Therefore, the purpose for which the act has been enacted is being misused by moving frivolous applications before the court below. The entire proceeding deserve to be quashed on this ground alone that the mandatory requirement of Section 12 of the Act has not been followed by the learned Magistrate in initiating proceeding against the petitioner. Thus the orders passed by the two courts below are liable to be quashed and the writ petition deserves to be allowed with cost.
Per contra learned A.G.A. has contended that the order passed by the two courts below do not suffer from any error much less to any error of law. The Act is beneficial legislation the object is to prevent vagrancy and destitution. The trial court has passed the order on the application moved under Section 23 of the Act granting interim maintenance during the pendency of the application moved under Section 12 of the Act. The court below has taken all the aspects of the case and arrived at the conclusion that the respondent no.2, who is the wife of the petitioner, is entitled for interim maintenance and hence the learned Magistrate has rightly passed the order granting interim maintenance Rs.5,000/- and Rs.50,000/- one time maintenance was to be paid on 10th day of each month. The petitioner instead of complying with the order passed by the learned Magistrate has preferred the appeal and it is quite evident from the appeal that the appeal was decided ex-parte without hearing the other side and the petitioner's appeal was allowed. The lower appellate court has committed manifest error by reducing maintenance allowance in the absence of hearing to the respondent no.2 directing the petitioner to pay Rs.3000/- in place of Rs.5000/- as interim maintenance and also reduced one time maintenance as Rs.20,000/- in place of Rs.50,000/-. The order passed by the appellate court does not deserve to stand, as the petitioner has not paid a single penny to his wife till date. The order passed by learned Magistrate is perfectly just and proper and calls for no interference. There is no whisper in the writ petition that application under Section 21 of the Act relating to the custody of minor child moved by the wife has been allowed vide order dated 16.1.2015. Thus the custody order has become final which appears that the same has also not been complied with I have considered the submissions of the learned counsel for the petitioner as well as the learned A.G.A. and also perused the material placed on record.
Before adverting to the merits of the case it is necessary to mention certain provisions which are relevant for deciding the contrary and provide procedure for passing the order qua maintenance etc under the Act to wife;
Section12. Application to Magistrate.?
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
23. Power to grant interim and ex parte orders.?
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent no.2 is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent no.2 may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent no.2.
25. Duration and alteration of orders.?
(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent no.2, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
28. Procedure.?
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
No doubt proviso to Section 12(1) of the Act provides that before passing any order on an application the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider which is mandatory requirement. From the perusal of the record such plea was neither raised by the petitioner while filing written statement before the learned Magistrate nor any ground was taken before the appellate court challenging the order passed by the learned Magistrate granting interim maintenance to the respondent no.2. The Act itself provides under Section 23 as quoted above that the Magistrate may pass an interim order if Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or any family members and on the basis of the affidavit he may pass order granting maintenance.
In the present case while granting interim maintenance the objection filed by the petitioner was duly considered by the court below and, therefore, it cannot be said that the order passed by the learned Magistrate was without appreciating the evidence on record.
Further section 28(1) of the Act provides the procedure to be adopted by the court below in respect of proceeding under Sections 12,17,18,19,20,21,22,23 of the Act and offences under Section 31 of the Act the provision of Code of Criminal Procedure will be followed and at the same time clause 2 of Section 28 of the Act it has been specifically provided that nothing in sub-section (1) shall prevent the court from laying down "its own procedure" for disposal of an application under section 12 or under sub-section (2) of section 23 of the Act, thus the submission of the learned counsel for the petitioner that the procedure has not been followed in respect of receiving any domestic incident report from the Protection Officer or the service provider is not mandatory but directory only in the light of Section 28 (2) of the Act as the concerned court may adopt its own procedure for disposal of the application.
Moreover, even if for the argument sake without taking report from the Protection Officer or the Service Provider the court below has proceeded to pass the order that would not be a nullity the order is also not illegal as the learned Magistrate in view of Section 25 of the Act on the application from the aggrieved person herein case the petitioner satisfies that there is change in the circumstances requiring alteration, modification or revocation of any order made under this Act he may for reasons to be recorded in writing pass such an order. Thus the petitioner who has approached this Court by filing petition under Article 226 of the Constitution of India is not maintainable when specific remedy is provided under Section 25 of the Act. Even while filing the appeal under Section 29 of the Act against the order of interim maintenance the petitioner has not taken any such ground which has been raised for the first time before this Court. The learned lower appellate court has committed manifest error in allowing the appeal of the petitioner against an interim order without hearing aggrieved respondent no.2 when Section 25 of the Act itself provides empowering the learned Magistrate to alter, modify or revoke any order on the application of an aggrieved person. Thus the order dated 08.01.15 passed by the learned lower appellate court modifying the order in an ex-parte manner is unsustainable and is hereby quashed.
In view of the above verbose discussion there is no illegality in the order passed by the learned Magistrate and as such the order dated 30.08.14 passed by the learned Magistrate is hereby affirmed. The purpose of the act is to provide speedy remedy to wife for supply of food, clothing and shelter who is facing brunt of harassment in domestic relationship. The husband has negated the plight of unfortunate wife by challenging the orders impugned hence the court below is directed to pass appropriate order for execution of order dated 30.8.2014 and 16.1.2015 in respect of interim maintenance and custody of the minor child respectively and decide the case expeditiously in accordance with law.
Accordingly, this writ petition lacks any merit and is hereby rejected.
The Registrar General of this Court is directed to communicate the order to the court concerned forthwith for necessary action and compliance.
Order Date :- 20.4.2015 Mt/