Page No.# 1/ vs Miss Dhritika Phukan And Anr
2021 Latest Caselaw 2355 Gua

                                                                     Page No.# 1/11

GAHC010174142020




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

                                 Case No. : Crl.Pet./596/2020

            SANTANU PHUKAN AND ANR.
            S/O LATE MOHAN CHANDRA PHUKAN, R/O SREE NAGAR, NALINI BALA
            DEVI PATH, HOUSE NO. 1, PIN-781005, P.S.-DISPUR, GUWAHATI, DIST-
            KAMRUP(M), ASSAM

            2: SMTI. KASHMIRI SULTANA
            W/O SRI SANTANU PHUKAN
             R/O SREE NAGAR
             NALINI BALA DEVI PATH
             HOUSE NO. 1
             PIN-781005
             P.S.-DISPUR
             GUWAHATI
             DIST-KAMRUP(M)
            ASSA

            VERSUS

            MISS DHRITIKA PHUKAN AND ANR.
            D/O SRI SANTANU PHUKAN, R/O SREE NAGAR, NALINI BALA DEVI PATH,
            GUWAHATI-781005, P.S.-DISPUR, DIST-KAMRUP(M), ASSAM

            2:MISS KASTURI PHUKAN (MINOR)
             D/O SRI SANTANU PHUKAN
             R/O SREE NAGAR
             NALINI BALA DEVI PATH
             GUWAHATI-781005
             P.S.-DISPUR
             DIST-KAMRUP(M)
            ASSAM
             (REPRESENTED BY HER MOTHER
             SMTI PALLABI PHUKAN

Advocate for the Petitioner   : MR. B BHAGAWATI
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Advocate for the Respondent : MR P K BORA




                                  BEFORE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                       ORDER

Date : 29.09.2021 Heard Mr. B. Bhagawati, learned counsel for the petitioners and Mr. N. Borah, learned counsel for the respondent.

2. This criminal petition has been filed by the petitioners, namely, Sri Santanu Phukan and Smti. Kashmiri Sultana challenging the order dated 28.10.2020 passed in Misc Case

No. 95m/2020 by the Additional Chief Judicial Magistrate, Kamrup (M), Guwahati.

3. The petitioners contend that the respondents who are the daughters of the petitioner no. 1 have filed the complaint under Protection of Women from Domestic Violence Act, 2005, whereby, the Addl. Chief Judicial Magistrate, Kamrup (Metro) took cognizence of the allegations made in the petition and passed an ex-parte order prohibiting the respondents namely, the petitioners, herein from committing any act of domestic violence or aiding or abating in commission of domestic violence against the Aggrieved persons. The matter is pending disposal before the Court of Addl. Chief Judicial Magistrate, Kamrup (Metro).

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4. The learned counsel submits that the impugned order dated 28.05.2018 was passed on the basis of frivolous and incorrect facts made in the Misc (J) Case No. 203/2017. The learned counsel for the petitioners submits that on a perusal of the complaint, no violation under the Domestic Violence Act is made out and consequently, the order dated 28.10.2020

passed in Misc Case No.95m/2020 by the Additional Chief Judicial Magistrate, Kamrup (M) Guwahati is without jurisdiction and the same should therefore, be set aside and quashed.

5. The learned counsel for the respondents strongly objected to the contentions of the learned counsel for the petitioners. He contends that not only the petitioner No. 1 failed to pay the permanent alimony amount of Rs. 30 Lakhs to the mother of the respondents, in terms of the Judgment dated 28.05.2018 passed by the Family Court No. 1, Kamrup(Metro), Guwahati, he is now harassing the respondents and their mother by trying to dispossess them from their residence. The learned counsel submits that respondent No. 1 is pursuing Graduation in City College, whereas the respondent No. 2 is a minor and is a student of Class-VIII in a School in Guwahati. He submits if the respondents are dispossessed, then they will have no place to stay. The petitioner No. 1 is duty bound to provide for their adequate accommodation. As such the order dated 28.10.2020 passed by the Addl. Chief Judicial Magistrate, Kamrup (Metro), Page No.# 4/11

Guwahati ought not to be vacated/interfered with.

6. The learned counsel for the petitioners submits that in order to pay the mother of the respondents and the entire amount fixed as permanent alimony in terms of the order dated 28.05.2018 passed in Misc (J) Case no.203/2017 by the Family Court No. 1 Kamrup(M) Guwahati, he had encumbered the plot of land on which the three storied RCC building exists. The petitioners as well as the respondents along with their mother are presently residing in the three storied RCC Building. The learned counsel for the petitioners submits that the same is required to be done in order to develop the land so that the financial involvement necessary to pay of the permanent alimony can be arranged for the purpose of developing the land, vacant possession is required to be handed over to the Builder.

7. The learned counsels for the parties have been heard. Pleadings on record have been duly perused. It is seen that vide order dated 28.05.2018 passed in Misc (J) Case no. 203/2017, the Family Court No. 1 Kamrup(M) Guwahati directed the petitioners to pay an amount of Rs.30,00,000/- (Rupees thirty lakhs) only as permanent alimony on an application filed by the mother of the respondents and who was the wife of petitioner No. 1 (now divorced). The amount was directed to be paid within 6 (six) months from the date of the order. During the course of the hearing, the counsel for the petitioner conceded that the amount directed to be paid has Page No.# 5/11

not been paid in full yet in terms of the order of the Family Court No.1 Kamrup (M) Guwahati. No application for extension of time to comply with the order of the Family Court No. 1 Kamrup(M) Guwahati or any appeal against the said order had also been filed.

8. Having referred to the facts involved in the case and upon due perusal the impugned order, it is seen that there is an apprehension expressed by the respondents, who are the daughters of the petitioner that they will be dispossessed from their homestead.

9. Having heard the learned counsels for the parties and upon perusal of the impugned orders along with the orders passed in Misc (J) Case no.203/2017 by the Family Court No. 1 Kamrup(M) Guwahati, it is seen that under Section 2 A of Protection of Women from Domestic Violence Act, 2005 defines aggrieved person as -

"2. (a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent."

10. Domestic Violence is defined in under Section 3 of Protection of Women from Domestic Violence Act, 2005. Under Section 3(iv) "Economic abuse" is defined as:-

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(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.--For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

11. There is also a provision for appeal as provided for under Section 29 of the Protection of Women from Domestic Violence Act, 2005, which enables any aggrieved person to file an appeal before the Court of Sessions within 30 (thirty) days from the date of the order made by the Magistrate.

12. Having noticed the provisions of the Domestic Violence Page No.# 7/11

Act as well as upon perusal of the impugned order dated 28.10.2020, it is seen that the petitioner No. 1 has made arrangements to develop the plot of land on which the petitioners as well as the respondents and their mother reside. Consequently, in the absence of such averments, the apprehension expressed by the respondents that such development of land is likely to incur demolition of the building standing on the land in which presently, the respondents as well as their mother reside, cannot be said to be completely unfounded more particularly when there are allegation of attempts to demolish the building as seen from the impugned order.

13. In the order dated 28.05.2018 passed by the Family Court No. 1 Kamrup(M) Guwahati the permanent alimony directed to have been paid to the mother of the respondents was arrived at upon making proper assessment of the income of the petitioner. There is no finding in the order of the Family Court while granting permanent alimony that the petitioner No. 1 will be permitted to arrange for the permanent alimony by disposing of the land and building in which the respondents reside. As such the submission on behalf of the petitioners that the said land has been encumbered for development so that financial arrangements can be made towards payment of permanent alimony in full and consequently, vacant possession of the land and Building is to be handed over for development of the land/property, cannot be accepted as a valid ground to Page No.# 8/11

dispossess the respondents from their homestead.

14. In view of the provisions categorically defining the law under the Protection of Women from Domestic Violence Act, 2005, this court is of the opinion that there is no infirmity or illegality in the impugned order passed by the Additional Chief

Judicial Magistrate in Misc Case No.95m/2020. It is noticed that the impugned order was passed ex-parte as far back as 28.10.2020, however, there is no averments in the pleadings to suggest that any steps were taken by the petitioner seeking modification of the order passed. As discussed above there is also a provision for appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, the remedy of which is available to the petitioners. In the event, the petitioners desire to proceed with the development of the plot of land, they shall adequately compensate the respondents and their mother and also provide them will alternative accommodation, to their satisfaction.

15. The inherent powers of the High Court under Section 482 Cr.P.C., are undoubtedly very wide and therefore it must be used very cautiously. The High Court while assuming its jurisdiction under Section 482 Cr.P.C., does not function as an appellate or a Revisional Court. Therefore, such power under its inherent jurisdiction shall not be allowed to stifle legislator jurisdiction the Apex Court in the case of Monica Kumar (Dr.) & Anr., -Vs- State of Uttar Pradesh & Ors., reported in (2008) 8 SCC 781 held as under:-

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"33. The parties have exchanged their counter-affidavits and rejoinders. Indisputably, there is no quarrel with the well-settled principles of law that while exercising powers under Section 482 CrPC, the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which courts exist. When the complaint is sought to be quashed it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

35. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court which has been dealt with by the High Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . In the said case, a note of caution to the effect was, however, added that the power should be exercised very sparingly and with circumspection and that too in the rarest of Page No.# 10/11

rare cases. The illustrative categories indicated by this Court are earlier extracted in the order of the High Court.

36. We may reiterate and emphasise that the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful Page No.# 16/16 to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] ; Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 2 SCR 336] ; Kurukshetra University v. State of Haryana [(1977) 4 SCC 451 : 1977 SCC (Cri) 613] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque Page No.# 11/11

[(2005) 1 SCC 122 : 2005 SCC (Cri) 283]."

16. In view of all the above, I do not find any ground to interfere with the order dated 28.10.2020 passed by the learned Addl. Chief Judicial Magistrate,

Kamrup (Metro), Guwahati in Misc. Case No. 95 m/2020. Accordingly, this Criminal Petition is, therefore, dismissed.

JUDGE

Comparing Assistant