Joy Raj vs Debapriya Shil
2022 Latest Caselaw 3366 Gua

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GAHC010177242022




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

                                 Case No. : Crl.Pet./908/2022

            JOY RAJ
            S/O DR. SANTOSH KUMAR SARKAR
            PERMANENT RESIDENT OF AMBAGAN, NEAR BSNL TOWER,
            P.O. KHALIPUR, P.S. AND DIST. DHUBRI, ASSAM



            VERSUS

            DEBAPRIYA SHIL
            D/O DIPAK KUMAR SHIL
            R/O WARD NO. 2 KALIBARI BARUAPATTI ROAD,
            P.O. AND P.S. GAURIPUR,
            DIST. DHUBRI, ASSAM
            PIN-783331



Advocate for the Petitioner   : MR. D CHAKRABARTY

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 06.09.2022

Heard Mr. D. Chakraborty, learned counsel for the petitioner.

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2. By filing this criminal petition under section 482 Cr.P.C., the petitioner has prayed for quashing of the proceedings of F.C. (Crl.) No. 13/2022, under section 127 Cr.P.C., pending for disposal before the Court of learned Principal Judge, Family Court, Dhubri.

3. The learned counsel for the petitioner has submitted that the petitioner is the estranged husband of the respondent and they were married on 22.04.2015. From the contents of this present petition, it appears that ever since the marriage day, the parties had strained relationship. It is projected that on 30.11.2015, the respondent had filed a proceeding under section 125 Cr.P.C., which was registered as Misc. Case No. 751/2015, and was made over to the Court of Judicial Magistrate, First Class, Dhubri for trial. The said case was contested by the petitioner. The learned Judicial Magistrate, First Class, Dhubri, by order dated 30.04.2016, directed the petitioner to pay interim maintenance of Rs.7,000/- per month from 10.03.2016, the date of his appearance and thereafter by final order dated 24.04.2017, direction was issued to pay maintenance of Rs.7,000/- per month along with arrear maintenance. The typing error in the said order was rectified by order dated 05.09.2017.

4. During the pendency of Misc. Case 751/2015, the respondent had also instituted a suit for restitution of conjugal rights on 27.01.2016, which was registered as T.S. (R) No. 7/2016 under section 9 of the Hindu Marriage Act, 1955. The said proceeding was transferred for trial before the Court of Principal Judge, Family Court, Dhubri, where it was registered as F.C.T.S.(R) No. 1/2018. A separate petition was also filed under section 24 of the Hindu Marriage Act, 1955 for pendente lite maintenance. The petitioner had contested Page No.# 3/7

the suit by filing a counter-claim for judicial separation under section 10 of the Hindu Marriage Act, 1955. It has been submitted that the learned Family Court, by common judgment and decree dated 21.12.2021, allowed the prayer for restitution of conjugal rights made by the respondent and counter-claim of the petitioner for judicial separation was dismissed.

5. It was submitted that in the meanwhile, against the order dated 24.04.2017, as rectified by order dated 05.09.2017, passed in Misc. Case No. 751/2015, to pay maintenance of Rs.7,000/- per month along with arrear maintenance, the respondent had preferred a revision petition before the Court of learned Sessions Judge, Dhubri for enhanced maintenance of Rs.30,000/- per month, which was registered as Crl. Revision No. 39/2017. The learned Sessions Judge, Dhubri, by order dated 23.03.2021, passed in Crl. Revision No. 39/2017, enhanced the maintenance amount to Rs.10,000/- per month with effect from 30.11.2015, and further directed the petitioner to clear the accumulated arrear at the rate of Rs.3,000/- per month from 30.11.2015 till the date of the judgment in three installments within six months. The said order has assailed finality. It is further submitted that the petitioner had also filed a revision against the said order dated 24.04.2017, as rectified by order dated 05.09.2017, passed in Misc. Case No. 751/2015, which was registered as Crl. Revision No. 85/2018, and it has been submitted that in view of the order dated 23.03.2021, passed by the learned Sessions Judge, Dhubri in Crl. Revision No. 39/2017, the revision filed by the petitioner has been rendered infructuous.

6. It has been submitted that the respondent had thereafter, filed a petition before the Court of Principal Judge. Family Court, Dhubri, under Page No.# 4/7

section 125 Cr.P.C. for enhancement of maintenance, which was registered as F.C. (Crl.) No. 13/2022 by showing causes. The petitioner had contested the said proceeding by filing written objection.

7. The learned counsel for the petitioner has referred to the six grounds for preferring this criminal petition and it was submitted that in all the herein before referred proceeding, the respondent had taken a similar stand and claimed maintenance of Rs.50,000/- per month by projecting that the petitioner had a starting salary of Rs.10,10,449/- per month and that he also had rental income. It has been submitted that as the petition under section 125 Cr.P.C., being Misc. Case No. 751/2015, was adjudicated by the learned Judicial Magistrate, First Class, Dhubri, as per the text of section 127 Cr.P.C., the petition for enhancement ought to have been filed before the same Court. Accordingly, it was submitted that the Court of Principal Judge, Family Court, Dhubri would have no jurisdiction to entertain such an application. It was also submitted that the maintenance amount of Rs.7,000/- was enhanced to Rs.10,000/- by virtue of the appellate order, a prayer for enhancement was not sustainable on facts and in law as the said order had attained finality. Accordingly, the learned counsel for the petitioner has prayed for issuance of notice and has also prayed for stay of the proceeding.

8. It is seen that in the proceeding of Misc. Case No. 751/2015, under section 125 Cr.P.C., the respondent had prayed for maintenance at the rate of Rs.30,000/- per month. The litigation cost awarded is not under challenge. Therefore, when the maintenance was awarded at the rate of Rs.7,000/- per month, the respondent had preferred a revision to claim the Page No.# 5/7

maintenance as prayed for. The learned Sessions Judge, Dhubri, in the revisional order dated 23.03.2021, had enhanced the maintenance from Rs.7,000/- to Rs.10,000/- per month. The learned counsel for the petitioner has not been able to demonstrate that the enhancement was done in exercise of jurisdiction under section 127 Cr.P.C. Therefore, it is clear that the revision, being Crl. Revision No. 39/2017 was an extension of the original claim made in Misc. Case No. 751/2015. There is no iota of doubt that the prayer for enhancement of maintenance was made in the proceeding which was registered as F.C. (Crl.) No. 13/2022 before Court of Principal Judge, Family Court, Dhubri.

9. The learned counsel for the petitioner had urged that as Misc. Case No. 751/2015 under section 125 Cr.P.C. was adjudicated by the Judicial Magistrate First Class, Dhubri, the proceeding of F.C. (Crl.) No. 13/2022 before Court of Principal Judge, Family Court, Dhubri was not maintainable and that it ought to have been made before the same Court, i.e. the Court of Judicial Magistrate First Class, Dhubri. The said submission is not found tenable because under section 8 of the Family Courts Act, 1984, which is extracted below:-

"8. Exclusion of jurisdiction and pending proceedings.- Where a Family Court has been established for any area:-

(a) No district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect, of any suit or proceeding of the nature referred to in the explanation to that sub-section;

(b) No magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) Every suit or proceeding of the nature referred to in the explanation to, sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), -

(i) Which is pending immediately before the establishment of such Page No.# 6/7

Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be before any magistrate under the said Code; and

(ii) Which would have been required to he instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established ."

10. There is no dispute that a Family Court has been established in Dhubri. Therefore, in light of the provisions of section 8 of the Family Courts Act, 1984, it cannot be held that the said learned Court would have no jurisdiction to entertain a petition filed under section 127 Cr.P.C., which is contained in Chapter-IX of the said Code. Thus, on conjoint reading of the provisions of section 7 and 8 of the Family Courts Act, 1984 and section 127 of the Cr.P.C., the word "Magistrate" contained in section 127 Cr.P.C., relevant to this case, would have to be read as if it would also include the Court of Principal Judge, Family Court within its ambit for the limited purpose of section 127 Cr.P.C.

11. We may hasten to reiterate herein at the cost of repetition that it is the specific stand of the petitioner in this instant criminal petition that the order dated 24.04.2017, as rectified by order dated 05.09.2017, passed in Misc. Case No. 751/2015 has attained finality.

12. Therefore, the Court finds no merit in this criminal petition even to warrant issuance of notice on the respondent. Accordingly, this criminal petition for quashing of the proceedings of F.C. (Crl.) No. 13/2022 stands dismissed in the 'motion' stage, without issuance of notice on the respondent.

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13. The Registry shall transmit a copy of this order to the Court of the learned Principal Judge, Family Court, Dhubri, so as to make this order a part of the record of the F.C. (Crl.) No. 13/2022.

JUDGE

Comparing Assistant