Page No.# 1/7 vs The State Of Assam And Anr
2025 Latest Caselaw 2237 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 23 January, 2025

                                                                           Page No.# 1/7

GAHC010173212022




                                                                    2025:GAU-AS:706

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

                               Case No. : Crl.Rev.P./65/2023

            MOUSAM PAUL
            S/O SRI ARABINDA PAUL, R/O VILL. DWARBAND, P.S. SILCHAR, DIST.
            CACHAR, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY PP, ASSAM.

            2:SMT. SWEETY PAUL

             D/O UJJAL PAUL
             R/O VILL. TARAPUR
             NETAJI NAGAR
             P.S. SILCHAR
             DIST. CACHAR
             ASSAM
             PIN 78800

Advocate for the Petitioner   : MR. D CHAKRABARTY,

Advocate for the Respondent : PP, ASSAM, MR R KARIM (R-2),MS. B DEVI (R-2),MS. R

GOSWAMI (R-2),MR. P K DEKA (R-2) Page No.# 2/7

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 29.11.2024 Date of Judgment & Order : 23.01.2025

JUDGMENT & ORDER (CAV)

Heard Mr. D. Chakrabarty, learned counsel for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. P. K. Deka, learned counsel for the respondent No. 2.

2. This is an application under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973 against the impugned judgment dated 18.04.2022, passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 1/2021, whereby the appeal was dismissed and the order dated 19.01.2021, passed by the learned JMFC, Cachar, Silchar in Misc. D.V. Case No. 16/2019, was affirmed.

3. In brief, the case of the petitioner is that the respondent No. 2 herein, who is the wife of the petitioner, filed one Misc. D.V. Case No. 16/2019, under Sections 12 & 23 of the Protection of Women from Domestic Violence Act, 2005 praying for relief under Sections 18/19/20/222 of the said Act before the Court of learned Chief Judicial Magistrate, Cachar, Silchar against the petitioner alleging domestic violence and claiming monetary relief for herself and her daughter including compensation, interim relief, etc. The petitioner, after Page No.# 3/7

receiving the notice, appeared before the learned Trial Court below and contested the case by filing Written Statement denying all the allegations and claims made by the respondent No. 2. Thereafter, the learned Judicial Magistrate First Class, Cachar, Silchar, vide Order dated 19.01.2021, directed the petitioner herein to pay interim maintenance @ Rs. 2,000/- per month to the respondent No. 2 herein, Rs. 1,000/- per month to the child and Rs. 1,500/- per month for the education expenses of the said child, i.e. in total Rs. 4,500/- per month as interim maintenance, until further order. Being aggrieved and dissatisfied with the aforesaid order dated 19.01.2021, passed by the learned Judicial Magistrate First Class, Cachar, Silchar, the petitioner herein preferred an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 before the Court of learned District & Sessions Judge, Cachar, Silchar, which was registered as Criminal Appeal Case No. 01/2021. However, the learned Sessions Judge, Cachar, Silchar, vide Order dated 18.04.2022, dismissed the appeal and affirmed the order dated 19.01.2021, passed by the learned Judicial Magistrate First Class in Misc. D.V. Case No. 16/2019.

4. Accordingly, on being highly aggrieved and dissatisfied with the impugned judgment dated 18.04.2022, passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 1/2021, as well as the order dated 19.01.2021, passed by the learned JMFC, Cachar, Silchar in Misc. D.V. Case No. 16/2019, the present criminal revision petition has been preferred.

5. Mr. Chakrabarty, learned counsel for the petitioner, submitted that the learned Appellate Court has committed gross error of jurisdiction while passing the impugned judgment and as such the same is liable to be set aside. He Page No.# 4/7

further submitted that the PWs- 1 & 2, i.e. the respondent No. 2 herein and her mother, respectively, are yet to be cross-examined by the defence in regards to the veracity of their depositions in terms of Section 138 of the Indian Evidence Act. However, the learned Appellate Court has observed that until the evidence of PWs-1 & 2 are rebutted in cross-examination by the defence, the same cannot be discarded, which is totally misinterpretation of the established procedural law.

6. Mr. Chakrabarty, learned counsel for the petitioner, further submitted that the learned Sessions Judge made an observation in his judgment that the appeal was preferred only against the interim order which is not tenable in the eye of law and at best a revision ought to have been preferred by the present petitioner, but the learned Sessions Judge failed to appreciate the law that as per the D.V. Act, all orders passed under Sections 18 to 23, the appeal lies under Section 29 of the Protection of Women from Domestic Violence Act, 2005 if any parties aggrieved even to the interim order. He further submitted that the learned Sessions Judge has committed grave error and mistake while affirming the order passed by the learned Judicial Magistrate First Class directing the present petitioner to make payments towards payment for the respondent No. 2 as well as for her child on the ground that the cross-evidence in respect of PWs- 1 & 2 is still not completed.

7. Further, Mr. Chakrabarty mainly stressed on the point that the learned Trial Court below as well as the learned Appellate Court had arrived at the decision only on the basis of the statement made by the PWs- 1 & 2 in their evidence-in- chief and on the basis of the complaint petition, but the veracity of the evidence Page No.# 5/7

of PWs cannot be assessed only from their evidence-in-chief and without considering this aspect, the learned Trial Court below as well as the learned Sessions Judge had passed the order for interim maintenance in favour of the present respondent No. 2 and her child without giving any opportunity of cross- examination by the present petitioner. Accordingly, he submitted that the case may be remanded back with a direction to the learned Court below to hear the petitioner as well as the respondent after cross-examination of the PWs- 1 & 2 and thereafter to pass necessary order.

8. In this context, Mr. Deka, learned counsel for the respondent No. 2, submitted that the learned Trial Court below as well as the learned Appellate Court had rightly passed the order directing the present petitioner to pay the maintenance towards the interim relief till disposal of the said D.V. proceeding. He further submitted that in the Memo of Appeal, the petitioner, in paragraph Nos. 9, 10 & 11, has stated that he is ready to pay Rs. 2,000/- towards the maintenance for the respondent No. 2 and Rs. 1,500/- towards the education expenses for the child. More so, the learned Appellate Court has rightly observed that until and unless the evidences of PWs-1 & 2 are rebutted, their testimonies cannot be discarded outrightly and it is also observed by the learned Appellate Court that from the assets and liabilities submitted by the PW-1, it also reveals that she is an unemployed lady and totally dependent on the petitioner. Accordingly, he submitted that the interim order for maintenance was passed considering the evidence of PWs-1 & 2 as well as from the statement made by the respondent No. 2 in her petition and also considering the assets and liabilities as submitted by her. He therefore submitted that there is no reason to make any interference in the order passed by the learned Trial Court Page No.# 6/7

below.

9. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the orders passed by the learned Appellate Court viz-a-viz the learned Trial Court below.

10. It is an admitted fact that the respondent No. 2 is the legally married wife of the petitioner and the paternity of the child is also not disputed. It is also an admitted fact that the order of interim maintenance is passed prior to the cross- examination of the PWs. But it is evident from the petition as well as the evidence and the observation made by the learned Courts below that the respondent is an unemployed lady and has no source of income of her own to maintain herself as well as to maintain her child including her educational expenses. More so, to pass an order of interim maintenance, the entire detail or the merit of the case may not be considered and the Court may pass an order of interim maintenance considering a prima facie case in favour of the aggrieved. However, the petitioner will get the ample opportunity to rebut the evidences of PWs-1 & 2 either by cross-examining or by adducing any rebuttal evidence and after the final disposal of the matter, there may be some adjustment of the interim maintenance. But, I do not find any illegality or irregularity committed by the learned Appellate Court as well as the learned Trial Court below while passing the order of interim maintenance considering the prima facie case on the basis of the complaint petition as well as on the basis of the evidence adduced by the PWs- 1 & 2.

11. In view of the entire discussion made above, I am of the opinion that the Page No.# 7/7

judgment dated 18.04.2022, passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 1/2021, dismissing the appeal and affirming the order dated 19.01.2021, passed by the learned JMFC, Cachar, Silchar in Misc. D.V. Case No. 16/2019, do not suffer from legality, propriety or correctness to make any interference of this Court and accordingly the same stands upheld. Resultantly, the petition stands dismissed. The petitioner is hereby directed to pay interim maintenance to the respondent No. 2 and her child as directed by the learned Courts below.

12. In terms of above, this criminal revision petition stands disposed of.

JUDGE

Comparing Assistant