Crl.Pet./325/2020
2025 Latest Caselaw 4475 Gua

Gauhati High Court

Crl.Pet./325/2020 on 26 March, 2025

  GAHC010081732020




                                              2025:GAU-AS:3724


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



                     CRL.PET.NO. 325 OF 2020
                     Abdus Salam Laskar,
                     S/o Haji Aymon Raja Laskar,
                     R/o Village and P.O. Matirgram,
                     P.S. Algapur, District Hailakandi, Assam.

                                                   ........Petitioner


                            -Versus-


                     Mustt Rehima Begum Laskar,
                     D/o Md. Abdur Rejak Laskar,
                     W/o Md Abdul Salam Laskar,
                     R/o Nitainagar, Part-II,
                     P.O. and P.S. Hailakandi,
                     District Hailakandi, Assam.

                                                 ........Respondent




                                                           Page 1 of 12
                            -BEFORE-

          HON'BLE MR. JUSTICE KAUSHIK GOSWAMI


For the Petitioner     :   Mr. S.C. Biswas
                       :   Ms. A. Das
                       :   Mr. P.S. Biswas
                       :   Ms. A. Borah
                       :   Ms. J. Ghosh

For the Respondent     :

Date of Hearing & Judgment    : 26.03.2025




                JUDGMENT & ORDER (ORAL)

Heard Mr. S.C. Biswas, learned counsel for the petitioner. None appears for the respondent on call, despite the name of the learned counsel being reflected in the cause list.

2. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.PC'), the petitioner is assailing the Judgment & Order dated 04.06.2018 passed by the learned Chief Judicial Magistrate, Hailakandi (hereinafter referred to as 'Magistrate Court') in M.R.(D.V.) Case No. 195/2016 and the Judgment & Order dated 25.03.2019 passed by the learned Sessions Judge, Hailakandi (hereinafter referred to as 'Appellate Court') in Criminal Appeal No. 33/2018.

3. The brief facts of the case is that the respondent had filed a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act, 2005')

before the Magistrate Court alleging domestic violence committed by the petitioner against her. The Magistrate Court upon trying the said case, held the petitioner guilty of committing domestic violence upon the respondent and accordingly, was pleased to direct monthly maintenance of Rs. 4,000/- (Rupees Four Thousand) only and one time compensation of Rs. 2,00,000/- (Rupees Two Lakhs) only.

4. Against the aforesaid order of the Magistrate Court, the petitioner preferred an appeal before the Appellate Court. The Appellate Court by Judgment & Order dated 25.03.2019, though was of the considered view that the Magistrate Court has committed no infirmity in holding the petitioner guilty of committing domestic violence upon the respondent, however, reduced the monetary benefit by modifying the compensation amount to Rs. 1,00,000/- (Rupees 1 Lakh) only and the monthly maintenance to Rs. 3,500/- (Rupees Three Thousand Five Hundred) only. Situated thus, the present criminal petition has been filed.

5. Mr. S.C. Biswas, learned counsel for the petitioner submits that as far as the monthly maintenance is concerned, the petitioner accepted the same. However, as per the compensation amount of Rs. 1,00,000/- (Rupees 1 Lakh) only awarded by the Appellate Court is concerned, there being no evidence of mental torture discernable from the evidences brought on record, such award of compensation is totally erroneous and warrants interference from this Court.

6. I have given my prudent consideration to the argument advanced by the learned counsel for the petitioner and have perused the materials available on record.

7. In order to appreciate the submissions made by the learned counsel for the petitioner as per the award of compensation by the Magistrate Court as well as the Appellate Court, apt to refer to the materials available on record.

8. It appears from the averments made in the complaint that the respondent has alleged that during her pregnancy period, the petitioner did not provide adequate treatment to her and the petitioner has further tortured her both mentally and physically.

9. It appears from the evidence of the respondent before the Magistrate Court as PW-1 that she deposed that the petitioner torturned her on the instigation of his mother as she gave birth to a daughter. She further deposed that in the year 2011, the petitioner tried to set her and her daughter on fire and her uncle came and saved her and sent her to her paternal home. She further deposed that the petitioner demanded Rs. 50,000/- (Rupees Fifty Thousand) only from her and threatened to marry again in the event of non-payment and that after she left, the petitioner married for the second time and is living with the second wife. She further deposed that three numbers of registered talaknama was also sent to her in her paternal home through post.

10. It further appears that the petitioner adduced himself as DW-1, wherein he has admitted the sending of the registered post

talaknama and that there was no witness to the said talaknama. It further appears that the petitioner has also admitted the fact that the Police recovered the respondent through a search warrant from his home.

11. It further appears that based on such evidences, the Magistrate Court had held the petitioner guilty of committing domestic violence upon the respondent.

12. Relevant portion of the Judgment & Order of the Magistrate Court is reproduced hereunder for ready reference:-

"From the evidence of the aggrieved, it is seen that the respondent No.1 had mentally and physically tortured PW-

1. By sending registered Talak-nama he has aggravated the mental cruelty upon the aggrieved. Therefore, it can well be seen that there did not exist conducive atmosphere in the home of Respondent No.1 to live with dignity and the aggrieved was forced out of her matrimonial home by way of pressure. Therefore, on the basis of the evidence, it is an admitted position that the aggrieved was forced out of her matrimonial home and in accordance, this point is decided in the affirmative in favour of the aggrieved.

POINT NO.-2:

Discussion made in point No.1 is clear to the context that the respondent No.1 committed violence not only physically but also mentally upon the aggrieved. Therefore, the act and conduct of the respondent No.1 attracts the provisions enumerated u/s 3 of the Protection of Women from Domestic Violence Act.

In the capacity of DW-1 respondent No.1 has admitted that to give TALAK presence of witnesses are required, but in his Registered Post, exhibited as Ext.- C,D,E, there is no witnesses and thereby the very procedure for giving TALAK under the Muslim Personnel

Law is not complied with by the respondent No.1. He also admitted the fact that the police recovered the aggrieved through a Search Warrant from his home and this very fact is enough to ascertain the severity of violence committed upon the aggrieved by the respondent No.1. Further, the mode of TALAK through Registered Post is not the norm under the Islamic Law and so the TALAK as such has no validity of its own.

However, the evidence of PW-1 lacks to show that respondent No.2 was involved in any kind of committing domestic violence upon her and her evidence pin points the involvement of the mother of the respondent No.1 and it is apparent that the respondent No.2 had no such role to play in committing Domestic Violence and accordingly, he is not to be counted under the Special Act.

Though DW-2 Jalal Uddin Mazumder and DW-3 Mujammil Ali Laskar tried to support the case of Respondent No.1, but they have deposed that they have not seen any violence committed by Respondent No.1 against the aggrieved. It is true that the outsiders like these two witnesses cannot know the dispute arising in the confines of a home, where spouses reside and therefore, their attempt to safe-guard respondent No.1 is not substantial in the nature of the present case at hand.

Accordingly, it is held that it was respondent No.1, who has committed the domestic violence upon the aggrieved.

This point is decided accordingly."

13. In view of the aforesaid findings, the Magistrate Court was of the considered view that the respondent is entitled to the monetary relief inclusive of the compensatory relief as envisaged

under Section 22 of the Act, 2005 and accordingly directed as hereunder:-

"In the result, it is directed upon respondent No.-1 that he shall pay:

a) monthly payment of Rs.4,000/- to the aggrieved.

The monthly payment must be made within the 10th day of each calendar month.

b) an one time compensation of Rs.2,00,000/- as part of the mental and emotional distress undergone by the aggrieved. However liberty is given to the respondent to pay the compensatory amount in installments, as agreeable to the aggrieved. This compensatory relief is also in lieu of a separate order for residence."

14. It appears that the Appellate Court after appreciating and re-appreciating the evidences on record has held as hereunder:-

"9. The PW.1, respondent in her evidence admitted that the appellant sent 3 Nos. of registered talaknama to her and she did not know the appellant to marry for the second time. The Ld. Counsel for the respondent submits that the alleged talak is not at all valid in the eye of Shariat rules because the talak should be pronounced at least in presence two witnesses but the talaknamas submitted by the appellant do not contain any signature of witness.

10. The appellant adduced evidence as DW.1 and he himself admitted that talak must be pronounced in presence of 2 witnesses but Exts. C, D and E, Talaknama do not contain any signature of witness. Therefore, on admission of the appellant, it is clear that the alleged talak has got no force in the eye of law. Since talak is not proved, it is appeared that the domestic relationship between the appellant and the aggrieved still exists.

11. The evidence and pleadings of the aggrieved clearly show that she was tortured both physically and mentally by the appellant and the appellant himself admitted that the aggrieved filed a case against him under Sec. 498(A) of IPC and therefore, the said act of torture meted upon the aggrieved by the appellant comes within the definition of domestic violence as provided in the Act.

12. Now, coming to the quantum of compensation, it is appeared from the evidence of PW.1 that the appellant is an owner of vehicles and he has got betelnut garden, landed properties etc. which the appellant by adducing evidence denied and took the plea that he is a day labourer and earns Rs. 1500/- per month. The appellant in his cross-examination as DW.1 has stated that his father was a teacher and he is the only son of his parents. The has admitted that the appellant has got betelnut garden, home, fishery and cultivable land.

13. The evidence of DW.2 lends support to the contention of the aggrieved to the fact that the appellant has got betelnut garden, home, fishery and cultivable land. The Ld. Trial Court awarded Rs. 2,00,000/- to the aggrieved towards compensation and Rs. 4,000/- per month towards maintenance. Considering all aspects including the present status of the parties, this Court is of the opinion that the quantum of compensation and monthly maintenance as awarded by the Ld. Trial Court is a bit excessive which requires certain modification.

14. The impugned judgment and order only in respect of quantum is modified to the extent that the appellant shall pay Rs. 1,00,000/- towards compensation and Rs. 3.500/- per month towards maintenance to the aggrieved/respondent.

15. The Criminal Appeal is partly allowed with the above modifications."

15. Reading of the aforesaid Judgment of the Appellate Court, it appears that the Appellate Court is of the opinion that the quantum of compensation and monthly maintenance awarded by the Magistrate Court is excessive and accordingly modified the same to the extent that the petitioner shall pay Rs. 1,00,000/- (Rupees One Lakh) only towards compensation and Rs. 3,500/- (Rupees Three Thousand Five Hundred) per month towards maintenance to the respondent.

16. Apt at this stage to refer to Section 20 and 22 of the Act, 2005, which are reproduced hereunder for ready reference:-

"20. Monetary reliefs.--(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,--

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

22. Compensation orders.--In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent."

17. Perusal of the aforesaid provisions of law, it is apparent that the Magistrate Court while disposing of an application under sub- section 1 of Section 12 is competent to direct payment of monetary relief in the form of maintenance for the aggrieved person. In addition to the above relief, it appears that the Magistrate Court is also competent to direct the respondent to

pay compensation and damages to the aggrieved person for the injuries including mental torture and emotional distress caused by the acts of domestic violence committed by that respondent.

18. It appears that the Magistrate Court having held that the petitioner has committed domestic violence upon the respondent, has directed payment of monetary relief by way of monthly maintenance and compensation as part of the mental and emotional distress undergone by the respondent.

19. In the case in hand, it appears that the Magistrate Court has exercised powers under Section 20 and Section 22 of the Act, 2005 while granting monetary relief and compensation relief. It further appears that the said award of compensation as well as monetary relief is based on evidence to the fact that the petitioner has committed domestic violence upon the respondent. It appears that the Appellate Court appreciating and re- appreciating the aforesaid evidence has up-held the order of the Magistrate Court by modifying the monetary relief of monthly maintenance to Rs. 3,500/- (Rupees Three Thousand Five Hundred) only and the compensation relief to Rs. 1,00,000/- (Rupees One Lakh) only. It is well settled law that the sufficiencies of such evidence cannot be gone into by the third Court after the second Court has concurred with the findings of the first Court.

20. That being so, this Court is of the unhesitant view that the Appellate Court as well as the Magistrate Court have not committed any legal infirmities in rendering the aforesaid judgments. Hence, the instant petition fails.

21. Accordingly, the Criminal Petition stands dismissed.

22. Send back the case records.

JUDGE Comparing Assistant