Page No.# 1/8 vs Noor Nehar
2025 Latest Caselaw 321 Gua

Gauhati High Court

Page No.# 1/8 vs Noor Nehar on 8 May, 2025

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GAHC010221642024




                                                                  2025:GAU-AS:5690

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

                               Case No. : Crl.Pet./1292/2024

            RUHUL AMIN
            S/O SHAMSUL HOQUE
            R/O VILL- DEWKURA
            P.O. AND P.S. KALGACHIA
            DIST. BARPETA, ASSAM



            VERSUS

            NOOR NEHAR
            D/O ABDUL MANNAN
            R/O VILL- DEWKURA, P.O. AND P.S. KALGACHIA, DIST. BARPETA, ASSAM,
            PIN-781319



Advocate for the Petitioner   : MR. R ALI, MR. MUSTAFA HUSSAIN,MR H A AHMED

Advocate for the Respondent : MR. M U E BHUYAN, MR. K BHUYAN

BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

JUDGMENT & ORDER (CAV) Date : 08-05-2025

1. Head Mr. R. Ali, the learned counsel for the petitioner. Also heard Mr. K. Bhuyan, the learned counsel appearing for the sole respondent.

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2. This is an appeal u/s 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for quashing of C.R. Case No. 850/2023 pending in the Court of learned SDJM(S), Barpeta.

3. In brief the case of the petitioner is that the respondent filed a complaint case before the Court of learned CJM, Barpeta u/s 12 of the Protection of Women from Domestic Violence Act, 2005 alleging inter alia that the respondent is a legally married wife of the petitioner and the marriage was solemnised as per Muslim Law and rituals on 24.04.2016 by execution of Kabin Nama, fixing Mahar at an amount of Rs. 3,03,001/-. After marriage they started their conjugal life but since the next day of their marriage, the petitioner started demanding dowry along with some gold ornaments and furniture and finding no alternative the father of the respondent also provided a complete set of ornaments made of gold and the other furniture. Thereafter, the petitioner again demanded a car from the respondent and as she could not fulfil demand, she was subjected to mental and physical torture by the petitioner. But in spite of such torture on her she was trying to maintain her conjugal life with the petitioner along with her two children. But later on she instituted a case u/s 12 of the DV Act in the year 2018 against the petitioner and others. But, that was compromised and she again started her conjugal life with the petitioner. But, thereafter on 15.10.2022 she was driven out from the house of the petitioner along with her children snatching all her ornaments and keeping the furniture. Finding no other alternative she took shelter in the house of her parents but her father was also not in a position to provide her maintenance and also for her children. The petitioner also has a house in another plot of land but she did not allow the respondent and the children to reside there. The petitioner is a

Constable of 4th APTF BN and he gets salary of Rs. 50,000/- per month and thus Page No.# 3/8

has the ability/capability to maintain the respondent and her two children.

4. On receipt of the case, the learned CJM, Barpeta registered the same as C.R. Case No. 850/2023 and the same was transferred to the Court of learned SDJM(S), Barpeta for disposal. The learned Court below accordingly fixed the matter on 06.12.2023 for hearing and after hearing the respondent, notice was issued to the present petitioner, who accordingly appeared and submitted his written statement on 09.06.2024. Thereafter the matter was fixed on 01.08.2024 for hearing on interim maintenance. Hearing could not be taken up on 01.08.2024 and the next date was fixed on 02.09.2024. However, on 02.09.2024, the petitioner could not appear and his engaged counsel also remained absent and for which the ex-parte order was passed by the learned Court below directing the petitioner to pay an amount of Rs. 4,000/- to the respondent and Rs. 1500/- each to her minor son and daughter.

5. It is further stated that the petitioner was working as a Constable since 2008 and while he was in service he married to respondent on 24.04.2016. But, after marriage the respondent started to instigate the petitioner to demand separate house and to live separately from his parents and the other family members.

6. On his refusal the respondent left the house of the petitioner on 19.06.2017 along with all gold & silver ornaments, clothes and cash amount of Rs. 3 lacs. The petitioner also tried to bring her back to her matrimonial house. But, she refused to return for which the petitioner sent the village Headman along with his relatives but, she refused to come back. Finding no alternative he also filed a case before the Family Court, Barpeta for restitution of conjugal rights which was registered as T.S. (M) F.C. No. 220/2018. In the meantime, the respondent also field a case against the petitioner u/s 12 of the D.V. Act, which Page No.# 4/8

was registered as C.R. Case No. 620/2018. The father of the respondent also filed an FIR against the petitioner which was registered as Kalgachia P.S. Case No. 744/2018 u/s 498A/325/315/406/500/34 IPC read with section 4 of D.P. Act. However, on completion of the trial, the learned Court below vide its judgment and order dated 29.09.2021 acquitted the petitioner from the charge. It is true that the petitioner also filed an FIR against the respondent and her family members which was registered as Kalgachia P.S. Case No. 186 of 2018 and another case was also filed by the respondent with the allegation of forgery of marriage documents which was also registered as Kalgachia P.S. Case No. 211/2019. Thereafter the respondent expressed her willingness to stay together and settle all the cases and accordingly case filed by the petitioner for restitution was also withdrawn and C.R. Case No. 620/2018 filed by the respondent also dismissed on the ground of amicable settlement. But, after disposal of those cases, she filed another case u/s 125 Cr.PC before Family Court, Barpeta which is still pending.

7. It is further stated that the respondent by suppressing all the material facts had filed the D.V. case and the learned Court below without considering the statement made in WS by the petitioner issued a notice against him without considering the fact that the present proceeding under the D.V. Act is not maintainable and is barred by the principle of res judicata. Also there is no specific allegation against the present petitioner in the Domestic Incident Report and all the allegations are general and vague allegations. But, without applying its judicial mind the learned Court below had issued the summons to the present petitioner and hence the entire proceeding is liable to be set aside and quashed.

8. In the instant case, not a single incident has been brought by the Page No.# 5/8

petitioner where she was subjected to physical and mental torture. The respondent cannot be treated as an aggrieved person and she played fraud with the petitioner and also the Hon'ble Court by suppressing all the material facts while filing the case. Therefore, if the proceeding is allowed to be continued, it will be an abuse of the process of law and as such by invoking the power u/s 528 BNSS, the entire proceeding is liable to be set aside and quashed.

9. Mr. Ali further submitted that the petitioner has already been acquitted from the case lodged by the respondent u/s 498A IPC which otherwise establishes that there was no mental or physical torture on the respondent demanding dowry. After withdrawing the first D.V. Case, the subsequent case under the D.V. Act has been filed which is barred by principle of res judicata and the second or subsequent application has been made by suppressing all the material facts and hence the present D.V. case under the DV Act is liable to be set aside and quashed by invoking the power u/s 528 BNSS.

10. In that context Mr. K. Bhuyan, the learned counsel appearing for the sole respondent submitted that the learned Trial Court below had rightly took cognizance and the process issued against the petitioner by applying his judicial mind. It is also seen that the order of issuance of process is also not put to challenge and the petitioner appeared before the learned Trial Court below and contested the case by filing their written statement. More so, the interim order of maintenance is also not challenged by the petitioner and the present petition is being filed only to set aside the entire proceedings under the D.V. Act which is pending before the learned Court of SDJM(S), Barpeta.

11. Mr. Bhuyan further submitted that it is a fact that earlier application under D.V. Act was withdrawn by the respondent as there was a compromise/settlement between the parties and they decided to stay together.

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In pursuant to the said settlement, they also agreed to withdraw the other cases and have started staying together. But, when she was again subjected to mental and physical torture, she was bound to file another application under the D.V. Act seeking maintenance and other reliefs. Accordingly, Mr Bhuyan submitted that the application for D.V. Act had to be filed under the change of circumstances.

12. Mr. Bhuyan further submitted that the proceeding is also at the very initial stage and the petitioner will get ample opportunity to rebut the evidence as well as the plea of the respondent by adducing his evidence and also by cross- examining the PWs. But, considering the entire facts and circumstances of the case it is not at all a fit case to set aside the entire proceeding under the D.V. Act as prayed by the petitioner. He accordingly submitted that it is not at all a fit case to set aside or quash the entire proceeding by invoking the power u/s 528 BNSS for quashing the C.R. Case No. 850/2023 pending before the Court of learned SDJM(S), Barpeta.

13. Hearing the submissions made by learned counsel for both sides, I have also perused the case record and the annexures filed along with the petition. It is not disputed that there were allegations and counter-allegations brought by both the parties and to that effect they have also initiated some criminal proceedings. In the same time it is also an admitted fact that the present petitioner was acquitted in the case filed by the respondent u/s 498A IPC. Further it is also admitted that some other proceedings as well as the case filed by the petitioner for restitution of conjugal rights were also withdrawn after the settlement between the parties and in pursuant to such settlement the respondent also withdrawn her earlier application filed under the D.V. Act and they started residing together. Thus, it is seen that the subsequent application Page No.# 7/8

under the D.V. Act was filed by the respondent under the change of circumstances as it was alleged that she was again subjected to mental and physical torture after withdrawing of her earlier application under the D.V. Act. But, the point raised by the petitioner that after withdrawal of other cases, the respondent filed another application for maintenance u/s 125 Cr.PC and during the pendency of the said case she filed the application under the D.V. Act by suppressing the facts of pendency of 125 Cr.PC proceeding as well as the other material facts of the case. But, to prove the allegation of pendency of a case u/s 125 Cr.PC, the petitioner did not produce any document/pleadings of the parties as well as any order passed by the Court under 125 Cr.PC proceeding. Thus without any document or order of the learned Trial Court below under 125 Cr.PC proceeding, this Court cannot hold any opinion with regard to pendency of any case u/s 125 Cr.PC and the respondent cannot be restrained from filing any application under the D.V. Act seeking other relief even in the event of existing of any 125 Cr.PC proceeding. However, before seeking any relief or maintenance the respondent/aggrieved party must disclose the pendency of 125 Cr.PC proceeding before the Trial Court below. But, absence of any such material this Court is of the opinion that no illegality or irregularity has been committed by the learned Trial Court below while issuing notice/summon against the petitioner or granting interim maintenance. More so, the present case under the D.V. Act also can not be held to be barred by the principle of " res judicata".

14. In view of above, I do not find any reason for quashing the entire proceeding of C.R. Case No. 850/2023 which is pending before the Court of learned SDJM(S), Barpeta under the D.V. Act by invoking the power u/s 528 BNSS. Accordingly, the same stands rejected.

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15. In terms of above, this criminal petition stands disposed of.

JUDGE

Comparing Assistant