Page No.# 1/6 vs Rumi Sharma
2025 Latest Caselaw 4979 Gua

Gauhati High Court

Page No.# 1/6 vs Rumi Sharma on 26 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                       Page No.# 1/6

GAHC010221722024




                                                                 2025:GAU-AS:6633

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

          Crl.Pet./557/2024

         SAUMENDRA SARMAH
         S/O LT. GIRINDRA NATH SARMAH
         R/O ANNANDAPARA STATION ROAD

         DULIAJAN
         P.O. AND P.S. DULIAJAN
         ASSAM
         PIN-786602


          VERSUS

         RUMI SHARMA
         W/O SRI SAUMENDRA SARMAH
         D/OLT. PRAFULLA SARMAH
         R/O HOUSE NO. 109
         PADUM PATH
         SAURAV NAGAR
         BELTOLA

         P.O. BELTOLA
         AND P.S. BASISTHA IN THE DISTRICT OF KAMRUP (M)
         ASSAM
          PIN CODE- 781028


         ------------

Advocate for : MR SISHIR DUTTA Advocate for : MR. A SARMAH appearing for RUMI SHARMA Page No.# 2/6

:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioner : Mr. S. Dutta, Senior Advocate and Mr. S. Dutta, Advocate.

                  For the Respondent:                  Mr. A. Sarmah,
                                                       Advocate.

                  Date of Hearing  :                   23.05.2025.
                  Date of Judgment :                   26.05.2025.


                         JUDGMENT AND ORDER (CAV)

Heard Mr. Sishir Dutta, the learned senior counsel assisted by Mr. S. Dutta, the counsel appearing for the petitioner. Also heard Mr. A. Sarmah, the learned counsel representing the sole respondent.

2. This is an application under Section 482 of the Criminal Procedure Code praying for quashing the proceedings of D.V. Case No.212 of 2023 pending in the court of the learned Sub-Divisional Judicial Magistrate, Kamrup(M), Guwahati.

3. The 51 year old respondent filed an application under Sections 12, 18, 19, 20, 22 and 23 of the Domestic Violence Act, 2005 against the present petitioner, being her husband. They were married on 08.02.2008. Initially, they stayed at Duliajan, though their marriage was solemnized at Guwahati.

4. They had marital disputes. Therefore, the respondent filed a divorce proceeding, being F.C. (Civil) Case No.447 of 2010 in the Family Court. Though, the Family Court delivered a judgment, both the respondent and the petitioner decided to patch up their differences. Even after expiry of 10 years subsequent thereto, they could not have a proper relationship. Therefore, the respondent again filed another divorce Page No.# 3/6

proceeding being Case No.425/2018.

5. The respondent started to live in her parents' house. On one occasion, in order to patch up their dispute, the respondent came to her matrimonial house but her husband left the house and started to reside at a hotel after locking his bedroom in his house.

6. Narrating the aforesaid facts, among other prayers, the respondent filed the said application before the court below seeking an amount of Rs.2 crore as compensation and damage caused to her mentally and emotionally. The petitioner reportedly earns Rs.2.3 lakh per month by working as the Chief Executive Engineer at Oil India Limited, Duliajan.

7. The leaned Magistrate took cognizance of the offence under Section 12 of the Domestic Violence Act and issued notice to the present petitioner.

8. The learned counsel Mr. Sarmah has relied upon a judgment of the Hon'ble Madras Court that was delivered in Arul Daniel & Ors. v. Suganya, reported in 2022 SCC OnLine Mad 5435. In this judgment, the Hon'be Madras High Court has held that the petition under Section 482 of the CrPC challenging a proceeding under Section 12 of the D.V. Act is not maintainable, though a petition under Article 227 of the Constitution of India is maintainable on a limited ground on patent lack of jurisdiction.

9. Per contra, the learned senior counsel Mr. S. Dutta has relied upon a judgment of the Supreme Court that was delivered in Shaurabh Kumar Tripathi v. Vidhi Rawal , reported in 2025 SCC OnLine SC 1158. Paragraphs 31, 32, 35, 37, 38 and 39 are quoted as under.

"31. There are two parts of Section 482. Both parts save the inherent powers of the High Court. The first part is applicable where the power is exercised to make such orders as may be necessary to give effect to any order under 'this Code'. When a notice is issued on an application under Section 12(1), the learned Magistrate does not pass any order under Page No.# 4/6

the CrPC. When orders granting any of the reliefs under Sections 18 to 23 are passed, the orders of the learned Magistrate are not under the CrPC. Therefore, the first part of Section 482 cannot apply to proceedings under Section 12(1) of the DV Act, 2005.

32. The second part of Section 482 saves the inherent power of the High Court to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Therefore, in a given case where a learned Magistrate is dealing with an application under Section 12(1), the High Court can exercise the power under the second part of Section 482 to prevent abuse of the process of any Court or to secure the ends of justice. Hence, the High Court can exercise jurisdiction under Section 482 of the CrPC to quash proceedings of an application under Section 12(1) or orders passed in accordance with Sections 18 to 23 of the DV Act, 2005.

35. When it comes to exercise of power under Section 482 of the CrPC in relation to application under Section 12(1), the High Court has to keep in mind the fact that the DV Act, 2005 is a welfare legislation specially enacted to give justice to those women who suffer from domestic violence and for preventing acts of domestic violence. Therefore, while exercising jurisdiction under Section 482 of the CrPC for quashing proceedings under Section 12(1), the High Court should be very slow and circumspect. Interference can be made only when the case is clearly of gross illegality or gross abuse of the process of law. Generally, the High Court must adopt a hands-off approach while dealing with proceedings under Section 482 for quashing an application under Section 12(1). Unless the High Courts show restraint in the exercise of jurisdiction under Section 482 of the CrPC while dealing with a prayer for quashing the proceedings under the DV Act, 2005, the very object of enacting the DV Act, 2005, will be defeated.

37. There are decisions of the High Courts taking a view that the jurisdiction under Section 482 of the CrPC is not available to quash proceedings of an application under Section 12(1) of DV Act, 2005. The decisions are primarily based on the premise that proceedings under Section 12(1) are predominantly of a civil nature. The said view is not correct for the reasons set out earlier.

38. Before we part with this Judgment, we must mention here that one of us (Abhay S. Oka, J) is a party to a Judgment dated 27 nd October, 2016 of the Bombay High Court in Writ Petition 2473 of 2016 in which the view taken is that remedy under Section 482 of the CrPC is not available for quashing the proceedings under Section 12(1) of the DV Act, 2005. This view was found to be incorrect by a full Bench of the same High Court. As judges, we are duty-

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bound to correct our mistakes in properly constituted proceedings. Even for Judges, the learning process always continues.

39. To conclude, the view taken in the impugned order of the High Court that a petition under Section 482 of the CrPC for challenging the proceedings emanating from Section 12(1) of the DV Act, 2005 is not maintainable, is not the correct view. We hold that High Courts can exercise power under Section 482 of CrPC (Section 528 of the BNSS) for quashing the proceedings emanating from the application under Section 12(1) of the DV Act, 2005, pending before the Court of the learned Magistrate. However, considering the object of the DV Act, 2005, the High Courts should exercise caution and circumspection when dealing with an application under Section 12(1). Normally, interference under Section 482 is warranted only in the case of gross illegality or injustice."

10. So, it is now clear that the petition under Section 482 of the CrPC challenging a proceeding under Section 12 of the D.V. Act is maintainable in law.

11. There is no dispute that for a period of about 15 years the petitioner and the respondent not having any domestic relationship because they live separately. Sometimes, the respondent came into the house of the petitioner but on every occasion, on getting the news of her arrival, the petitioner used to get out of the house and to stay somewhere else. These facts are undisputed.

12. This is a case where there was no domestic relationship between the petitioner and the respondent for more than a decade. At this stage, there cannot be any question of domestic violence mated out to the respondent. The impugned order passed by the learned Magistrate taking cognizance of the offence under Section 12 of the D.V. Act, 2005 is also cryptic. This Court has reason to hold that the learned Magistrate did not apply judicial mind while passing the impugned order.

13. When there is no domestic relationship, there cannot be any domestic violence. The D.V. Act was enacted for preventing domestic violence against married women. The respondent has been living separately from her husband for an exceptionally long Page No.# 6/6

time. This Court is of the opinion that the learned trial court erroneously oriented itself and passed the impugned order taking cognizance under Section 12 of the D.V. Act of 2005. Continuation of this proceeding before a trial court would amount to gross injustice on the part of the petitioner.

14. For the aforesaid reasons, the proceedings of D.V. Case No.212 of 2023 pending in the court of the Sub-Divisional Judicial Magistrate, Kamrup(M), Guwahati, is quashed and set aside.

The criminal petition is disposed of.

JUDGE

Comparing Assistant