Gauhati High Court
Page No.# 1/13 vs The State Of Assam And Anr on 21 November, 2025
Page No.# 1/13
GAHC010273372023
2025:GAU-AS:15852
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./525/2023
DIGANTA SARMA
S/O LATE NILAKANTA SARMA
R/O NARAKASUR
PUB NARAKASUR PATH,
KAHILIPARA, P.O.KAHILIPARA,
P.S. DISPUR, DIST. KAMRUP (METRO), PIN-781019, ASSAM
MOBILE NO. 9864102417
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SMT. PHUL BORDOLOI SARMA
D/O SRI PRABIN CHANDRA BORDOLOI
PRESENTLY RESIDING AT
VILL- GHORAMARA
NIRIBILI PATH
P.O. DISPUR
P.S. HATIGAON
DIST. KAMRUP (METRO)
ASSAM
PIN-781038
MOBILE NO. 789659683
Advocates for the petitioner : Dr. N Deka
Advocate for the respondent: Mrs. A Saikia
Mr. R.J Baruah, Ld. Addl. Public Prosecutor
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BEFORE
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date of Hearing : 12.11.2025.
Date of Judgment : 21.11.2025.
JUDGMENT AND ORDER (C.A.V)
21.11.2025
1. Heard Dr. N Deka, learned counsel for the petitioner. Also heard Mr. R.J Baruah, learned
Additional Public Prosecutor for the State of Assam and Mrs. A Saikia, learned counsel
appearing for respondent No. 2.
2. The instant Revision Petition is preferred against the impugned order dated 10.06.2023
passed by the Ld. Court of Judicial Magistrate First Class (Ms. Sanskrita Khanikar), Kamrup
Metro at Guwahati in Misc Case No. 211/2022 and also against the impugned order dated
13.10.2023 passed by the Ld.. Court of Additional Sessions Judge No. 1, Kamrup Metro at
Guwahati in Criminal Appeal No. 37/2023.
3. The case of the Revision Petitioner is that the Revision Petitioner is the Respondent in the
above noted D.V. Case No. 211/2022 which is presently pending before the Court of the
Learned Judicial Magistrate First Class, Ms. Sanskrita Khanikar, Kamrup(M), Guwahati. The
marriage between the Petitioner and the Respondent No.2 was solemnized on 11-03-2015.
The Revision Petitioner works as an Assistant Teacher in Phaguna Rabha high Scholl, Jatia,
Dispur, Guwahati-06 and Respondent No.2/Wife works as an Assistant Teacher in Borangabari
L.P. School, Mangaldai, in the District of Darrang, Assam. Soon after the marriage of the
parties they had started co-habiting as husband and wife in their home at Narakasur Village.
At the time of marriage the Respondent No.2/Wife said that she has been trying and she will
positively transfer her job to Guwahati. This was important for the Revision Petitioner because
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at the time of marriage his mother was bedridden and out of his two (2) brothers one brother
has been specially abled. The Revision Petitioner also has one sister who was already
married. After marriage the Respondent No.2 did not show any interest to get her job
transferred to a nearest place in Guwahati and she quarrelled to stay in a rented house at
Barangabari in the district of Darrang. The Respondent No.2 had stayed in her matrimonial
home for some days initially after marriage and for those days she used to commute to and
fro from Guwahati to Barangabari. In the absence of the Respondent No.2 at her matrimonial
home, there was no option, but the Revision Petitioner along with his brother had to
discharge all types of household chores and this was mainly due to the employment of the
Respondent No.2 in Darrang district. The Respondent No.2's parental home is nearby her
place of work and she has a house in Ghoramara, Guwahati. That the Revision Petitioner
requested the Respondent No.2 to stay at her matrimonial home regularly so that she can be
of some help to the male members of her matrimonial home as there was no female member
except her. However, the request of the Revision Petitioner had fallen in her deaf ears and she
almost settled herself in Barangabari in a rented house. Out of the wedlock between the
parties a male child was born on 21-11-2016. At the time of the delivery of the child the
Respondent No.2 did not inform the Revision Petitioner and couple of days later he came to
know about the hospitalisation and delivery. He came to see the baby and he had born the
entire delivery expenses at the hospital. That after delivery of the baby the Revision Petitioner
spent considerable time with the baby and the Respondent No.2 at her parental and at her
matrimonial home. However, immediately after the expiry of the maternity leave which the
Respondent No.2 availed, she started to live permanently at her rented premise at
Barangabari with effect from 06-09-2017. This time, after going there she did not keep any
relationship with the Revision Petitioner even over phone. Being highly worried, the Revision
Petitioner along with his younger brother on 09-09-2017 went to her rented premises to see
the Respondent No.2 and his baby. On reaching there he saw his father-in-law, mother-in-law
and brother-in-law present and they stopped him to enter her rented premises and
threatened him with dire consequences. They had also called some unknown person to the
rented premise over phone and all of them including the Respondent No.2 started assaulting
the Revision Petitioner. Having no alternative the Revision Petitioner and his brother somehow
escaped from the sudden attack from the Respondent No.2 along with some goons. In the
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attack the Revision Petitioner was seriously injured and after his medical examination he
lodged an F.I.R. in the Mangaldai Police Station on 10-09-2017 and the same was registered
as Mangaldai P.S. Case No. 781/2017 under Sections 342/323/427/379/ 506 and 34 of the
Indian Penal code, 1860. Since 06-09-2017 the Respondent No.2 did not return to her
matrimonial home and the Revision Petitioner had been denied of his conjugal life and also a
blissful life with his new born baby. The Respondent No.2 deserted the Revision Petitioner
permanently without paying least respect to her matrimonial commitments. That the Revision
Petitioner in spite of non-cooperation from the Respondent No.2 went on to requesting her to
come back to her matrimonial home by sending letters and over phone. However, the
Respondent No.2 always responded with slang language and threatening or she would
disconnect the call. In the backdrop of the cruelty meted out to the Revision Petitioner by the
Respondent No.2, the Revision Petitioner had filed on 08-06-2018 the F. C. (Civil) Case
No.562/2018 under Section 13 (i-a) and 13 (i-b) of the Hindu Marriage Act, 1955. This case is
pending trial. Two (2) years after filing of the divorce case by the Revision Petitioner the
Respondent No.2 filed a case for restitution of conjugal life vide F. C. (Civil) Case
No.419/2020 (filed on 04-09-2020). During the pendency of the divorce case vide F.C. (Civil)
Case No.562/2018 after 4 years 4 months on 21-09-2022, the Respondent No.2 filed the
Misc. (D.V.) Case No.211/2022 under Section 12 of the Protection of Women from Domestic
Violence Act, 2005, praying for various protections. The Revision Petitioner as Respondent
No.2 contested the case by filing his Written Statement. The Petition No.1745/2023 was filed
on 10-06-2023 and on the same date 10-06-2023 the Learned Trial court passed its
impugned order and directed the Revision Petitioner to allow the Respondent No.2 to
reside/continue her stay in the shared household at Guwahati until further orders and
allowing other reliefs as prayed by her. Being highly aggrieved and dissatisfied with the
impugned order dated 10-06-2023 passed by the Learned Judicial Magistrate First Class,
Kamrup (M), Guwahati in Misc. D. V. Case No. 211/2022 the Revision Petitioner preferred an
appeal vide Criminal Appeal No.37/2023 under Section 29 of the Protection of Women from
Domestic Violence Act, 2005 on various grounds. The Appellate court below dismissed the
Appeal preferred by the Revision Petitioner.
4. The Respondent/Wife by filing affidavit-in-opposition denied the allegations made
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against her by the Revision Petitioner and further contended as follows:
(i) She was being forced by the review petitioner to leave her job after their
marriage showing some family difficulties.
(ii) During her presence at matrimonial home, she was delivering her duty by
doing all the household works. However, the review petitioner and his family
treated her as maid servant.
(iii) The respondent has been working since 09/09/2012 as Assistant Teacher
in Borangabari L.P. School, Mangaldai, in the District of Darrang, Assam. The
distance from her school to her spouse's home is around 100 kilometers. So
this is pertinent to mention that for a lady everyday travelling 200 km to and
fro is not an easy task. Hence the deponent emphasized upon renting a
house near to school. On the other hand the review petitioner being a
misogynist did not like to see her working and rather he wished to keep her
busy in household works. That is why the review petitioner forced the
deponent to stay at her matrimonial house and never supported her to take a
rent house near to her working school.
(iv) In the month of April 2016, the deponent got pregnant while
residing at her matrimonial house. During the course of her pregnancy
certain complications arouse and the doctor advised her to take bed rest. But
in spite of her pregnancy the petitioner forced her to do all the household
chores and treated her very badly. She never got to eat on time and had to
sleep empty stomach many nights. Following the aforesaid situation the
deponent had to leave her matrimonial house and she went to her parental
house in the month of August 2016. Be it to mention herein that her father is
a doctor by profession and she feels safe while she remains around her
father. In the month of September 2016, the deponent suffered from Chicken
Pox and her health condition deteriorated. During that time the review
petitioner denied to take her to his home. In the meantime the deponent
gave birth to a baby boy. Soon after some timer she moved back to her
matrimonial house. Afterwards till the month of April 2017 she stayed in her
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matrimonial house and spent time with her family. In the month of April 2017
the deponent joined in her service. However due to her new born child she
again took leave from May 2017 to June 2017. The next preceding month
was summer vacation so the deponent again joined her service from the
month of August 2017.
(v) It was the review petitioner who arranged the rented
accommodation at Barangabari. On the said date i.e. 09/09/2017 the review
petitioner went to the respondent's rented accommodation and forced her to
come with him to Guwahati. The respondent's son was not keeping at good
health at that period of time and as such she refused to travel to Guwahati
along with the sick child. Being offended by such deponent's refusal, the
review petitioner in order to harm the deponent, lodged a false complaint
against her before the Mangoldoi P.S. bearing case no 781/2017 under
sections 342/323/427/379/506 and 34 of the Indian Penal Code, 1860. The
said case ended in final report submitted by the police.
(vi) She instituted a case for restitution of conjugal life against the
petitioner which is being registered as F.C. (Civil) case no. 419/2020. The
reason of the deponent filing a restitution case against the petitioner is the
welfare of the child born out of the wedlock.
(vii) Further, it is the right of the applicant to live in her matrimonial
home and pendency of the divorce case cannot be a ground to disallow a
wife to live in her matrimonial home under the PWDV Act. Moreover, it is
apparent on the case record that the applicant has to visit Guwahati
frequently for providing medical treatment of her minor son but she has no
place of residence at Guwahati and that apart she being legally married wife
of the review petitioner has all the rights to stay in her matrimonial home.
5. The Revision Petitioner, by filing an additional affidavit, has further stated that in
accordance with the order dated 11-09-2024, the applicant/Respondent No.2 along with her
child entered in her shared household and this time with full and proper planning she has
been committing domestic violence and atrocities upon the Revision Petitioner and mostly on
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the specially-abled brother of the Revision petitioner. The domestic violence and torture upon
the specially-abled brother of the Revision Petitioner has been so much that the specially
abled brother with the help of a lawyer had to approach the Protection Officer Social Welfare
Department, Guwahati. He also approached the Commissioner of Police Kamrup (metro). He
also lodged F.I.R. before the Officer-In charge Bhagadattapur Police Station, Kahilipara. He
also approached Commissioner for Persons with Disabilities Government of Assam, Guwahati.
On the basis of his complaint the Commissioner for Persons with Disabilities Government of
Assam has written to the Superintendent of Police, Darrang requesting to take necessary
action vide Memo No. COM (D)189/2016/Pt-V/398 dated 28-05-2025. The brother of the
Revision Petitioner also approached Assam Human Rights Commission and vide order dated
08-07-2025 the Commission has called for a status report on investigation into the F.I.R., filed
by the Revision petitioner's brother, from the Officer-In Charge of the Bhagadattapur Police
Station. Copies of the aforesaid documents have also been annexed to the additional
affidavit.
6. In response, an affidavit-in-reply has been submitted by the respondent/wife denying
the allegations made against her in the additional affidavit. The sum and substance of the
stand taken by the respondent/wife in the reply affidavit is that all the allegations contained
in the aforesaid documents are concocted ones and the same have been made with a view to
harass the respondent and then oust her from the shared household. It was further stated
that the petitioner has been harassing the deponent and her child in different ways like
disconnecting the water supply and electricity of the bathroom as well as using filthy
language upon the deponent and her child. It is further alleged that the petitioner is mentally
harassing his child by ignoring him and making him feel unwelcome and creating an
unhealthy hostile atmosphere and that he has also defaulted in payment of the maintenance
amount.
7. It is submitted by learned counsel for the petitioner that after living separately for
several years, the respondent/wife has sought residence in the house of the petitioner on the
plea of seeking medical treatment for her son and in view of the pendency of the divorce
proceeding and the acrimonious nature of the relationship between the parties, it is not
conducive for the petitioner to stay with the respondent in the same household. It is further
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submitted that if the respondent is allowed to stay with the petitioner, in the same household
it would amount to giving her further scope to concoct allegations of cruelty against him as
has already been done by her and in this regard, learned counsel refers to the petition under
the D.V Act filed before the Ld. Magistrate wherein she has made allegations against the
petitioner to the effect that the petitioner had assaulted her physically. It is further submitted
that although the Ld. Magistrate had passed the order for residence, the respondent has not
been actually living in the petitioners house and only visits once or twice in a week to
establish the fact that she has been living in the shared household, pursuant to the order of
the Ld. Court. This is apparent from the fact that admittedly there is no electricity or water
connection to the part of the house where the respondent/wife claims to live with her son,
submits learned counsel. It is further submitted that in the absence of electricity and water, it
is not believable that any woman with her child could be able to live in the aforesaid house.
8. On the other hand, learned counsel for the petitioner submitted that the
respondent wife along with her 6 years old child at that time entered the matrimonial
home with great difficulty with the help of protection officer and Bhagaduttapur
outpost police station on 19.11.2024. She got possession of her original matrimonial 2
rooms and a varanda. Out of the two rooms one room is a kitchen, dining cum study
room and another is a bedroom. The varanda is used for keeping small belongings.
She got the rooms painted, repaired and started living there with their minor son. The
Revisionist made every attempt to make them feel unwelcome, such as not talking to
his son and wife, depriving them of sufficient water, disconnecting electricity in
common bathroom, fixing etc. It is submitted that there is no quarrel or arguments
between the parties, as all disagreements and complaints of the respondent wife is
forwarded to the protection officer's office. The respondent was denied water and
electricity and the same is also forwarded to the protection officer. Therefore, a false
statement of quarrels are being made as a plea to evict the respondent wife and their
minor son. The respondent/wife has never filed any police complaints and has taken
help only from the Hon'ble courts and the protection officer. The separation of the
husband and wife had happened owing to one incident of ego on the husband's side,
which had happened because the respondent's son was keeping unwell on that day
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that she had refused to come home to Guwahati from Mangaldoi.
9. It is further submitted that it has been held by the Hon'ble Supreme Court
in V.D Bhanot V. Sabita Bhanot reported in AIR 2012 SC 965 that a wife who
has a shared household in the past but was not living there when the act came into
force is still entitled to seek protection and residence orders and therefore, the plea
of delay in preferring the application by the respondent after several years of staying
apart is not tenable. Further, reference has also been made to Satish Chandra
Ahuja V. Sneha Ahuja reported in AIR 2020 SCC 248 3 wherein it has been held
that even if a woman has no right or beneficial interest in the property, she is entitled
to live in a shared household and the aggrieved person cannot be driven out of the
household except in accordance with law. It s further submitted that the scope for
interference in a revision is limited and can be exercised only under certain
circumstances as in when the subordinate courts exceed their authority or fail to
exercise their jurisdiction properly or acts with material irregularity or arbitrarily or if
there is perversity or infirmity in the orders passed. It is urged in the present revision
that the petitioner could not point out any such fact.
10. In reply, learned counsel for the petitioner has relied on a judgment of a
Division Bench of the Delhi High Court reported in MANU/DE/8245/2025 wherein at
paragraph 33 it has been held as follows :
"Indeed, the Supreme Court in Satish Chandra Ahuja (supra) recognised that in
cases where continued co-residence becomes impossible due to hostility or
impracticality, the woman's right of residence can be secured through alternate
accommodation in terms of Section 19(1)(f) of the Act. The test, therefore, is not
whether she must remain in the very same building indefinitely, but whether her
right to shelter and dignity is adequately protected in an alternative arrangement."
11. On the same judgment it has been further held as follows :
"The Appellant's contention that the alternate accommodation must be identical in
size and configuration to the existing premises is misconceived. The PWDV Act
does not guarantee parity of luxury, but adequacy of residence. The right of
residence is meant to ensure safety and stability, not to perpetuate occupation of a
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large family home at the cost of the lawful owners.
As observed in Satish Chandra Ahuja (supra), "the concept of shared household
cannot be stretched to mean a right to reside in any particular premises
irrespective of ownership or the surrounding circumstances." In the facts of the
present case, the Appellant is presently residing alone; her adult daughter is settled
abroad and visits India occasionally. A two-bedroom flat in a comparable locality,
with one room for her and another for her daughter during visits, would adequately
secure her residential needs.
The Appellant is already receiving separate maintenance under independent
proceedings. When such maintenance is viewed cumulatively with the
accommodation arrangement directed by the learned Single Judge, the overall
protection afforded to her is more than adequate. Her statutory right of residence
stands fully preserved, and her grievance of being rendered homeless is
unfounded.
The larger principle that emerges is that the right of residence under the PWDV Act
is not absolute or permanent; it is a right of protection, not possession. Equally, the
right of senior citizens to live peacefully with dignity in their own property is not
subordinate to this statutory protection. Where both sets of rights intersect, the
Court must strike a delicate balance so that neither party's dignity nor security is
compromised.
In the present circumstances, the Respondents have acted fairly by offering
alternate residence to the Appellant at their own cost. The continued cohabitation
of the parties under one roof, given their strained relations and pending litigations,
would only perpetuate hostility and deprive the senior citizens of the peace they
are entitled to enjoy. The arrangement directed by the learned Single Judge
achieves a fair equilibrium and warrants no interference."
12. I have given my anxious considerations to the submissions of learned counsel as well
as the legal precedents cited.
13. It is an admitted position that the respondent/wife has been living separately for
several years prior to passing of the impugned order of residence. It is also more than
apparent that there is severe acrimony and bitterness between the parties. It is stated in the
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reply affidavit of the respondent, as already adverted to earlier, that the petitioner has been
harassing the deponent and her child in different ways and by disconnecting water and
electricity and using filthy language upon the deponent and her child. She had also alleged
physical assault in her application before the Ld. Magistrate under the D.V Act. Therefore, the
contention of the respondent counsel that there is no quarrel or arguments between the
parties is contradictory to the pleaded case of the respondent/wife. A good number of cases
have been instituted by the parties against each other including the divorce proceedings.
However, what is interesting to note is that in her application for relief in the D.V proceedings
before the Ld. Magistrate, she has prayed for a direction to the respondent to allow her to
reside at her matrimonial home and to secure the same level of accommodation for the
aggrieved person as enjoyed by her in the shared household. Obviously, both prayers i.e. to
reside at the matrimonial home and securing same level of accommodation for the aggrieved
person as enjoyed by her in the shared household cannot co-exist and therefore, they must
be treated as alternative prayers. This is in consonance with Section 19(1)(f) which provides
for directing the respondent to secure same level of alternate accommodation for the
aggrieved person as enjoyed by her in the shared household or to pay rent for the same if
the circumstances so require.
14. There also appears to be no explanation as to how the respondent and her son has
been living in the aforesaid accommodation without electricity and water and therefore, I find
force in the submission of learned counsel for the petitioner that she is only an occasional
visitor to the said premises. Rather, it has been stated by the respondent herself that she is in
possession of two rooms and a verandah in the house of the petitioner and out of the two
rooms, one room is functioning both as a kitchen and dining cum study room and another is a
bedroom and the verandah is used for keeping small belongings. Obviously, having regard to
the status of the respondent/wife, what is in possession of the respondent/wife now is barely
sufficient for a comfortable existence, more so for the child who, apparently, has to study in
the kitchen. And in fact, a separate accommodation could be more beneficial for them as well
as for the upbringing of the child who, according to the respondent, is neglected by the
petitioner.
15. It appears that both the Ld. Courts below have failed to take into consideration the
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aforesaid aspects including the alternative prayer of the respondent herein, to secure
alternative accommodation as indicated hereinbefore and thereby failed to exercise proper
jurisdiction. In this aspect of the matter, I am in complete agreement with the views of the
Division Bench of the Delhi High Court which have already been adverted to and does not
require repetition.
16. In the aforesaid view of the matter, I deem it fit to dispose of instant application with
the following directions :
(i) If the revision petitioner is agreeable to providing a suitable
alternative residential accommodation consisting of at least two rooms
in addition to kitchen and bathroom within Guwahati City, in that case
the respondent shall vacate the house of the petitioner and go to the
alternative accommodation provided by the petitioner.
(ii) Alternatively, the respondent may herself choose a similar
alternative accommodation therein the rent for which shall be payable
by the petitioner. Of course, such rent must be a reasonable one
prevailing in a comparable locality.
(iii) In case the revision petitioner is not agreeable to any of the
two aforesaid arrangements, the respondent/wife and the child shall be
allowed to reside in the shared household i.e. the house of the
petitioner and in such circumstance, he is directed to restore water and
electricity supply to the part of the residence in possession of the
respondent/wife.
17. The impugned order would stand modified accordingly.
18. In terms of the aforesaid directions, revision petition stands disposed of.
JUDGE
Mayura Digitally signed by Mayurakshee Kalita
DN: c=IN, o=Personal,
postalCode=781024, l=Kamrup Metro,
st=Assam, street=54 AMBIKAGIRI NAGAR,
Zoo Road, Dispur Assam India 781024
kshee
NEAR SHRISHTI TAILORS, title=3914,
2.5.4.20=cc2c6557fa3d118dee5666b32bf
91efbbbfcdb804fec6e2cfc90850eb73700
ce,
serialNumber=b7e79acf730e99904fe79e
Kalita
da21e1fc9af64f1ae076abe5f4e0713535b
14482a3, [email protected],
cn=Mayurakshee Kalita
Date: 2025.11.26 13:50:27 +05'30'
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Comparing Assistant
