[Cites 6, Cited by 0]
Gauhati High Court
Page No.# 1/8 vs The Assam State Commission For Women And ... on 19 March, 2026
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/8
GAHC010018842022
2026:GAU-AS:3983
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/781/2022
CHANDAN JYOTI DEKA
S/O- TILAK CHANDRA DEKA, R/O- NORTH GUWAHATI, MADHYAM
KHANDA, P.O. AND P.S. NORTH GUWAHATI, PIN- 781030.
VERSUS
THE ASSAM STATE COMMISSION FOR WOMEN AND 2 ORS.
ASCU, BELTOLA, MAIDAMGAON, GAUHATI-28.
2:THE COMMISSIONER
LAC
ASCW
BELTOLA
MAIDAMGAON
GAUHATI-28
3:JAHNABI DAS
D/O- HALADHAR DAS
HOUSE NO. 10
BYE LANE NO.- 2
BELTOLA LAKHI MANDIR
LAKHIMI PATH
GUWAHATI- 781028
KAMRUP(M
Advocate for the Petitioner : MR S BORTHAKUR, MR. D GOGOI,MR P H KONWAR
Advocate for the Respondent : ,
Page No.# 2/8
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocates for the petitioner: Shri S. Borthakur
Advocates for the respondents: Shri J. Handique, GA, Assam
Date of hearing and Judgment : 19.03.2026
Judgment & Order (oral)
An order dated 18.12.2021 passed by the Assam State Commission for
Women, whereby the petitioner is directed to pay an amount of Rs.10,000/-
(Rupees Ten Thousand) to the respondent no.3 as maintenance, to be deducted
every month from his account, is the subject matter of challenge in this petition
instituted under Article 226 of the Constitution of India.
2. As per the facts projected, the petitioner is posted as Duftry at the
Srimanta Sankardeva University of Health Science. The respondent no3, who is
his estranged wife, had filed a case in the Assam State Commission for Women
(hereinafter the Commission), which was registered as ASCW/53/2021. In the
said case, vide the impugned order dated 18.12.2021, maintenance has been
determined and directed to be paid by way of deduction from the monthly
salary of the petitioner.
3. I have heard Shri S. Borthakur, learned counsel for the petitioner. I have
also heard Shri J. Handique, learned State Counsel. So far as respondent no. 3
is concerned, though notices have been served, she has chosen not to appear
and contest this proceeding. In this connection, it would be relevant to place on
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record the earlier order dated 04.02.2026, as per which the aspect of service of
notice upon the respondent no. 3 has been held to be complete.
4. Shri Borthakur, learned counsel for the petitioner has based the challenge
on mainly two grounds. Firstly, he has contended that no opportunity was
granted to the petitioner before passing the impugned order and the second
ground would go to the root of the matter inasmuch as, he has questioned the
jurisdiction and authority of the Commission to pass such an order. In this
regard, he has drawn the attention of this Court to the Assam State Commission
for Women Act, 1994 (hereinafter the Act), more particularly, Section 10 thereof,
which is with regard to the functions of the Commission. He has submitted that
though various powers and functions have been bestowed upon the
Commission, the power to grant maintenance has not been bestowed and
therefore, there is a serious jurisdictional error in the impugned action.
5. Shri Borthakur, learned counsel for the petitioner has also relied upon a
decision of the Hon'ble Supreme Court in the case of Bhabani Prasad Jena
Vs. Convenor Secretary, Orissa State Commission for Women and Anr. ,
reported in (2010) 8 SCC 633, wherein it has been clearly laid down that the
jurisdiction and function of the Commission have to be confined to those which
are specifically entrusted to it under the Act. He has submitted that in that case,
a direction to constitute a DNA test issued by such a Commission was the
subject matter of challenge and the submissions advanced on behalf of the
appellant that the same would come within the aspect of examining a complaint
has been negated by the Hon'ble Supreme Court. He has also submitted that
though the observations are with regard to the Act of the State of Orissa, the
present Act is in pari materia and therefore, the principles and ratio would be
squarely applicable.
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6. Shri Handique, learned State Counsel has fairly submitted that though the
objective of the Commission appears to be bona fide, it appears that the
Commission lacks jurisdiction to pass such an order of maintenance.
7. The rival submissions have been duly considered and the materials placed
before this Court have been carefully examined.
8. The aspect of maintenance is covered by various statutes including Section
125 of the earlier CrPC [corresponding to Section 144 of the BNSS] as well as
under the personal laws. However, such power of determining maintenance and
direction to pay does not appear to have been bestowed upon the Commission.
For ready reference, the functions of the Commission, as laid down in Section
10 of the Act are extracted hereinbelow:
"10. FUNCTIONS OF THE COMMISSION
(1) The Commission shall perform all or any of the following functions,
namely:-
(a) investigate and examine all matters relating to the safeguards
provided for women under the Constitution and other laws;
(b) present to the State Government, annually and at such other
times as the Commission may deem fit, reports upon the working of
tb.ese safeguards ;
(c) make in such reports recommendations for the effective
implementation of those safeguards for improving the conditions of
women by the State;
(d) review, from time to time, the existing provisions of the
Constitution and other laws affecting women and recommend
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amendments thereto so as to suggestion remedial legislative
measures to meet any lacunae, inadequacies of shortcomings in
such legislations;
(e) take up the case of violation of the provision of the Constitution
and of other law relating to women with the appropriate authorities;
(f) look into complaints and take suo moto notice of matters relating
to - (i) deprivation of women's rights ; (Ii) non-implementation of
laws enacted to provide protection to women and also to achieve
the objective of equality and development.; (iii) non-compliance of
policy decisions; guidelines or instructions, aimed at mitigating
hardship and ensuring welfare and providing relief to women and
take up the issues arising out of such matter with appropriate
authorities;
(g) call for special studies or investigation or investigation into
specific problems or situations arising out of discrimination and
atrocities against women and identify the constraints so as to
recommend strategies for their removal;
(h) undertake promotional and educational research so as to
suggest ways of ensuring due representation of women in all
spheres and identify factors responsible for impeding their
advancement, such as, lack of access to housing and basic service,
inadequate support services and technologies for reducing drudgery
and occupational health hazards and for increasing their
productivity;
(i) participate and advice on the planning process of socio-economic
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development of women;
(j) evaluate the progress of the development of women under the
State;
(k) inspect or cause to be inspected a jail, remand home, women's
institution or other place or custody where women are kept as
prisoners or otherwise, and take up with the concerned authorities
for remedial action if found necessary;
(l) fund litigation involving issues affecting a large body of women;
(m) make periodical reports to the Government on any matter
pertaining to women and in particular various difficulties under
which women toil;
(n) any other matter which may be referred to it by State
Government.
(2) The State Government shall cause all the reports referred to in clause
(b) of sub-section (1) to be laid before the State Legislature along with a
memorandum explaining the action taken or proposed to be taken on the
recommendations relating to the State; and the reasons for the non
acceptance, if any, of any of such recommendation.
(3) The Commission shall, while investigating any matter referred to in
sub-clause (i) or clause (f) of sub-section (1), have all the powers of the
civil court trying a suit and, in particular in respect of the following
matters, namely:-
(a) summoning and enforcing the attendance of any person from
any part of Assam and examining him on oath;
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(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court
or office;
(e) issuing Commissions for the examination of witnesses and
documents; and
(f) any other matter which may be prescribed."
9. On a careful perusal of the said functions, this Court has not come across
any such powers being bestowed upon the Commission to determine and give a
direction for payment of maintenance. This Court is also fortified in the
aforesaid opinion by the decision of the Hon'ble Supreme Court in the case of
Bhabani Prasad Jena (supra). In the said case, the following observations
which would be relevant, are extracted hereinbelow:
"10. In other words, the State Commission is broadly assigned to take up
studies on Issues of economic, educational and health care that may help
in overall development of the women of the State; gather statistics
concerning offences against women; probe into the complaints relating to
atrocities on women, deprivation of women of their rights in respect of
minimum wages, basic health, maternity rights, etc. and upon
ascertainment of facts take up the matter with the authorities concerned
for remedial measures; help women in distress as a friend, philosopher
and guide in enforcement of their legal rights. However, no power or
authority has been given to the State Commission to adjudicate or
determine the rights of the parties.
11. Mr Ranjan Mukherjee, learned counsel for Respondent 2 submitted
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that once a power has been given to the State Commission to receive
complaints including the matter concerning deprivation of women of their
rights, it is implied that the State Commission is authorised to decide
these complaints. We are afraid, no such implied power can be read into
Section 10(1) (d) as suggested by the learned counsel. The provision
contained in Section 10(1)(d) is expressly clear that the State Commission
may receive complaints in relation to the matters specified therein and on
receipt of such complaints take up the matter with the authorities
concerned for appropriate remedial measures. The 1993 Act has not
entrusted the State Commission with the power to take up the role of a
court or an adjudicatory tribunal and determine the rights of the parties.
The State Commission is not a tribunal discharging the functions of a
judicial character or a court."
10. In view of the aforesaid discussion, this Court is of the opinion that a case
for interference on the ground of jurisdictional error itself is made out and
accordingly, the impugned order dated 18.12.2021 passed by the Assam State
Commission for Women stands interfered with and is set aside. The interim
order passed earlier is accordingly made absolute.
11. It is however made clear that there is no restriction on the respondent
no.3 to approach the appropriate forum with a prayer for maintenance, if so
advised.
12. The writ petition accordingly stands allowed.
JUDGE
Comparing Assistant
