Jharkhand High Court
Ruby Kumari @ Ruby Jaiswal vs The State Of Jharkhand on 7 August, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:22311]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 400 of 2025
Ruby Kumari @ Ruby Jaiswal, aged about 30
years, W/o Abhishek Subham @ Abhishek
Shubham and daughter of Srawan Prasad Jaiswal,
R/o Village-Murpa, P.O. and P.S.-Balumath,
District-Latehar, at present Village Jhakhra, P.O.
and P.S.-Lohardaga, District-Lohardaga
(Jharkhand).
..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Abhishek Subham @ Abhishek Shubham, aged
about 40 years, S/o Late Sacchidanand Jaiswal.
3. Bhanu Jaiswal @ Bhanumati Devi, W/o Late
Sacchidanand Jaiswal.
Both R/o Village-Murpa, P.O. and P.S.-
Balumath, District-Latehar (Jharkhand).
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : In Person.
For the State : Mr. Rajneesh Vardhan, A.P.P.
For the O.P. Nos. 2 & 3 : Mr. Pratiush Lala, Advocate.
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08/ 07.08.2025 Heard the petitioner, who is appearing in person, Mr.
Rajneesh Vardhan, learned A.P.P. for the State and Mr. Pratiush Lala,
learned counsel appearing for the O.P. Nos. 2 and 3.
2. This revision petition has been preferred for setting aside
the order dated 28.02.2025, passed by the learned Additional Sessions
Judge-II, Latehar, in connection with Criminal Appeal No. 21 of 2023,
whereby, the learned appellate court has modified the order dated
23.02.2023 of the learned Chief Judicial Magistrate, Latehar, passed in
connection with complaint Case No. 392 of 2022, by way of setting
aside the maintenance part of the said order, however, the petitioner
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was allowed to remain in the same house in terms of the order passed
by the learned Chief Judicial Magistrate, Latehar.
3. The petitioner, who is appearing in person submits that her
marriage was solemnized with O.P. No. 2 on 30.11.2019 as per the
Hindu rites and customs and relationship was good till one month and
thereafter O.P. No. 2 demanded Rs. 30 lakhs and one SUV in the form
of dowry and when the demand was not fulfilled, the O.P. Nos. 2 and 3
started humiliating and abusing the petitioner without any reason and
even the allegation of assault is also there. She further submits that she
also filed a case being Original (Matrimonial) Suit No. 516 of 2021
under Section 125 of the Cr.P.C. and simultaneously a complaint was
also filed under the provisions of Protection of Women from Domestic
Violence Act, 2005 before the learned Chief Judicial Magistrate,
Latehar. She also submits that the learned Chief Judicial Magistrate,
Latehar by way of order dated 23.02.2023, directed the petitioner to
remain in the residential house and further directed to pay Rs. 20,000/-
per month for the maintenance including all expenses and further Rs.
50,000/- as litigation cost and compensation. She submits that Rs.
20,000/- was directed to be paid with effect from 29.09.2022 i.e. the
date of filing the complaint petition.
4. She further submits that aggrieved with the said order, the
O.P. Nos. 2 and 3 herein have preferred criminal appeal No. 21 of 2023,
whereby the learned first appellate court has decided the said appeal by
the judgment dated 28.02.2025 by way of partly allowing the said
appeal and setting aside the maintenance part of the order, however, the
residential part of the order has not been interfered with. She submits
that she is aggrieved with that part of the order to that effect that the
maintenance part has been set aside by the learned first appellate court,
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which is not in accordance with law. She further submits that the
provisions are there of allowing the maintenance under the said Act and
the order of the first appellate court has wrongly passed the said order.
She also submits that she has got no means to maintain herself, as such,
the impugned order may kindly be set aside.
5. Mr. Lala, learned counsel appearing for the O.P. Nos. 2 and
3, who are the husband and mother-in-law respectively of the petitioner
has opposed the prayer and submits that the mandatory provisions of
notice in light of Section 13 of the Protection of Women From
Domestic Violence Act, 2005 has not been followed by the learned
court and ex-parte order has been passed by the learned Chief Judicial
Magistrate, Latehar. He submits that the petitioner after knowing about
the pendency before the case before the learned the learned Chief
Judicial Magistrate, Latehar, filed a petition under Section 25 of the
Protection of Women From Domestic Violence Act, 2005 for duration
and alternation of the order, however, the said has been rejected by the
learned court and the case has been decided ex-parte. He further
submits that thereafter the O.P. Nos. 2 and 3 have preferred an appeal
before the learned first appellate court, which has been allowed in the
above terms. He submits that when the mandatory provisions of notice
has not been complied with, the order itself is not sustainable in the
eyes of law. As such, both the orders are not in accordance with law.
6. It is an admitted position that the petitioner and O.P. No. 2
are wife and husband respectively. The wife has filed a petition under
Section 125 Cr.P.C., which has been withdrawn later on, after passing
of the judgment by the learned Chief Judicial Magistrate, Latehar. The
Trial Court Records have already been received in this case pursuant to
the earlier order passed by this court and from the trial court records, it
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transpires that it is recorded in the order dated 21.11.2022 that the
notice upon the opposite parties has not been effected, as the execution
report was not there, however, the learned court on the same day has
posted the matters for evidence on behalf of the complainant /
petitioner.
7. It has been pointed out that after the delivery of judgment
by the learned Chief Judicial Magistrate, Latehar, the petition filed
under Section 125 Cr.P.C., the petitioner, who is appearing in person
has withdrawn that proceeding
8. From the records, it transpires that the learned Chief
Judicial Magistrate, Latehar has not taken any further efforts for service
of notice upon the opposite parties either by way of paper publication
or any other mode and holding that the notice has not been effected,
posted the matter on the same day for the evidence of complainant /
petitioner, as such, the mandatory provisions in light of Section 13 of
the Protection of Women From Domestic Violence Act, 2005 has not
been followed. It is an admitted position that the ex-parte order has
been passed by the learned Chief Judicial Magistrate, Latehar in
absence of any valid service of notice.
9. It is apparent from the record and the order dated
21.12.2022 itself that thus that order is without valid service of notice
upon the opposite parties. The first appellate court has set aside the
maintenance part of the order on the ground that the notice has not been
effected, however, at the same time, the first appellate court has allowed
the petitioner to remain in the residential house. If the order was not
found to be valid, the first appellate court on the ground of not service
of notice properly, the entire proceeding was vitiated and the learned
first appellate court was not required to modified the order and was
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competent to restore the said complaint to the learned court to decide
afresh, however, the learned first appellate court has not adopted the
said procedure.
10. It is well settled that a procedural law is always in aid of
justice, not in contradiction or to defeat the very object which is sought
to be achieved. A procedural law is always subservient to the
substantive law. Nothing can be given by a procedural law what is not
sought to be given by a substantive law and nothing can be taken away
by the procedural law what is given by the substantive law, as has been
held by the Hon'ble Supreme Court in the case of Saiyad Mohammad
Bakar El-Edroos (dead) by LRS v. Abdulhabib Hasan Arab and
others; [(1998) 4 SCC 343].
11. Further the Protection of Women From Domestic Violence
Act, 2005 provides in light of Section 28 that the court can lay its own
procedure for disposal of an application under Section 12, however, that
Section is also not giving any lenience so far as service of notice in
light of Section 13 of the said Act. In view that the court finds that both
the orders are not in accordance with law.
12. Accordingly, the order dated 28.02.2025, passed by the
learned Additional Sessions Judge-II, Latehar, in connection with
Criminal Appeal No. 21 of 2023 and the order dated 23.02.2023 of the
learned Chief Judicial Magistrate, Latehar, passed in connection with
complaint Case No. 392 of 2022, are hereby, set aside.
13. The complaint filed by the petitioner / complainant before
the learned Chief Judicial Magistrate, Latehar is restored to its original
file and the learned court will decide the same expeditiously in
accordance with law after providing full opportunities to both the sides.
The petitioner, who is appearing in person and the O.P. No. 2 will
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remain present before the learned Chief Judicial Magistrate, Latehar on
25.08.2025 at 10.30 A.M.
14. In course of the arguments, learned counsel appearing for
the O.P. Nos. 2 on instruction submits that the O.P. No. 2 is voluntarily
ready to give Rs. 5000/- monthly maintenance to the petitioner.
15. In view of the above and considering the provisions and the
petitioner is already residing in the residential house, the petitioner will
not be dispossessed from the residential house without following the
due procedure of law and the O.P. No. 2 will go on paying Rs. 5000/-
per month to be started from this month itself as maintenance till the
final decision taken by the learned Chief Judicial Magistrate, Latehar.
16. It is made clear that if the O.P. No. 2 will not appear before
the learned court on the date fixed by this court, the learned court will
proceed in accordance with law, as fresh notice is not required to be
issued to the O.P. No. 2.
17. This petition is allowed in above terms and disposed of.
Pending I.A., if any, stands disposed of.
18. Let the trial court records be sent back to the learned court
forthwith.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
