Orissa High Court
Lipika Swain @ Patra vs Sarojkanta Patra And Others on 15 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.407 of 2022
Lipika Swain @ Patra .... Petitioner
Mr. B.K.Routray
Advocate
-versus-
Sarojkanta Patra and others .... Opposite Parties
Mr.R. Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
15.12.2022.
Order No.
05. 1. This matter is taken up through hybrid mode.
2. The State counsel informs that notice was duly served upon
Opposite Party Nos.2, 3, and 4 physically and through
Whatsapp on Opposite Party No.1. Notice is held to be
sufficient. There is however, no appearance from their side.
The Revision is therefore, taken up for final disposal.
3. The Petitioner is aggrieved by judgment dated 19th July,
2022 passed by learned 3rd Additional Sessions Judge, Cuttack
in Crl. Appeal No.30/2020 whereby the said appeal was
dismissed. The appeal was filed by the Petitioner seeking to
challenge the judgment dated 26th February, 2020 passed by
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learned J.M.F.C. (R), Cuttack in Crl. Misc. Case No.93/2016.
Such application was filed under Section 12 of the Protection of
Women from Domestic Violence Act (PWDV Act) seeking
different relief(s) and specifically under Sections 18, 19, 20 and
22 of the Act. The case was disposed of by learned Magistrate
by passing the following the order:-
"(i) The respondents are prohibited from
committing any act of domestic violence, aiding
or abetting in the commission of acts of domestic
violence against the aggrieved person under
Section 18 of the Act.
(ii) The aggrieved person is directed to live in
her in-laws' house and the respondents are
prohibited from restraining her there from or, in
the alternative, the respondent-husband shall
play Rs.2,000/- (Rupees Two Thousand), in total
per month to the aggrieved person towards
house rent under Section 19 of the Act.
(iii) Respondent-husband is directed to pay a
sum of Rs.3,000/- (Three Thousand) (in absence
of any pay-particulars of the respondent as the
father's income is no way of any help to the
aggrieved) per month to the aggrieved persons
towards their maintenance under Section 20 of
the Act.
(iv) The payment shall be made from the date of
this order and shall be payable within 10th of
each succeeding English Calendar month,
failing which, the aggrieved person is at liberty
to take recourse to law for realization of the
same within three months from passing such
order. Issue free copy of this order to both
parties, Protection Officer, Collectorate,
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Cuttack, IIC, Choudwar P.S., Cuttack/
Pattamundai P.S., Kendrapada for
implementation of this order."
Feeling aggrieved, the Petitioner preferred the
aforementioned Criminal Appeal, which was dismissed and the
Court below was directed to dispose of the Misc. Case within a
stipulated period.
4. Mr. B.K.Routray, learned counsel appearing for the
Petitioner, submits that the impugned judgment warrants
interference for several reasons.
Firstly, the observation that in course of hearing the
counsel for the parties confined the argument relating to the
question of quantum of maintenance and financial relief is not
correct because no such submission was ever made. Mr.
Routray also submits that he was himself the counsel for the
Petitioner in the Court below and had never made any such
submission.
Secondly, while remanding the matter to the Court
below for hearing afresh with regard to the prayer of the
Petitioner for return of dowry articles along with cash of
Rs.70,000/- and payment of lump sum compensation of
Rs.5 lakhs, learned Appellate Court has not passed any order
as regards the monetary relief already granted by the Court
below. As a result, such relief is deemed to have been taken
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away even though no appeal was preferred against such order
by the Opposite Parties.
Thirdly, the Appellate Court proceeded on the erroneous
premise that the respondents had not got any opportunity to
participate in the hearing of the case despite noting that they
were set ex parte, which obviously means they had willfully not
appeared after sufficient service of notice. According to Mr.
Routray, this cannot be equated with non-grant of opportunity
of hearing.
5. After considering the submissions of Mr. Routray and on
going through the impugned order as also the order passed by
learned J.M.F.C., this Court is unable to agree with the
reasoning adopted by learned Appellate Court below to dispose
of the appeal in the manner stated above. While interfering with
the order passed by the Magistrate, the Appellate Court has not
considered the fact that there was no challenge as such by the
Opposite Parties to the order passed by the Magistrate. Even
otherwise, the Appellate Court itself could have considered the
materials available on record to decide the question relating to
return of dowry articles, cash and compensation as claimed by
the Petitioner.
6. This is a case under the PWDV Act filed by a woman, who
was found by learned Magistrate to have been subjected to
domestic violence by the Opposite Parties. This Court is
therefore, of the considered view that the matter should have
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been considered by the Appellate Court with more sensitivity as
implicitly required by the statute.
7. In such view of the matter, the impugned judgment is set
aside. The matter is remitted to the Appellate Court to hear the
appeal afresh after granting due opportunity of hearing to both
parties. Since the order passed by the Magistrate was never
challenged by the Opposite Parties, the same ought to be treated
as final and the appeal shall be confined only to the grounds
raised by the Petitioner-wife. It is further directed that the
appeal shall be disposed of as expeditiously as possible,
preferably within a period of two months.
8. The CRLREV is accordingly disposed of.
(Sashikanta Mishra)
AKB Judge
