Bholanath Karmakar vs State Of Odisha And Another
2023 Latest Caselaw 4174 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No.499 of 2018

  Bholanath Karmakar                       ....              Petitioner
                                          Mr. D.R. Bhokta, Advocate


                               -Versus-


  State of Odisha and Another           ....     Opposite Parties
                      Mr. Rajesh Kumar Tripathy, ASC O.P. No.1
                     Mr. Sitakanta Rath, Advocate for O.P. No.2
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:24.04.2023

1.

Instant writ petition under Section 482 Cr.P.C. is filed by the petitioner for quashing of the proceeding in connection with D.V. Case No.301 of 2017 pending in the file of learned S.D.J.M.(Sadar), Cuttack on the grounds inter alia that he has no domestic relationship with opposite party No.2 and therefore, application under Section 12 of the Protection of Women from Domestic Act, 2005 (hereinafter referred to as 'the Act') is not tenable in law.

2. The opposite party No.2 initiated an action seeking relief(s) under Sections 19, 20 and 22 of the Act with a direction to the petitioner to pay allowance of Rs.10,000/- for maintenance to be payable every month, etc. The petitioner, as according to opposite party No.2, happens to be her husband, whom she married in the year 1990 and as she is in dire need of finance having no source of income since past five years and hence, approached the learned court below. The said proceeding is currently under challenge at the behest of the petitioner denying his marital status with opposite party No.2.

Bholanath Karmakar Vrs. State of Odisha and Another

3. Heard Mr. Bhokta, learned counsel for the petitioner, Mr. Rath, learned counsel for the opposite party No.2 besides Mr. Tripathy, learned ASC for the opposite party No.1.

4. Mr. Bhokta, learned counsel for the petitioner submits that opposite party No.2 is a married lady and her marriage was solemnized with one Mr. Rajendra Kumar Mohanty on 13th December, 1989 which is revealed from the Marriage Certificate as at Annexure-2 and therefore, the petitioner having no marital relationship with her, application under Section 12 of the Act should not be entertained, inasmuch as, the allegations contained therein, are imaginary and falsehood and hence, the proceeding is liable to be quashed by imposing heavy cost. It is further submitted that the petitioner is a married person and belongs to a respectable society and his marriage was held on 30th May, 1989 which is proved with the marriage invitation card (Annexure-3) and out of such marriage, he is blessed with two daughters, who are grown up now and prosecuting their studies in Engineering. Thus, it is contended that the entire proceeding in D.V. Case No.301 of 2017 pending before the learned court below should be quashed since its continuance would be a travesty justice and abuse of process of law.

5. Mr. Rath, learned counsel for the opposite party No.2 submits that marriage of opposite party No.2 with some else named by the petitioner has been denied and her marriage with the petitioner is claimed and also proved by a marriage receipt dated 24th August, 1990 issued by the Executive Officer of Shree Sarala Endowment, Cuttack. Nevertheless, according to Mr. Rath, the factum of marriage is a matter to be examined by the learned court below in the D.V. proceeding and in any case, an application 12 of the Act is maintainable against the petitioner since opposite party No.2 is an aggrieved person within the

Bholanath Karmakar Vrs. State of Odisha and Another

definition of Section 2(a) of the Act, the former being a person in a domestic relationship with her. It is contended that the nature of relationship between the parties is on account of a marriage and therefore, there has been a domestic relationship so defined in Section 2(f) of the Act. In any view of the matter, such disputed questions of fact as to if opposite party No.2 is the wife of the petitioner or she is married to some other person is required to be examined and enquired into by the court below.

6. Mr. Bhokta, learned counsel for the petitioner apart from other grounds contends that there has been inordinate delay in approaching the learned court below by opposite party No.2 since such a claim for maintenance etc. has been advanced almost after 27 years of the alleged marriage. Replying to the above, Mr. Rath, learned counsel for opposite party No.2 submits that for a proceeding before a court under the D.V. Act, no limitation is prescribed and hence, such application under Section 12 of the Act is maintainable and not time barred.

7. From the Annexure-2, it is made to suggest that that opposite party No.2 stated to have married another person, the fact which has been revealed by the petitioner. Such marriage has been outrightly denied by opposite party No.2 in her counter affidavit. The facts with regard to marriage between the petitioner and opposite party No.2 at a temple has been described in the counter affidavit by opposite party No.2 and in support of such marriage, a receipt dated 24th August, 1990 is placed on record. In fact, opposite party No.2 claims that she and the petitioner after marriage in 1990 stayed together in a rented house and had helped the latter in paying off debt and in the redemption of a mortgage. It is also claimed that at the relevant point of time, opposite his business. The fact of staying and residing at Shree Vihar Colony near Sun Clinic lane of Cuttack Town is claimed by

Bholanath Karmakar Vrs. State of Odisha and Another

opposite party No.2 which is also revealed from the application under Section 12 of the Act, a copy of which is at Annexure-1. In the said application, it is also alleged that sometime after their marriage, opposite party No.2 was subjected to physical torture in the hands of the petitioner and because of a latter's assault, she had a miscarriage. Many other facts have been narrated in Annexure-1 in order to justify opposite party No.2 having a marital relationship with the petitioner. As early mentioned, a copy of the marriage receipt dated 24th August, 1990 is made available by opposite party No.2 which is annexed to the counter affidavit filed by her. In such view of the matter, considering rival contentions, in the considered view of the Court, it would not be just and proper to arrive at any opinion or draw a conclusion one way or the other vis-à-vis the relationship between the parties, rather, it should be a matter of adjudication and determination by the learned court below.

8. As to the limitation and delay in approaching the learned court below by opposite party No.2, Mr. Rath, learned counsel appearing for her submits that the Act does not stipulate or prescribe any bar or time limit within which an application under Section 12 thereof to be filed. In response to the above, Mr. Bhokta, learned counsel for the petitioner would contend that opposite party No.2 cannot be allowed to move the court below after about 27 years of alleged marriage which is time barred and in support of such contention, he relies on a decision of Apex Court in the case of Inderjit Singh Grewal Vrs. State of Punjab and Another decided in Criminal Appeal No.1635 of 2011 and disposed of on 23rd August, 2011. Apart from the above authority, Mr. Bhokta placed reliance a decision of the Madras High Court in N. Prasad Vrs. Harithalakshmi (CRL.O.P. No.29476 of 2017) dated 20th July, 2020, wherein, the ruling in Inderjit Singh Grewal

Bholanath Karmakar Vrs. State of Odisha and Another

(supra) has been referred to. In the instant case, the alleged marriage between the parties, if at all to be believed, has taken place in the year 1990 and after about 27 years, opposite party No.2 said to have claimed for maintenance and other reliefs. It is not known as to what prevailed upon opposite party No.2 to remain silent for such a long period. The delay may have to be explained by opposite party No.2 since it is inordinate. The aspect of delay could also be a ground for consideration by the court below. But the Act lays no limit for the aggrieved person to approach a court. It is evident from the Act that a proceeding for reliefs thereunder by an aggrieved person is neither a complaint nor the respondent to be an accused. The respondent is not penalized like an accused in a criminal prosecution. The action under the Act entitles the aggrieved person, a civil remedy enforceable against the respondent. Of course, if domestic violence has taken place or is likely to take place, the court may pass an interim or final protection order under Section 18 of the Act which in the event of being breached would amount to an offence punishable under Section 31 thereof with imprisonment of one year or fine extending up to rupees twenty thousand or both. According to the Court, if such an offence is committed for violation of the order under section 18 of the Act within one year from the date of disobedience, a complaint is required to be filed in view of section 468 Cr.P.C. subject to condonation under Section 473 Cr.P.C. Furthermore, Section 28 of the Act is not a provision dealing with limitation. It only stipulates that all the proceedings under Sections 12 and 18 to 23 of the Act shall be governed by the provisions of the Code of Criminal Procedure, 1973. In the humble view of the Court, Section 28 of the Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 with reference to Section 468 Cr.P.C. would apply to an offence punishable under Section 31 of the Act and

Bholanath Karmakar Vrs. State of Odisha and Another

not to the proceedings under Sections 12 and 18 to 23 of the said Act. The case at hand is not about the petitioner of having breached any order passed under Section 18 of the Act rather a proceeding initiated against him by opposite party No.2 seeking maintenance and other reliefs and hence, Section 468 Cr.P.C. would not apply which is referrable to Section 31 of the Act. But the court below may consider the plea of delay raised by the petitioner but keeping in view the observation as aforesaid.

9. Accordingly, it is ordered.

10. In the result, CRLMC stands dismissed.

(R.K. Pattanaik) Judge

TUDU