Orissa High Court
Satyajit Padhi And Another vs Jogamaya Pati on 3 January, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.217 of 2022
Satyajit Padhi and another .... Appellants
-Versus-
Jogamaya Pati .... Respondent
Advocates appeared in this case :
For Appellants : Mr. G.N. Parida, Advocate
For Respondent : Mr. Amitav Das, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
JUDGMENT
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Dates of hearing: 2nd November, 2023 and 3rd January, 2024
Date of Judgment: 3rd January, 2024
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ARINDAM SINHA, J.
1. Two appeals are before us for adjudication. They have been
filed by the husband. First is MATA no.89 of 2022 preferred against
order dated 5th April, 2022 of the family Court allowing, on contest,
the petition of respondent-wife for restitution of conjugal rights. The
other appeal is MATA no.217 of 2022 preferred against order dated
16th September, 2022 by said Court on the application filed by
respondent-wife under section 12 of Protection of Women from
Domestic Violence Act, 2005. On query from Court Mr. Parida,
learned advocate appearing on behalf of appellant-husband submits,
the application under the Act of 2005 was presented before the
Magistrate on 22nd June, 2018. On further query from Court he
submits, the petition under section 9 in Hindu Marriage Act, 1955
was presented by respondent-wife on or before 27th November, 2017,
date on which first order was made by the family Court on it.
2. It appears appellant-husband applied for transfer of the
domestic violence case to the family Court, already in seisin of the
civil proceeding filed by respondent-wife under section 9. By order
dated 7th March, 2022 in TRP (Crl. no.09 of 2022) (Satyajit Padhi
v. Jogamaya Pati) a learned single Judge of this Court transferred
the criminal case to the family Court. We reproduce below paragraph
5 from said order.
"Considering the facts and the submissions made and the law
laid down by the apex Court in the case Rajnesh vrs. Neha
(Criminal Appeal No.730 of 2020 arising out of SLP (Crl.
No.9503 of 2018 disposed of on 4th November, 2020), this
Court is of the view that if CMC (DV) Case No.131 of 2018 is
transferred from the file of learned J.M.F.C. (2), Keonjhar to
the file of learned Judge, Family Court, Keonjhar, the same
will not cause any inconvenience to the Opposite Party-wife
since both the courts are located in one place. Therefore,
without issuing notice to the Opposite Party-wife, this Court
directs that CMC (DV) Case No.131 of 2018 pending on the
file of learned J.M.F.C.(2), Keonjhar be transferred to the
court of Judge, Family Court, Keonjhar. Both the courts shall
do the needful on production of the certified copy of this order
and intimate the same to the Opposite Party. Learned Judge,
Family Court, Keonjhar is directed to dispose of both the
cases as expeditiously as possible, preferably within six
months."
The case of Rajnesh v. Neha, reported in AIR 2021 SC 569 was
relied upon by the learned single Judge to make the order of transfer.
We reproduce below two passages from paragraph 17 in the
judgment.
"Directions on overlapping jurisdictions
It is well settled that a wife can make a claim for
maintenance under different statutes. For instance, there
is no bar to seek maintenance both under the D.V.
Act and Section 125 of the Cr.P.C., or under H.M.A. It
would, however, be inequitable to direct the husband to
pay maintenance under each of the proceedings,
independent of the relief granted in a previous
proceeding. If maintenance is awarded to the wife in a
previously instituted proceeding, she is under a legal
obligation to disclose the same in a subsequent
proceeding for maintenance, which may be filed under
another enactment. While deciding the quantum of
maintenance in the subsequent proceeding, the civil
court/family court shall take into account the
maintenance awarded in any previously instituted
proceeding, and determine the maintenance payable to
the claimant.
To overcome the issue of overlapping jurisdiction,
and avoid conflicting orders being passed in different
proceedings, we direct that in a subsequent maintenance
proceeding, the applicant shall disclose the previous
maintenance proceeding, and the orders passed therein,
so that the Court would take into consideration the
maintenance already awarded in the previous
proceeding, and grant an adjustment or set-off of the said
amount. If the order passed in the previous proceeding
requires any modification or variation, the party would
be required to move the concerned court in the previous
proceeding."
3. Code of Civil Procedure, 1973 by section 407 provides for
power of High Court to transfer cases and appeals. Inter alia, there is
provision for a particular case to be transferred from a criminal Court
subordinate to its authority, to any other such criminal Court of equal
or superior jurisdiction. We mention this provision because by the
transfer order the criminal case was not transferred to the High Court
itself but to the family Court. Said Court not being a criminal Court
was recipient of the domestic violence case, obviously on reliance of
above passages in Rajnesh v. Neha (supra). Family Courts Act,
1984 by section 7 provides for its jurisdiction with explanation by
several clauses thereunder. None of them include within their scope a
criminal case initiated before the Magistrate under the Act of 2005.
We address this complication because the Act of 2005 by section 29
provides for appeal from an order passed by the Magistrate under
section 12, to the Court of Sessions. MATA no.217 of 2022 being
appeal from a domestic violence case is before us since the family
Court passed impugned therein order and under section 19 of the
Family Courts Act, 1984, appeal lies to this Court.
4. By impugned order in the domestic violence case the family
Court made several directions. Among them were directions for
respondents (appellant and his father) to provide share hold house or
in the alternative, ₹5,000/- per month for house rent from September,
2022, ₹6,000/- per month was directed to be paid as maintenance
along with return of dowry articles as well as gifted articles and in
addition to ₹1,00,000/- as compensation. Effect of the directions
point to separation. Appellant-husband is before us in appeal while
respondent-wife accepted the order. Yet she filed for restitution of
conjugal rights and got decree. The contradictory position taken by
respondent-wife leaves a clear impression in our minds.
5. We have perused both the orders impugned before us in the
appeals. In impugned order decreeing restitution of conjugal rights
there has been finding that 'Bismozyme' is a homeopathic medicine,
not poisonous. In the order made regarding domestic violence, the
family Court has relied upon respondent-wife having had consumed
200 ml of Bismozyme as an attempt of suicide due to cruelty meted
out to her. Yet, in that order there is also clear finding that alleged
physical assault to cause bleeding injury in the head could not be
substantiated by documentary evidence. There is nothing in the lower
Court record to show respondent-wife had been treated for the injury.
A discharge certificate exhibited by appellant-husband himself was
relied upon by the family Court for above finding.
6. Fact is that the appeal arising out of the domestic violence
case is before us. Rule 33 in order XLI, Code of Civil Procedure,
1908 provides for power of Court of appeal. Thereby, we have power
to, inter alia, make any order which ought to have been passed or
made. In exercising the power we set aside impugned order dated
16th September, 2022 made in the domestic violence case and restore
the case to the Magistrate's Court being Judicial Magistrate First
Class (JMFC Court-II), Keonjhar. Registry will communicate this
order to said Court and the family Court. The latter will send the
record in the domestic violence case to the JMFC Court-II, Keonjhar.
7. MATA no.217 of 2022 is disposed of as above. Mr. Parida's
submission stands recorded regarding payment already made to be
dealt with by the Magistrate upon adjudication of the domestic
violence case.
8. We adjourn MATA no.89 of 2022 for Mr. Das, learned
advocate appearing on behalf of respondent-wife being heard on how
his client can maintain contradictory positions of allegation of
domestic violence and restitution of conjugal rights, for joining
society of the perpetrator of the alleged violence.
9. List MATA no.89 of 2022 on 6th February, 2024 as prayed by
Mr. Das.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Jyoti/ Jyotsna
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA
Date: 03-Jan-2024 18:44:24
