Sikkim High Court
Jiwan Kumar Bhusal vs The State Of Sikkim And Ors on 6 December, 2023
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W. P. (C) No. 21 of 2023
Shri Jiwan Kumar Bhusal,
S/o Late Dharma Raj Bhusal,
R/o Sinleybong, PW. Near Post Office,
West Pendam, District Pakyong,
Contact: 9883714770,
Pin Code: 737 134.
...... Petitioner
Versus
1. The State of Sikkim,
Represented by the Secretary,
Social Welfare Department, Lumsay,
Tadong, Gangtok, Sikkim,
Pin Code: 737 101.
2. Sikkim State Commission for Women
Represented by its Chairperson
Vishal Gaon, Pani House Road
Gangtok Sikkim
Pin Code: 737 101.
3. Smt. Sunita Bhusal,
W/o Shri Jiwan Kumar Bhusal,
R/o Sinleybong, PW. Near Post Office,
West Pendam, District Pakyong,
Sikkim.
Contact: 9593784725
Pin Code: 737 134.
...... Respondents
Application under Article 226 of the Constitution of India.
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Appearance:
Mr. Abhinav Kant Jha, Advocate for the Petitioner.
Mr. Shakil Raj Karki, Assistant Government Advocate for
the Respondent No.1.
Dr. Doma T. Bhutia, Senior Advocate for the Respondent
No.2.
Ms. Mon Maya Subba, Advocate for the Respondent No. 3.
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2
W.P. (C) No. 21 of 2023
Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
Date of hearing : 30.11.2023
Date of judgment : 06.12.2023
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The present writ petition filed on 02.06.2023 assails
the Order dated 05.11.2020 passed by the Sikkim State
Commission for Women (respondent no.2) on the ground that
under the Sikkim State Commission for Women Act, 2001 it did
not have the power to pass such an order.
2. The impugned order was passed on the following facts
and circumstances. On 06.10.2020 the respondent no.3, the
wife preferred a complaint before the respondent no.2. She
alleged that she had been suffering because the petitioner, her
husband, had been having an affair with his own relative i.e.
sister-in-law for almost a year; when confronted the sister-in-
law denied the facts and switched off her cell phone; she had
proof regarding their affair and adultery; the petitioner used to
mentally torture her and their children; the petitioner has not
given her a single rupee from his salary; she was in grief not
knowing what she was supposed to do and therefore, sought the
guidance and help.
3. What happens thereafter, before the respondent
no.2, is the pivotal issue which has led to the present writ
petition being filed, although belated.
3
W.P. (C) No. 21 of 2023
Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
4. Admittedly, summons were issued to the petitioner
and respondent no.3 by the respondent no.2. According to the
respondent no.2 during investigation it was revealed that the
petitioner was having an affair with the sister-in-law. Although
it is not clear how the sister-in-law appeared before the
respondent no.2, the respondent no.2 confirms she assured the
respondent no.3 that she would not continue her relationship
with the petitioner and sought apology from respondent no.3.
When the respondent no.2, as asserted by it, was requested by
the parties to record the confession of the sister-in-law, the
Order dated 19.10.2020 was prepared by the respondent no.2.
On 19.10.2020 the respondent no.2 heard the petitioner, the
respondent no.3 as well as the sister-in-law and passed the
following Order:-
"Heard both parties and their submissions. The other woman Ms. Jxx Sxx was also present. The husband has asked to get salary certificate on 23/10/2020. The other woman Ms. Jxx Sxx has submitted that she will not keep any kind of relation with her brother-in-law henceforth. She has sought apology from the wife of Jiwan Kr. Bhusal. Next date 23/10/2020."
5. According to the respondent no.2 when the
petitioner and the respondent no.3 appeared before it on
05.11.2020 both the parties were given full opportunity to place
their grievance and after hearing them passed the impugned
Order dated 05.11.2020 recording what was agreed by the
petitioner before the respondent no.2 in the following manner:- 4 W.P. (C) No. 21 of 2023
Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
"Government of Sikkim Sikkim State Commission for Women Gangtok In the matter of :
Smt. Sunita Bhusal Complainant
R/O: Bardang, East Sikkim
Versus
Shri. Jiwan Kr. Bhusal
R/O: Bardang, East Sikkim Respondent
ORDER
Memo No. 175/SSCW/2020-2021 Date: 05/11.2020
Heard both parties and their submissions. The husband has brought his salary certificate. As agreed by both, the husband will give Rs.20,000/- to his wife for the maintenance on monthly basis from December which will be directly deducted from the salary a/c as decided by the husband. Both parties will maintain cordial relationship.
Sd/-
Member Secretary Sd/-
1. Smt. Sunita Bhusal
Sd/-
2. Shri Jiwan Kr. Bhusal"
6. According to the petitioner, he was cleverly coerced
to pay Rs.20,000/- to respondent no.3 as maintenance on
monthly basis and also made the sister-in-law to pay Rs.3 lakhs
in cash and a 'khada' to the respondent no.3. The respondent
no.3 disputes this assertion and submits that the story of
coercion after a lapse of four years is a false allegation. The
respondent no.3 also disputes that the petitioner was coerced to
pay the amount of Rs.20,000/- as maintenance but admits that
the petitioner himself had voluntarily given consent to pay
Rs.20,000/- per month. The respondent no.3 also submits that
respondent no.2 had only assisted respondent no.3 in getting
immediate financial help in the need of the hour. However, there 5 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
is no specific denial that an amount of Rs.3 lakhs was paid to
the respondent no.3 by the sister-in-law in cash.
7. On 06.11.2020 the petitioner wrote a letter to the
respondent no.2 agreeing to pay Rs.20,000/- from his salary
account.
8. On 27.03.2023 the petitioner wrote to the
respondent no.2 drawing its attention to the judgment of the
Supreme Court in Bhabani Prasad Jena vs. Convenor Secretary,
Orissa State Commission for Women and Another1 and
requesting it to order to stop the deduction of Rs.20,000/- per
month from his salary which he had paid for over two years.
The petitioner thereafter approached the Sikkim Nationalised
Transport Department to request it to stop the monthly
deduction by its letter dated 27.03.2023. However, when these
efforts failed he approached this Court by filing the present writ
petition.
9. Heard Mr. Abhinav Kant Jha, learned counsel for the
petitioner, Dr. Doma T. Bhutia, learned Senior Advocate for the
respondent no.2 and Ms. Mon Maya Subba, learned counsel for
the respondent no.3.
10. The learned counsel for the petitioner submits that
the respondent no.2 had no authority to act in an adjudicatory
manner as it had no power to adjudicate relying upon the
judgment of the Supreme Court in Bhabani Prasad (supra).
1 (2010) 8 SCC 633 6 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
11. The learned Senior Advocate for the respondent no.2
submitted that the facts in Bhabani Prasad (supra) were
substantially different. She reiterated the submission, as has
been contested in the counter-affidavit filed by the respondent
no.2, that it had not passed any direction but only recorded
what was agreed by the petitioner on 05.11.2020. According to
the respondent no.2, it is a statutory body constituted by the
Government of Sikkim under the Sikkim State Commission for
Women Act, 2001 which has all the powers of the Civil Court
under section 11 thereof. It is submitted that the respondent
no.2 has been authorised to receive complaints from aggrieved
women under section 11 thereof. Accordingly the respondent
no.2 received the complaint from the respondent no.3 and being
a statutory body issued summons to the parties. When the
parties appeared before the respondent no.2, the petitioner
voluntarily agreed to pay the amount of Rs.20,000/- from his
salary as monthly expenses towards his wife and children. It is
also submitted that the writ petition has been filed after a lapse
of four years without any explanation.
12. The impugned Order is dated 05.11.2020.
Admittedly, the petitioner has approached this Court only on
02.06.2023 after a substantially long delay. According to the
petitioner, the delay was caused as he was naive to the
intricacies of law and he was not aware that the respondent
no.2 was not empowered to pass the impugned order. The
learned Senior Counsel pressed the judgment of the Supreme 7 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
Court in S.S. Balu & Anr. vs. State of Kerala & Ors.2 to submit
that the discretionary jurisdiction of this Court may not be
exercised in favour of those who approached the Court after a
long time since delay and latches are relevant factors for
exercise of equitable jurisdiction.
13. In Bhabani Prasad Jena (supra) the Supreme Court
considered and interpreted the provision of section 10 of the
Orissa State Commission for Women Act, 1993. On perusal of
section 10 of the Orissa State Commission for Women Act, 1993
it is noticed that it is in pari materia with section 11 of the
Sikkim State Commission for Women Act, 2001. For better
clarity, the two provisions are extracted below in a tabular
form:-
Comparison Chart on Section 11 of the Sikkim State Commission for Women Act, 2001 and Section 10 of the Orissa (State) Commission for Women Act, 1993
Section 11 Of Sikkim State Commission for Section 10 Of Orissa (State) Women Act, 2001 Commission for Women Act, 1993.
Functions of the Commission:- Functions of the Commission:-
11. (1) The Commission shall perform all or any 10. (1) The Commission shall of the functions, namely:- perform all or any of the following functions, namely :
(a) Make in-depth studies on:- (a) make in-depth studies on-
(i) The economic, social and health situations of (i) the economic educational and the women of the State with particular health situation of the women of emphasis on the tribal areas, which are under the State, with particular developed with respect to women's literacy, emphasis on the tribal districts morality and economic development. and areas which are under developed with respect to women's literacy, mortality and economic development.
(ii) Condition in which women work in factories; (ii) condition in which woman establishments, construction sites and other work in factories, similar situations and recommend to the State establishments, construction Government on the basis of specific reports on sites and other similar
2 (2009) 2 SCC 479 8 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
improving the status of women in the said situations, and recommend to areas; the State Government on the basis of specific reports on improving the status of women in the said areas;
(b) Compile information from time to time on (b) compile information, from instances of all offences against women in the time to time, on instances of all State or in selected areas including cases offences against women in the related to marriage and dowry, rape, State, or in selected areas, kidnapping, criminal abduction, eve-teasing, including cases related to immoral trafficking in women and cases of marriage and dowry, rape, medical negligence in causing delivery or kidnapping, criminal abduction, sterilization or medical intervention that relates eve-teasing, immoral trafficking to child bearing or childbirth; in women and cases of medical negligence in causing delivery of sterilization or medical intervention that relates to child beating or child birth;
(c) Co-ordinate with the Stale cell and district (c) will co-ordinate with the State cells for atrocities against women; if any, for Cell and District Cells for mobilisation of public opinion in the state and atrocities against women, if any whole or in specific areas which would help in for mobilisation of public opinion speedy reporting and detection of offences of in the State as a whole or in such atrocities and mobilisation of public specific areas which would help opinions against the offenders; in speedy reporting and detection of offences of such atrocities and in obligation or public opinion against the offenders;
(d) Receive complaints on: - (d) receive complaints on-
(i) Atrocities on women and offences against (i) atrocities on women and women; offences against women;
(ii) Deprivation of women of their rights relating (ii) deprivation of women of their to minimum wages, basic health and maternity rights relating to minimum rights; wages basic health and maternity rights;
(iii) Non-compliance of policy decisions of the (iii) non-compliance of policy Government reating to women; decisions of the Government relating to women;
(iv) Rehabilitation of deserted and destitute (iv)rehabilitation of deserted and women and women forced into prostitution, destitute women and women addiction and substance abuse; forced into prostitution;
(v) Atrocities on women in custody and take up (v) atrocities on women in with authorities concerned for appropriate custody and take up with remedial measures; authorities concerned for appropriate remedial measures.
(e) Assist, train and orient the non- (e) assist, train and orient the governmental organisations in the State in legal non-Government Organisation in counselling of poor women and enabling such the State in legal counselling of women to get legal aid: poor women and enabling such women to get legal aid;
(f) Inspect or cause to be inspected, a jail (f) inspect or cause to be remand home, women's institution or other inspected, a jail, remand, place of custody, where women are kept as women's institution or other prisoners or otherwise and take up with place of custody where women concerned authorities for remedial activity if are kept as prisoners or necessary; otherwise and take up with the concerned authorities for remedial action, it found necessary;
(g) Perform functions in relation to any other (g) perform functions in relation matter which may be referred to it by the State to any other matter which may 9 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
Government; be referred to it by the State
Government.
(2) The State Government shall cause all the (2) The State Government shall recommendations or reports, or any part cause all the recommendations thereof as may be presented to it by the or reports, or any part thereof, as Commission under sub- clause (ii) of clause (a) may be presented to it by the of sub-section (1) which relate to any matter Commission under Sub- section with which the State Government is concerned (1), which relate to any matter to be laid before the legislature of the State with which the State Government along with Memorandum explaining the action is concerned, to be laid before taken or Proposed to be taken on the the Legislature of the State along recommendations of the Commission and the with a memorandum, explaining reasons non acceptance, of such the action taken or proposed to recommendations. be taken on the recommendations of the Commission and the reasons for the non acceptance, if any, of such recommendations.
(3) The Commission shall while investigating (3) The Commission shall, while any matter referred to in clause (a) or clause (d) investigating any matter referred of sub-section (1) of section 11 have all the to in Clause (a) or Clause (d) of powers of the Civil court trying a suit and in Sub-section (1), have all the particular in respect of the following matters, powers of Civil Court trying a namely:- suit and in particular, in respect of the following matters, namely :
(a) Summoning and enforcing the attendance of (a) summoning and enforcing the any persons from any part of 1ndia and attendance of any person from examining him on oath: any part of India and examining him on oath;
(b) Requiring the discovery and production of (b) requiring the discovery and any document; production of any document;
(c) Receiving evidence on affidavits; (c) receiving evidence on affidavits;
(d)Requisitioning any public record or copy (d) requisitioning any public thereof from any court or office record or copy thereof from any Court or office;
(e) Issuing commissions or the examination of (e) issuing commissions to the witnesses and documents; examination of witness and documents; and
(f) Any other matters which is required to be, or (f) any other matter which may may be prescribed. be prescribed.
14. The Supreme Court in Bhabani Prasad Jena (supra)
has held:
"9. It would be seen from Section 10 of the 1993 Act that the State Commission has been authorised to take up studies in respect of economic, educational and health situation of the women of the State and also the working conditions of women in the factories, establishments, construction sites and make its recommendations to the State Government. The State Commission is empowered to compile information in respect of the offences against women and to coordinate with the State Cell and District Cells for atrocities against women. Further, the State Commission is competent to receive complaints in respect of the matters specified in Section 10(1)(d) and take up the grievances raised in the complaint(s) with the authorities concerned for appropriate remedial measures. The State 10 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
Commission is also given the role of assisting, training and orienting the non-governmental organisations in the State in legal counselling of poor women and enabling such women to get legal aid. Under clause (f) of Section 10(1), the State Commission is authorised to inspect or cause to be inspected, a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise and take up with the authorities concerned these matters for remedial action.
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 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."
15. When the Supreme Court has on examination of
section 10 of the Orissa State Commission for Women Act, 1993
already held as above, no other interpretation of the pari
materia provision of section 11 of the Sikkim State Commission
for Women Act, 2001 is possible. Accordingly it is held, on
reading of the Sikkim State Commission for Women Act, 2001
and specifically section 11 thereof, that the respondent no.2 has 11 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
been authorised to perform the functions enumerated in section
11 (1) (a) to (g) only. The respondent no.2 while it is authorised
to receive complaints inter alia on atrocities on women and
offences against women; deprivation of women of their rights
relating to minimum wages, basic health and maternity rights;
and investigate the matter it can thereafter, only take up the
grievances raised in the complaint with the authorities
concerned for appropriate remedial measures. The respondent
no.2 does not have the power or authority to adjudicate or
determine the rights of the parties. The Sikkim State
Commission for Women Act, 2001 has not entrusted the
respondent no.2 with the power to take up the role of a Court or
an adjudicatory tribunal and determine the rights of the parties.
The respondent no.2 is therefore, not a tribunal discharging the
function of a judicial character or a Court.
16. Viewed on the above parameters, the act of
respondent no.2 in the present case has been adjudicatory.
Even if this Court was to believe that no coercion was exercised
by the respondent no.2 to compel the petitioner to agree in
paying maintenance to the respondent no.3 as recorded in the
impugned Order dated 05.11.2020 admittedly, the respondent
no.2 sought to take an adjudicatory role which was clearly
impermissible. The Sikkim State Commission for Women Act,
2001 has not given jurisdiction to the respondent no.2 to pass
the impugned order and adjudicate the issues between the
petitioner and the respondent no.3 in the manner it did. The 12 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
impugned order dated 05.11.2020 was outside the jurisdiction
of the respondent no.2 as it had no competence to pass it and
therefore, a void order.
17. This Court is therefore, of the view that although
there is substantial delay on the part of the petitioner to
approach this Court, it must be condoned. It is trite the
discretionary jurisdiction may not be exercised in favour of
those who approach the Court after a long time. It has also been
repeatedly held by the Supreme Court that however, there is
another facet and the Court is required to exercise "judicial
discretion". Delay and latches is not an absolute impediment
and sometimes there are mitigating factors. It depends on facts
of each case. When the act complained of shocks the judicial
conscience, the Court should not hesitate to exercise the
discretion more so when no third party interest is involved.
There could be cases where the demand for justice is so
compelling, that this Court would be inclined to interfere in
spite of the delay. The judicial discretion must be exercised
fairly and justly to promote justice and not defeat it. When the
claim made by the petitioner is legally sustainable, delay should
be condoned. Where circumstances justifying the conduct
exists, the illegality which is manifest, cannot be sustained on
the sole ground of latches. No one has a vested right in injustice
being done or perpetuated.
18. The plea of the respondent no.3 is substantially on
the wrong doings alleged against the petitioner. The complaint 13 W.P. (C) No. 21 of 2023 Shri Jiwan Kumar Bhusal vs. The State of Sikkim & Ors.
of the respondent no.3 relates to matrimonial dispute between
the respondent no.3 and the petitioner which is required to be
inquired into by a competent Court. This Court is not inclined
to examine the merits thereof. Although this Court is of the view
that the impugned Order dated 05.11.2020 cannot stand and
accordingly sets it aside, it is clarified that it shall not preclude
the respondent no.3 from claiming maintenance or any other
order of financial support or otherwise against the petitioner in
appropriate proceedings from the Court of competent
jurisdiction. The petitioner, needless to say, shall be at liberty to
contest the claim of the respondent no.3 on all available
grounds.
19. The writ petition is accordingly allowed and disposed
of along with the pending application.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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