Sri Sankha Subhra Roy Choudhury vs Smti. Sarmistha Banik
2021 Latest Caselaw 953 Tri

                               HIGH COURT OF TRIPURA
                                     AGARTALA

                               Crl. Rev. P. No. 40 of 2021

1. Sri Sankha Subhra Roy Choudhury,
   Son of Sri Sukhendu Bikash Roy Choudhury,

2. Smti. Sabita Roy Choudhury,
   Wife of Lt. Sukhendu Bikash Roy Choudhury,
   All are residents of Madhya Banamalipur, Agartala, P.S. East Agartala,
   District West Tripura
                                                             ----Petitioner(s)
                                      Versus

1. Smti. Sarmistha Banik,
   Wife of Shri Sankha Subhra Roy Choudhury,
   Resident of Dhaleswar Road No.3, Agartala, P.S. East Agartala, District
   West Tripura

2. The State of Tripura
                                                         ---- Respondent(s)

   For Petitioner(s)                   :     Mr. T.K. Deb, Adv.

   For Respondent(s)                   :     Mr. J. Majumder, Adv.
                                             Mr. R. Datta, P.P.

   Date of hearing
   & delivery of
   judgment and order                  :     22nd September, 2021.

   Whether fit for reporting           :     NO


                HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                            Judgment & Order (Oral)

   22/09/2021

   [1]                 By means of filing this criminal revision petition,

petitioner Sankha Subhra Roy Choudhury has challenged the judgment

and order dated 01.04.2021 passed by the Additional Sessions Judge,

West Tripura, Agartala in Criminal Appeal 27 of 2018 whereby the

learned Additional Sessions Judge remanded the case to the trial court

with the following directions:

"17..............................Having observed thus, I am of the considered opinion that the order so passed by the Ld. Trial Court is arbitrary and cannot sustain. Accordingly, the order dated 09/10/2018 passed by the Trial Court in Case No. CR 43 of 2016 stands set aside with direction to the Ld. Trial Court to record the evidence of the appellant petitioner namely, Sarmistha Banik in regard to the present source of income of the respondent No.1 in determining the quantum of maintenance to be awarded in favour of the Appellant Petitioner. Trial Court is also to accept the documentary evidence in regard to the income of Respondent No.1, if produced and proceed in the way, an application under section 125 of Cr. PC is disposed of and while disposing of the record, it must be borne in mind that acts of domestic violence upon the appellant by the respondents have been held by this Court to have been proved. While passing this direction, this Court is certainly aware of the principles of Natural Justice and as such, sufficient scope be given to the respondent side to lead their evidence in discarding the evidence of the appellant, if any, in regard to the source of income of respondent No.1 and nothing else. In short, evidence in regard to the quantum of maintenance is only to be decided and respondent side cannot furnish any other evidence in regard to any other aspect, as they have themselves shut down their opportunity. Ld. Trial Court is to dispose of the said matter within a period of 3 months from the date of receive of the record, and pass necessary order to pay appropriate monetary relief to the appellant petitioner and pass any other order(s) as would be appropriate thereto.

Accordingly, this appeal stands allowed................"

[2] Heard Mr. T.K. Deb, learned counsel appearing for the

petitioners. Also heard Mr. J. Majumder, learned counsel appearing for

the respondent wife as well as Mr. R. Datta, learned P.P representing

the State respondent.

[3] Factual background of the case is as under:

Marriage between petitioner No.1 and respondent No.1

was solemnized on 02.10.2015 and after marriage respondent

accompanied her husband to his place where she was maltreated by her

petitioner husband. The respondent wife filed a petition under section

12 of the Protection of Women from Domestic Violence Act, 2005 in the

court of learned Chief Judicial Magistrate bringing various instances of

domestic violence meted out to her by her husband and other in laws.

The said petition was heard by the learned Judicial Magistrate 1 st Class

(Court No.6), Agartala and the same was disposed of by an order dated

09.10.2018 in case No.CR 43 of 2016. In the course of trial, petitioner

examined four witnesses including herself to prove the charge of

domestic violence against her husband and in laws whereas the

respondent brought no witness. The learned trial court rejected the

petition and declined to grant any relief under the Domestic Violence

Act to the petitioner observing as under:

"7. Regarding the fact of mental torture, I decline to h0ld the facts stated by the aggrieved petitioner as amounting to mental torture. The petitioner stated that the respondent No.1 demanded ATM card and gold necklace and was threatened if the demands were not fulfilled he would contact another marriage. That while the petitioner returned to her matrimonial house the respondents were in violent mode and her parents were

abused in filthy language while they went there. Those are the only facts which could be considered for the purpose of mental torture. The general incidents of household dispute cannot be considered as amounting to torture. There is no consequential action on the part of the petitioner which could be attributed as a result of such mental cruelty and hence that single set of facts, which appeared to this court to be a part of general household dispute, cannot considered as mental cruelty. The respondent might be saying that he would contacted second marriage but there is nothing to show that the respondent actually meant by that and taken any step towards that. It appears that the petitioner is oversensitive regarding each and every trivial household issues. One cannot be expected to be so perfect to act according to comfort level of his or her spouse. Being human at one or two occasions slip of action and words takes place and until and unless such action or words are of such a nature that is continuous on regular basis, that cannot in any way amounted to mental cruelty.

8. To the most surprise of this court, the petitioner stated that she went to her matrimonial house after the marriage that is on 02-10-2015. Then again she went to her matrimonial house on 25-10-2015. Between that, after the first occasion, without went out of her matrimonial house she again returned to her matrimonial house. The way the facts are stated by the petitioner clearly shows that the facts are attempted to be organized to give it a colour or violence being committed by the respondents. The distortion of facts by the petitioner was to such an extent that she admitted during cross-examination that the scooty which she demanded to be returned to her in this case was already taken back by her before 02-11-2015. During cross-examination of PW 2 and PW 3 it has further disclosed that they accompanied the petitioner to her matrimonial home on 25-11-2015 and that shared contradiction with the petitioners testimony that the PW2 and PW3 came after her arrival, while she managed to make a phone call to them.

9. So far as the issue of domestic relation is concerned, I failed to be in concurrence with the learned defence counsel. There is no time limitation has been provided in the Act and the definition thereby that this much

days are to be stayed together for consideration in that regard. This court is abstaining itself from further examining the contents of written objection as the facts stated by the petitioner has failed to prepare a base for further examination of counter facts.

10. Hence, as the petitioner failed to establish the incidents of domestic violence, no more remedy lies in her favour under this act."

[4] The aggrieved wife preferred an appeal against the

judgment and order of the trial court which was heard and disposed of

by the Additional Sessions Judge(Court No.5), Agartala by impugned

judgment dated 01.04.2021 whereby the learned Additional Sessions

Judge held that single incident of domestic violence was enough to

constitute an offence under the Domestic Violence Act and the trial

court committed an error in coming to the conclusion that no case of

domestic violence was proved against the husband. The learned

Additional Sessions Judge held that domestic violence was proved

against the husband and he remanded the case to the trial court to take

fresh evidence from both of the parties only for the purpose of

determining the quantum of monetary relief to be awarded to the wife.

The parties, particularly the respondents were precluded by the

impugned judgment to adduce evidence on any other issue as they,

according to the court, spoilt their opportunity of adducing evidence at

the trial court.

[5] Aggrieved by the said order of the appellate court, the

husband has approached this court by filing this criminal revision

petition against the impugned judgment of the learned Additional

Sessions Judge (appellate court) mainly on the following grounds:

(i) Without appreciation of evidence, appellate court erroneously held that domestic violence was proved against the husband.

(ii) While remanding the case to the trial court, the appellate court should have provided equal opportunity to both of the parties to adduce fresh evidence with regard to wife's allegation of domestic violence.

(iii) The appellate court relied on the evidence of those witnesses who had no scope to witness any incidence of domestic violence and erroneously came to the conclusion that the wife proved domestic violence against her husband.

(iv) The appellate court did not appreciate the fact that the husband was always willing to sort out the differences with his wife amicably and his efforts did not work because the wife did not respond.

Under the premises aforesaid, counsel appearing for

the petitioner husband urges the court to set aside the judgment of the

appellate court and remand the matter to the trial court for a fresh trial

after providing adequate opportunity to both of the parties to adduce

their evidence.

[6] Counsel appearing for the respondents submits that

there is no illegality in the order of the learned Additional Sessions

Judge and as such this criminal revision petition is liable to be

dismissed.

[7] Considered the submissions of learned counsel made at

the bar. Perused the impugned judgment as well the judgment of the

learned trial court and all other documents available on record.

[8] It would appear from the record of the trial court that

petition of the wife under section 12 of the Protection of Women from

Domestic Violence Act was received by the Chief Judicial Magistrate on

18.01.2016 and on the same day the learned Chief Judicial Magistrate

transferred the case for trial to the court of the Judicial Magistrate 1 st

Class. Proceedings in the court of the Judicial Magistrate 1st Class at

Agartala begun on 19.01.2016 which continued for about 3 years till the

judgment was delivered on 09.10.2018 by the Judicial Magistrate 1 st

Class in Court No.6 whereas sub section (5) of Section 12 of the Act

provides that the Magistrate shall endeavour to dispose of every

application made under sub section (1) of Section 12 within a period of

60 days from the date of its first hearing. Obviously, the trial court did

not adhere to the time limit provided under the Act. It would not be of

any use to discuss for whose fault such erroneous delay was caused in

the disposal of the matter.

[9] The record of the trial court would demonstrate that

after granting several adjournments in favour of the respondents to

adduce evidence, trial court listed the case for arguments vide order

dated 10.08.2018 after the counsel of the respondents (present

petitioners) pleaded for listing the case for argument. After hearing the

arguments, the court passed the judgment. Therefore, there is no merit

in the submission of the counsel of the petitioner that trial court did not

provide opportunity to the petitioners (respondents before the trial

court) for adducing evidence.

[10] However, the parties, even the respondent wife does

not have any grievance against the order of the learned Additional

Sessions Judge remanding the case to the trial court for recording fresh

evidence. Only objection of the petitioner husband is that without proof

learned Additional Sessions Judge should not have held that domestic

violence was proved against petitioner husband (respondent in trial

court) whereas trial court found no proof of domestic violence.

[11] Having considered the submissions made at the bar

and given facts and circumstances of the case, this court is of the view

that it would be appropriate to provide equal opportunity to both of the

parties to provide fresh evidence before the trial court.

[12] Resultantly, the findings of the learned Additional

Sessions Judge that domestic violence has been proved against the

petitioner is interfered with and the same is set aside. The case is

remanded back to the trial court with the following directions for fresh

trial.

[13] The evidence already recorded in the case shall form

part of the record. The respondent wife be at liberty to examine fresh

witness other than those whose evidence has already been recorded.

She can also adduce evidence with regard to the financial

resources/income of her husband. Similarly, the petitioner husband may

also adduce evidence, oral and documentary, before the trial court. The

trial court after evaluation of such evidence will deliver a fresh

judgment. It is made clear that the trial court shall dispose the matter

within two months from the date of receipt of the record. The parties

are directed to appear before the trial court. If they fail to produce their

witnesses/documents on the date appointed by the trial court, they will

have no more chance to adduce evidence.

[14] In terms of the above, the petition is disposed of. Send

back the LC record. Pending application(s), if any, shall also stand

disposed of.

JUDGE

Rudradeep