THE GAUHATI HIGH COURT v. THE STATE OF ASSAM AND 2 ORS

3. The respondent no. 3 had filed a complaint before the respondent Commission on

25.03.2014 seeking adequate maintenance from the petitioner. On receipt of the same complaint, the respondent Commission had registered the said complaint as ASCW Case no. 77/2014 and issued notice to the petitioner for his appearance before the respondent Commission as the sole respondent in ASCW Case no. 77/2014.

4. It is the further case of the petitioner that the respondent no. 3 had also preferred a complaint before the Court of learned Chief Judicial Magistrate, Morigaon against the petitioner as accused alleging cruelty and demand of dowry. The Court of learned Chief Judicial Magistrate, Morigaon had forwarded the said compliant under Section 156[3], Page No.# 3/10 Code of Criminal Procedure, 1973 to the Officer In-Charge, Jagiroad Police Station with a direction to register the case and to cause investigation. On receipt of the said complaint, the Officer In-Charge, Jagiroad Police Station registered a case being Jagiroad Police Station Case no. 130/2014 for the offence under Section 498A, IPC read with Section 3 of the Protection of Women from Domestic Violence Act, 2005. After completion in investigation, the Officer In-Charge of the case had filed a charge sheet in Jagiroad Police Station Case no. 130/2014 [G.R. Case No. 855/2014]. At the time of filing the writ petition, the said case, G.R. Case no. 855/2014 was pending.

5. The ground for preferring this writ petition is the order dated 01.11.2014, the contents of which are extracted herein below : “IN THE ASSAM STATE COMMISSION FOR WOMEN ASCW CASE NO. 77/2014 Smt. Bipasha Dey …..Complainant -vs- Sri Prasant Bhattacharjee ……Opposite Party 01.11.2014 Complainant is present. The opposite party is absent. It is submitted that the complainant is the legally married wife of the Opposite party, who is working as Vice- Principal of Delhi Public School, Itanagar. The complainant states since last one year the Opposite party is staying separately without giving any maintenance to the complainant. Being a Vice-Principal of DPS, Itanagar, the Opposite party is getting monthly salaries in and around Rs. 85,000/- (Rupees Eighty Five Thousand) only and he has no other liabilities. The complainant hails from Jharkhand and neither she has any source of income nor she had any place to reside and therefore Page No.# 4/10 she prays for an adequate maintenance form her husband. Considering the entire grievance of the petitioner, the Commission deems it fit to pass an Order to the DPS authority to provide maintenance to the complainant. Accordingly it is directed to deduct Rs. 25,000/- (Rupees Twenty Five Thousand) only per month from the salaries of the Opposite party, Sri Prasant Bhattacharjee, Vice-Principal, DPS, Itanagar and deposit the same before 10th day of every month to this Commission as maintenance allowance to the complainant. The complainant shall collect the same amount from the Commission regularly. Issue fresh notice to the Opposite party through the Officer-in- Charge, Itanagar P.S. who will ensure presence of the Opposite party on the next date fixed. In the meantime the Officer-in-Charge, Hojai P.S. is directed to produce the FIR of Hojai P.S. Case No. 317/2006 and a report on its present status. Further, the Officer-in-Charge, Lumding P.S. is also directed to produce the FIR and status report of Lumding P.S. Case No. 317/2006.

6. I have heard Mr. K. Sarma, learned counsel for the petitioner and Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent nos. 1 and 2. None has appeared for the respondent no. 3 today on call, though the name of the learned counsel for the respondent no. 3 is reflected in the cause-list. The respondent no. 3, as per the office note dated 07.04.2015, had appeared through her learned engaged counsel.

7. Mr. Sharma, learned counsel for the petitioner has submitted that the respondent Commission has no power, authority and jurisdiction to pass such kind of an order to grant maintenance in a matrimonial dispute. The respondent Commission has been constituted under the Assam State Commission for Women Act, 1994 and the functions to be discharged by the respondent Commission are well delineated in Section 10 of the Page No.# 5/10 said Act.

8. Ms. Barman has submitted that as the petitioner is not providing maintenance to the respondent no. 3 who has no source of income and no place to reside, the respondent Commission has passed the impugned order in order to provide relief to the respondent no. 3.

9. I have considered the submissions of the learned counsel for the parties and have also gone through the provisions of the Assam State Commission for Women Act, 1994 [‘the ASCW Act, 1994’, for short]. Section 3 for the ASCW Act, 1994 has provided for the constitution of the Assam State Commission for Women [ASCW]. Thus, the Assam State Commission for Women [ASCW] is a body constituted in terms of Section 3 of the ASCW Act, 1994.

10. Section 10 of the ASCW Act, 1994 has delineated the functions of the respondent Commission. For ready reference, the contents of Section 10 of the ASCW Act are extracted herein below in its entirety:- “FUNCTIONS OF THE COMMISSION 10 [1] The Commission shall perform all or any of the following functions, namely:- [a] investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws; [b] present to the State Government, annually and at such other times as the Commission may deem fit, reports upon the working of these safeguards; [c] make in such reports recommendations for the effective implementation of those safeguards for improving the conditions of women by the State; [d] review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as the suggest remedial legislative measures to meet any lacunae, inadequacies of shortcomings in such legislations; [e] take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities; Page No.# 6/10 [f] look into complaints and taken suo moto notice of matters relating to :- [i] deprivation of women’s rights; [ii] non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development; [iii] non-compliance of policy decisions, guidelines or instructions, aimed at mitigating hardships and ensuring welfare and providing relief to women and take up the issues arising out of such matters with appropriate authorities; [g] call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal; [h] undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic service, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity; [i] participate and advice on the planning process of socio-economic development of women; [j] evaluate the progress of the development of women under the State; [k] inspect or cause to be inspected a jail, remand home, women’s institution or other place or custody where women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action if found necessary; [l] fund litigation involving issues affecting a large body of women; [m] make periodical reports to the Government on any matter pertaining to women ad in particular various difficulties under which women toil; [n] any other matter which may be referred to it by State Government. [2] The State Government shall cause all the reports referred to in clause [b] of sub- section [1] to be laid before the State Legislature alongwith a memorandum Page No.# 7/10 explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. [3] The Commission shall, while investigating any matter referred to in sub-clause [i] or clause [f] of sub-section [1] have all the powers of the civil court trying a suit and, in particular in respect of the following matters, namely :- [a] summoning and enforcing the attendance of any person from any part of Assam and examining him on oath; [b] requiring the discovery and production of any document; [c] receiving evidence on affidavits; [d] requisitioning any public record or copy thereof from any Court or office; [e] issuing Commissions for the examination of witnesses and documents; [f] any other matter which may be prescribed.”

11. The issue that has arisen for consideration here is whether the respondent Commission can pass an order like the impugned order in exercise of the powers conferred upon it under the provisions of the ASCW Act, 1994. The issue is no longer res integra in view of a decision rendered by the Hon’ble Supreme Court of India in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and Another, reported in [2010] 8 SCC 633.

12. In Bhabani Prasad Jena [supra], the respondent no. 2 therein filed a complaint before the Orissa State Commission for Women against the appellant therein alleging inter alia that she was married to the appellant and due to torture meted out to her by the appellant and his family members, the spouses were compelled to live separately. As the respondent no. 2 had no source of income and was pregnant, she filed a complaint before the Orissa State Commission for Women. On the basis of the said complaint, the Orissa State Commission for Women issued notice to the appellant. After the appearance of the appellant before the Orissa State Commission for Women, the Commission on Page No.# 8/10

11.05.2009 passed an order directing inter alia a compensation amount of minimum 50% of the gross salary of the appellant and also passed a direction to the office of the Drawing and Disbursing Officer [DDO] to deposit the amount in the account of the respondent no. 2 directly.

13. The Orissa State Legislature had constituted the Orissa State Commission for Women under the Orissa State Commission for Women Act, 1993 and Section 10 of the Orissa State Commission for Women Act, 1993 has set forth the functions of the Commission. On comparison of the provisions of Section 10 of the Orissa State Commission for Women Act, 1993 and the provisions contained in Section 10 of the ASCW Act, 1994, it is noticed that the said provisions are pari materia. More specifically, the provisions contained in Section 10[1][d] of the Orissa State Commission for Women Act, 1993 are similar to the provisions contained in Section 10[3][f] of the ASCW Act, 1994. Similarly, the provisions contained in Section 10[3] of the Orissa State Commission for Women Act, 1993 are similar to the provisions contained in Section 10[3] of the ASCW Act, 1994

14. At the juncture, it is apposite to refer to the following observations made by the Hon’ble Supreme Court of India in Bhabani Prasad Jena [supra].

9. It would be seen from Section 10 of the 1993 Act that the State Commission has been authorized 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 concerned authorities for appropriate remedial measures. The State Commission is also given role of assisting, training and orienting the non-Government organization in the State in legal counseling of poor women and enabling such women to get legal aid. Under clause [f] of Section 10[1], Page No.# 9/10 the State Commission is authorized 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 concerned authorities 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 healthcare 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 concerned authorities 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 no. 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 authorized 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.

12. Learned counsel for respondent no. 2 then referred to Section 10[3] and submitted that the State Commission has been conferred with all the powers of a Civil Court trying a suit. We are afraid, this is not at all proper reading of Section 10[3] . The expression, `have all the powers of a Civil Court' in Section 10[3] is qualified by the following words, `in respect of the following matters'. That is to say, the State Commission has powers of Civil Court trying a suit for the matters specified in clauses Page No.# 10/10 [a] to [f] thereof and not for other purposes.

15. In view of clear pronouncement of law in the afore-mentioned manner by the Hon’ble Supreme Court of India in Bhabani Prasad Jena [supra], no further dilation is necessary as the Hon’ble Supreme Court therein has dealt with similar statutory provisions contained in the Orissa State Commission for Women Act,

1993. It can be noticed that no power, authority or jurisdiction has been given to the State Commission to adjudicate or determine the rights of the parties on the basis of a complaint lodged by one of the spouses. The Assam State Commission for Women [ASCW] has no competence to make an order like the impugned order dated 01.11.2014. In such view of the matter, the impugned order dated 01.11.2014, being a void order, is liable to be set aside and quashed. For the same reason, it is accordingly set aside and quashed. The proceedings of ASCW Case No. 77/2014 are also set aside and quashed. Consequently, the writ petition stands allowed. The interim order dated

19.01.2015 stands merged with this order. No cost. JUDGE Comparing Assistant