✦ High Court of India

Criminal Appeal No. 03 of 2021 · The High Court

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.2419 of 2021 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Debabrata Mishra & others … Petitioners -versus- Swarupa Praharaj … Opposite Party For Petitioners : Mr. B.Sahoo, Advocate For Opposite Party : Ms. S.Patnaik, Advocate CRLREV NO.78 of 2022 (In the matter of application under Sections 397/401 of Code of Criminal Procedure, 1973). Swarupa Praharaj … Petitioner -versus- Debabrata Mishra & others … Opposite Parties For Petitioner : Ms. S.Patnaik, Advocate For Opposite Parties : Mr. B.Sahoo, Advocate CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT : 27.09.2023 G. Satapathy, J. 1. The order passed on 07.10.2021 by learned District & Sessions Judge, Khurda at Bhubaneswar in CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 1 of 13 Criminal Appeal No. 03 of 2021 and the order passed on 07.01.2021 by learned S.D.J.M., Bhubaneswar in CMC No. 644 of 2020 in an application U/S. 23(2) of Protection of Women from Domestic Violence Act, 2005 (in short, the “Act”) are impugned in these application U/S. 482 of Code of Criminal Procedure, 1973 (in short, the “Code”) and U/S. 397/401 of the Code by the husband with parents-in-laws and wife separately. 2. Since both the orders passed in Appeal and Criminal Misc. Case are under challenge by the husband with parents-in-laws and wife separately in CRLMC and Criminal Revision, the same are heard together and disposed of by this common order with

Legal Reasoning

consent of the learned counsel for the parties. 3. For the sake of convenience and in order to avoid confusion, the petitioners in CRLMC who are Opposite Parties in Criminal Revision are herein after referred to as “Respondents” whereas, the Opposite Party in CRLMC who is the petitioner in Criminal CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 2 of 13 Revision is hereinafter referred to as “aggrieved person” in terms of the Act. The aggrieved person is the wife of Respondent No.1 (R-1), whereas Respondent Nos. 2 & 3 (R-2 & 3) are her parents-in- laws. 4. The facts in precise are the aggrieved person being the legally married wife of R-1 has filed a petition against the Respondents U/S. 12 of the Act seeking reliefs U/S. 18 to 21 of the Act and it is claimed by the aggrieved person that after some days of her marriage, she was physically, mentally and emotionally tortured by her in-laws and accordingly she is residing in the house of her parents in a miserable condition without having any independent source of income. The aforesaid petition U/S. 12 of the Act was registered as CMC No. 644 of 2020 by learned S.D.J.M., Bhubaneswar and in such proceeding, the aggrieved person has also filed a petition U/S. 23(2) of the Act seeking ex-parte interim orders. The learned S.D.J.M., Bhubaneswar CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 3 of 13 accordingly after hearing the learned counsel for the petitioner and on going through the materials placed

Decision

on the basis of affidavit disposed of the petition of the aggrieved person U/s. 23(2) of the Act granting ex- parte protection order in favour of the aggrieved person U/S. 18 of the Act, while refusing to grant other ex-parte relief as claimed by her. The petitioner being satisfied with such order accordingly carried an appeal to the Court of learned District & Sessions Judge, Bhubaneswar at Khurda in Criminal Appeal No. 3 of 2021 wherein the learned District & Sessions Judge, Khurda by the impugned order passed in the appeal allowed the appeal in part by granting interim order for making provision for alternative accommodation by directing R-1 to pay a sum of Rs.7,000/- per month towards rent of the house to be arranged by the aggrieved person. It is accordingly directed in the appeal about adjustment of the rent in the final order that would be passed in the proceeding U/S. 12 of the Act (CMC No. 644 of 2020). CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 4 of 13 5. Being aggrieved with the order passed in CMC No. 644 of 2020 and Criminal Appeal No. 3 of 2021, the aggrieved person as well as the Respondents has challenged such order in the aforesaid Criminal Revision and CRLMC. 6. In the course of hearing of the Revision and CRLMC, Ms. S.Patnaik, learned counsel by relying upon the decision in Prabha Tyagi v. Kamlesh Devi; (2022) 8 SCC 90 has vehemently argued and submitted that neither the learned SDJM nor the Sessions Judge had applied judicial mind in passing the orders impugned herein and without assigning any reason, the learned Sessions Judge has modified the order passed by the learned SDJM, Bhubaneswar making provision for alternative residence to the aggrieved person by simply directing R-1 to pay a sum of Rs.7,000/- per month as a interim residence order which in the circumstance appears to be contrary to the law inasmuch as the petitioner had sought for a direction to the Respondents to make CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 5 of 13 provision for residence of the aggrieved person in the shared household. Ms. Patnaik has accordingly prayed to set aside both the orders by directing R-1 to make provision for residence of the aggrieved person in the shared household. 7. On the other hand, Mr.B.Sahoo, learned counsel appearing for the Respondents has submitted that the orders impugned in this CRLMC being unsustainable in the eye of law, the same may kindly be set aside since the same have been passed without appreciation of materials and documents and the non-application of minds by the concerned Presiding Officers render both the orders passed in CMC and Criminal Appeal unsustainable in the eye of law. Mr.Sahoo has accordingly prayed to set aside both the orders passed by learned SDJM, Bhubaneswar and learned Sessions Judge, Khurda. 8. The Protection of Domestic Violence Act, 2005 is a piece of social legislation and it has been enacted by keeping in view the rights guaranteed CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 6 of 13 under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. It also empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the Respondent from aiding or committing the act of domestic violence or any other specified act. The aim and objective of the Act is for providing security to the aggrieved person against the domestic violence. 9. Admittedly the learned SDJM, Bhubaneswar has passed interim orders under Section 23(2) of the Act which reads as under:- that facie discloses “23(2). If the Magistrate is satisfied that an the application prima respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed of the aggrieved person under section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.” CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 7 of 13 10. Rival submissions has made it very clear that the aggrieved person is aggrieved by the order passed by the learned S.D.J.M., Bhubaneswar refusing to pass interim residence order, whereas the respondents are aggrieved by the ex parte order passed by the learned S.D.J.M. prohibiting/restraining the respondents from committing any domestic violence against the Petitioners till disposal of the case. However, the aggrieved person has carried an appeal to the Court of learned Sessions Judge, Khurda at Bhubaneswar who after setting aside the refusal of interim residence order granted an interim order directing Respondent No.1 (Husband) to pay rent of Rs.7,000/- per month as a alternative accommodation for the aggrieved person. In the appeal, the learned Sessions Judge, Khurda at Bhubaneswar has further directed that the aforesaid payment of rent shall subject to adjustment in the final order that would be passed in the proceeding under Section 12 of the Act. CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 8 of 13 11. Section 23(2) of the Act clearly lays down the discretionary power of the Magistrate to grant ex parte residence order on the basis of affidavits of the aggrieved person in such form as prescribed in the Protection of Women from Domestic Violence Rules, 2006 ( In short, the “Rule”). Section 19 of the Act provides for residence orders and Section 19(f) provides that while disposing of an application under Section 12(1) of the Act, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstance so require. The aggrieved person, however, has urged through her counsel to put her in the shared household by way of an order. This Court is quite conscious of the fact that the aggrieved person has a right to reside in a shared household irrespective of her right, title or beneficial interest in the same and she shall not be evicted or CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 9 of 13 excluded from the shared household or any part of it by the respondent save in accordance with the procedure establish by law in terms of Section 17 of the Act. It is, therefore, very clear that a woman when becomes an aggrieved person by way of domestic violence, she can enforce her right to live in a shared household. 12. When the contention of the aggrieved person is addressed to in the backdrop of the admitted facts of the case, there appears no dispute as to the status of the aggrieved person as legally wedded wife of R-1 and their marriage was stated to be solemnized on 09.03.2014, but there appears allegation against the Respondents for committing domestic violence upon the aggrieved person and, thereby, the Magistrate has not committed any illegality in passing interim order under Section 23(2) of the Act, which even gives discretion to the Magistrate to pass such ex parte interim order on expectation/apprehension of likelihood of commission CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 10 of 13 of domestic violence by the Respondent on the basis of affidavit produced by the aggrieved person. The dispute in this case appears to have been narrowed down in the appeal to the effect whether the alternate residence order passed in favour of the aggrieved person by the learned Sessions Judge, Khurda is justified since the Magistrate has not passed any such order. It also appears from the impugned order passed by the Magistrate that the aggrieved person had alleged that after some days of marriage, she was physically, mentally and emotionally tortured by the respondents and she is residing in the house of her parents in a miserable condition having no source of independent income, but evidence was yet to be led in the proceeding under Section 12 of the Act before the learned SDJM to know about the status of the shared household in which the victim had once lived with the Respondents. Further, the learned Sessions Judge has passed interim residence order in favour of the aggrieved person which is inconsonance with Section CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 11 of 13 19(f) of the Act. The learned counsel for the aggrieved person has of course relied upon the decision in Prabha Tyagi(supra) seeking for a direction to the respondents for inducting the aggrieved person in the shared household, but in Prabha Tyagi(supra) the Apex Court has passed a detailed judgment after taking into consideration the provision of law as well as the evidence led by the parties before the Magistrate. Besides, in such decision, the Apex Court has restored and affirmed the order passed by the Magistrate in a proceeding under Section 12 of the Act wherein, the learned Magistrate has passed final order directing the respondents to pay monetary compensation to the aggrieved person as well as making the Streedhan available to the aggrieved person as also not to obstruct the aggrieved person and her daughter from enjoying the property of her husband. 13. After careful analysis of the impugned order passed by the learned Magistrate and the order CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 12 of 13 passed by the learned Sessions Judge in appeal together with analysis of materials placed on record on the backdrop of the provisions of the Act, this Court does not find any error apparent in the impugned order passed in the appeal inasmuch as the appellate Court has passed residence order in terms of Section 19(f). Besides, it is open for the aggrieved person to redress her grievance in the proceeding under Section 12 of the Act in CMC No. 644 of 2020 which is still pending for final disposal, which shall be required to be disposed of within a period of sixty days from the date of its first hearing as per the mandate of Section 12(5) of the Act. 14. In the result, both the CRLMC and Criminal Revision being unmerited stand dismissed on contest, but in the circumstance there is no order as to costs. All the interim orders passed in the present proceedings stood vacated. Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 27-Sep-2023 15:02:00 Orissa High Court, Cuttack, Dated the 27th day of September, 2023/Kishore (G. Satapathy) Judge CRLMC No.2419 of 2021 & CRLREV No. 78 of 2022 Page 13 of 13

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