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High Court of Judicature at Calcutta
SYAMAL KANTI CHAKRABARTI
Sujoy Kumar Sanyal
Versus
Shakuntala Sanyal (Halder) & Another
C. R. R. 1835 of 2010
Decided On : 06-10-2010
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 - SECTION 12, 17, 19, 23, 29 - SUMMARY
Fact of the Case:
Husband challenged the ex-parte interim order passed by the Magistrate under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005, granting the wife the right of residence in the shared household.
Finding of the Court:
The court held that the revisional application was not maintainable as an appeal was provided under Section 29 of the Act and the inherent power under Section 482 CrPC could not be exercised to usurp the jurisdiction of the appellate authority.
Issues: 1. Whether the revisional application was maintainable in view of the availability of an appeal under Section 29 of the Act? 2. Whether the ex-parte interim order granting the wife the right of residence was justified?
Ratio Decidendi: 1. The court held that the revisional application was not maintainable as the Act provided a specific provision for appeal under Section 29, and the inherent power under Section 482 CrPC could not be used to bypass the appellate process. 2. The court held that the Magistrate had the power to grant an ex-parte interim order under Section 23(2) of the Act, and in the present case, the Magistrate had considered the domestic incident report and the submissions of the parties before granting the order, which was justified.
Final Decision: The court dismissed the revisional application and directed the Magistrate to proceed with the case as per law.
Syamal Kanti Chakrabarti, J
The present revisional application under Section 482 Cr.P.C. is directed for quashing the proceedings being Misc. Case No. 180/2010 corresponding to T.R. Case No. 85/2010 under Section 12 of the Protection of Women From Domestic Violence Act, 2005 now pending before the 5th Court of Learned Judicial Magistrate, Srirampore at District Hooghly.
2. The petitioner contends that he is a school teacher and married O.P. No. 1 in the month of May, 1994 according to Hindu Rites and Customs and thereafter led conjugal life with her at 21, Library Lane, P.S. Srirampore, District – Hooghly, A female child was born out of their wedlock. Subsequently O.P. No. 1 suffered from various ailments and lastly on 26.01.2010 father of O.P. No. 1 took her at the paternal house and on 29.01.2010 their daughter was also taken to her paternal house but subsequently she has declined to come back. So he has filed a suit for restitution of conjugal rights being MAT Suit No. 176 of 2010 on 23.02.2010. In the meantime the O.P. No. 1 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking the reliefs under Sections 17 / 19A / 19D / 29 of the Act. In addition, she has repeatedly claimed monthly maintenance allowance for herself and the child under Section 125 Cr.P.C. and reliefs to be awarded under Section 24 of the Hindu Marriage Act. On receipt of such application Learned Court below by order dated 10.03.2010 called for a report from the Protection Officer, Hooghly fixing 15.03.2010 for report. On 18.03.2010 the aggrieved women filed another petition for interim relief under Section 23 (2) of the Act. Learned Court below also called for a domestic incident report thereon from the Protection Officer, Hooghly within the date fixed. On 05.04.2010 the Protection Officer, Hooghly submitted his report which was placed before the Learned Court below. On 03.05.2010 the Learned Court below considered her prayer for exparte interim relief under Section 23 of the Act as per provision of Section 17 of the Act. At the relevant time he was inclined to grant the relief regarding right of residence and all other reliefs as prayed for by her shall be considered after hearing the respondent. Therefore, by such order dated 03.05.2010 the Learned Court below decided that the aggrieved women Smt. Shakuntala Sanyal will get the right of residence in the shared household and the respondent/husband was restrained from dispossessing the aggrieved women from the dwelling unit till final disposal of the case and fixed 07.05.2010 for service return of notice upon the respondent/husband and for hearing of the petition of complaint.
3. Being aggrieved by and dissatisfied with such order the respondent/husband has preferred this revisional application praying for quashing of such proceedings which is not inconformity with the mandatory provisions of Section 12 of the Act. The Learned Lawyer for the petitioner herein has raised the following points in support of his contention : -
A. Such type of exparte order cannot be passed by the Learned Court below after issue of summons to the respondent/husband and before his appearance.
B. The aggrieved women has claimed several reliefs at different courts under Section 125 Cr.P.C., Section 24 of the Hindu Marriage Act and also lodged a complaint under Section 498A IPC in addition to the reliefs claimed under the Protection of Women from Domestic Violence Act, 2005 which may be opposed to the process of law seeking same relief at different fora.
C. The learned Court below has granted the relief without considering properly the report of the Protection Officer.
4. The Learned Lawyer for the O.P. No. 1 opposed the move and had contended that such type of revisional application under Section 482 Cr.P.C. is not maintainable at all since the impugned order is appelable. Secondly, the object of the present Act of 2005 is to concentrate the claims of wretched and de
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