Anowar Hussain, S/o. Late Amir Ali vs State Of Assam, To Be Rep. By The Learned PP, Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Gau) 193

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ROBIN PHUKAN, J.
Anowar Hussain, S/o. Late Amir Ali – Petitioner
Versus
The State Of Assam, To Be Rep. By The Learned PP, Assam And Anr. – Respondents
Crl. Pet. No.304 Of 2023
Decided On : 07-03-2024

Advocates Appeared:
For the Petitioner: Mr. A.R. Bhuyan.

Headnote:
Domestic Violence Act - Domestic Relationship - 12 of Protection of Women from Domestic Violence Act, 2005 - Summary: The court discussed the definition of 'aggrieved person' and 'domestic relationship' as per the Act, and referred to relevant case laws to establish that even if the domestic relationship is not subsisting at the time of filing the application, the aggrieved person can still file a petition if domestic violence was perpetrated at any point during the relationship. The court found that the petitioner's claim of divorce was not supported by the evidence and concluded that the petition under the Domestic Violence Act was maintainable.
Fact of the Case:
The petitioner sought to quash the proceeding under the Domestic Violence Act, claiming that the domestic relationship had ceased to exist before the filing of the application. The opposite party alleged domestic violence and sought relief under the Act.
Finding of the Court:
The court found that the petitioner's claim of divorce was not supported by the evidence and concluded that the petition under the Domestic Violence Act was maintainable.
Issues: Validity of the proceeding under the Domestic Violence Act, existence of domestic relationship, and the timing of the alleged divorce.
Ratio Decidendi: The court referred to the definition of 'aggrieved person' and 'domestic relationship' as per the Act, and relevant case laws to establish the maintainability of the petition under the Domestic Violence Act.
Final Decision: The court dismissed the petition, stating that it was devoid of merit, and ordered the parties to bear their own costs.

JUDGMENT :

Heard Mr. A.R. Bhuyan, learned counsel for the petitioner; Mr. R. J. Barua, learned Addl. P.P. for the State respondent No. 1; and Mr. M.K. Das, learned counsel for opposite party No.2.

2. In this petition, u/s 482 of the Cr.P.C. the petitioner, namely, Anowar Hussain has prayed for quashing and setting aside the proceeding in Misc. Case No. 166/2021, u/s 12 of Protection of Women from Domestic Violence Act, 2005 instituted by the opposite party No. 2, pending before the court of learned Judicial Magistrate 1st Class, Kamrup (M) Guwahati.

3. It is to be noted here that Misc. Case No. 166/2021, u/s 12 of Protection of Women from Domestic Violence Act, 2005 is instituted by opposite party No. 2, Mustt. Sufia Begum.

4. The background facts leading to filing of the present petition is adumbrated herein below:

“The petitioner Md. Anowar Hussain got married with the opposite No. 2, on 09.04.1987, as per Islamic rights and rituals and thereafter, lived together as husband and wife at Six Mile, Darandha, Guwahati and out of their wedlock, a female child namely, Nilofar Hussain, born on 27.02.1989. After few years, marital discord surfaced between the petitioner and the opposite party and ultimately on 23.06.2020 the petitioner has divorced the opposite party by completing the rituals of Talaq-Ul-Hasan, as per Islamic rights and rituals. But, the said divorce could not be registered at that point of time due to ongoing pandemic situation at the relevant time and the same was registered on 25.01.2023, and a Divorce Certificate was issued to him by the Muslim Marriage Registrar, Barpeta, Assam and that even after the rituals of Talaq-Ul-Hasan, the opposite party No.2 and her daughter and son-in-law forced the petitioner to transfer his Flat No. 101 at 1st floor of Kaveri apartment in the name of his daughter and son-in-law and when the petitioner refused to do the same, then he was subjected to both physical and mental harassment and he was assaulted on 20.10.2021, for which, he filed one FIR with the Dispur P.S. upon which Dispur P.S. Case No. 3851/2021, u/s 120(B)/ 387/ 342 of IPC has been registered. Thereafter, the opposite party No. 2 had instituted a proceeding under Domestic Violence Act before the Court of learned Judicial Magistrate 1st Class, Kamrup (M) alleging commission of domestic violence upon her wherein she prayed for amongst other to direct the petitioner to pay an amount of Rs.10,00,000/- to her being the compensation for damage and also for issuing direction to the petitioner not to alienate his property i.e. Flat No. 101, to any one and to stop domestic violence and not to aid or abate commission of any domestic violence act against the petitioner.

Upon the said proceeding the learned Court below has issued notice to the petitioner and on receipt of which the petitioner appeared before the learned Court below.”

5. Being aggrieved, the petitioner approached this Court on the following grounds:

(i) That, the provision of Domestic Violence Act is not applicable in the present case inasmuch as the petitioner has divorced the opposite party on 23.06.2020, and the same came to be registered on 25.01.2023 and existence of domestic relationship is the condition precedent for initiating a proceeding u/s 12 of Domestic Violence Act against the petitioner and as the same does not exist continuation of the proceeding before the learned Court below is nothing but an abuse of the process of the Court.

(ii) That, since the domestic relationship between the petitioner and the opposite party ceases to exist before filing of the application, the impugned proceeding being Misc. Case No. 166/2021 as well as the order passed by the learned Court below is not maintainable.

(iii) That, the petitioner and opposite party No. 2, being Muslim is governed by the provision of Muslim Personal Law i.e. Muslim Personal (Shariat) Application, 1937 and the petitioner has already executed the Talaq as per the Shariat law and the validity and legalit

Click Here to Read the rest of this document