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Faruk Sekh v. State of Assam, (Gauhati) : Law Finder Doc Id # 2374101

GAUHATI HIGH COURT
Before:- Mitali Thakuria, J.
Crl.Pet./582 of 2019. D/d. 15.05.2023.
Faruk Sekh And 2 Ors. - Petitioners
Versus
The State of Assam And Anr. - Respondents
Advocate for the petitioners : Mr. M. H. Ahmed, Advocate.
Advocates for the respondents : Mr. M. P. Goswami, Addl.P.P.
Mr. M. J. Quadiri, Advocate R-2
Criminal Procedure Code, 1973, Section 482 - Protection of Women from Domestic Violence Act,
2005, Sections 23 and 26(3) - Quashing of order taking cognizance - Petitioner, an unemployed
individual, alleges harassment and theft by their spouse, the respondent - Petition contends
that the Domestic Violence Act proceedings were initiated out of grudge, without proper
inquiry, and that the respondent failed to disclose the maintenance received under Section 125
- Two cases pending against petitioner No. 1, one under Section 125, Cr.P.C. and another under
Domestic Violence - Two orders of maintenance passed in both cases - Respondent No. 2-wife
cannot claim for maintenance in both cases at same time - Its also her duty to inform either of
Court regarding orders of maintenance passed by respective Courts - But, prayer for, other
relief, of respondent No. 2 cannot be overlooked - Maintenance granted in other proceeding
can be adjusted - Statement of interim relief of maintenance order passed under Section 125
may not be disclosed, as petition for Domestic Violence Act filed prior to passing of that order
- Not fit case to quash entire proceeding of Domestic Violence Act, registered as Complaint
Case as well as order of taking cognizance and impugned order of maintenance.
[Paras 11, 12, 14 and 16]
E/93700/04/24

Cases Referred :-
Haresh Dayaram Thakur v. State of Maharashtra, 2000 (6) SCC 179
Sudeep Chaudhary v. Radha Chaudhary, A.I.R 1999 SC 536
JUDGMENT AND ORDER (CAV)
Mitali Thakuria, J. - Heard Mr. M. H. Ahmed, learned counsel for the petitioners. Also heard Mr. M.
P. Goswami, learned Additional Public Prosecutor representing the State respondent No.1 and Mr. M.
J. Quadiri, learned counsel for the respondent No.2.
2. This Criminal petition is filed under Section 482 of the Code of Criminal Procedure, 1973, praying

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for setting aside and quashing of the impugned complaint petition registered as No.75m/2017, which
is pending before the Court of learned Judicial Magistrate, 1st Class, Kamrup(M), Guwahati, and the
order dated 14.06.2017 for taking cognizance, and impugned order dated 02.03.2019, whereby, the
Maintenance of Rs.5000/-(Rupees Five Thousand) only granted in favour of the respondent No.2 and
to the child.
3. The brief facts leading to the filing of the present petition is that;
3.1 The petitioner No.1 is an unemployed person having no source of income of his own. The
petitioner Nos. 2 and 3 are his parents, suffering from various ailments. In the year 2015, the
petitioner No.1 got married with the respondent No.2 and since after the marriage, the respondent
No.2 started to torture the petitioner No.1 by various ways, and also insulted the accused petitioner
No.1 that he has no source of income. After marriage, the respondent No.2 also pressurized the
petitioner No.1 to transfer the property in her name. She also compelled the petitioner No.1 to live
separately from his parent's. As per the wish of the respondent No.2, the petitioner started to live
separately in the house of the respondent No.2 as a "Ghar Jamai". Both the petitioner No.1 and the
respondent No.2 are the parents of one male child, who was born out of their wedlock, but, even
then, the respondent No.2 refused to stay along with the parent's of the petitioner No.1.
3.2 On 29.06.2016, the respondent No.2, fled away, after stealing the gold ornaments worth
Rs.3,00,000/-(Rupees Three Lakhs) approximately, and for which reason, the petitioner No.1 had
lodged an FIR against her. On the ground of lodging the FIR, and also for not fulfilling her demand,
the respondent No. 2 filed a petition under Section 125 Cr.P.C., which was registered as F.C.(Crl) Case
No.09/2017, before the learned Principal Judge, Family Court-II, Kamrup(M), wherein, she prayed for
Rs.25,000/-(Rupees Twenty-Five Thousand) only per month as a maintenance for herself and for the
child.
3.3. In the meantime, for no action of the Police, with respect to the FIR, the petitioner No.1 filed a
protest/complaint Case No.1217/2017, before the Court of learned Judicial Magistrate, 1st Class, which
is still pending in trial stage.
3.4. During the pendency of the petition under Section 125 Cr.P.C., the respondent No.2 submitted a
complaint in the District Welfare Officer, Kamrup(M), with some false and concocted allegation by
suppressing the facts of the pendency of the petition under Section 125 Cr.P.C against the
petitioners. The District Social Officer, without making any enquiry or verification forwarded the
complaint to the Court of the learned Chief Judicial Magistrate, Kamrup (M), Guwahati. Further, the
learned Judicial Magistrate, without recording the statement of the respondent No.2, vide impugned
order dated 14.06.2017, took cognizance against the petitioners under the provision of Domestic
Violence Act and issued notices upon the petitioners.
3.5. On receipt of the notices, for the Domestic Violence Act, the petitioners appeared before the
learned Trial Court and also filed their written statements narrating the actual facts of the case in
detail.
3.6. In the meantime, the learned Principal Judge, Family Court-II, Kamrup (M), vide order dated
24.07.2018, directed the petitioner No.1, to pay a sum of Rs.1,000/-(Rupees One thousand) only per
month as an interim maintenance, considering the facts, that the petitioner No.1 has no source of
income, whereas the respondent No.2 is earning more than 30,000/-(Rupees Thirty Thousand) only
by serving in a commercial school and also by running a shop.
3.7. Further, in the case of Domestic Violence, the petitioner No.1 raised objection against the prayer

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for interim maintenance. It was also submitted that considering the financial status of the
petitioner No.1 and the respondent No.2, the learned Family Court granted reasonable maintenance
of Rs.1,000/-(Rupees One Thousand) only as an interim maintenance. But, the learned Magistrate
vide impugned order dated 02.03.2019, directed the petitioner No.1 to pay a sum of Rs.5,000 (Rupees
Five Thousand) only as interim maintenance for the respondent No.2 and child.
3.8. The petitioner No.1 also submitted that the facts stated in the petition under Domestic Violence
Act is totally different from the facts narrated in the petition under Section 125 Cr.P.C., which
otherwise establishes that the case filed under Domestic Violence Act is totally false and concocted
one. But, the learned Judicial Magistrate, without making any enquiry or obtaining any report from
the Protection Officer, had taken cognizance directly against the petitioners, which is nothing but
abuse of judicial power.
3.9. The petitioners further submitted that when maintenance of Rs. 1,000/- (Rupees One Thousand)
only has been granted by the learned Principal Judge, Family Court-II, Kamrup (M), considering the
earnings of the petitioner No.1. But, the learned Judicial Magistrate, 1st Class passed the order of
maintenance of Rs.5000/-(Rupees Five Thousand) only per month, which is highly exorbitant and
illogical. Further, the respondent No.2 obtained the order of maintenance suppressing the fact of
interim maintenance granted by the Court of learned Principal Judge, Family Court-II, Kamrup (M),
which is bad in law and unjustified.
4. Accordingly, in the instant petition, the petitioners has prayed for setting aside and quashing of
the proceeding of the cognizance order dated 14.06.2017 and also the interim maintenance order
dated 02.03.2019.
5. Mr. M. H. Ahmed, learned counsel for the petitioners has submitted that the entire proceeding of
the case under the Domestic Violence Act has been initiated against the petitioners only out of
grudge. But, no enquiry was made either by the District Social Officer or by any authority or by the
Magistrate and no information was provided to the petitioners in this regard. Thus, the report and
the entire proceeding are illegal, and bad in law.
6. The learned counsel for the petitioners also submitted that the respondent No.2 had not informed
the Court that she is availing the benefit of interim maintenance of Rs.1,000/-(Rupees One
Thousand) only under Section 125 Cr.P.C. He further submitted that, it is mandatory for disclosure of
such fact under Section 26(3) of the Domestic Violence Act. The Section 26(3) under the Domestic
Violence Act, which read as under:-
"Section 26.........(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought
in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the
aggrieved person and the respondent whether such proceeding was initiated before or after
the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with
any other relief that the aggrieved person may seek in such suit or legal proceeding before a
civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other
than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of
such relief."
7. It is submitted that, as per the provisions of Section 26(3) of the Domestic Violence Act, it is the

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duty of the respondent No.2 to inform the Magistrate about the relief obtained in maintenance
under Section 125 Cr.P.C. Hence, under the said provisions of Section 26(3), the petition under the
Domestic Violence Act is not at all maintainable, and it is liable to be set aside and quash the entire
proceeding. Moreover, it is also a fit case, where, the power of Section 482 of the Code of Criminal
Procedure, 1973 can be invoked.
8. In support of his argument, he further relied on the decision of the Hon'ble Apex Court, in the
case of Haresh Dayaram Thakur v. State of Maharashtra and others, reported in 2000 (6) SCC
179, wherein, para-20, it has been held that;
"Para-20.......In the case in hand, as appears from the materials on record, no such procedure
as prescribed under part-III of the Act has been followed by the conciliator. The conciliator
appears to have held some meetings with the parties in which there was discussion and
thereafter drew up the so called settlement agreement by himself in secrecy and sent the same
to the court in a sealed cover. Naturally the so called settlement agreement drawn up by the
conciliator does not bear the signatures of the parties. As the impugned order shows the said
settlement has been given a status higher than an arbitral award in as much as the court has
refused to even entertain any objection against the said settlement agreement reiterating the
position that the settle-ment arrived at by the conciliator will be binding on the parties. The
conciliator who is a former judge of the High Court and the learned Judge who passed the
impugned order failed to take note of the provisions of the Act and the clear distinction
between an arbitration proceeding and a con-ciliation proceeding. The learned judge in
passing the impugned order failed to notice the apparent illegalities committed by the
conciliator in drawing up the so called settlement agreement, keeping it secret from the parties
and sending it to the Court without obtaining their signature on the same. The position is well
settled that if the statute prescribes a procedure for doing a thing, a thing has to be done
according to that procedure. Thus the order passed by the High Court confirming the
settlement agreement received from the conciliator is wholly unsupportable."
9. The above referred judgment is seems to be passed in other context, and same is not applicable
in the present case. However, the only issue raised by the petitioners in this case, as to whether, the
provision of Section 26(3) of the Domestic Violence Act, proceeding before the learned Judicial
Magistrate 1st Class, under the Domestic Violence Act is maintainable or liable to be quash only on
the ground that the relief, which was granted to the present respondent No.2 by the learned
Principal Judge, Family Court-II, Kamrup (M), Guwahati, was not disclosed before the Court of
learned Judicial Magistrate, 1st Class, while granting the interim relief.
10. In this regard, the learned counsel for the respondent No.2, Mr. M. J. Quadiri, has submitted that
there is no bar in getting maintenance in two parallel proceedings under Section 125 Cr.P.C. and
under the Protection of Women from Domestic Violence Act. However, the person, who is getting
maintenance, is bound to inform the Court regarding granting of maintenance in the subsequent
proceedings. It is also submitted that the petition filed under Domestic Violence Act, the respondent
No.2 has not only claimed for her maintenance, but, some other relief are also sought for, under the
said petition. Hence, only for the payment of Rs.1,000/-(Rupees One Thousand) towards interim
maintenance by the learned Principal Judge, Family Court-II, Kamrup(M), the present case under
the Domestic Violence Act, is not liable to be quash and set aside by invoking the power under
Section 482 Cr.P.C.
11. So, after hearing the learned Advocates of both sides and also perusing the case record, it is
revealed that, the two cases are pending against the petitioner No.1, before the Court of learned

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Principal Judge, Family Court-II, Kamrup (M), under Section 125 Cr.P.C. and another case is pending
under the Domestic Violence, before the Court of learned Judicial Magistrate, Kamrup (M),
Guwahati. It is also a admitted fact that, two orders of maintenance were being passed by the Court
of learned Principal Judge, Family Court-II, Kamrup(M), and the learned Judicial Magistrate,
Kamrup(M) under the Domestic Violence Act. It is observed that, as per the Section 26(3) of the
Domestic Violence Act, it is the duty of the aggrieved person to inform the learned Magistrate about
the relief obtained in any other proceeding. But, it is to be seen as to whether only on that ground
of entire proceeding, which is pending before the Court of learned Judicial Magistrate, Kamrup (M),
can be set aside or quash. Though, it is also an admitted fact, that apart from the claim of
maintenance, the respondent No.2 also sought for other relief under Domestic Violence Act.
12. From the record, it is further, revealed that, this Court had passed an order dated 29.05.2019,
directing the petitioner No.1 to continue to pay a sum of Rs.4,000/-(Rupees Four Thousand) only per
month to the respondent No.2 in the case under the Domestic Violence Act by deducting an interim
maintenance awarded to the respondent No.2 to the tune of Rs.1,000/- (Rupees One Thousand) only
per month in the proceeding under Section 125 Cr.P.C., which is pending before the Court of learned
Principal Judge, Family Court-II, Kamrup (M).
13. In the said circumstances of this case, the petitioners may move an application before the
Principal Judge, Family Court-II, Kamrup (M), Guwahati intimating the interim maintenance
awarded by the Court of learned Judicial Magistrate, Kamrup (M), under the Domestic Violence Act
or the said Court can also be informed about the relief of maintenance awarded by the learned
Principal Judge, Family Court-II, Kamrup (M). The respondent No.2 cannot claim for the
maintenance in both the cases at the same time. It is also her duty to inform either of the Court
regarding the orders of maintenance passed by the respective Courts. But, the prayer for, other
relief, of the respondent No.2 cannot be overlooked. Thus, it cannot be a reasonable ground for
setting aside and quashing of the entire proceeding initiated under the Domestic Violence Act.
14. As per Section 26(3) of the Domestic Violence Act, the respondent No.2 has to disclose about the
relief, which was provided under Section 125 Cr.P.C., which is pending before the Court of learned
Principal Judge, Family Court-II. However, under Section 26(2), it is clearly stipulated that the
proceeding under the Domestic Violence Act can be sought for, in addition to other proceeding
before any Civil or Criminal Court. Therefore, the application under the Domestic Violence Act, 2005,
would be maintainable in addition to the order of maintenance under Section 125 Cr.P.C., if,
pending between the parties. The only requirement of law under Section 26(3) of this Act, is that, it
would act as to check and balance at the time, if, any enhancement is made by the Family Court.
The Hon'ble Supreme Court in Sudeep Chaudhary v. Radha Chaudhary, reported in A.I.R 1999 SC
536 has expressed the view that "the maintenance granted in other proceeding can be adjusted."
15. More so, it is seen that the order of cognizance was taken by the Court of learned Judicial
Magistrate, 1st Class on 14.06.2017, and the order of interim maintenance was granted on
24.07.2018, which is subsequent to the filing of the complaint petition under the Domestic Violence
Act. Hence, the statement of the interim relief of maintenance order passed by the Court of learned
Principal Judge, Family Court-II may not be disclosed in the petition under the Domestic Violence Act
as the petition for Domestic Violence Act was filed prior to the order passed by the Court of learned
Principal Judge, Family Court-II, Kamrup(M).
16. In view of above discussion, I find that it is not a fit case to quash the entire proceeding of the
Domestic Violence Act, which was registered as Complaint Case No.75m/2017, pending before the
Court of learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati, as well as the order of taking

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cognizance dated 14.06.2017, and the impugned order of maintenance granted on 02.03.2019, by
invoking Section 482 of the Code of Criminal Procedure. However, it cannot be denied that the
respondent No.2 is already getting a sum of Rs.1,000/-(Rupees One Thousand) only per month
towards the interim maintenance passed by the Court of learned Principal Judge, Family Court-II,
Kamrup(M) under Section 125 Cr.P.C. Hence, I find it justified to adjust the amount of maintenance
granted under Section 125 Cr.P.C. with the amount granted towards interim relief of maintenance
by the learned Judicial Magistrate, 1st Class. Kamrup (M) under the Domestic Violence Act.
17. Accordingly, I find that, till disposal of the proceeding under Section 125 Cr.P.C., the petitioner
No.1 is hereby directed to pay the maintenance in the instant proceeding by deducting the amount,
which was already granted by the learned Principal Judge, Family Court-II, as interim relief of
maintenance. And, after final disposal of the cases, the amount of maintenance may be adjusted
accordingly.
18. With the above observations, this criminal petition stands disposed of.
.

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