Court:Calcutta High Court
Bench: JUSTICE Joymalya Bagchi
Suman Ghosh vs Unknown On 10 February 2017
Law Point:
Protection of Women from Domestic Violence Act – Adequate compensation in lieu of alternate accommodation in addition to monetary relief is appropriate.
JUDGEMENT
The petitioner is the husband of the opposite party no.2 and it appears that the marriage was solemnized between the parties on 9.3.2008. It has been alleged that on the demand of the petitioner and in-laws a sum of Rs.2.5 Lacs was paid and as further demand of dowry was not met, she was subjected to mental and physical torture.
It has also been alleged that the petitioner had compelled her to stay in the same room with another person, namely, Koushik Mitra. It is alleged that in 2008 an attempt was made to drown her at the sea in Vishakhapatnam and thereafter she was assaulted and driven out of the matrimonial home on 30.9.2009.
On the institution of the proceeding, report was sought for from the Protection Officer and notice of the proceeding was sent to the address of the petitioner at Sevok Pally, Raiganj, Uttar Dinajpur. The petitioner was not found at the residence. However, the notice was served upon his mother who, it is claimed, had a telephonic conversation with the petitioner about the institution of the said proceeding. It also appears that the notice was pasted on the outer wall of the said premises at Raiganj, Uttar Dinajpur.
The petitioner, however, did not appear in the proceeding claiming that notice of the proceeding was not served upon him in the instant case and the learned Magistrate heard the matter ex parte and on the basis of the evidence adduced by the opposite party no.2 / wife passed the order dated 18.12.2012 granting monetary relief and/or residence order, as aforesaid. Such order came to be challenged in appeal, which was dismissed by the impugned order.
Mr. Ganguly, learned senior counsel appearing for the petitioner submits that it was within the knowledge of the opposite party no.2 that the petitioner was residing at Kolkata where he is working for gain. However, no effort was made to serve upon the petitioner at his residence at Kolkata and service of the notice at Raiganj, Uttar Dinajpur is insufficient service and contrary to law. Service of notice upon the mother of the petitioner would not tantamount to service upon the petitioner and, therefore, the appellate court ought to have remanded the matter for fresh consideration.
He also submitted that the order of monetary relief and residence order was passed without considering the materials on record and is unjustified in the facts of the case.
On the other hand, learned lawyer for the opposite party no.2 submitted that service was done in terms of Rule 12 of the Protection of Women from Domestic Violence Rules and the petitioner was, in fact, aware of the said proceeding as the notice of the proceeding was served upon his mother who is a co-respondent in the matter and she had a telephonic conversation with the petitioner as would be evident from the report of the Protection Officer.
It is also submitted that the petitioner intentionally chosen not to appear in the proceeding and has subsequently sought to raise the plea of non-service at the appellate stage to cause dilation and protraction of the proceeding.
It is, therefore, submitted that the impugned order does not call for any interference.
The principal issue which falls for decision is whether notice of the proceeding was effected upon the petitioner in accordance with law or not.
Procedure for conducting proceeding under the provisions of the 2005 Act is laid down in sections 13, 23 and 28 of the said Act.
Section 13 of the Act provides for the manner of service of notice on the respondent and lays down that the report of the Protection Officer in that regard is proof of such service.
Section 23 of the said Act empowers the Magistrate, inter alia, to pass ex parte order while Section 28 of the said Act, inter alia, provides that the proceeding shall be governed by the provisions of Code of Criminal Procedure.
Sections 13, 23 and 28 of the said Act reads as follows :-
“Sec. 13 – Service of notice – (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved. ”
“Sec. 23 – Power to grant interim and ex parte orders – (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the 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 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”
“Sec. 28 – Procedure – (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.”
Mode of service of notice upon the respondent is governed by Rule 12 of the Protection of Women from Domestic Violence Rules.
Rule 12 reads as follows :-
“Rule 12. Means of service of notices. – (1) The notices for appearance in respect of the proceedings under the Act shall contain the names of the person alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of person concerned.
(2) The service of notices shall be made in the following manner, namely :-
(a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the Protection Officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be.
(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises.
(c) For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted.
(d) Any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908 (5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the Court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.
(3) On a statement on the date fixed for appearance of the respondent, or a report of the person authorized to serve the notices under the Act, that service has been effected appropriate orders shall be passed by the Court on any pending application for interim relief, after hearing the complainant or the respondent, or both.
(4) When a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered as waiving the restraint imposed on the respondent, by the order of the Court, unless such protection order is duly modified in accordance with the provisions of sub-section (2) of section 25.” A plain reading of the aforesaid rule would show that the notice of the proceeding shall be served by the Protection Officer or any other Officer as directed by him on his behalf at the address where the respondent is stated to be ordinarily residing in India or is gainfully employed. Such notice shall be delivered to any person in charge of such place at the moment and if it is possible it shall be pasted at the conspicuous place of the premises. It is further provided that for the aforesaid purpose provisions of Order V of the Code of Civil Procedure or the provisions of Chapter VI of the Code of Criminal Procedure shall apply as far as practicable.
It is also provided that orders may be passed by the Magistrate for effecting service through any other mode which may be necessary for expediting the proceeding and adhering the time limit prescribed in the Act.
A conjoint reading of the aforesaid provisions of the Act and the rules framed thereunder make it clear that the service of notice upon a respondent may be at the place where he ordinarily resides or carries on business through the Protection Officer or his delegatee or through any other mode which is prescribed under Order V of the Code of Civil Procedure or Chapter VI of the Code of Criminal Procedure or in such other manner as the Magistrate may direct for expeditious disposal of the proceeding within the stipulated timeframe. Declaration of service of notice in the report of the Protection Officer shall be proof of service upon the respondent.
In the facts and circumstances of the case it appears from the report of the Protection Officer that notice was sought to be served upon the respondent and his family members at his permanent place of residence i.e. at Sevok Road, Raiganj. In fact, his mother, a co-respondent was served at that address. The notice issued upon the petitioner was also handed over to the mother who was the person in charge of the residence at the time of effecting service in terms of sub-rule (2) of Rule 12, as aforesaid. In addition thereto, the notice was pasted on the outer wall of the said premises. It has also transpired from the report of the Protection Officer that a telephonic communication had taken place between the mother and the petitioner over the said report. This, however, is disputed by the learned counsel appearing for the petitioner. Even if one discounts such telephonic communication as transpiring from the report of the Protection Officer, it cannot be denied that service of the notice was effected upon the mother of the petitioner on his behalf who was in charge of the permanent residence of the petitioner at the time of effecting the service and such notice was also pasted on the outer wall of the said premises as required by Rule 12(2) (supra).
It has been strenuously argued that the petitioner at the time of institution of the proceeding was not ordinarily residing at the said place but was residing at Kolkata which was his place of employment. It may be true that the petitioner was temporarily residing in Kolkata in connection with his work, but it cannot be denied that the service of notice on the petitioner at Raiganj was at his permanent place of residence and may be treated to be his ordinary place of residence for the purpose of Rule 12(1) of the aforesaid rules in the facts and circumstances of the case.
The aforesaid factual matrix in my opinion clearly shows that service was effected on the petitioner at his ordinary place of residence at Raiganj at the time of institution of the said proceeding and bearing in mind the nature of the proceeding and the legislative intent of expeditious disposal of such proceeding, such a service upon the petitioner cannot but be construed to be a good service in the eye of law. Additional service at Kolkata, where he is residing in connection with his employment, therefore, was not a sine qua non for good service under the Act and the rules framed thereunder.
Hence, I am unable to accept the contention of the petitioner that the proceeding had continued without effective service upon him. It has been argued that an opportunity may be extended to the petitioner in the factual matrix of the case to present his case before the learned Magistrate, but I am unwilling to do so for the following reasons.
It appears that not only service was effected upon the petitioner at his permanent place of residence but the co- respondent who is his mother was duly served and it is difficult to believe that the petitioner was not aware of the institution of the said proceeding.
Proceeding under the provisions of the Act of 2005 required to be expeditiously disposed of from the date of service of notice upon the opposite party. In fact, the necessity to dispose of the proceeding at an early date is a relevant consideration under Rule 12 for the Court to resort to any other mode of service of notice upon the respondent to achieve such legislative intendment. In the facts of the instant case the petitioner was not only served at his permanent place of residence at Raiganj by pasting the notice at the outer door of the said premises but was definitely aware of the said proceeding as his own mother had been personally served notice of the said proceeding. It is nobody’s case that the petitioner and his mother are not on talking terms. A desperate plea that the relationship between the mother and the son are inimical was sought to be raised for the first time before this Court but in the absence of any cogent material in that regard, such plea cannot be accepted at all.
I am, therefore, convinced that the petitioner was aware of the institution of the proceeding and had intentionally resorted to the subterfuge of not participating therein and permitted the proceeding to be disposed of ex parte and thereafter has assailed the impugned order at the appellate stage raising a plea of breach of natural justice and due process and prayed for remand for fresh consideration. Such subterfuge adopted by a scheming litigant ought not to be entertained and in the factual backdrop of the instant case where service was, in fact, effected upon the petitioner in terms of Rule 12 of the aforesaid Rules and even his mother was aware of the proceeding by effecting service upon her and had communicated such fact to her son as appearing from the report of the Protection Officer and also in view of the fact that the petitioner had been given adequate opportunity of hearing on fact and law at the appellate stage, I am of the opinion that no worthwhile purpose would be served in setting aside the impugned order and remanding the matter for fresh consideration before the Trial Court.
Coming to the merits of the case, I find that the relationships between the parties are admitted. Petitioner is an I.T. professional and has sufficient income. I have perused the salary slip as well as the income-tax returns filed by the petitioner and taking into account of the statutory deductions, the net income of the petitioner appears to be around Rs.40,000/- per month. In view of the aforesaid fact, the quantum of monetary relief awarded to the opposite party/wife does not appear to be grossly disproportionate and is upheld. However, I am of the opinion that the residence order as directed by the learned Court below requires modification. I find that the parties are litigating on various fronts and it may not be congenial for safe and healthy living to permit the opposite party no.2 to stay in the said premises with the petitioner.
It also appears that the parties are unwilling to come to a mutually agreed decision as to alternate accommodation which may be made available by the petitioner to the opposite party no. 2 by way of her residence. Hence, I am inclined to award adequate compensation in lieu of alternate accommodation to the opposite party no.2 in addition to the monetary relief as awarded by the courts below.
Accordingly, the residence order is modified and the petitioner is directed to pay compensation at the rate of Rs.5,000/- per month in lieu of alternate accommodation from the date the opposite party no. 2 vacates the shared household at Raiganj in addition to the monetary relief, as aforesaid. The opposite party no.2 undertakes to vacate the shared household within a month from date.
With the aforesaid modification the revisional application is disposed of.
In view of disposal of the revisional application the connected application being CRAN 420 of 2017 is also disposed of.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
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