Anil Kumar Gogoi vs Smti Kiron Gogoi

Mridul Kumar Kalita, J

Heard Mr. S. Nawaz, learned Amicus Curiae representing the petitioner. Also heard Mr. H. Gupta, learned counsel for the respondent.

This criminal revision under Sections 397/401 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Anil Kumar Gogoi, impugning the judgment dated 03.03.2012 passed in Criminal Appeal No. 25(4)/2011 by the learned Sessions Judge, Dibrugarh, whereby the First Appellate Court upheld the judgment and order of the learned Chief Judicial Magistrate, Dibrugarh passed on 08.09.2011, in Case No. 92C/2010. By the aforesaid judgment, the Court of learned Chief Judicial Magistrate, Dibrugarh had directed the petitioner to accommodate the respondent in one part of the RCC building i.e., shared household and to pay her Rs.3,000/- per month as maintenance allowance and another Rs.20,000/- as compensation for grievously hurting the respondent.

The facts relevant for consideration of the instant revision petition, in brief, are that the respondent had filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of learned Chief Judicial Magistrate, Dibrugarh which was registered as Case No. 92C/2010. In the said complaint, it was contended that the respondent got married to the present petitioner in the year 1990 and out of the said wedlock, two children were born who were aged about 14 years and 10 years respectively at the time of lodging of the complaint. It was alleged in the said complaint that the present petitioner was a habitual drunker and used to torture the respondent. In this regard, she had lodged a complaint before the Joypur Police Station, which was registered as Joypur P.S. Case No. 58/2008 under section 325 of the Indian Penal Code. It was also alleged in the complaint that on 30.12.2009, the present petitioner assaulted the respondent and caused fracture of her left arm and as such, she took shelter in the house of her sister since 14.01.2010. It was also contended that the present petitioner was an employee of Oil India Limited, Duliajan and was getting a monthly salary of Rs.50,000/- per month and also got an RCC house at Baghmara Gaon.

The present petitioner contested the Case No. 92C/2010 by filing a written objection wherein, it was contended that the respondent is not his legally married wife and that she is the wife of one Rama Kanta Dutta @ Akoman of Tipom Fakiyal Gaon and their marriage was solemnized in the year 1978 and three children were born out of this said wedlock. It was also alleged that the respondent was abandoned by her earlier husband due to some matrimonial discord and she stayed with the present petitioner for few years. A counter accusation was levelled against the respondent by the present petitioner in his written statement to the effect that it is the respondent who was a habitual drunker and was diagnosed with delusional disorder alcohol dependence and also had to stay in hospital for the same.

During the proceeding of the Case No. 92C/2010, the respondent adduced evidence of three witnesses including herself whereas the present petitioner examined five witnesses in support of his contention. However, the Court of learned Chief Judicial Magistrate, Dibrugarh had by judgment and order dated 08.09.2011 disposed of the said case by directing the present petitioner to accommodate the respondent in one part of his RCC house and to pay her monthly maintenance allowance of Rs.3,000/- and another amount of Rs.20,000/- as compensation.

Being aggrieved by the order dated 08.09.2011 passed by Chief Judicial Magistrate, Dibrugarh in Case No. 92C/2010, the present petitioner preferred an appeal under Section 29 of the Protection of Women from Domestic Violence Act before the Court of the learned Sessions Judge, Dibrugarh. The said appeal was registered as Criminal Appeal No. 25(4)/2011. However, after hearing both the sides and after considering the materials on record, the learned Sessions Judge, Dibrugarh by order dated 03.03.2012, dismissed the appeal preferred by the present petitioner.

Being aggrieved with the said decision of the First Appellate Court, the instant revision petition has been preferred by the petitioner. When this revision petition was called on for hearing before this Court, none had appeared for the petitioner's side. Hence, this Court, by order dated 02.04.2025, appointed Mr. S. Nawaz as Amicus Curiae for the petitioner.

The learned Amicus Curie has fairly submitted that the perusal of the impugned judgment itself shows that the evidence adduced by the petitioner himself before the Trial Court indicates that the respondent was living with him for last 20 years and out of their cohabitation, two children were born. Thus, the relationship between the petitioner and the respondent was in the nature of marriage and, therefore, there was a domestic relationship between them within the meaning of Section 2(f) of the Protection of Women from Domestic Violence Act. He has further submitted that though the petitioner has pleaded that the respondent was married before entering into a domestic relationship with him, however, he has not been able to strictly prove the earlier marriage of the respondent. In this regard, he submits that the Apex Court while considering the standard of proof of marriage in a proceeding under Section 125 of the Code of Criminal Procedure in the case of “Vimala (K.) Vs. Veeraswamay (K.)” reported in “(1991) 2 SCC 375” has observed that when any attempt is made by husband to negative the claim of neglected wife depicting her as a kept mistress on the specific plea, that she was already married, the court could insist on strict proof of the earlier marriage. However, in the instant case, the earlier marriage has not been proved by the present petitioner. He further submits that similar to the provision of Section 125 of the Code of Criminal Procedure, 1973 the provision of giving relief to a woman under Protection of Women from Domestic Violence Act is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to a deserted woman who was in a domestic relationship with a person.

The learned Amicus Curiae has also submitted that in exercise of revisional power, this Court cannot re-appreciate the evidence unless the finding arrived at by the Court below is totally perverse, which is not the case in the instant case.In support of his submission, he has cited a ruling of the Apex Court in the case of “Manju Ram Kalita Vs. State of Assam”, reported in “(2009)

13 SCC 330”.

On the other hand, learned counsel for the respondent has also submitted that the Trial Court as well as First AppellateCourt have arrived at a decision after considering the materials available on record and after appreciating the evidence led by both sides. He submits that the concurrent finding of both the Courts should not be disturbed by exercising revisional jurisdiction considering the fact that the Apex Court in the case of “Manju Ram Kalita Vs. State of Assam” (supra) laid down the law that unless there is a perversity, the concurrent finding of the Trial Court and the First Appellate Court should not be disturbed by re-appreciating the evidence by the third Court.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record.

The Apex Court in the case of “Manju Ram Kalita Vs. State of Assam” (supra) has observed as follows:-

“9. So far as Issue 1 is concerned i.e. as to whether the appellant got married with Smt Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.

This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.

“8. … The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.”

[Vide Firm Sriniwas Ram Kumar v. Mahabir Prasad [1951 SCC 136 : AIR 1951 SC 177] (AIR p. 179, para 8), Tulsi Das Khimji v. Workmen [AIR 1963 SC 1007] and Pentakota Satyanarayana v. PentakotaSeetharatnam [(2005) 8 SCC 67 : AIR 2005 SC 4362] .] Where the court below considered the material facts and did not take into consideration any inadmissible evidence, etc. the interference is not required by court on third instance. (Vide Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553].)”

From the above judgment of the Apex Court, it appears that, it is a settled legal proposition that if the Courts below have recorded the finding of facts, the question of re-appreciation of evidence by the third Court does not arise unless it is found to be totally perverse. It is also observed that the higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a Court cannot embark upon fruitless tasks of determining the issues by re-appreciating evidence.

In the instant case also, both the Trial Court and First Appellate Court have, on the basis of evidence on record, held that the petitioner and the respondent were in a domestic relationship for more than 20 years. Moreover, though the petitioner took plea that the respondent was previously married to a Rama Kanta Dutta, he has failed to strictly prove the fact of the said marriage in the proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005. While holding that the petitioner and the respondent were related through relationship in the nature of marriage, the Trial Court as well as the First Appellate Court have given reasons i.e., they live together as husband and wife and also two children were born out of the said relationship which was not denied by the petitioner. As such, the findings arrived at by the Trial Court and the First Appellate Court may not be regarded as perverse.

In view of the observation made by the Apex Court in the case of “Manju Ram Kalita Vs. State of Assam” (supra), this Court is of the opinion that it is not a fit case where the judgment of the First Appellate Court may be interfered with, in exercise of its revisional jurisdiction, as same cannot be regarded as perverse.

For the reasons stated hereinabove, this Criminal Revision Petition is accordingly dismissed.

Send back the Trial Court records as well as record of the Appellate Court to the concerned Court.