Calcutta High Court (Appellete Side)
Sheikh Asifuddin vs Nazia Parveen & Anr on 11 December, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
11.12.19
Sl.no. 08
Ct. No. 35
P.M.
C.R.R. 2730 of 2019
With
C.R.A.N. 4507 of 2019
Sheikh Asifuddin
- vs -
Nazia Parveen & Anr.
Mr. Tushar Kanti Mukherjee,
Mr. M. Pal
... for the petitioner.
Sk. Nizamuddin,
Mr. Subir Banerjee,
Mr. P. Pathak
... for the opposite party No. 1
Affidavit of service filed by the petitioner be kept on record.
I have heard learned counsel of both the parties. In this revisional
application the husband has sought for quashing of the proceeding being
complaint case No. 6101 of 2015 under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 pending before the learned
Judicial Magistrate, 2nd Court, Alipore wherein the impugned notice has
been issued by the Judicial Magistrate upon the petitioner/husband to
appear before the Court on 03.10.2019 for show cause as to why distress
warrant shall not be issued against him in the Execution Case No. 385 of
2019. In this regard Mr. Banerjee, learned advocate appearing for the
opposite party/wife submits that the Judicial Magistrate has already
passed an award of Rs. 4,000/- per month vide the order dated 3rd
February, 2017 under the provisions of Section 23 of the Protection of
Women from Domestic Violence Act arising out of Section 12 of the Act
towards interim maintenance which has not been paid by the present
petitioner/husband and for that the said Money Execution case No. 385 of
2019 has been instituted by the opposite party /wife only the distress
warrant is likely to be issued against the petitioner when the petitioner has
sought for quashing of the proceeding under Section 12 of the Protection of
Women from Domestic Violence Act on the ground that the opposite party
had initiated a police case being Jadavpur P.S. Case No. 468 dated
08.11.2015 under Section 498A/406 and 34 of Indian Penal Code against
the petitioner and other inmates of the family. In the said criminal
proceeding stridhan property has been seized in compliance of the
Magistrate orders which were handed over to the opposite party /wife.
There is no dispute to this fact.
In this regard Mr. Tushar Kanti Mukherjee submits that the
complaint case being Jadavpur P.S. Case in aforesaid was registered at the
instance of the opposite party /wife only that by which in amount to get
the return of the stridhan properties and file maintenance payable to her.
It is evident that interim maintenance has already been granted to the
opposite party No. 1 under the provisions of Section 23 of Protection of
Women from Domestic Violence Act. It is yet to be paid by the petitioner. In
the application for protection order to opposite party has prayed for
maintenance of Rs. 10,000/- per month for food, clothing medical
treatment, medicine and for other alternative accommodation. It is
submitted that the opposite party has earning to Rs. 17,000/- per month
and there is denial of any torture meted out to her by the petitioner herein.
It is pointed out that opposite party has left her matrimonial home
voluntarily and the seized articles has already been handed over to the
opposite party. The opposite party No. 1 has left the matrimonial home on
her own and has taken shelter in her father's place and wants to live
separately to look after her old age parents. Accordingly, it is submitted
that there is no occasion in domestic violence meted out to the opposite
party so the application for Protection of Women from Domestic Violence
Act is not maintainable. In this regard, the opposite party No. 1 has not left
her matrimonial home on her own rather circumstances compelled her to
leave her matrimonial home because of the violence meted out to her. It is
also submitted that allegation against the petitioner is grave. My attention
is drawn to the contention made in paragraph 8 of the application under
Section 12 of the Protection of Women from Domestic Violence Act to this
effect that few days after the marriage respondent 3 and 4 had expressed
their dissatisfaction about the marriage gift as they expected more gold ornaments and all the respondents started abusing the applicant and told her to bring Rs. 50,000/- cash one A.C. Machine and Washing machine from her father who is a retired person and thus the mental pressure was created on her and was subjected to various torture and there was instigation upon her to commit suicide by setting fire or by hanging.
Therefore, allegations so made required to be ascertained and decided in accordance with law.
Mr. Tushar Kanti Mukherjee, learned advocate appearing on behalf of the petitioner, invites my attention to averments made in paragraph 19 of the application under Section 12 of the Protection of Women from Domestic Violence Act to argue that, in substance, the opposite party no. 1 has prayed for a direction upon the present petitioner for arrangement of an alternative accommodation and also for a direction to pay a sum of Rs. 10,000/- per month as monetary relief. The opposite party no. 1 has also prayed for compensation and damages of Rs. 10,000/- for the mental and emotional distress suffered by her.
Mr. Mukherjee also invites my attention to the first information report lodged by the opposite party no. 1 at Jadavpur Police Station wherein she has mentioned about her salary of Rs. 12,000/- per month and has alleged to have left her matrimonial home and, thus submitted that she has her own earning and, as such, there is no justification for grant of any maintenance to her.
It is further pointed out that application under Section 12 of the Protection of Women from Domestic Violence Act has been filed after institution of the Jadavpur Police Station case under reference. Adverting to the order dated December 9, 2015 passed by the learned Additional Chief Judicial Magistrate at Alipore, South 24-Paraganas, in connection with the said Jadavpur Police Station case, it is submitted that the opposite party/wife has already received the seized articles as per the seizure list of the investigating officer in connection with the said case under Section 498A/406/34 of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act.
It is also pointed out as regards the income of the petitioner that the petitioner is employed as security guard employed by Nirmal Bang Group and is placed in the services of ICICI Limited and that his annual income is Rs. 48,000/-, as it would appear from annexures X-3 and X-4, whereas learned advocate for the opposite party no. 1 has submitted that this petitioner has already submitted a document in the proceeding before the learned Magistrate to show that he is not in the employment of his erstwhile employer from whom he had obtained a certificate of service rendered by his for a considerable period at a salary of Rs. 25,000/-.
In my view, all these issues can be decided by the learned Magistrate at the stage of trial by adducing evidence.
It appears that an interim maintenance under Section 23 of the Protection of Women from Domestic Violence Act in C. Case No. 6101 of 2015 was awarded to the opposite party no. 1 vide order dated February 3, 2017 by the learned Judicial Magistrate, Second Court at Alipore, to the tune of Rs. 4,000/- per month with a direction upon the present petitioner/husband to make such payment within tenth of every succeeding month for which the same is due and payable. Thereafter the matter was listed before the learned Magistrate on April 3, 2017 for filing written objection by the remaining opposite parties, otherwise the case was directed to proceed ex parte.
This order of maintenance was put into execution giving rise to Money Execution Case No. 53 of 2018, which case was dismissed literally for default as it appears from the order dated March 2, 2019, although in the ordering portion, the learned Magistrate recorded that the execution case was dismissed for non-prosecution. In the context of the observations made, it could not be dismissed for non-prosecution rather dismissed for default. However, this order cannot be terms as estoppel or res judicata for further proceeding of the execution for realisation of the awarded maintenance and for that further execution case being Money Execution Case No. 385 of 2019 has been instituted by the wife against her husband and in that proceeding, an order, calling upon the petitioner herein to show cause vide order dated July 23, 2019.
Therefore, there is no distress warrant as such issued at that stage, whereas in the revisional application in its caption, the petitioner/husband has sought for quashing of the said order dated July 23, 2019 as if the order has been passed calling upon the present petitioner to show cause as to why distress warrant should not be issued against him. The stage has not reached as yet for issuance of any coercive measure against the present petitioner/husband.
It is pointed out that subsequent to filing of this revisional application, an application on behalf of the opposite party no. 1 was filed before the learned Magistrate with a prayer for issuance of warrant of arrest against the husband for realisation of the arrear monetary relief of Rs. 48,000/- for the period from June 2018 to May 2019 and further my attention is invited to an order dated November 16, 2019 which reflects that the present petitioner was absent by petition and by filing fresh vakalatnama and was directed to bring stay order from the High Court.
Therefore, it can safely be said that there is no order passed by the learned Magistrate in allowing the application of the opposite party no. 1 for issuance of any coercive process against the petitioner/husband. As such, I do not find any reason to quash the order as impugned in the revisional application.
However, as I have already discussed in the foregoing paragraphs, the issues which have been raised in this revisional application are the subject matter or issues in the proceeding before the learned Magistrate, which can be decided on evidence. The learned Magistrate shall take steps for disposal of the application under Section 12 of the Protection of Women from Domestic Violence Act as expeditiously as possible, preferably within six months as required under sub-section (5) of Section 12 of the said Act.
If thereby any likelihood of conciliation or mediation between the parties they would be at liberty even at the stage of trial before the learned Magistrate.
For the reasons sated above, the revisional application being C.R.R. 2730 of 2019 is dismissed.
Thus, C.R.A.N. application being No. 4507 of 2019 stands disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on completion of all necessary formalities.
( Shivakant Prasad, J.)