Calcutta High Court (Appellete Side)
In Re : Seema Begum vs State Of Maharashtra & Anr on 4 May, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
(03)
04.05.2018
(p.j.& a.r.)
C.R.R. No. 3001 of 2017
In re : Seema Begum ...Petitioner
Mr. Rajmohan Chattoraj
Mr. Neelendra M. Banerjee
Ms. Laila Khatun
...for the Petitioner
Mr. Ali Rizvi ... for the O.P. No. 2
(in person)
Mr. Aniket Mitra ... for the State
This is an application under Article 227 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure challenging the order no. 13
dated 23.08.2017 passed by the learned Additional District & Sessions Judge, Fast
Track Court- II, City Sessions Court at Calcutta in Criminal Appeal Case No. 53
of 2017 arising out of an order dated 6.4.2017 passed by the learned 15th
Metropolitan Magistrate in Miscellaneous Case No. 109853 of 2016 under Section
12 and 23(2) of the Protection of Women from Domestic Violence Act, 2005
pending before the learned 15th Metropolitan Magistrate at Calcutta, inter alia, on
the ground that "ex debito justitiae" the learned appellate Court below without
keeping the scheme of the DV Act in perspective that the said Act is a beneficial
legislation for the welfare of the exploited and wronged women of the country as
observed by the Hon'ble Supreme Court time to time, has failed to take
cognizance of the major misrepresentations by the Respondent no. 2 and the order
2
of the learned Magistrate though affirmed, the quantum of interim maintenance granted to the tune of Rs. 20,000/- per mensem by the learned Magistrate by discretionary power under Section 23 of the said Act, was reduced abruptly to Rs.
10,000/- per month without assigning any reason. That apart learned appellate Court below lacks jurisdiction as per the statutory provision under Section 23 of the said Act.
Mr. Rajmohon Chattaraj, learned counsel appearing for the petitioner, has referred to a case of Mr. Abhijit Bhikaseth Auti vs. State of Maharashtra & anr.
reported in Cr.L.J. (2009) 889 Bombay wherein one of the questions which arose for consideration was as to what is the scope of appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 and whether an appeal will lie under Section 29 of the said Act against every order passed by the learned Magistrate in proceeding initiated on the basis of an application made under Section 12 of the said Act.
My attention is invited to the observation made in paragraph 20 of the cited decision relying in the case of Ramdev Food Products Pvt Ltd. vs. Arvindbhai Rambhai Patel & others [(2006) 8 Supreme Court Cases 726] wherein the Apex Court dealt with an appeal provided under rule 1( r) of Order XLIII of the Code of Civil Procedure, 1908 against an interim order of injunction observing that the grant of an interlocutory injunction is an exercise of discretionary power and that normally the appellate Court should be slow to interfere with the discretionary jurisdiction of the trial Court. The observation so made by the Apex Court in paragraph 126 may be reproduced for profitable understanding as under :
3"126. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate Courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again."
Relying on the said observation by the Apex Court, in the said cited judgment, High Court concluded in paragraph 25 in its judgment as under :
"25. Thus, the conclusions which can be summarized are as under :
(i) An appeal will lie under section 29 of the said Act against the final order passed by the learned Magistrate under sub-section 1 of section 12 of the said Act:
(ii) Under sub-section 2 of section 23 of the said Act, the learned Magistrate is empowered to grant an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act. The power under sub-
section 1 is of granting interim relief in terms of sections 18 to 22 of the said Act. Before granting an interim relief under sub-section 1, an opportunity of being heard is required to be granted to the respondent.
(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will 4 interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.
(iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties."
Mr. Chattoraj has further relied in a case of Shamima Farooqui vs. Shahid Khan reported in 2015(5) SCC 705 at paragraph 14 wherein it has been observed that "sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.
Hon'ble Court while determining the quantum of maintenance in the case of Jasbir Kaur Sehgal Vs. Distt. Judge, Dehradun, reported in (1997)7 SCC 7, observed at para 8 thus: "8. .....The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time the amount so fixed cannot be excessive or extortionate."
Lastly, Mr. Chattaraj placed an authority in the case of Chitra Sengupta Vs. Dhruba Jyoti Sengupta, reported in AIR 1988 Cal 98, at para 9 wherein it has been observed monthly income of a husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is 5 considerably strained and the spouses are living apart for a considerably long period, the wife staying in India and the husband in the United Kingdom. In a case like this, the amount of the husband's income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income, the onus under S. 106, Evidence Act, would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. More so where, as here, the husband does not even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter behind legal technicalities."
It reflects from the decision that in such cases the husband has the knowledge of his income and earning in a month, the onus would lie on him to refute the contention of the wife. In this particular case, as per the averments made in paragraph 32 of the petitioner's application under Section 12 and Section 23(2) of the said Act, 2005 she has categorically averred that her husband works in a joint family business in the name and style Modern Electronics Service, Shop no. 7, S.P Market, 3 Dent Mission Road, Khidderpore, Kolkata-700023 and income from the said business is approximately Rs.1,50,000/- or even more in seasons as has been told by the respondent no. 1 himself. The opposite party herein contested petition by filing his written show cause but here is no categorical denial of the averment made by the present petitioner as regard earning of Rs. 1,50,000/- out of said family business. He simply averred that he earns salary of Rs.6,500/- per month.
On the basis of rival contentions by the parties the Magistrate entertained interim relief by granting maintenance award of Rs. 20,000/- per mensem to the petitioner by the impugned order on the finding simply stated that he was temporarily working as sales executive in a shop AVATECH and earns a sum of Rs.6,500/- per month.
6The Magistrate was of the view that the salary slip placed before him was a manufactured and fabricated document just to frustrate the right of the petitioner. Such observation was made by the Magistrate in the background of averment made in the affidavit of application for anticipatory bail when he stated that he was in self-employed occupation. It signifies that he was working in the family business.
The said order dated 06.4.2017 passed by the Magistrate was appealed against by the opposite party no. 2 husband in Criminal Appeal no. 53 of 2017 and the appellate court below entertained appeal under Section 23 of the Act and ultimately dismissed the appeal affirming the order dated 06.4.2017 passed by Metropolitan Magistrate, 15th Court, Calcutta, however, modified the quantum of interim maintenance to the tune of Rs.10,000/- till the disposal of the case on consideration that the appellant has definite source of income to maintain his wife. Although, ld. appeal court below was of the view that the order of interim maintenance of Rs. 20,000/-(twenty thousand) per mensem passed by the Magistrate was based on cogent evidence disclosing the source of income of the appellant and came to a finding that the order of the Magistrate called for no interference, nevertheless, order was modified by reducing the interim maintenance of Rs. 20,000/- to Rs. 10,000/- abruptly, contrary to his own finding.
Learned counsel appearing on behalf of the opposite party no. 1 also submits concurring with the submission of the learned counsel for the petitioner, Mr. Aniket Mitra.
The opposite party no. 2 in person submits by his own submits that it was really a mistake on his part for there is no categorical denial with regard to the family business and income of Rs.1,50,000/- per month therefrom.
Having heard the learned counsel for the parties, opposite party no. 2 in person and bearing in mind the principles of law held by the Hon'ble Apex Court in the cited decisions, the learned appeal Court below committed an error by reducing the interim relief of maintenance from Rs.20,000/- to Rs.10,000/-.
In the result, the revisional application being CRR 3001 of 2017 is allowed to the extent that reduction of maintenance awarded to the tune of Rs.10,000/-
7from Rs.20,000/- is hereby set aside and the order passed by the Metropolitan Magistrate, 15th Court, Calcutta in Miscellaneous Case no. 109853 of 2016 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 vide order dated 06.4.2017 stands revived.
CRR 3001 of 2017 is thus disposed of.
Urgent Photostat copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Shivakant Prasad, J.)