Calcutta High Court (Appellete Side)
Mrs. Nandita Sarkar Nee Sen vs Sri Tilak Sarkar & Ors on 28 October, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
28.10.2014
Item No. 1
s.das
CRR 2846 of 2013
Mrs. Nandita Sarkar nee Sen
Vs.
Sri Tilak Sarkar & Ors.
Mr. Subrata Bose,
Mr. Jayanta Banerjee
..... for the petitioner
Order dated 29th June, 2013 passed by the learned Additional
District and Sessions Judge, Fast Track, 1st Court at Howrah in
Criminal Appeal No. 72 of 2012 affirming the judgement and order dated
6th December, 2012 as passed by the learned Judicial Magistrate, 4th
Court at Howrah in Miscellaneous Case No. 269 of 2012 refusing
interim residence order/ monetary relief under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (Act of 2005) has
been assailed.
The facts of the case as alleged by the petitioner are to the effect
that the petitioner was married to one Saugata Sarkar (since deceased)
on 10th May, 2009 under the Special Marriage Act. At the time of
marriage, various articles including gold and silver ornaments were
gifted. Respondents no. 1 and 2 are the parents-in-law of the petitioner
and the petitioner resided in a domestic relationship with them at her matrimonial home in the course of her married life. The matrimonial life 2 of the petitioner was, however, unhappy. She found that her husband was not physically fit and suffered from various ailments. He was addicted to alcohol and other ill-habits. On 29th October, 2010 husband of the petitioner viz. Saugata Sarkar succumbed to his ailments and expired. After the death of her husband, the petitioner was forced to leave her matrimonial home which, according to her, was a 'shared household'. At that time she was handed over some of her ornaments which were gifted to her as stridhan at the time of her marriage. According to the petitioner, other stridhan articles were not returned to her and in spite of repeated requests respondents no. 1 and 2 have refused to return them to her. In this connection, on 4th February, 2011 the petitioner sent a lawyer's notice to respondent no. 1 demanding the remaining stridhan articles but there was no reply. On 16th February, 2012, the petitioner and her brother went to her matrimonial home for obtaining death certificate of her husband but not only the same was not handed over to them but they were abused and insulted by the parents-in-law of the petitioner. Brother of the petitioner diarised such event at the local police station. Thereafter, the petitioner has filed criminal case under Section 406 of the Indian Penal Code against the respondents no. 1 and 2. Respondent no. 1 is an employee of UCO Bank and has an income of Rs.45,530/- per month. Respondent no. 2, mother-in-law of the petitioner, is a school teacher and has an income of Rs.6,000/- per month. The petitioner is a victim of domestic violence 3 and has been neglected by the respondents. Accordingly, the petitioner sought interim relief to the tune of Rs.5,000/- per month as well as residence order in the shared household. The respondents no. 1 and 2 opposed such prayer. In their objection they pleaded that there was no domestic relationship by and between themselves and the petitioner. The petitioner was not entitled to any relief as sought for as the matrimonial home stood in the name of the respondent no. 1 and the same could not have been said to be 'shared household' of the petitioner. It was further pleaded that after the death of her husband she was not entitled to claim maintenance from the respondents who are the parents-in-law of the petitioner.
Learned Magistrate by the order dated 6th December, 2012 denied interim relief to the petitioner. The petitioner unsuccessfully assailed such order in appeal being Criminal Appeal No. 72 of 2012 which was also dismissed by impugned order dated 29th June, 2013.
Mr. Bose, learned senior Counsel appearing with Mr. Banerjee, learned Counsel, strenuously argued that admittedly there was a domestic relationship between the parties as respondents no. 1 and 2 are the father-in-law and mother-in-law respectively of the petitioner. Petitioner, being a widow, is entitled to maintenance from respondent no. 1 under the provisions of the Hindu Adoption and Maintenance Act, 1956 and, therefore, denial of such financial and economic assistance by him amounted to 'economical abuse' as defined under Section 3 of 4 the Act of 2005. He further submitted that the learned Courts below erred in law and illegally refused to grant interim monetary relief/residence order to the petitioner.
In spite of service, nobody appears on behalf of the respondents. I have considered the materials on record in the light of the submissions made on behalf of the petitioner. Section 19 of the Hindu Adoption and Maintenance Act, 1956 reads as follows:
"19. Maintenance of widowed daughter in law - (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance -
a) from the estate of her husband or her father or mother, or
b) from her son or daughter, if any, of his or her estate, (2) Any obligation under sub sec (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter in law has not obtained any share and any such 5 obligation shall cease on the remarriage of the daughter in law."
A perusal of the said provisions of law would show that a widowed daughter-in-law is entitled to maintenance from her father-in-law provided that the contingencies as enumerated in the aforesaid provision of law are satisfied. Hence, I am unable to agree with the findings recorded by the Courts below that in no case a widowed daughter-in-law is entitled to get monetary relief under the Act of 2005 from her father-in-law.
I find that there is no pleading in the application under Section 12 of the Act of 2005 that the aforesaid contingencies laid down in Section 19 (supra) are satisfied. It is, therefore, incumbent for the petitioner to establish the aforesaid contingencies on evidence and in the event she is able to do so she would be entitled to get monetary relief as defined under Section 20 of the Act of 2005 from the respondent no. 1.
I am, however, in agreement with the conclusion arrived at by the Courts below that such issues being essential questions of fact require to be thrashed out on evidence and it would be imprudent to extend interim relief to the petitioner on the basis of pleadings alone and that too when such pleadings are insufficient with regard to the existence of the contingencies which are conditions precedent for grant of relief of maintenance to the petitioner from her father-in-law. 6
With the aforesaid observations, the revision petition is disposed of. Trial Court is directed to proceed with the hearing of the main matter and conclude the same as expeditiously as possible preferably within a period of three months from the date of communication of this order. I make it clear that all issues are kept open and shall be decided on the basis of evidence adduced by the respective parties without being swayed by the observations made in the impugned orders.
Urgent certified copy of this order, if applied for, be supplied to the applicant upon compliance of necessary formalities.
(Joymalya Bagchi, J.)