Calcutta High Court (Appellete Side)
An Application Under Section 482 Of The ... vs Ramiz Raja on 19 February, 2020
Author: Shivakant Prasad
Bench: Shivakant Prasad
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Sl. February C.R.R. 3628 of 2018
10. 19, 2020
In the matter of: An application under Section 482 of the Code of
Criminal Procedure;
And
In the matter of : Ramiz Raja
Versus
State of West Bengal & anr.
Mr. Debasis Kar,
Mr. Husen Mustafi,
...for the petitioner.
Mr. S. S. Imam,
Mr. S. Kundu,
...for the State.
Mr. Atis Kumar Biswas,
Mr. Amit Singh,
...for the opposite party no. 2.
In this revisional application, the petitioner/husband has assailed the judgment
and order dated October 5, 2018 passed by the learned Additional Sessions Judge at Tehatta, Nadia, in
Criminal Appeal No. 12 of 2017 thereby modifying the order dated January 17, 2017 passed by the
learned Additional Chief Judicial Magistrate at Tehatta, Nadia, in M.R. (D.V.) Case No. 14(iv) of 2017
under Section 12 of the Protection of Women from Domestic Violence Act.
The grounds taken in this revisional application are that the
appellate court below failed to appreciate the injury, for which the order of the
learned Magistrate was modified, was self inflicted injury and that the petitioner has
got other burdens and that the opposite party no. 2/wife is an earning lady who earns
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a colossal amount of money.
The brief facts leading to this revisional application is that the
wife/opposite party no. 2 filed an application under Section 23 of the Protection of
Women from Domestic Violence Act in the main proceeding pending in the court of
the learned Additional Chief Judicial Magistrate at Tehatta, Nadia, against the
petitioner/husband claiming a total sum of Rs. 25,000/- per month - Rs. 15,000/- per
month for herself and Rs. 10,000/- for the minor daughter. The petitioner and the
opposite party no. 2 both are primary school teachers and the opposite party no. 2
earns Rs. 24,000/- per month.
The learned Additional Chief Judicial Magistrate disposed of the
application under Section 23 of the Act directing the petitioner/husband to pay Rs.
5,000/- per month to the wife/opposite party no. 2 and Rs. 5,000/- per month to the
minor child by way of interim monetary relief.
The order passed by the learned Additional Chief Judicial
Magistrate, as above, was appealed against and the appellate court below modified
the interim monetary relief to the tune of Rs. 15,000/- per month in total - Rs.
10,000/- per month for the opposite party no. 2 and Rs. 5,000/- per month for the
minor child.
Hence, the present revisional application at the instance of the
petitioner/husband.
It is an admitted position that the opposite party no. 2 is a school
teacher and has her independent income by way of salary of Rs. 24,000/- per month.
To this effect, the appellate court below observed that the opposite party no. 2/wife is
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in permanent employment in the State of West Bengal working as a teacher and
draws net pay of Rs. 27,316/- as per her pay slip for the month of June 2018. Yet the
consideration for the grant of interim monetary relief was based on the prima facie
finding that there was domestic violence for which the wife/opposite party no. 2 filed
a criminal case under Section 498A/326/307/34 of the Indian Penal Code and
compelled to take shelter in her parental house with her minor child.
In this regard, the learned advocate for the petitioner submits that
the petitioner was admitted on anticipatory bail in connection with the said criminal
case for which the observation of the Hon'ble court was that the injury was self
inflicted and the medical assistance had already been rendered by the petitioner.
This fact cannot be a subject matter of consideration in this
proceeding, moreso whether the injury sustained by the opposite party no. 2 was self
inflicted injury or the same was sustained during domestic violence, for which a
criminal case has been lodged and is pending for trial, that can be decided on the
basis of evidence to be adduced by the parties. However, in my view, the learned
judges in the courts below were right in considering the prayer for interim monetary
relief made by the opposite party no. 2/wife.
The appellate court below has observed that it is apparent from
the documents submitted by the opposite party no. 2/wife that she has taken a loan of
Rs. 2,53,000/- for her medical treatment from a bank for which the equated monthly
instalment is Rs. 5,724/- per month for sixty months with effect from November
2015. It means that it was not the husband who had supplied such lump sum amount
to his wife for her medical treatment. It is also understood from the medical
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documents filed on behalf of the opposite party no. 2 that the wife is still under
medical treatment for burning sensation, itching and joint pain for which she requires
plastic surgery. Though it was found that the opposite party no. 2 had an earning of
Rs. 27,316/- per month, but considering the medical condition of the opposite party
no. 2 and her liability to pay the equated monthly instalment of Rs. 5,724/- for the
loan taken by her for her medical treatment, the learned Judge in the appellate court
below granted interim maintenance by the impugned judgment.
In this regard, the learned advocate for the petitioner submits that
the learned Magistrate had awarded the interim maintenance without considering the
domestic incidence report. It is obvious from the order passed by the learned
Magistrate that the matter was heard ex parte and the learned Magistrate while
considering the application under Section 23 of the Protection of Women from
Domestic Violence Act awarded interim monetary relief in favour of the opposite
party no. 2. The learned advocate for the petitioner relies on a unreported decision of
this court in C.R.R. 2381 of 2017 (Kuran Nandi vs. Smt. Kamana Nandi & anr.),
which was decided on February 16, 2018, to argue that without domestic incidence
report no interim relief can be granted.
In the said case, this court had observed that the learned judge
proceeded to grant interim monetary relief in the absence of any evidence on record
bearing in mind the domestic incidence report which is no doubt a prima facie
document, which might be relied on by the learned Magistrate while granting such
relief. This decision is in no way help the petitioner in the given facts of the case as
the fact of the instant case is quite distinguishable in the sense that there was
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observation to the effect that there was no relationship between the parties as married
couple. So, this court opines that no such evidence can be adduced to establish the
said fact. That apart, in the given case the domestic incidence report is very much
required.
The learned advocate for the petitioner next cites another
unreported decision rendered by a co-ordinate bench of this court in C.R.R. No. 1700
of 2014 (Biswajit Murmu & anr. vs. State of West Bengal & anr.) wherein it has
been observed that grant of monetary relief in the form of monthly maintenance
allowance can be interfered with by this court in order to prevent abuse of process of
court.
The learned advocate for the petitioner also cites a decision of
the Supreme Court in the case of Bhagwan Dutt vs. Kamla Devi & anr. reported in
(1975) 2 S.C.C. 386 to argue that separate income and means of the wife can be taken
into account in determining the amount of maintenance payable to her under Section
488 of the Code of Criminal Procedure. In the said decision, it was observed that the
said Section does not confer an absolute right on a neglected wife to get an order of
maintenance against the husband nor does it impose an absolute liability on the
husband to support her in all circumstances. The use of the word "may" in Section
488(1) of the Code of Criminal Procedure indicates that the power conferred on the
Magistrate is discretionary, though the discretion must be exercised in a judicial
manner consistently with the language of the statute and with due regard to other
relevant circumstances of the case. It was further observed that the object of Sections
488 to 490 of the Code being to prevent vagrancy and destitution, the Magistrate has
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to find out what is required by the wife to maintain a standard of living which is
neither luxurious nor penurious, but is consistent with the status of the family.
Now, the provisions of Sections 12, 20, 22 and 23 of the
Protection of Women from Domestic Violence Act are required to be taken note of.
Section 12 of the said Act provides that an aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act provided that before passing
any order on such application, the Magistrate shall take into consideration any
domestic incident report received by him from the Protection Officer or the service
provider.
The learned advocate for the opposite party no. 2 invites my
attention to the provisions of Section 20 of the Act, which relates to monetary reliefs,
to argue that monetary relief which has been awarded to the opposite party no. 2 by
the appellate court below is on account of the loss of earning and medical expenses.
In this regard, Mr. Debasis Kar, learned advocate for the petitioner, submits that
Section 20 clearly provides that while disposing of an application under sub-section
(1) of Section 12 of the said Act, the Magistrate may direct the husband to pay
monetary relief to meet the expenses incurred and losses suffered by the aggrieved
person and any child of the aggrieved person as a result of the domestic violence and
such relief may include the loss of earnings, the medical expenses, etc., but such
medical expenses or compensation or monetary relief on account of loss of earning
cannot be awarded under the provisions of Section 23 of the Act.
A decision of the Supreme Court is cited on behalf of the
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opposite party no. 2 in the case of Juveria Abdul Majid Patni vs. Atif Iqbal
Mansoori & anr. reported in (2014) 10 S.C.C. 736 wherein an observation has been
made by the Supreme Court to this effect that the monetary relief as stipulated under
Section 20 of the Act is different from maintenance, which can be in addition to an
order of maintenance under Section 125 of the Code of Criminal Procedure or any
other law. Such monetary relief can be granted to meet the expenses incurred and
losses suffered by aggrieved person and child of the aggrieved person as a result of
domestic violence, which is not dependent on the question whether the aggrieved
person, on the date of filing of the application under Section 12 of the Act is in a
domestic relationship with the respondent.
On a bare reading of Section 23 of the Act, this court finds that Magistrate can pass any interim order as he deems just and proper and that in the event the Magistrate is satisfied that the application filed in this regard on behalf of the aggrieved person discloses that the husband is committing or has committed an act of domestic violence or that there is a likelihood that the husband may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit of the aggrieved person in such form as may be prescribed under Sections 18, 19, 20, 21 or 22, as the case may be. Hence, the provisions of Section 20 relating to monetary relief on account of loss of earnings and/or medical expenses and the loss caused due to destruction, damage of removal of any property from the control of the aggrieved person can very well be granted by the learned Magistrate in ex parte manner.
Admittedly, this court finds that the opposite party No. 2/wife is a school teacher and the parties have been blessed with a daughter, who is now minor 8 and is in the custody of the mother/opposite party no. 2. Therefore, monetary relief as dns awarded in favour of the minor daughter cannot have any dispute and obviously no quarrel is there on that score.
It is well settled, by virtue of the decision of the Supreme Court in the case of Bhagwan Dutt (supra) that even a wife having a substantial income of her own or even a working lady is entitled to claim maintenance from her husband. Though initially it was a misconception that a working woman is not entitled to claim maintenance since she has some substantial income and is able to maintain herself, but in view of the decision rendered by the Supreme Court in the said case it is evident that she can claim maintenance even though she is an earning lady.
Therefore, I do not find any just ground to interfere with the order passed by the appellate court below on the finding with regard to the medical condition of the wife that she had incurred expenses on account of the treatment of injury suffered by her for which she had obtained loan of Rs. 2,53,000/- and is paying equated monthly instalment of Rs. 5,724/- to liquidate such loan.
However, considering the quantum of earning of the wife/opposite party no. 2 and that of the petitioner/husband and in order to maintain equilibrium position, the monetary relief of Rs. 10,000/- granted by the appellate court below in favour of the wife is modified to the extent of equated monthly instalment of Rs. 5,724/- payable by the wife/opposite party no. 2 to liquidate the loan taken by her for the purpose of treatment of injury suffer by her.
The learned Additional Chief Judicial Magistrate at Tehatta Nadia is directed to dispose of the proceeding under Section 12 of the Protection of Women from Domestic Violence 9 Act as expeditiously as possible, preferably within six months from the date of communication of this order, without granting any unnecessary adjournment to either of the parties.
It is made clear that the learned trial judge shall not be impressed by any of the observations made herein while disposing of the application under Section 12 of the Act and shall dispose of the proceeding on the basis of the evidence to be adduced by the parties.
With the aforesaid observations, the revisional application is disposed of. Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
( Shivakant Prasad, J. )