Calcutta High Court (Appellete Side)
Jyotirmoy Biswas vs State Of West Bengal & Anr on 5 May, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
CRR 3578 OF 2022
JYOTIRMOY BISWAS
-VS-
STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Pritam Choudhury
For the Opposite Parties : Mr. Shibaji Kumar Das
Mr. Dipendu Sarkar
Hearing concluded on : 01.04.2026
Judgment on : 05.05.2026
UDAY KUMAR, J.: -
1. INTRODUCTION AND BACKGROUND FACTS
1.1. The Petitioner, an Engineer currently engaged with the
Calcutta Electric Supply Corporation (CESC), has approached
this Court invoking its inherent jurisdiction under Section 482
of the Code of Criminal Procedure. The challenge is directed
against an ex-parte ad-interim order dated 01.06.2022,
rendered by the Learned Judicial Magistrate, Bangaon, in C.
Case No. 123 of 2021 (Priyanka Biswas vs. Jyotirmoy Biswas
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& Ors.). By way of the impugned order, the Learned
Magistrate, purportedly exercising powers under Section 23 of
the Protection of Women from Domestic Violence Act, 2005,
directed the Petitioner to remit a monthly maintenance
allowance of ₹12,000/- to the Opposite Party No. 2 (Wife) and
₹8,000/- for the sustenance of their minor daughter.
1.2. The Petitioner assailed the impugned order primarily on the
grounds of procedural irregularity, the material suppression of
facts regarding the Wife's independent professional income,
and a fundamental violation of the principles of natural
justice.
1.3. The factual canvas reveals a union between two individuals of
formidable professional standing. The marriage was
solemnized on 19.03.2014 under the Special Marriage Act,
1954. While the Petitioner manages the power infrastructure
of the city as a Mains Engineer responsible for critical urban
infrastructure, the Opposite Party No 2 is an accomplished
medical professional as a specialized in Critical Care Medicine
(MBBS, DNB), who has held prestigious positions as a Senior
Registrar in premier multi-specialty hospitals including
Woodlands and R.N. Tagore. Out of this wedlock, a daughter,
Devanshi, was born on 26.02.2020.
1.4. The domestic tranquillity of the parties proved short-lived.
Marital ties frayed over escalating differences regarding
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lifestyle and familial obligations, reached a breaking point in
March 2021, leading to the Wife's departure from the
matrimonial home at Bansdroni to her paternal residence at
Bangaon. This separation acted as a catalyst for a
multifaceted legal offensive. The Wife initiated three distinct
sets of proceedings:
(i) A criminal complaint under Sections
498A/406/506/341/34 IPC and 3/4 D.P. Act alleging
physical and mental torture;
(ii) A maintenance application under Section 125 of the
Cr.P.C.; and
(iii) The present application under the P.W.D.V. Act,
2005, alleging domestic violence.
1.5. Central to the Wife's grievance is a socially sensitive allegation
of a "grave breach of marital trust," predicated upon an
asserted incestuous proximity between the Husband and his
first cousin. Conversely, the Petitioner characterizes these
allegations as "bohemian fabrications," contending that his
involvement with the said relative was purely a discharge of
familial guardianship during a period of financial exigency.
1.6. In her pursuit of interim relief, the Wife estimated the
Petitioner's monthly emoluments to be a staggering
₹2,10,000/-, while simultaneously portraying herself as an
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CRR 3578 OF 2022
"unemployed and destitute" woman, surviving on the mercies
of her ailing father. The Petitioner, however, brings to the fore
a narrative of "material suppression," asserting that the Wife
is a highly independent professional with significant earning
capacity, while his own net take-home pay is a modest
₹70,000/-, encumbered by mandatory deductions and
housing loan liabilities.
1.7. The core of the Petitioner's grievance lies in the "procedural
haste" displayed by the Learned Court below. The impugned
order was passed on the very day the Domestic Incident
Report (DIR) was placed on record, without the Petitioner
being afforded an opportunity to file his Affidavit of Assets and
Liabilities, thereby bypassing the mandatory procedural
architecture mandated by the Hon'ble Supreme Court in
Rajnesh v. Neha.
3. POINTS FOR DETERMINATION
3.1. Based on the rival pleadings, the professional credentials
involved, and the procedural history of the matter, the
following Points for Determination (Issues) are framed for
adjudication in this judgment:
I. Whether the present Revisional Application under
Section 482 of the Code of Criminal Procedure is
maintainable against an ad-interim order of
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CRR 3578 OF 2022
maintenance, notwithstanding the statutory remedy of
appeal under Section 29 of the P.W.D.V. Act, in light of
the alleged patent procedural illegality?
II. Whether the Learned Magistrate committed a
jurisdictional error by fixing a specific quantum of
maintenance on the very day of the filing of the
Domestic Incident Report (DIR), thereby bypassing the
mandatory requirement for the exchange of Affidavits of
Assets and Liabilities as dictated in Rajnesh v. Neha
[(2021) 2 SCC 324]?
III. Whether a spouse possessing high-demand professional
qualifications, specifically a Specialist in Critical Care
Medicine with a documented history as a Senior
Registrar, can be legally categorized as "unable to
maintain herself" solely on a self-serving statement of
current unemployment?
IV. Whether the "Earning Capacity" of a specialized medical
professional must be factored in as a material
consideration at the ad-interim stage to prevent the
misuse of social justice legislation as a tool for financial
leverage?
V. Whether the assessment of the quantum (₹20,000/-)
constitutes "rational guesswork" or an arbitrary exercise
of discretion, given the absence of the Petitioner's
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salary records and the alleged suppression of the Wife's
professional identity?
VI. To what extent should the maintenance for the minor
child be isolated and protected from the professional
and personal disputes of the parents, ensuring her
upbringing remains commensurate with the status of an
Engineer-Doctor couple?
4. SUBMISSIONS ON BEHALF OF THE PETITIONER
4.1. Mr. Pritam Choudhury, learned counsel for the Petitioner,
initiated his discourse by addressing the maintainability of this
application. He contended that while Section 29 of the
P.W.D.V. Act provides for an appeal, such a statutory remedy
does not act as an absolute bar to the inherent powers of this
Court under Section 482 of the Cr.P.C. It was argued that the
present Revision is maintainable as the impugned order is not
merely an "error of judgment" but a procedural nullity, having
been passed in total defiance of the mandatory guidelines of
the Apex Court and founded upon a material suppression of
facts that goes to the root of the jurisdiction. He argued that
where an order is ex-facie perverse, suffering from a
foundational departure from the "due process" mandated by
the Apex Court, the High Court is not only empowered but
duty-bound to intervene to prevent a manifest miscarriage of
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justice. The Petitioner vehemently assailed the impugned order
as a "procedural nullity."
4.2. Mr. Choudhury vehemently argued that the Learned Magistrate
committed a "procedural leap" by awarding ad-interim
maintenance on the very day the Domestic Incident Report
(DIR) was placed on record. Learned Counsel submitted that
the Court below failed to adhere to the mandatory "disclosure
regime" established in Rajnesh v. Neha [(2021) 2 SCC 324].
By dispensing with the exchange of Affidavits of Assets and
Liabilities, the Learned Magistrate bypassed the essential
adversarial scrutiny required to determine the financial status
of the parties, thereby rendering the order ex-facie illegal.
4.3. The primary thrust of the Petitioner's challenge rested on the
Wife's professional identity. Learned Counsel pointed out that
the Opposite Party No. 2 is not a layperson seeking
sustenance, but a highly specialized medical practitioner, a
Senior Registrar in Critical Care Medicine (MBBS, DNB). It was
contended that her portrayal as "unemployed and destitute"
was a calculated deception. Ld. Counsel argued that the
"Earning Capacity" of a specialist clinician must be factored in
even at the ad-interim stage; otherwise, the P.W.D.V. Act, a
shield for the vulnerable, is transmuted into a sword for
"professional parasitism." Mr. Choudhury submitted that a
person possessed of such high-demand qualifications cannot
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CRR 3578 OF 2022
be deemed "unable to maintain herself" within the legislative
intent of the Act.
4.4. Learned Counsel concluded by clarifying that the Petitioner's
grievance is restricted specifically to the ₹12,000/- awarded to
the Wife. He submitted that the Petitioner recognized his
absolute obligation toward his minor daughter, Devanshi.
However, Ld. Counsel contended that the child's maintenance
should be isolated from the personal disputes of the parents.
While the child is entitled to a dignified upbringing, the Wife,
being a specialist Doctor, (her estimated income is
₹2,10,000/-), is legally disentitled to personal maintenance
when she possesses the professional potential to earn
significantly more than the Petitioner. By failing to call for
salary certificates or factoring in the pre-existing Home Loan
EMIs for the matrimonial flat, the Learned Magistrate's
assessment morphed into a "punitive imposition" rather than a
balanced "rational guesswork."
4.5. Finally, it was argued that the Wife's allegations of an
"incestuous relationship" were "bohemian fabrications"
intended to justify her voluntary desertion. Learned Counsel
referred to the pending suit for Restitution of Conjugal Rights
(MAT Suit No. 740 of 2022) as evidence of the Petitioner's
bona fide intent to maintain the marital tie. It was submitted
that a spouse who voluntarily withdrawn from the society of
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CRR 3578 OF 2022
the husband without "reasonable cause" and possesses
sufficient earning capacity is not entitled to the discretionary
relief of maintenance. He contended that her demand for an
exorbitant sum of ₹80 Lakhs for a mutual divorce, indicates
that the maintenance proceedings are being strategically
deployed for "financial leverage" and "legal extortion."
4.6. In a concluding note of candour, the Petitioner clarified that he
did not shirk his duty toward his minor daughter, Devanshi.
However, he argued that the child's maintenance must be
isolated from the parent's professional disputes. While the
child is entitled to a standard of living commensurate with an
Engineer-Doctor couple, the Wife, being an empowered
professional, is legally disentitled to claim personal
maintenance at the expense of a husband whose remuneration
is, in fact, comparable to her own earning potential.
5. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NO.
2 (WIFE)
5.1. Mr. Shaibaji Kumar Das, learned counsel for the Wife,
contending that the present Revision is an attempt to bypass
the statutory hierarchy. He robustly defended the POINT OF
maintainability of the impugned order, by submitting that the
present Revisional Application is a jurisdictional misadventure
designed to bypass the statutory hierarchy. He argued that
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CRR 3578 OF 2022
Section 29 of the P.W.D.V. Act provides a specialized and
efficacious appellate remedy specifically tailored for the
redressal of grievances arising from interim orders. It was
submitted that the Petitioner should not be permitted to invoke
the inherent jurisdiction of this Court under Section 482 of the
Cr.P.C. as a "shortcut" to stall the disbursement of "financial
oxygen" to a deserted mother and child, particularly when the
Learned Magistrate has exercised a discretionary power vested
by the statute.
5.2. In response to the allegation of "procedural haste," Ld.
Counsel submitted that the Learned Magistrate acted well
within the legislative mandate of Section 23(2) of the Act,
which empowers the Court to grant ex-parte ad-interim relief
upon the prima facie satisfaction of domestic violence. It was
contended that while Rajnesh v. Neha establishes a disclosure
regime, it does not seek to paralyze the Court's ability to
provide immediate protection against financial vagrancy.
Learned Counsel argued that the Domestic Incident Report
(DIR) filed by the Protection Officer disclosed a state of
"deplorable destitution," necessitating the immediate order
dated 01.06.2022 to prevent the starvation of the two-year-
old child and her mother.
5.3. Addressing the Petitioner's central theme of "Earning
Capacity," Ld. Counsel submitted that the mere possession of
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CRR 3578 OF 2022
professional degrees (MBBS, DNB) does not mitigate the
reality of "actual unemployment." He argued that the Wife was
systematically compelled to leave her professional practice due
to the extreme physical and mental torture inflicted by the
Petitioner, coupled with the supervening responsibilities of
nurturing an infant during the global pandemic. Relying on the
principle that maintenance is meant to address present
destitution, Learned Counsel contended that the Petitioner
cannot escape his legal and moral obligations by pointing to
the Wife's "potential" income when his own conduct is the
primary cause of her professional hiatus.
5.4. Learned Counsel vehemently disputed the Petitioner's claim of
a modest income. He submitted that the Petitioner, as a high-
ranking Engineer at CESC, enjoys multiple streams of revenue,
including a car-rental business (Ola/Uber) and substantial
agricultural holdings. Ld. Counsel argues that the Wife's
estimate of ₹2,10,000/- is a reflection of the high standard of
living the parties enjoyed during cohabitation. Consequently,
the award of ₹20,000/- per month is characterized not as
"arbitrary," but as a conservative and minimal sum required
for the survival of a mother and child in a metropolitan city,
especially when the Petitioner has admitted to a base salary of
₹70,000/-.
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CRR 3578 OF 2022
5.5. A poignant note is struck regarding the minor daughter,
Devanshi. Ld. Counsel submitted that the child's right to
maintenance is absolute and independent of the parents'
personal professional disputes. It was brought to the notice of
this Court that the Petitioner had practically abandoned the
child at birth, even failing to discharge the hospital bills. He
argued that a child born to an Engineer-Doctor couple is
entitled to an upbringing commensurate with that status, and
the award of ₹8,000/- for the minor is beyond the scope of any
reasonable challenge.
5.6. In conclusion, Mr. Das submitted that the Petitioner's suit for
Restitution of Conjugal Rights is a "strategic sham" initiated
solely to create a defense against the maintenance claim.
Placing reliance on the specific allegations of an illicit
relationship with a cousin, Ld. Counsel argued that the Wife
had "just cause" to live separately. It was submitted that the
Petitioner, having created a hostile and adulterous
environment, cannot now seek to deny maintenance on the
ground of the Wife's "voluntary" withdrawal. The Learned
Advocate prayed for the dismissal of the revision with
exemplary costs, seeking a direction for the immediate
clearance of all accumulated arrears.
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CRR 3578 OF 2022
6. DISCUSSION AND FINDINGS OF THE COURT
6.1. Determination of Question No. 1: On the Maintainability
of the Revision under Section 482 Cr.P.C. vis-à-vis
Section 29 of the P.W.D.V. Act.
6.1.1. At the very threshold of these proceedings, this Court is called
upon to navigate the jurisdictional thicket concerning the
maintainability of a Revisional Application under Section 482
of the Code of Criminal Procedure against an ad-interim order
of maintenance. The Opposite Party No. 2 has raised a
formidable objection, contending that since Section 29 of the
Protection of Women from Domestic Violence Act, 2005,
provides for a statutory appeal to the Court of Session against
any order passed by the Magistrate, the Petitioner ought to be
relegated to the appellate forum.
6.1.2. It is a fundamental canon of matrimonial and criminal
jurisprudence that where a statute provides a specific remedy,
the High Court should be circumspect in exercising its
inherent or revisional powers. However, the rule of
"alternative remedy" is a rule of judicial discipline and
discretion, not an absolute ouster of jurisdiction. The inherent
power of the High Court is a "safety valve" intended to be
used to prevent the abuse of the process of any Court or
otherwise to secure the ends of justice.
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CRR 3578 OF 2022
6.1.3. In addressing this question, reliance is placed on the ratio in
Prabhu Chawla v. State of Rajasthan [(2016) 16 SCC 30],
where the Hon'ble Supreme Court clarified that the availability
of an alternative remedy under Section 397 Cr.P.C. or any
other statutory provision does not bar the High Court from
exercising its jurisdiction under Section 482 Cr.P.C., provided
the circumstances demonstrate a patent illegality or a
miscarriage of justice. The Court observed:
"Nothing in the Code, not even Section 397(2), can
affect the High Court's inherent power to make such
orders as may be necessary to give effect to any order
under the Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice."
6.1.4. In the factual matrix of the case at hand, the Petitioner does
not merely challenge the "quantum" of maintenance, which
would typically fall within the domain of an appellate court,
but assails the very methodology adopted by the Learned
Magistrate. The Petitioner contends that the impugned order
is a "procedural nullity" because it was passed in total
disregard of the mandatory disclosure regime established by
the Apex Court in Rajnesh v. Neha [(2021) 2 SCC 324].
6.1.5. To appreciate this contention, one must look at the mandatory
nature of the directions in Rajnesh v. Neha. The Supreme
Court, in Paragraph 72.1, held:
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CRR 3578 OF 2022
"The Affidavit of Disclosure of Assets and Liabilities...
shall be filed by both parties in all maintenance
proceedings, including pending proceedings before the
concerned Family Court / District Court / Magistrate
Court, as the case may be, throughout the country."
6.1.6. In the present case, the record reveals that the Learned
Magistrate passed the ad-interim order on the very day the
Domestic Incident Report (DIR) was filed, without even
directing the parties to file their respective Affidavits of Assets
and Liabilities. Where a subordinate court bypasses a
mandate issued by the Supreme Court under Article 141 of
the Constitution, such an order is not merely "erroneous," but
is passed in excess of jurisdiction. In such circumstances,
relegating a party to a time-consuming appeal would amount
to perpetuating a procedural illegality.
6.1.7. Furthermore, the Petitioner has raised a compelling plea of
"Material Suppression." It is alleged that the Opposite Party
No. 2, while identifying herself merely as a "Doctor,"
suppressed her specialized status as a Senior Registrar in
Critical Care Medicine. It is a settled principle of law that
"Fraud and justice never dwell together" (Fraus et jus
nunquam cohabitant). As held in S.P. Chengalvaraya Naidu v.
Jagannath [(1994) 1 SCC 1]:
"A litigant, who approaches the court, is bound to
produce all the documents executed by him which are
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CRR 3578 OF 2022
relevant to the litigation. If he withholds a vital
document in order to gain advantage on the other side
then he would be guilty of playing fraud on the court as
well as on the opposite party."
6.1.8. If the Wife, being a high-earning specialist, suppressed her
professional standing to fit the narrative of a "destitute"
woman, the resulting order is tainted by a suppression of
material facts. While an appellate court could examine this,
the High Court under Section 482 is the appropriate forum to
exercise its "supervisory-inherent" role when the integrity of
the judicial process is at stake.
6.1.9. Distinguishing the present facts from cases where revisions
are dismissed due to the availability of an appeal, this Court
observes that in those instances, the challenge usually
pertains to the appreciation of evidence. Here, the challenge
is to the validity of the procedure itself. If the Learned
Magistrate has bypassed the "due process" of financial
disclosure, the order becomes an abuse of the process of the
court.
6.1.10. Consequently, this Court holds that the Revisional Application
is maintainable. The statutory bar of Section 29 of the
P.W.D.V. Act does not fetter the inherent power of the High
Court to strike down an order that is ex-facie violative of the
mandates of the Apex Court and is predicated upon an
evidentiary void created by material suppression. The
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CRR 3578 OF 2022
jurisdictional gate is, therefore, open for an inquiry into the
merits of the procedural and substantive challenges raised by
the Petitioner.
6.2. Determination of Question No. 2: On the Procedural
Propriety of the Ad-Interim Order and the Mandate of
Rajnesh v. Neha.
6.2.1. The second point for determination concerns whether the
Learned Magistrate committed a jurisdictional error by
awarding a specific quantum of ad-interim maintenance on
the very day the Domestic Incident Report (DIR) was placed
on record, effectively bypassing the "disclosure regime"
established by the Apex Court.
6.2.2. It is observed from the record that the impugned order was
passed on 01.06.2022. A perusal of the order sheet reveals a
striking "procedural leap"; the Learned Magistrate took
cognizance of the DIR and, in the same breath, quantified the
ad-interim maintenance at ₹20,000/- per month. While
Section 23 of the P.W.D.V. Act undoubtedly empowers the
Magistrate to pass such interim orders as are "just and
proper," this discretion is not a license for judicial
arbitrariness. It must be exercised within the guardrails of
procedural due process.
6.2.3. The landmark judgment of the Hon'ble Supreme Court in
Rajnesh v. Neha [(2021) 2 SCC 324] was necessitated
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specifically to curb the practice of "guesswork" in maintenance
proceedings. The Apex Court noted with concern that in the
absence of a uniform format for financial disclosure,
maintenance proceedings were being dragged on for years
while orders were being passed on "hypothetical
assumptions." To rectify this, the Court issued a mandatory
direction under Article 141 of the Constitution:
"72.1. (a) The Affidavit of Disclosure of Assets and
Liabilities... shall be filed by both parties in all
maintenance proceedings... throughout the country...
(b) The respondent must submit the reply along with
the Affidavit of Disclosure within a maximum period of four weeks."
6.2.4. In the present case, the Learned Magistrate proceeded to fix the quantum before the Petitioner-Husband was even afforded an opportunity to file his Affidavit. This methodology fundamentally undermines the "Disclosure Regime." While the Wife's counsel argues that Section 23(2) permits ex-parte orders to prevent immediate starvation, such an argument must be reconciled with the fact that the parties here are not from a marginalized socio-economic background, but are an Engineer and a Doctor. In such high-stakes litigation involving professionals, the "emergency" must be weighed against the "accuracy" of the financial data.
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CRR 3578 OF 2022 6.2.5. Furthermore, the ratio in Rajnesh v. Neha emphasizes that the Court must consider the "standard of living," the "essential expenditures," and the "actual income" of both parties. By awarding ₹20,000/- without having the Petitioner's salary certificate or the Wife's disclosure of her specialized clinical income on record, the Learned Magistrate acted in a vacuum. This Court finds that such "rational guesswork"
becomes "irrational" the moment it ignores a mandatory Supreme Court guideline.
6.2.6. Comparing the present facts with the spirit of the directions in Aditi alias Mithi v. Jitesh Sharma [2023 SCC OnLine SC 1451], the Supreme Court reiterated that the guidelines in Rajnesh are not mere "suggestions" but are "mandatory instructions"
to be followed by all Courts. The failure to elicit the Affidavit of Assets and Liabilities before determining the quantum, even at the ad-interim stage, results in a failure of justice, as it saddles the husband with a liability based on the wife's unilateral (and often inflated) assertions. 6.2.7. In this case, the Petitioner asserts a net income of ₹70,000/-, while the Wife alleges ₹2,10,000/-. Without the Affidavit, the Magistrate had no legal basis to choose one figure over the other. The "haste" shown by the Learned Magistrate in quantifying the amount on the very first day of the DIR filing, 20 CRR 3578 OF 2022 without waiting for the Petitioner's financial disclosure, constitutes a patent procedural irregularity. 6.2.8. Accordingly, this Court holds that the Learned Magistrate committed a jurisdictional error by bypassing the mandatory requirement of exchanging Affidavits of Assets and Liabilities. While the Magistrate had the power to grant ad-interim relief, the quantification of that relief without following the Rajnesh v. Neha timeline renders the order procedurally fragile and unsustainable in law. The "emergency" power under Section 23 cannot be used to circumvent the "due process" of financial transparency.
6.3. Determination of Question No. 3: On the Status of a Specialized Professional as "Unable to Maintain Herself".
6.3.1. This point for determination invites a nuanced examination of whether a spouse, possessing the highest order of professional degrees (specifically a Specialist in Critical Care Medicine (MBBS, DNB) with a seasoned background as a Senior Registrar) can be legally categorized as "unable to maintain herself" within the beneficial framework of the P.W.D.V. Act.
6.3.2. It is a settled principle that the phrase "unable to maintain herself" does not contemplate a state of absolute destitution or beggary. However, judicial interpretation has evolved to 21 CRR 3578 OF 2022 distinguish between a spouse who cannot work and one who chooses not to work despite being highly qualified. In the instant case, the Petitioner has produced prima facie evidence of the Wife's professional credentials, which the Wife does not deny; rather, she masks them under the shroud of current "unemployment."
6.3.3. In this context, the ratio in Mamta Mamgain v. Pawan Kumar [2023 SCC OnLine Del 6013] becomes highly pertinent. The Court therein observed that while a spouse is entitled to a standard of living similar to that of the matrimonial home, the court cannot ignore the professional independence of a spouse who is capable of earning. It held:
"The law does not expect a highly qualified person to sit idle and remain a financial burden on the other spouse, especially when there is no physical or mental disability preventing them from working."
6.3.4. Similarly, in Shailja & Anr. v. Khobbanna [(2018) 12 SCC 351], the Hon'ble Supreme Court clarified that "capable of earning" and "actually earning" are two distinct concepts. However, the Court also cautioned that if a spouse is well- qualified, she should not be allowed to suppress her capacity to gain an unfair advantage in maintenance proceedings. 6.3.5. Applying these principles to the present facts, the Opposite Party No. 2 is not merely "educated"; she is a Specialist Doctor in a high-demand field. The medical profession, 22 CRR 3578 OF 2022 particularly Critical Care, does not suffer from the volatilities of typical labor markets. By portraying herself as "dependent on her ailing father," the Wife has presented a narrative of "fictional destitution." This Court finds that a woman who has served as a Senior Registrar in premier hospitals like Woodlands and R.N. Tagore possesses an inherent financial autonomy that is fundamentally at odds with the concept of "unable to maintain herself" for the purpose of claiming personal maintenance.
6.3.6. Furthermore, we must address the Wife's silence regarding her professional status in her initial application. A litigant who seeks equity must come with clean hands. By identifying herself simply as a "Doctor" without disclosing her specialized rank and previous lucrative emoluments, the Wife engaged in what this Court terms "strategic suppression." Such suppression vitiates the claim for discretionary ad-interim relief, as it prevents the Magistrate from balancing the equities properly.
6.3.7. This Court must also consider the duration of the professional hiatus. While a mother of a two-year-old child undoubtedly requires time for child-rearing, a specialist physician's total withdrawal from a profession that can be practiced part-time or through tele-consultation, especially when she claims to be 23 CRR 3578 OF 2022 in financial dire straits, raises a doubt regarding the bona fides of her claim of "inability."
6.3.8. Consequently, this Court holds that a spouse possessing specialized, high-income professional qualifications cannot be categorized as "unable to maintain herself" merely by asserting current unemployment. While she may be entitled to maintenance for the child, her personal claim for maintenance must be strictly scrutinized against her "Earning Capacity." In the present case, the Wife's status as a Critical Care Specialist creates a legal presumption of self-sufficiency that has not been adequately rebutted in her pleadings. 6.4. Determination of Question No. 4: On the Mandatory Consideration of "Earning Capacity" as a Material Factor at the Ad-Interim Stage.
6.4.1. This point for determination investigates whether the "Earning Capacity" of a specialized professional must be considered as a material factor during the ad-interim stage, or whether such an inquiry should be deferred to the final trial. The Petitioner contends that allowing an interim order to stand in total disregard of the Wife's specialized qualifications would amount to sanctioning "legal extortion."
6.4.2. In the traditional paradigm of maintenance, Courts were often reluctant to investigate the "earning potential" of a spouse at the threshold stage, focusing primarily on the "actual income" 24
CRR 3578 OF 2022 of the husband. However, the modern judicial trend, as articulated by the Hon'ble Supreme Court, has moved toward a more symmetrical and realistic assessment of financial status.
6.4.3. The ratio in Rajnesh v. Neha [(2021) 2 SCC 324] specifically enumerates "Earning Capacity" as a critical criterion. In Section III of the said judgment, under the head "Criteria for Determining Quantum of Maintenance," the Apex Court held:
"The Court must take into consideration... the educational and professional qualifications of the parties;... whether the applicant is educated and professionally qualified and what was the work profile of the applicant; whether the applicant was stay-at-home mother, or has been working and can get a job;... whether the applicant is capable of working and earning a salary."
6.4.4. The use of the word "shall" in the context of these criteria makes it mandatory for the Magistrate to weigh these factors even at the ad-interim stage. If a spouse is a Specialist Doctor, her potential to earn is not a distant possibility but a present reality. To ignore this potential while saddling the husband with a substantial financial liability is to tilt the scales of justice unfairly. The P.W.D.V. Act is a protectionist measure for the vulnerable, not a mechanism for a professional to 25 CRR 3578 OF 2022 withdraw from their social and financial responsibilities to become a "pensioner" of the other spouse.
6.4.5. Reference is also made to the decision in Rupali Gupta v.
Rajat Gupta [2016 SCC OnLine Del 4118], where the Court observed that a well-qualified spouse cannot be permitted to remain a "parasite" on the other when she has the capacity to sustain herself. The Court noted:
"If a person is well-qualified and was working, the Court can certainly take note of her capacity to earn. A lady who is highly qualified... should not be allowed to sit at home and seek maintenance."
6.4.6. In the present factual matrix, the Opposite Party No. 2 has served as a Senior Registrar in Critical Care. This is a niche field of medicine where demand is perennial and remuneration is high. By awarding ₹12,000/- for the Wife's personal maintenance without evaluating why a Critical Care Specialist is "incapable" of earning even a fraction of her previous salary, the Learned Magistrate failed to apply the "balancing test" of earning capacity.
6.4.7. While the Wife argues that she has to care for a minor child, this Court observes that in contemporary professional circles, especially among the "Engineer-Doctor" class, childcare is frequently managed through professional assistance or family support to allow both parents to maintain their career trajectories. A total professional abdication, coupled with a 26 CRR 3578 OF 2022 demand for maintenance, must be justified by something more substantial than a mere statement of current unemployment.
6.4.8. Furthermore, the principle of "Equitable Distribution of Responsibility" suggests that when both spouses are highly qualified, the burden of maintenance cannot be placed solely on the husband's shoulders. The "earning capacity" is not merely an academic factor; it is a substantive check against the abuse of the court's process by a spouse who suppresses their potential to secure an inflated maintenance order. 6.4.9. Therefore, this Court holds that "Earning Capacity" is a mandatory material consideration at the ad-interim stage. The failure of the Learned Magistrate to calibrate the quantum of maintenance against the Wife's specialized professional status constitutes a failure to exercise jurisdiction in accordance with the principles of equity and the mandates of the Apex Court. The "earning potential" of a Specialist Doctor must be set off against her claim for maintenance to arrive at a "just and fair"
figure.
6.5. Determination of Question No. 5: On whether the Assessment of Quantum constitutes "Rational Guesswork" or "Arbitrary Discretion".
6.5.1. This point for determination addresses the legal validity of the quantum fixed by the Court below is ₹20,000/- per month, 27 CRR 3578 OF 2022 and whether such a figure was arrived at through a structured judicial process or represents a mere arbitrary "shot in the dark."
6.5.2. It is a settled legal proposition that at the ad-interim stage, a Court may engage in a degree of "rational guesswork." However, the term "Rational Guesswork" is a term of art; it implies an estimation based on existing, albeit incomplete, material on record. It does not authorize a Magistrate to conjure figures that are untethered from the socio-economic reality of the parties.
6.5.3. In the present case, the Wife's application asserted that the Petitioner, a CESC Engineer, earns ₹2,10,000/- per month. The Petitioner, conversely, produced a pay slip indicating a net take-home salary of approximately ₹70,000/- after mandatory deductions. The Learned Magistrate, without calling for an authenticated salary certificate or a breakdown of the Petitioner's liabilities, such as the Home Loan EMI for the very flat the Wife claims as her shared household, proceeded to fix the maintenance at ₹20,000/-. 6.5.4. This Court finds that the assessment suffers from a "double-
ended failure":
I. The Magistrate failed to account for the obligatory deductions and pre-existing liabilities of a middle-class 28 CRR 3578 OF 2022 salaried professional. Maintenance must be carved out of the "disposable income," not the "gross salary." II. The Magistrate failed to deduct or set off the imputed income of a Specialist Doctor. Even if the Wife was currently out of work, the principle of equity required the Court to ask why a Critical Care specialist has zero income, especially when the Petitioner alleges she is engaged in private consultations.
6.5.5. Reliance is placed on the ratio in Kalyan Dey Chowdhury v.
Rita Dey Chowdhury [(2017) 14 SCC 200], where the Hon'ble Supreme Court observed that 25% of the husband's net salary is generally considered a "just and proper" benchmark for maintenance. In the present case, if the Petitioner's net income is indeed ₹70,000/-, an award of ₹20,000/- (approximately 28.5%) might appear statistically within range. However, this benchmark assumes the Wife has no independent earning capacity.
6.5.6. The "rationality" of a guesswork is tested by the transparency of the calculation. The impugned order provides no window into the Magistrate's mind. It does not explain how the Court reached the figure of ₹12,000/- for the Wife and ₹8,000/- for the child. When the claimant is a Specialist Doctor, the "need- based" assessment must be weighed against her "capacity- 29
CRR 3578 OF 2022 based" potential. By ignoring the Wife's professional status, the Magistrate's "guesswork" became arbitrary, as it proceeded on the flawed premise that the Wife is a "destitute dependent" rather than an "empowered professional." 6.5.7. Furthermore, the assessment ignored the "Standard of Living"
criterion in a lopsided manner. While maintenance should ensure the Wife lives in a style similar to the matrimonial home, it should not result in a situation where the Husband is reduced to penury while the Wife, possessing superior qualifications, remains a silent spectator to his financial depletion.
6.5.8. Consequently, this Court holds that the assessment of ₹20,000/- was not a result of "rational guesswork" but was an arbitrary exercise of discretion. It was based on a unilateral and unverified income claim by the Wife and a total disregard for the Husband's actual disposable income and the Wife's specialized professional status. Such an assessment, made in a vacuum of financial disclosure, cannot withstand judicial scrutiny.
6.6. Determination of Question No. 6: On the Isolation of the Minor Child's Welfare from the Professional and Personal Disputes of the Parents.
6.6.1. The final point for determination invites this Court to consider whether the maintenance for the minor daughter, Devanshi, 30 CRR 3578 OF 2022 should be shielded from the contentious debates surrounding the Wife's "Earning Capacity" and the procedural lapses of the Court below. This inquiry is rooted in the principle of Parens Patriae, where the Court acts as the ultimate guardian of the interests of the child.
6.6.2. It is a settled principle of law that the maintenance of a child is an absolute and non-delegable obligation of the father, irrespective of the marital discord or the independent income of the mother. Even if this Court finds that the Wife, as a Specialist Doctor, is disentitled to personal maintenance due to her high earning potential, such a finding can have no bearing on the child's right to be maintained by her father. 6.6.3. In this regard, the ratio in Jagdish Jugtawat v. Manjulata [(2002) 5 SCC 422] and reiterated in Rajnesh v. Neha, makes it clear that the child is entitled to a standard of living that is commensurate with the social and economic status of both parents. In the present case, we are dealing with a child born into a family of a Mains Engineer and a Specialist Doctor. The upbringing of the child, including her nutritional, medical, and early educational needs, must reflect the "Doctor-Engineer"
standard of life.
6.6.4. While the Petitioner-Husband has assailed the award of ₹12,000/- to the Wife as being a result of "material suppression," he has notably maintained a stance of financial 31 CRR 3578 OF 2022 responsibility toward the daughter. This Court acknowledges the Petitioner's submission that he is willing to provide for the child. However, the quantum of ₹8,000/- awarded by the Learned Magistrate for the child must be scrutinized for its adequacy rather than its excess.
6.6.5. In the high-inflationary environment of a metropolitan city like Kolkata, an amount of ₹8,000/- per month for a child of two years can hardly be termed as "exorbitant." It covers the bare essentials of specialized paediatric care, clothing, and the high-quality diet required at this developmental stage. This Court finds that while the Wife's personal maintenance is subject to the "Earning Capacity" test, the child's maintenance is subject only to the "Husband's Capacity to Pay." 6.6.6. This Court emphasizes that a child should not be made a "litigational casualty" in the professional crossfire between a husband and a wife. Even if the mother is a specialist physician capable of earning a six-figure salary, the father, an Engineer with a steady income, cannot seek a "pro-rata reduction" in his liability toward the child on that ground. The duty to maintain the child is joint and several, but the primary burden on the father remains steadfast.
6.6.7. Furthermore, the Petitioner's allegation regarding the "Adulterous Narrative" or the "Bohemian Allegations" of the Wife may be relevant for determining the Wife's entitlement 32 CRR 3578 OF 2022 to maintenance under Section 125(4) Cr.P.C. or the P.W.D.V. Act, but it is wholly irrelevant to the child's claim. A child's right to live with dignity is an independent statutory and natural right that survives the death of the parents' relationship.
6.6.8. Accordingly, this Court holds that the maintenance for the minor child must be isolated from the controversies surrounding the Wife's professional status and the procedural irregularities of the impugned order. While the order regarding the Wife's maintenance may be vulnerable to set- aside or remand, the award of ₹8,000/- for the daughter is found to be just, reasonable, and commensurate with the socio-economic profile of the parties.
7. LEGAL FINDINGS AND RATIO DECIDENDI 7.1. Upon a comprehensive evaluation of the questions of law and fact agitated in this lis, this Court distils the following legal propositions as the ratio decidendi:
(i) An ad-interim maintenance order passed in manifest defiance of the mandatory disclosure regime established in Rajnesh v. Neha is not merely an error of discretion, but a jurisdictional perversity. The exchange of financial transparency is a constitutional requirement under Article 141, the bypass of which renders the resulting quantification legally fragile. 33
CRR 3578 OF 2022
(ii) The statutory phrase "unable to maintain oneself"
must be strictly scrutinized against the latent earning potential of highly qualified professionals. The law does not permit the beneficial umbrella of the P.W.D.V. Act to be utilized as a subsidy for voluntary professional inertia or to facilitate "professional parasitism" by those possessing specialized, high- demand skills.
(iii) Professional or personal disputes between parents cannot mitigate the father's absolute, non-delegable duty to provide for the minor child's dignity and sustenance. The child's right to "financial oxygen"
remains independent of the mother's professional standing or the procedural infirmities of the primary claim.
8. CONCLUSION 8.1. The factual and legal conclusions of this discussion, articulated with the judicial rigor and linguistic precision characteristic of this Court's seasoned jurisprudence, are rendered as follows:
a) The factual matrix of the present dispute reveals a stark departure from the conventional narrative of the indigent wife. This Court finds that the parties do not reside on the periphery of economic survival but 34 CRR 3578 OF 2022 are entrenched in the professional elite, a CESC Engineer and a Specialist in Critical Care Medicine. A pivotal finding of this Court is the material suppression by the Opposite Party No. 2, who, by cloaking her specialized DNB qualifications and her seasoned registrarship under the generic label of "Doctor," sought to project a façade of destitution.
This Court further notes a manifest procedural leap by the Learned Magistrate, who, in a display of uncharacteristic haste, quantified the financial liability on the very day of the DIR filing, thereby precluding a transparent assessment of the Petitioner's actual disposable income and the Wife's substantial earning potential.
b) On the legal plane, this Court affirms that the availability of a statutory appeal under Section 29 of the P.W.D.V. Act does not operate as an absolute fetter upon the inherent powers of this Court under Section 482 of the Cr.P.C., particularly where the impugned order originates from a "procedural vacuum." The total defiance of the disclosure regime mandated in Rajnesh v. Neha transmutes a discretionary interim order into a jurisdictional nullity. The Doctrine of Earning Capacity must be treated as 35 CRR 3578 OF 2022 a mandatory equitable check; the legislative intent of "inability to maintain" cannot be stretched to subsidize voluntary professional inertia. The P.W.D.V. Act, while a shield for the vulnerable, cannot be permitted to serve as a mechanism for "professional parasitism."
c) Finally, this Court establishes a sharp jurisprudential distinction between parental dispute and the welfare of the progeny. While the Wife's personal maintenance is subject to the rigors of the "Earning Capacity" test and procedural propriety, the maintenance of the minor child remains a sacrosanct, non-delegable obligation of the father. The findings conclude that while the award to the Wife must be remanded for a fresh, transparent adjudication of her professional potential, the child's right to sustenance must be isolated from the litigational crossfire, ensuring that the fracture of the matrimonial tie does not result in the financial dereliction of the minor daughter.
8.2. In consideration of the findings arrived at and the legal propositions discussed hereinabove, this Court is of the opinion that the impugned order dated 01.06.2022 cannot be sustained in its entirety, as it suffers from a foundational 36 CRR 3578 OF 2022 departure from the procedural mandates of the Apex Court and fails to account for the specialized professional status of the claimant spouse.
9. ORDERS AND DIRECTIONS 9.1. Consequently, in the exercise of the inherent powers of this Court, the Revisional Application being C.R.R. No. 3578 of 2022 is hereby disposed of by modifying the impugned order dated 01.06.2022 passed by the Learned Judicial Magistrate, Bangaon, in C. Case No. 123 of 2021.
9.2. The direction of the Learned Magistrate awarding ₹12,000/- per month as ad-interim maintenance to the Opposite Party No. 2 (Wife) is hereby set aside. The matter is remanded to the Learned Magistrate for a de novo consideration of the Wife's entitlement and the quantum of her maintenance, subject to the following conditions:
a. The Learned Magistrate shall, within two weeks from the date of communication of this order, direct both parties to file their respective Affidavits of Assets and Liabilities strictly in the format prescribed by the Hon'ble Supreme Court in Rajnesh v. Neha.
b. In evaluating the Wife's claim, the Learned Magistrate must specifically adjudicate upon her "Earning Capacity"
as a Specialist in Critical Care Medicine (MBBS, DNB). The Court below must determine whether her current 37 CRR 3578 OF 2022 state of unemployment is an involuntary consequence of matrimonial cruelty or a strategic withdrawal from the workforce to maximize maintenance claims. 9.3. The award of ₹8,000/- per month toward the maintenance of the minor daughter, Devanshi, is hereby upheld and affirmed. This Court holds that the child's right to sustenance is independent of the mother's professional status. The Petitioner is directed to continue the payment of this amount by the 7th day of each succeeding month.
9.4. Any arrears accumulated specifically toward the child's maintenance from the date of the application shall be liquidated by the Petitioner in four equal monthly installments, the first of which shall commence from June 2026. 9.5. Any amount already paid by the Petitioner toward the Wife's personal maintenance (the ₹12,000/- component) pursuant to the stayed order shall be kept in abeyance and shall be subject to adjustment against the final quantum, if any, determined by the Learned Magistrate upon remand.
9.6. Considering that this is a matter involving "financial oxygen"
for the parties, the Learned Magistrate shall conclude the re- determination of the ad-interim maintenance as early as possible from the date of receipt of the Affidavits of Assets and Liabilities, without granting any unnecessary adjournments to either side.
38
CRR 3578 OF 2022 9.7. The parties are directed to maintain the peace and refrain from making inflammatory allegations that deviate from the core issue of maintenance. The Learned Magistrate shall proceed with the inquiry uninfluenced by any observations made by this Court on the factual merits of the allegations of cruelty, which are subject to trial.
9.8. There shall be no order as to the cost.
9.9. All connected applications stand disposed of. 9.10. Let a copy of this order be communicated to the Learned Court below forthwith.
9.11. The Trial Court Record (TCR), if any, shall be sent down to the Trial Court, at once.
9.12. Case diary, if any, be returned forthwith. 9.13. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Uday Kumar, J.)