Calcutta High Court (Appellete Side)
Neha Sonthalia vs State Of West Bengal & Ors on 8 April, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.R 3508 of 2019
Neha Sonthalia
-Vs-
State of West Bengal & Ors.
With
CRR 2856 of 2019
Anubhav Sonthalia & Anr.
Vs.
Neha Sonthalia
For the Petitioner:
(in CRR 3508 of 2019) Ms. Meenal Sinha,
Ms. Jagriti Bhattacharya.
For the Petitioner:
(in CRR 2856 of 2019) Mr. Koushik Gupta,
Mr. Javed Majid.
Heard on: 18th January, 2021.
Judgment on: 08 April, 2021.
BIBEK CHAUDHURI, J. : -
1. Both the revisional applications were heard analogously and the
court delivers the following judgment on conclusion of hearing.
2
2. Parties to both the revisions are married couple and their marital tie
is still subsisting. In CRR No.3508 of 2019 the aggrieved person/wife is
the petitioner, while in CRR No.2856 of 2019 the respondent and her
mother are the petitioners. The dispute between the parties cropped up as
a result of marital discord following filing of application under Section 12
read with Sections 17, 18, 19, 20, 21, 22 and 23 of the Protection of
Women from Domestic Violence Act, 2005 (hereafter described as the said
Act) filed by the aggrieved person/petitioner in CRR No.3508 of 2019.
3. The application under Section 12 read with other coordinate
provisions of the said Act was registered as MISCN 4 of 2019 in 20th Court
of the learned Metropolitan Magistrate at Calcutta. By an order dated 29th
June, 2019 the learned Metropolitan Magistrate passed an order on an
application under Section 23(2) of the said Act which runs thus:
"That the prayer under Section 23 of this Act is allowed on
contest. Petitioner do get an interim protection order under
Section 18 of the said Act and respondents are restrained
from committing, aiding or abetting any act of domestic
violence upon the petitioner. Petitioner is entitled to get an
interim order under Section 19(f) of the said Act and the
respondent No.1 is directed to secure same level of alternate
accommodation for the petitioner as enjoyed by her in the
shared household or to pay the rent for the same as per the
choice of petitioner in Kolkata to the tune of rupees twenty
thousand (Rs.20,000/-) per month which shall be payable by
3rd of every succeeding English Calendar month from the date
of this order. Petitioner and her minor child are hereby
entitled to interim maintenance under Section 20(1)(d) of the
Act and accordingly, respondent No.1 is directed to pay
maintenance to petitioner and her minor son to the tune of
rupees thirty thousand (Rs.30,000) per month for the
petitioner and rupees ten thousand (Rs.10,000/- only) per
month for their minor son which shall be payable by 3rd of
every succeeding English Calendar month from the date of
this order. Since, the child is in custody of petitioner so, there
is no need of any interim order regarding custody of that child
as it is also not leveled up."
4. The respondent/husband challenged the above mentioned order
under Section 29 of the said Act by filing Criminal Appeal No.161 of 2019
in the court of the learned Chief Judge, City Sessions Court at Calcutta.
The learned Chief Judge by his judgment dated 21st August, 2019
disposed of the said appeal directing the husband to pay Rs.15000/- per
month to his wife as interim monetary relief and Rs.8000/- per month
towards rent for alternative accommodation with effect from the date of
the order passed in Misc Case No.4 of 2019.
5. The legality, validity and propriety of the said order was challenged
by both the parties preferring separate revisional applications.
6. The aggrieved person/wife has pleaded that the learned Judge in
appeal failed to consider the basic requirement of the petitioner, her social
and economic status in relation to her husband and committed gross
illegality and material irregularity in reducing the quantum of interim
monetary relief as granted by the learned Metropolitan Magistrate while
disposing of the application under Section 23(2) of the said Act.
7. The respondent/husband, on the other hand has challenged the
impugned judgment alleging, inter alia, that the learned Court of Appeal
failed to consider that he does not even have the financial capacity to pay
interim monetary relief and rent towards separate accommodation for his
wife as fixed by the learned Chief Judge, City Sessions Court. Under the
premises mentioned above the revisional applications in hand are
required to be adjudicated upon and disposed of.
8. It is the case of the aggrieved person/wife that at the time of her
marriage with the respondent, her husband was employed at his sister's
business under the name and style of Elahe Designer Boutique at
Hyderabad. He also owns and operates three numbers of Baskin Robbin
Ice Cream Parlour at Hyderabad. Soon after marriage the petitioner came
to know that her husband was addicted to alcohol. He used to torture her
both physically and mentally. As the petitioner was not blessed with any
child in the wedlock between her and the opposite party, they decided to
adopt a baby and on 17th January, 2014 they adopted a baby boy.
However, even after adoption the opposite party could not change himself.
On the contrary, he was romantically involved with another lady in
Hyderabad. The marital discord went to such an extent that the petitioner
left Hyderabad with her son and returned to Kolkata and started residing
with her mother-in-law at 80/5B near Lansdowne Market, Kolkata. It is
further submitted by the petitioner that the opposite party has been
working as a store manager in Elahe Designer Boutique and earns salary
of Rs.1,80,000/- per month moreover he earns considerable amount of
money by running the business of ice cream parlours.
9. In CRR No.2856 of 2019 the respondent/petitioner stated that his
wife is gainfully employed and earns Rs.1,48,500/- per month during the
financial year 2017-18. On the contrary, the petitioner used to earn
Rs.76,082/- during the financial year 2017-18 and therefore the income
of the husband/petitioner is much less than the income of his wife. It is
also stated by him that since May, 2018 the petitioner is unemployed. As
he is unemployed he has no financial capacity to maintain his wife
therefore the petitioner has prayed for revision of the order passed by the
learned Chief Judge, City Sessions Court in Criminal Appeal No.161 of
2019. I have heard the learned Advocates for both the parties, perused
entire materials on record and the documents filed by both the parties.
10. It is not disputed that marriage between the parties was solemnized
on 4th July, 2006. The respondent/husband has stated on affidavit that
after marriage he and his wife used to live in a flat at Banjara Hills in
Hyderabad. Banjara Hills, Hyderabad is one of the most posh areas of the
country. It is further stated by the husband that after marriage and
subsequently after adoption of a baby boy, he took the petitioner for
travelling to various countries in Europe and Asia. At the same time the
husband stated that he used to earn Rs.76,000/- per month during the
financial year 2017-18. I am surprise to note as to how a person lives at
Banjara Hills, Hyderabad and travels various foreign countries as well as
various places in India with his wife and minor child with such salary. It
is not disputed that the respondent/husband is an employee of Elahe
Designer Boutique at Hyderabad. The boutique is owned by the sister of
the respondent. The respondent stated that he is no longer an employee of
Elahe Designer Boutique as claimed by the petitioner but from the
affidavit in opposition filed by the wife against the CRR No.2856 of 2019 it
is ascertained that the respondent/husband is a team member of Elahe
Designer Boutique at Hyderabad and Calcutta even in 2020.
11. The respondent has moral and legal responsibility to maintain his
wife and child. He is an able bodied person, capable to earn handsome
amount of money. It is not specifically disputed that he owns three ice
cream parlors at Hyderabad. On the other hand the aggrieved person has
no job or earning after retuning Kolkata from Hyderabad.
12. Therefore the respondent/husband is under legal obligation to pay
interim monetary relief to his wife and adopted child for their sustenance
and upbringing.
13. The learned Chief Judge, City Sessions Court has not assigned any
reason as to why he reduced the amount of interim monetary relief to be
paid by the respondent in favour of the aggrieved person.
14. In view of the above discussion the order passed by the
Metropolitan Magistrate, 20th Court Calcutta in Misc Case No.4 of 2019 is
restored and the judgment passed in Criminal Appeal No.161 of 2019
by the learned Chief Judge, City Sessions Court is set aside.
15. As a result CRR No.3508 of 2019 is allowed on contest however
without cost and CRR No.2856 of 2019 is dismissed on contest without
cost.
16. The respondent is directed to pay interim monetary relief to his wife
at the rate fixed by the learned Metropolitan Magistrate, 20th Court
Calcutta from the date of his order within tenth of each succeeding
month.
(Bibek Chaudhuri, J.)
