Ajay Debnath vs Unknown
2021 Latest Caselaw 2745 Cal

09.04.2021
Item no.18
Ct. No.30
AKG

                                      C.R.R. No. 643 of 2021



                In the matter of:-
                              Ajay Debnath
                                                   ...Petitioner


                Mr. Amitabha Ghosh,
                Mr. Madan Mohan Roy

                                   ....for the Petitioner.

                Mr. Sujoy Sarkar
                                      ...for the Respondent No. 2.

The only point raised in the instant appeal filed by the

respondent/husband is that both the learned Magistrate in Misc.

Case No. 121 of 2016 and the learned Session Judge in Criminal

Appeal No. 19 of 2020 did not at all consider the aspect of the

monetary relief entitled by the opposite party/aggrieved person

without taking into account the expenses incurred and losses

suffered by the aggrieved person.

It is submitted by the learned advocate for the

petitioner/husband that the monetary relief under Section 20 of

the Protection of Women from Domestic Violence Act is not similar

to an order of maintenance under Section 125 of the Code of

Criminal Procedure because an aggrieved person is entitled to get

monetary relief only to meet the expenses incurred and losses

suffered by her and her child as a result of domestic violence.

It is pointed out by the learned advocate for the petitioner that

nowhere in the order passed by the trial court in Misc. Case No.

121 of 2016 or in Criminal Appeal No. 19 of 2020 the learned

court of appeal framed any issue with regard to the expenses

incurred by the aggrieved person and the losses suffered by her

due to domestic violence. Without ascertainment of the said two

points, no order of monetary relief can be passed. Therefore, the

impugned judgments and orders by both the courts below are

wrong against the statutory provision and liable to be set aside.

It is further submitted by the learned advocate for the

petitioner that no Domestic Incident Report (DIR) was filed before

the trial court before institution of the case and both the courts

below erred in granting monetary relief in favour of the opposite

party without considering the Domestic Incident Report.

Learned advocate for the opposite party/aggrieved person on

the other hand submits that Domestic Incident Report was filed

before the trial court by the Protection Officer and it was duly

considered by the said trial court. Therefore, the objection raised

by the learned advocate for the petitioner with regard to non-

consideration of Domestic Incident Report does not stand.

Section 20 of the said Act runs thus :-

20. Monetary reliefs.- (1) While disposing of an

application under sub-section (1) of section 12, the

Magistrate may direct the respondent 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, but

not limited to,-

          (a)         the loss of earnings;

          (b)         the medical expenses;

          (c)         the loss caused due to the destruction,

          damage or removal of any property from the

          control of the aggrieved person; and

          (d)          the maintenance for the aggrieved

person as well as her children, if any, including an

order under or in addition of to an order of

maintenance under section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974) or any other

law for the time being in force.

(2) The monetary relief granted under this section shall

be adequate, fair and reasonable and consistent with

the standard of living to which the aggrieved person

is accustomed.

(3) The Magistrate shall have the power to order an

appropriate lump sum payment or monthly payments

of maintenance, as the nature and circumstances of

the case may require.

(4) The Magistrate shall send a copy of the order for

monetary relief made under sub-section (1) to the

parties to the application and to the in-charge of the

police station within the local limits of whose

jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted

to the aggrieved person within the period specified in

the order under sub-section (1).

(6) Upon the failure on the part of the respondent to

make payment in terms of the order under sub-

section (1), the Magistrate may direct the employer or

a debtor of the respondent, to directly pay to the

aggrieved person or to deposit with the Court a

portion of the wages or salaries or debt due to or

accrued to the credit of the respondent, which

amount may be adjusted towards the monetary relief

payable by the respondent.

On careful reading of Section 20, it is found that the Section

empowers the learned Magistrate to pass orders for grant of

monetary relief in favour of the aggrieved person against the

respondent to meet the expenses incurred and losses suffered

including losses and earnings, medical expenses, loss to property

and the maintenance for the aggrieved person as well as her

children, if any, including an order under or in addition of to an

order of maintenance under section 125 of the Code of Criminal

Procedure.

Therefore, the monetary relief is not confined to the only

expenses incurred and losses suffered by the aggrieved person. It

also includes maintenance under Section 125 of the Code of

Criminal Procedure.

The learned advocate for the opposite party submits that the

opposite party/aggrieved person is a student of law. In support of

his contention, he has filed a certificate issued by the Principal, it

is learnt that the petitioner is a student of law. It is needless to

say that a student has no earning. Therefore question of losses

suffered by the opposite party as a result of loss of earnings does

not arise in the instant case.

Both the courts below granted monetary relief @ Rs. 8,000/-

per month in favour of the opposite party. The opposite party is a

student. It is very natural that she incurs certain expenses for her

sustenance when there was a domestic relationship between the

parties and from the conduct of the appellant, it is clear that he

has put the opposite party under economic abuse without making

any payment for her sustenance. Such specific act comes within

the definition of domestic violence within the meaning of Section 3

of the said Act.

It is submitted by the learned advocate for the opposite

party/aggrieved person that the opposite party very cunningly

avoided to state his income and in the affidavit appended to the

instant revision, he mentioned his profession as domestic work

but one four wheeler and three motor bikes stand in the name of

the petitioner. It shows the extent of luxurious life led by the

petitioner. Therefore considering the status of the parties, the

learned advocate for the aggrieved person submits that the

amount of monetary relief ought to be extended by this court.

This court sitting in revisional jurisdiction cannot appreciate

the evidence adduced by the parties during trial of the case. The

court of appeal is the last court where appreciation of evidence on

record can be made. The jurisdiction of the revisional court is

confined to see as to whether there is any illegality, material

irregularity or improper exercise of jurisdiction by the courts

below in passing the impugned order.

Bearing this principle in mind, I am not in a position to accede

to the submission made by the learned advocate for the opposite

party/aggrieved person.

However, in view of the above discussion and considering the

provisions of law, I do not find any reason to interfere with the

orders passed by the learned Trial Judge which was confirmed by

the learned Session Judge in Criminal Appeal No. 19 of 2020.

Accordingly, the instant criminal revision is dismissed on

contest, however, without any costs.

(Bibek Chaudhuri, J.)