Amitendu Mondal vs Unknown
2021 Latest Caselaw 2755 Cal

12.04.2021
 Mithun
 Sl. No.17.
    D/L.
 Ct.No.30.

                                             CRR/52/2021

                     In re: An application under Section 401 read with Section
                             482 of the Code of Criminal Procedure, 1973.

                     In the matter of : Amitendu Mondal.

                                                                 ...the petitioner.

              Mr. Chittapriya Ghosh, Adv,
              Ms. Priyanka Saha, Adv.
                                                                ...for the petitioner.

              Mr.Dipanjan Dutt,Adv.,
                                                                      ...for the O/P.

                    Affidavit-of-service be kept with the record.

                    The instant revision is taken up for hearing in presence of

              the   learned      Counsels   for   the    husband/petitioner      and

              wife/opposite party No.2.

                    Suffice it to say that upon an application under Section 23

              of the Protection of Women from Domestic Violence Act, 2005

              (hereinafter described as the said Act), the learned Magistrate,

              5th   Court   at    Sealdah   passed      an   order   directing   the

              husband/petitioner to pay Rs.6,000/- per month towards interim

              monetary relief to opposite party No.2.

                    The wife/opposite party No.2 challenged the said order

              passed by the learned Judicial Magistrate, 5th Court, Sealdah on

              8th August, 2019 in Criminal Appeal No.19 of 2019 before the
                                     2




learned Additional Sessions Judge, Second Court at Sealdah.

The learned Judge in the Court of appeal below enhanced the

interim monetary relief to the tune of Rs.15,000/- per month on

consideration that the gross salary of the petitioner/husband is

Rs.91,098/- for the month of February, 2020 and take home pay

is Rs.69,224/-.

      The        husband/respondent     has    challenged     the   said

judgment/order passed in Criminal Appeal No.19 of 2019 on 29 th

February, 2020.

It is submitted by the learned Advocate for the petitioner

that the learned Appellate Court enhanced the interim monetary

relief only on the basis of the monthly salary of the petitioner.

The learned Judge in the Appellate Court did not consider the

responsibilities of the petitioner to his mother and other family

members and the amount spent by him to carry out such

responsibilities.

Mr. Dutt, learned Advocate for the opposite party/wife, on

the other hand, submits that it is an undenying fact that son

must have some responsibilities towards his mother but it is

submitted by him under instruction that the mother of the

petitioner is a family pension holder. It is also submitted by him

that the petitioner/O.P. is entitled to get at least 25 % of the

husband's net salary towards interim monetary relief for her

maintenance. In support of his contention, he refers to a

decision of the Hon'ble Supreme Court in Kalyan Dey

Chowdhury Vs. Rita Dey Chowdhury nee Nandy reported in

(2017) 14 SCC 200. In Paragraph 15 of the said report, the

Hon'ble Supreme Court observed:

"....Following Kulbhushan Kumar Vs. Raj Kumari,

(1970) 3 SCC 129, in this case, it is held that 25% if the

husband's net salary would be just and proper to be awarded as

maintenance to the respondent wife.

It is submitted by the learned Advocate for the petitioner

that the opposite party/aggrieved person did not make any

averment as to whether the aggrieved person/wife is in actual

need of monetary relief or that the specific requirement for

which monetary relief is required and up to what extent.

In this regard, I like to quote Paragraph 68 of the

application under Section 12 of the said Act. It runs thus:-

"68. That the respondent no.1/husband is very much

reluctant to provide proper maintenance or any medical

expenses towards your petitioner. Moreover, the aged and

ailing parents of your petitioner have to bear the maintenance

expenses of your petitioner in her day to day life which becomes

now extremely hardship for them."

The above averment is clearly shows that the petitioner

requires monetary relief from the opposite party for :-

      (1)    Maintenance;

      (2)    Medical expenses;

      (3)    Expenses in her day to day life.

The opposite party is the wife of the petitioner who

is a teacher of Kendriya Vidyalaya. I have already stated

the amount of take home salary received by the

petitioner. Following the ratio laid down in Kulbhushan

Kumar (supra) and followed by Kalyan Dey

Chowdhury (supra), I am of the view that the learned

Court below did not commit any error, illegality or material

irregularity in passing the impugned order in Criminal

Appeal No.19 of 2019 dated 08.08.2019.

For the reasons stated above, the instant criminal

revision is dismissed on contest however without costs.

(Bibek Chaudhuri, J)