Swarup Guhu Roy vs The State Of West Bengal & Anr
2021 Latest Caselaw 1890 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

                           C.R.R. 46 of 2020

                           Swarup Guhu Roy
                                    -Vs-
                   The State of West Bengal & Anr.

     For the Petitioner:                   Mr.   Kallol Mondal,
                                           Mr.   K. Roy,
                                           Mr.   A. Chel,
                                           Mr.   S. Das,
                                           Mr.   A. Banerjee


     For the Opposite Party No.2:          Mr.   Manjit Singh,
                                           Mr.   Pratip Kr. Chatterjee,
                                           Mr.   Abul Hassan,
                                           Mr.   Biswajit Mal,
                                           Mr.   G. Singh.
Heard on: 27th January, 2021.

Judgment on: 11th March, 2021.

BIBEK CHAUDHURI, J. : -


1.

Legality, validity and propriety of an order dated 17th July, 2019

passed by the learned Additional Sessions Judge, Fast track 4th Court at

Alipore in Criminal Appeal No.283 of 2018 and 290 of 2018 modifying an

order dated 16th November, 2018 passed on an application under Section

23 of the Protection of Women from Domestic Violence Act, 2005 in AC

No.423 of 2018 and directing the petitioner to pay monetary relief in

favour of the opposite party No.2 at the rate of Rs.10,000/- per month is

under challenge in the instant criminal revision.

2. Undisputedly, the petitioner and the opposite party are legally

married husband and wife. Both of them were divorcee, the opposite party

No.2 having a child from her first marriage. Their marriage was

solemnised on 25th December, 2009. It is the case of the petitioner that

after marriage they happily maintained their marital life. Subsequently

the opposite party No.2 started treating the petitioner with cruelty. She

used to raise protest against the petitioner's act of looking after his old

ailing mother. The dispute between the husband and wife took serious

turn where the petitioner was compelled to file Matrimonial Suit No.144 of

2018 praying for divorce against the opposite party No.2. The opposite

party No.2 after receiving summons of the matrimonial suit only on

retaliation filed an application under Section 12 and Section 23 of the

Protection of Women against Domestic Violence Act. The said application

was registered as AC No.423 of 2018.

3. The application under Section 23 of the Domestic Violence Act was

taken up for hearing by the learned Judicial Magistrate, 3rd Court at

Alipore. The learned Magistrate passed an order against the

petitioner/husband directing him to pay monetary relief at the rate of

Rs.8000/- per month to the opposite party No.2/aggrieve person and

Rs.4000/- per month for her minor child from the date of filing of the

case.

4. The petitioner challenged the said order in appeal. The Appellate

Court disposed of the appeal being Criminal Appeal No.283 of 2018 and

290 of 2018 directing the petitioner/husband to pay monetary relief to the

petitioner at the rate of Rs.10,000/- per month. The grounds of attack in

the instant revision are as follows:

a) The Application under Section 12 read with Section 23(2)

of the Protection of Women from Domestic Violence Act

was filed by the opposite party No.2 on retaliation after

receiving notice of the matrimonial suit filed by the

petitioner against the opposite party.

b) The opposite party No.2 is a practicing Advocate at Alipore

court. She has her independent income. She also is the

owner of landed properties and a portion of residential

house at Canning in the district of South 24 Parganas and

she does not require any monetary relief.

c) The learned Judge failed to consider the income of the

opposite party and the income tax return filed by him in

court during the hearing of the appeal. In order to look

after her old ailing mother, the petitioner has resigned

from his job and now he is earning a paltry sum of

Rs.17,000/- per month as a part time teacher in a private

academic institution.

d) The petitioner himself has no source of income to maintain

himself therefore he has prayed for alimony pendent lite

against his wife, opposite party No.2 in Matrimonial Suit

No.144 of 2018.

e) The learned Judge in First Appellate Court failed to

consider that the petitioner spent almost the entire money

for medical treatment of her mother and he has no source

to pay monetary relief to the petitioner.

5. The opposite party No.2 has been contesting the instant revision by

filing an affidavit-in-opposition denying and controverting all allegations

made out against her in the revisional application. The opposite party

No.2 specifically stated that the petitioner works as a Free Lancer

Marketing Expert. The petitioner has good experience and strong hold in

the field of marketing and he visits various companies for settlement of

marketing strategy etc and gets remuneration amounting to Rs.15,000/-

to Rs.20,000/- for each visit. Apart from the said income, he earns

Rs.89,000/- from G.C Chemie Pharmie Limited where he works as Zonal

Sales Manager. He is also a partner of limited liability partnership firm

under the name and style of Horisant Skill and Business Development

L.L.P. He is also associated with another institution under the name and

style of Isha Learning wherefrom he gets monthly salary of Rs.46476.76.

Therefore, it is absolutely false to state that the petitioner gets

Rs.17,000/- per month. It is further submitted by the opposite party No.2

that he is a junior Advocate of Alipore Court Bar Association and earns

Rs.8,000/- to Rs.10,000/- per month. She also denied of having landed

property and ancestral residential house at Canning. It is submitted by

the petitioner that in her application under Section 12 read with Section

23 of Protection of Women from Domestic Violence Act she discloses her

monthly income as an Advocate of Alipore Court. She approached the

Court with clean hand. The learned Appellate Court below allowed

monetary relief in favour of the petitioner considering her monthly income

as an Advocate. It is also alleged that the petitioner have created some

false and fictitious documents in the form of income tax return only to

deprive the petitioner of her lawful claim.

6. The husband/petitioner has filed an affidavit-in-reply to the

affidavit-in-opposition submitted by the opposite party No.2 and

reiterated that he earns Rs.17,000/- only per month and it is not possible

for him to pay Rs.10,000/- per month in favour of the opposite party

No.2. The petitioner has also filed certain documents to show that the

opposite party No.2 is the owner of some landed and ancestral residential

property.

7. I have heard the learned Advocates for the petitioner and the

opposite party, perused the application, affidavit-in-opposition and

affidavit-in-reply and considered.

8. It is on record that the learned Judge in First Appellate Court

granted monetary relief under Section 23 of the Protection of Women from

Domestic Violence Act in favour of the opposite party No.2 after giving

opportunities to both the parties of hearing.

9. At the time of hearing the husband/petitioner and the wife/opposite

party annexed various documents to prove their respective cases.

However sitting in revision, I am not in a position to consider the

documents submitted by the parties to the proceeding in order to

adjudicate as to whether the impugned judgment/order suffers from any

intrinsic illegality or gross irregularities. The income of the respective

parties shall be adjudicated on the basis of the evidence adduced by the

parties, both oral and documentary. The revisional court cannot even

prima facie assess the documents filed by the parties to the proceeding.

10. It is not disputed that opposite party No.2 is the legally married wife

of the petitioner. It is the bounden duty of the petitioner to maintain his

wife. Considering the status of the parties this Court is of the view that

the order passed by the learned Judge in Appeal does not suffer from any

infirmity. I do not find any reason to interfere with impugned

judgment/order passed by the learned Judge in Appeal.

11. The instant revision being devoid of any merit is dismissed on

contest however without cost.

12. It is made clear that this Court does not venture upon the merit of

the case and the documents filed by the parties. It is open for the

contesting parties to adduce evidence in the trial court and prove the

document for proper consideration and in such event the learned

Magistrate shall dispose of the application under Section 12 of the

Protection of Women from Domestic Violence Act in accordance with law.

13. The revision is thus dismissed on contest however, without cost.

(Bibek Chaudhuri, J.)