Calcutta High Court (Appellete Side)
Sri Dhananjoy Tewary vs State Of West Bengal & Anr on 15 March, 2021
15.03.2021
suman
Ct. 30
CRR 522 of 2021
(Via Video Conference)
Sri Dhananjoy Tewary
Vs.
State of West Bengal & Anr.
Mr. Soumitra Deb
...for the petitioner
Mr. Shamik Chatterjee
...for the opposite party No.2
Legality, validity and propriety of an interim order passed
in Criminal Appeal No.59 of 2020 under Section 29 of the
Protection of Women from Domestic Violence Act, 2005 (hereafter
described as the said Act) is under challenge in the instant
criminal revision.
Suffice it to say that the opposite party No.2 being the
legally married wife of the petitioner filed an application under
Section 12 read with Section 23 of the said Act praying for
monetary and other reliefs.
After filing of the application, notice was served upon the
opposite party herein and he was given three successive
opportunities to file written objection. The petitioner, however,
did not file any written objection against the application under
Section 23 of the said Act. By an order dated 10 th February,
2020 the learned Magistrate held on the basis of an affidavit filed
by the opposite party No.2 that the present petitioner earns
Rs.5,00,000/- per month from his mining business. In her
petition itself the petitioner /opposite party No.2 claimed
Rs.35,000/- each for herself and her daughter, total being
Rs.70,000/- per month.
The learned Judicial Magistrate, 7th Court at Alipore
passed an order dated 10th February, 2020 directing the opposite
party/petitioner herein to pay Rs.70,000/- per month towards
monetary relief for herself and her daughter under Section 23 of
the said Act read with Section 20 of the said Act on interim basis
till the disposal of the application under Section 12 of the said
Act.
The petitioner herein challenged the said order in appeal
before the learned Sessions Judge, Alipore in Criminal Appeal
No.59 of 2020.
The learned Sessions Judge by an order dated 6 th
February, 2021 admitted the appeal and stayed the operation of
the impugned order dated 10th February, 2020 for a limited
period of time subject to payment of Rs.65,000/- per month by
the petitioner to the opposite party No.2. The said order is
assailed in the instant revision.
It is found from the materials annexed with the instant
revisional application and submission made by the learned
advocates for the parties that except statement on solemn
affirmation, the opposite party No.2 did not produce any
document in support of monthly income of the present
petitioner. On the other hand, the petitioner has filed a photostat
copy of his pension pass book wherefrom it is ascertained that
the petitioner gets Rs.13,238/- per month from his pension.
Learned advocate for the petitioner submits that the
petitioner is a retired Government employee and he has no
business as alleged by the opposite party No.2. The learned
Judge did not consider the specific case of the opposite party
No.2 and overstepped his jurisdiction in passing the amount of
interim monetary relief as a condition precedent for stay of
operation of the order passed by the learned Judicial Magistrate
on 10th February, 2020.
Having heard the learned advocate for the parties and on
careful perusal of the entire materials on record it is ascertained
that the opposite party No.2 in her application under Section 12
read with Section 23 of the said Act did not file any document to
show the business of her husband (petitioner herein). On the
contrary, the petitioner has filed photostat copy of his pension
pass book wherefrom it is ascertained that he earns Rs.13,238/-
per month as pension.
Considering such aspect of the matter, the instant revision
is disposed of directing both the parties to file supplementary
affidavit before the trial Court as well as the Appellate Court in
terms of Annexure -1 of the judgment of the Hon'ble Supreme
Court in the case of Rajnesh versus Neha and another reported
in (2021) 2 SCC 324 within 10 days from the date of this order.
Learned Judge in the Court of Appeal is directed to dispose of the
appeal on the basis of the statement on affidavit made by the
parties as aforesaid within 15 days thereafter.
The learned trial Judge is also directed to dispose of the
application under Section 12 of the said Act within two months
from the date of communication of the order passed by the
learned Appellate Court.
In the meantime, the petitioner shall go on paying a sum of
Rs.10,000/- to the opposite party No.2 till disposal of the
application under Section 12 of the said Act.
However, I have not gone into the merit of the petitioner's
monetary condition and his monthly income. The above order
and quantum of maintenance is passed considering the aspect
that the petitioner being the husband has legal and moral duty
to maintain his wife and daughter and such order is passed so
that the opposite party No.2 and her daughter may not fall in
vagrancy. It is made clear that the learned Court of Appeal and
the learned Trial Judge are at liberty to decide the issue
independently and fix the quantum of maintenance.
(Bibek Chaudhuri, J.)
