Priyanka Malik vs State Of West Bengal & Anr
2021 Latest Caselaw 4934 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            CRR 667 of 2020
                             Priyanka Malik
                                     -Vs-
                       State of West Bengal & Anr.


      For the Petitioner:             Mr. Biplab Mitra,
                                      Mr. Narayan Ch. Das,
                                      Mr. Ashok Kr. Chowdhury.

      For the Opposite Party No.2:    Mr. Sourav Chatterjee,
                                      Ms. Amrita Pandey,
                                      Ms. Anamika Pandey.

Heard on: March 18, 2021.
Judgment on: September 21, 2021.

BIBEK CHAUDHURI, J. : -

1.

The instant criminal revision under Section 401 read with Section

482 of the Code of Criminal Procedure is filed by one Priyanka Malik

(hereafter described as the aggrieved person) against her husband Pankaj

Malik (hereafter described as the opposite party) challenging legality,

validity and propriety of the order dated 22nd November, 2019 passed by

the learned Additional Sessions Judge, 3rd Fast Track Court at Barasat in

Criminal Appeal No.51 of 2018 under Section 29 of the Protection of

Women from Domestic Violence Act.

2. By passing the order impugned the learned Judge in the court of

appeal modified an order dated 18th August, 2018 passed by the learned

Judicial Magistrate, 2nd Court at Barasat in Misc Case No.2692 of 2015

upon an application under Section 23 of the said Act.

3. On factual score, indisputable marriage of the aggrieved person was

solemnised on 1st December, 2000 with the opposite party at New Delhi.

In the said wedlock the aggrieved person gave birth to two daughters in

the year 2003 and 2008 respectively. Unfortunately, matrimonial life of

the parties was not sweet and happy. It is alleged by the aggrieved person

that opposite party used to abuse her with filthy language. Not only she

was subjected to domestic violence in mental form, she was subjected to

physical torture by her husband too. Failing to bear such torture she

lodged a written complaint against her husband on 17th August, 2015

under Section 498A of the Indian Penal Code to the Inspector, Nacharam

Cyberabad Police Station, Hyderabad. Subsequently, on 30th November,

2015 the aggrieved person filed an application under Section 12 of the

said Act before the learned Judicial Magistrate at Barasat which was

registered as Case No.2692 of 2015 praying for protection order under

Section 18, residence order under Section 19, monetary relief under

Section 20 and custody of the children of the parties under Section 21 of

the said Act. In the said proceeding prayer was made by the aggrieved

person for interim monetary relief for herself and minor daughters at the

rate of Rs.2,10,000/- per month.

4. The learned Magistrate passed an order directing the opposite party

to pay monetary allowance at the rate of Rs.80,000/- per month for

maintenance of the minor daughters of the aggrieved person in favour of

her.

5. The opposite party challenged the above noted order in appeal

under Section 29 of the said Act before the learned Sessions Judge at

Barasat. The said appeal was registered as Criminal Appeal No.51 of 2018

and subsequently it was transferred to the 3rd Fast Track Court of the

learned Additional Sessions Judge at Barasat for disposal.

6. By passing the impugned judgment the learned judge in appellate

court directed the opposite party to pay Rs.40,000/- per month to the

aggrieved person towards monetary relief for her daughters till the

disposal of the case.

7. Being aggrieved the aggrieved person has filed the instant revisional

application.

8. Mr. Biplab Mitra, learned Advocate for the petitioner submits that

the learned Judge in the appellate Court failed to appreciate the need of

the daughters of the aggrieved person. He also submits that the order of

the appellate court fixing interim monetary relief at the rate of

Rs.40,000/- per month was passed on consideration of some extraneous

matters which did not deserve to be considered. In support of his

contention he refers to paragraph 10 of the impugned judgment where the

learned judge in the appellate court observed that if the amount has

allowed by the learned Magistrate be paid to the aggrieved person she

would misutilised the fund since she is living adulterous relationship with

one Raja Mukherjee. It is submitted by Mr. Mitra that while disposing of

an application under Section 12 or Section 23 or an appeal arising out of

an order passed under Section 23 the learned Magistrate or court of

appeal, as the case may be shall confine to the actual need of the

aggrieved person for herself and the children of the parties inconsonance

to their social status and economic background.

9. Mr. Mitra next draws my attention to the series of annexures filed

by the aggrieved person with the instant revisional application. It is

needless to say that two daughters of the parties were born in the year

2003 and 2008. Their present ages are 18 years and 13 years

respectively. In 2015 the elder daughter of the aggrieved person was a

student of class seven her admission fee in the school was Rs.85,000/-.

Yearly admission fee of the younger daughter of the aggrieved person was

also Rs.85,000/-. The school authority used to take approximately

Rs.17,000/- per month towards miscellaneous charges. The aggrieved

person has submitted her monthly expenditure wherefrom it is

ascertained that on the date of filing of the instant application she used to

spent Rs.10,100/- towards tuition fee and transportation for her two

children. She pays Rs.11,000/- as monthly salary to the private tutors of

the said two children. For co-curriculum activities and all round

development of the children she spent Rs.6000/- per month for books

stationary etc for her two children she spent Rs.10,000/-. Of such

expenditure are exclusive of food, nourishment, medical expenses and

other essential expenses met by the aggrieved person for bringing up of

her children.

10. Mr. Mitra further submits that the opposite party earns more than

Rs.58 lakhs per annum. The said has not been denied by the opposite

party by filing any affidavit in opposition in the instant proceeding.

Considering such financial background of the father the monetary

allowances passed by the learned Judicial Magistrate was just proper and

adequate. Learned Judge in first appeal without considering such fact

and on the basis of some extraneous consideration reduced the monetary

allowance arbitrarily.

11. Mr. Sourav Chatterjee, learned Advocate for the opposite party No.2

on the other hand submits that the aggrieved person left the association

of her husband without any cogent reason. The allegation made by her

that she was mentally and physically tortured by her husband had no

basis. It is further submitted by Mr. Chatterjee that the aggrieved person

falsely stated that she took shelter in Kolkata initially in a hotel at

Gariahat. However, the said premises at Gariahat is owned by none other

than the father of the aggrieved person. Practically, aggrieved person was

misdirected by her parents. There was no reason for her to stay in a

rented accommodation at New Town. He has also raised question on the

authenticity of the claim of the aggrieved person for the maintenance of

her children. According to Mr. Chattejee the claim of the aggrieved person

for educational expenses of her children to the tune of Rs.18,250/- each

may be held to be justified but she cannot claim proportionate amount of

house rent, electricity charges, food and grocery, cloth and essential

medical expenses and essential recreation and weekend outing pocket

money, mobile bill etc for the said two children. The aggrieved person

equally has the responsibility to maintain their children. Therefore,

according to the learned Counsel for the opposite party there is no reason

to interfere with the order passed by the court of appeal under Section 29

of the said Act. The learned Judge in the court of appeal before settling

the amount of interim monetary relief observed as hereunder:

16. Whatever may be, at this stage it would not be wise for this court to go for any thread bearing discussion regarding the merits of arguments of respective parties because it would effect the final hearing of the case pending before the Ld. Judicial Magistrate. What, it prima-facie apparent from the respective pleading filed before the Ld. Trial Court as well as argument advanced before this Court that both the husband and wife i.e litigating parties of this case are placed in respective high position and thus both are duty bound to maintain their minor daughters. In this context it is relevant to point out, mere sufficient income of the aggrieved person can no be exonerated the biological father from his legal obligation to maintain his daughters. Arguments on this score is devoid of merits.

17. Considering prima-facie materials, as adduced regarding the school fees and other maintenance costs as filed before the Hon'ble Supreme Court., this court feels that for the purpose of maintenance of the minor daughters,, this court has no hesitation to hold that the order passed by the Ld. Magistrate as regards monthly maintenance of the daughters exceeding their requirements. The Ld. Magistrate even did not

award the maintenance amount which is admitted that she used to spend.

18. So with all humility this court must held that the order of maintenance passed by Ld. J.M. warrants interference by this Court.

12. This court fails to understand that in spite of the finding arrived at

by the learned Judge in the court of appeal that the litigating parties are

placed in very high position; secondly even after accepting the affidavit

filed by the aggrieved person before the Hon'ble Supreme Court on the

issue of expenses towards academic cost and maintenance of her

children, how he reduced interim monetary relief from what was granted

by the learned Judicial Magistrate.

13. In my considered opinion, the order passed by the learned

Additional Sessions Judge, 3rd Fast Track Court, Barasat cannot sustain

and is liable to be set aside.

14. For the reasons stated above the instant criminal revision is allowed

on contest, however without cost.

15. The order passed by the learned Additional Sessions Judge, 3rd Fast

Track Court at Barasat is set aside and the order passed by the learned

Judicial Magistrate, 2nd Court at Barasat is restored.

16. The opposite party No.2 is directed to comply with the order passed

by the learned Judicial Magistrate, 2nd Court at Barasat in entirety.

(Bibek Chaudhuri, J.)