Calcutta High Court (Appellete Side)
Chandra Rani Gupta vs Swapan Kumar Gupta And Anr on 23 August, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble JUSTICE BIVAS PATTANAYAK
CRR 3711 of 2016
Chandra Rani Gupta
Vs.
Swapan Kumar Gupta and Anr.
For the Petitioner: Ms. Chandreyi Alam, Adv.
Heard on: 30.06.2022
Judgment on: 23.08.2022
BIVAS PATTANAYAK, J. : -
1.The present revisional application has been filed by the petitioner-wife
under Section 401 of the Code of Criminal Procedure for setting aside order
dated 17.06.2016 passed by Learned Additional District & Sessions Judge,
13th Court, at Alipore, 24-Parganas (South) in Criminal Appeal No.162/2014.
2.The brief fact of the case is as follows:-
(i) On 21.01.2010 the petitioner filed an application being AC-
113/2010 under Sections 18,19,20 and 22 of the Protection of Women
from Domestic Violence Act, 2005 with a prayer for a direction upon
the opposite party no.1-husband to pay rent to the tune of Rs.3000/-
per month and maintenance of Rs. 5000/- per month.
(ii) Upon hearing the Learned Judicial Magistrate, 10th Court, at
Alipore, 24-Parganas (South) disposed of the application on
10.07.2013, directing the opposite party no.1-husband to pay Rs.
2000/- per month towards alternative accommodation and Rs. 4000/-
per month as monthly maintenance.
(iii) On 11.09.2013, the petitioner-wife filed an application under
Section 25 (2) of the Act for modification and enhancement of the
amount that was granted in her favour towards alternative
accommodation and monthly maintenance, which was registered as
Misc. Case no. 01/2013.
(iv) The learned Judicial Magistrate,10th Court, at Alipore, disposed of
the said application on 19.07.2014, directing the opposite party no.1-
husband to pay Rs. 2500/- per month towards alternative
accommodation and Rs.5000/- per month as maintenance.
(v) Challenging order dated 19.07.2014 as above, both petitioner and
opposite party no.1 herein filed separate appeals before the Learned
Sessions Judge, at Alipore, 24-Parganas (South) being no. 162/2014
and 152/2014 respectively under Section 29 of the Protection of
Women from Domestic Violence Act,2005.
2
(vi)Both the aforesaid appeals were disposed of by a common
judgement by learned Additional Sessions Judge,13th court, at Alipore,
24-Parganas(South) on 17.06.2016 as follows:-
"that the Criminal Appeal no.152 of 2014 and
Criminal Appeal no.162 of 2014 be and the same
are herby partly allowed on contest but without
cost. The impugned order dated 19.07.2014 passed
in Misc. Case no.1/13 is hereby modified to the
effect that the appellant of Criminal Appeal no.152
of 2014 who is the respondent of Criminal Appeal
no.162 of 2014 namely Swapan Kumar Gupta is
directed Under Section 19(f) of P.W.D.V Act to pay
Rs. 2000/- per month to Chandra Rani Gupta,
appellant of Criminal Appeal no.162 of 2014 and
respondent no.2/A.P of Criminal Appeal no. 152 of
2014 as rent for alternative accommodation. He
further directed under section 20(d) of the P.W.D.V
Act to pay Rs. 4750/- per month to Chandra Rani
Gupta, appellant of Criminal Appeal no.162 of 2014
and respondent no.2/A.P of Criminal Appeal no.152
of 2014 as monetary relief for her maintenance. He
shall make payment of Rs. 6750/- per month to
Chandra Rani Gupta, appellant of Criminal Appeal
no. 162 of 2014and respondent no.2/A.P of
CriminalAppeal no. 152 of 2014 on the 10th day of
each succeeding English Calendar month. The other
parts of the impugned order are to remain as
before".
3.Being aggrieved by and dissatisfied with the aforesaid judgment and order
the petitioner-wife has preferred the present revisional application.
4.None appeared on behalf of the opposite party no.1-husband inspite of
service of notice.
5.Ms. Chandreyi Alam, learned advocate appearing for the petitioner-wife
submitted that initially the petitioner-wife was favoured with an order of
maintenance to the tune of Rs. 4000/-per month and Rs.2000/- per month
towards alternative accommodation in AC 113 of 2010. Thereafter the
petitioner-wife filed an application under Section 25 sub-section (2) of the
Act for enhancement of maintenance to the extent of Rs.5000/- per month
and alternative accommodation to the extent of Rs. 4000/- per month on the
ground of escalation of monthly pension of the opposite party no.1-husband
from Rs.10,435/-per month to Rs. 13,291/- per month. Upon hearing the
learned Magistrate enhanced the maintenance to Rs. 5000/-per month and
alternative accommodation to Rs. 2500/- per month. The said order was
challenged before the Learned Sessions Judge and the amount so granted in
favour of the petitioner-wife by the Learned Judicial Magistrate towards
enhancement was scaled down in the appeal. She further submits that
admittedly there is increase in the pension of the opposite party no.1-
husband. Further the evidence shows that he is a guest lecturer in Ram
Mohan College (morning section) and earns Rs.200/- per class. He also
receives interest to the tune of Rs. 7,000/- against fixed deposit of Rs. 9 lacs.
However, without considering the said aspects the Additional Sessions Judge
inspite of allowing the prayer of the petitioner for enhancement, scaled down
the amount granted in her favour. In the light of her above submissions she
prayed for enhancement of maintenance to Rs.5000/- per month and of
alternative accommodation to Rs. 4000/- per month in favour of the
petitioner-wife.
6.At the very outset it is pertinent to note that there is no case made out by
the opposite party.1-husband that the aggrieved party(wife) is capable of
maintaining herself or she has got an independent source of income. The
opposite partyno.1-husband has admitted the following facts in the original
case and subsequent proceeding for enhancement, firstly, he retired as a
teacher of Amarendra Vidyapith H.S School, at Uttarpara, Hooghly on
30.11.2008 and received pension to the tune of Rs. 10,435/-; secondly, there
is enhancement of his pension to the extent of Rs.13,291/-; thirdly, he has
received Rs. 9 lacs in total as retirement benefit from all sources and the
interest from such fixation is Rs.7,000/-; fourthly, he is a guest lecturer of
Ram Mohan College (morning section) and earns Rs.200/- per class.
Although the learned Additional Sessions Judge observed that there is
"change in circumstances" to merit an enhancement yet it failed to observe
any cogent reason for scaling down the amount as directed by the learned
Judicial Magistrate towards enhancement. It appears from the admitted facts
indicated above that there is increase in pension of the opposite party no.1-
husband. Further there is income of opposite party no.1-husband from other
sources too. Accordingly, the petitioner-wife is entitled for enhancement and
the impugned judgment and order of the Additional Sessions Judge calls for
interference.
7.The order of learned Magistrate in Misc. Case 1 of 2013 shows that the
opposite party-husband is aged person and is also suffering from age related
ailments. Considering the aforesaid aspect an amount of Rs. 5,000/- per
month as monetary relief for maintenance and Rs. 2,500/- per month as rent
for alternative accommodation to the petitioner-wife (aggrieved party) will be
apposite as was rightly directed by the learned Judicial Magistrate.
8.In the aforesaid backdrop the impugned judgment and order dated
17.06.2016, passed by learned Additional Sessions Judge, 13th Court,
Alipore in Criminal Appeal 162 of 2014 is set aside.
9. Accordingly, the opposite party no.1-husband is directed to pay an
amount of Rs. 5,000/- per month as monetary relief for maintenance and Rs.
2,500/- per month as rent for alternative accommodation to the petitioner-
wife (aggrieved party). Both the aforesaid amount totaling to Rs.7,500/- per
month shall be paid to the petitioner-wife (aggrieved party) within 10th day of
each succeeding English Calendar month.
10.With the aforesaid observations the present revisional application being
no.CRR no. 3711 of 2016 is disposed of.
11. All connected applications, if any, stand disposed of.
12. Interim orders, if any, stand vacated.
13.Urgent Photostat Certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after complying with all necessary legal
formalities.
14.Let a copy of this order be sent to learned trial court for information.
(Bivas Pattanayak, J)
