Snigdha Mukherjee vs Mr. Kalyan Mukherjee @ Kalyan ...
2022 Latest Caselaw 3775 Cal

IN THE HIGH COURT AT CALCUTTA (Criminal Revisional Jurisdiction) Appellate Side

Present:

The Hon'ble Justice Rai Chattopadhyay

C.R.R. 2570 of 2021 With I.A. No. CRAN 1 of 2022 Snigdha Mukherjee Versus Mr. Kalyan Mukherjee @ Kalyan Kumar Mukherjee

For the petitioner : Mr. Navanil De, Mr. Rajeshwar Chakraborty, Mr. Srinjan Ghosh, Mr. Subhrajit Dey

Hearing concluded on : 23/06/2022

Judgment on: 30/06/2022

Rai Chattopadhyay, J. :

1) The instant revision case is directed against the judgment and order

dated 29.09.2020 passed by the Ld. Additional Sessions Judge

Baruipur, South 24 parganas in Criminal Appeal No.8 of 2016. By

dint of the same learned Trial Court has modified the order dated

24.10.2016 passed by the Ld. Judicial Magistrate, 1st class,

Baruipur, South 24 Parganas in M.P Case No.21 of 2012 and T.R Case No. 208 of 2012 to the effect that in place and stead of paying a

sum of Rs.10,000/- as maintenance per month along with a further

sum of Rs. 10,000/- p.m. as medical expenditure, the present

opposite party would only require to pay the maintenance amount as

directed and not the monthly medical expenditure.

2) Bereft of any unnecessary details the factual background necessary to

be dealt with in this revision may be narrated that the petitioner is the

wife of opposite party and they were married on 10.07.1985. Their

marriage was registered as per provisions of Special Marriage Act,

1954. However the parties could not lead a peaceful conjugal life and

the petitioner filed in the Trial Court her application/case under

Section 12 of the Protection of Women from Domestic Violence Act,

2005, being registered as M.P Case No.21 of 2012. The said M.P Case

No.21 of 2012 ended in the judgment by the learned Magistrate dated

24.10.2016, by dint of which the opposite party/husband was

directed to pay a sum of Rs.10, 000/- per month to the petitioner

towards her maintenance and also a further sum of Rs.10, 000/- per

month for medical expenditure of the petitioner who has been

suffering with the terminal decease like cancer.

3) The present opposite party was aggrieved by such judgment and order

dated 24.10.2016 of the Magistrate and challenged the same in an appeal in the court of Addition District and Sessions Judge, Baruipur,

South 24 Paraganas being Criminal Appeal No.8 of 2016.

4) Petitioner in this revision has put forth her specific ground regarding

her grievance as to the way the appeal proceeded in the court and

according to her, her vital rights to defend the case has been

jeopardised and also her right to be heard has been prejudiced,

insofar as the court while passing the judgment under challenge in

this revision has proceeded without knowledge of the petitioner and

also without giving her an opportunity of being heard.

5) Certified copy of the order sheets of the learned Trial Court of the

Criminal Appeal No.8 of 2016 have been referred, from which it

transpires that the learned Trial Court on 03.12.2019 has recorded

appearance of the parties and fixed a date for hearing of the case on

13.01.2020. On 13.01.2020 again the appearance of the parties was

noted and the date was fixed on 05.03.2020 for hearing the appeal

and filing written argument. It is shown from the order dated

05.03.2020 that the court has again recorded the appearance of the

parties and fixed another date on 18.04.2020 for the same purpose.

However, from the order dated 18.04.2020/30.07.2020, it transpires

that the Ld. Trial Court has taken up the record and fixed a date, that

is, 19.08.2020 for delivering judgment. It appears from the said order

sheets that during the period from 05.03.2020 to the date of that order, the case record could not be taken up by the court as per

schedule, due to the suspension of work in court at the wake of the

pandemic due to spared of Corona Virus. Ultimately judgment was

pronounced by the Trial Court on 29.09.2020. It is found from the

certified copy of the order sheets that though the court earlier noted

the case to be fixed for hearing of appeal and submission of written

argument by the parties, ultimately before delivering judgment,

neither presence of any of the parties was noted by the Trial Court nor

the fact that any of the parties could file their written notes of

arguments before the court as was directed earlier.

6) In the judgment as impugned the Ld. Additional Sessions Judge

allowed the appeal of the husband in part and modified the judgment

of the Magistrate dated 24.10.2016 to the extent that he would not be

required to pay the amount of Rs.10,000/- per month towards

medical expenditure of the present petitioner wife.

7) The petitioner whose specific case has been that she was devoid of

any independent earning and also that she has been subjected to

domestic violence and that for years she has been suffering with

cancer, now seeks an order from this court for redressal of her

grievance.

8) It appears from record that vide order dated 23.12.2021, this court

directed the petitioner to effect service upon the opposite party by speed post with acknowledgement due and to file the affidavit-of-

service. The affidavit-of-service has been filed and kept with the

record. Though there is no 'acknowledgement due' attached with the

same, I have considered the track report of the postal department and

find endorsement regarding delivery of article at the destined address

and thus hold the service to be a 'good' one. However when the

matter is called on for hearing none appears on behalf of the opposite

party/husband in spite of due service of notice.

9) In this case, the opposite party/husband has not disputed the factum

of matrimonial tie with the present petitioner, either in the Ld.

Magistrate's Court or before the first Appellate Court. Both the parties

were represented in the court of Ld. Judicial Magistrate though

during pendency of the appeal the pandemic set in, resulting into

suspension of regular work in all courts in West Bengal. These

caused certain irregularity in hearing of the case as per the courts

dairy and ultimately, as it is submitted and duly corroborated by the

order sheets of the Ld. Trial Court, that, the impugned judgment was

delivered without affording any opportunity of hearing to the present

petitioner. No doubt, there is nothing before this court to confront or

challenge the fact that the petitioner who has been contesting for her

statutory rights has been deprived of being heard and the opportunity

to place her argument in the Trial Court. This in my considered opinion, calls for a remedial order from this court and I find that the

instant revision case is legible to be allowed.

10) Hence, C.R.R No.2570 of 2021 is allowed. The impugned judgment of

the Ld. Additional District & Sessions Judge, Baruipur, South 24

Parganas in Criminal Appeal No.8 of 2016 dated 29.09.2020 is hear

by modified to the extent that the finding of Ld. Trial Judge that

husband is not required to pay the further amount of Rs.10,000/- per

month towards medical expenditure of the wife is set aside. The case

is remanded back to the court of the Ld. Additional Session Judge

Baruipur South 24 Parganas with the direction that the Criminal

Appeal No.8 of 2016 which was pending before it be restored to its

original file and be heard and disposed of by dint of a reasoned

judgment on the point as mentioned above, after affording

opportunity to both the parties to be heard and/or to submit written

notes of argument. It is further directed that in the meantime the

opposite party/husband shall continue to pay the sum of Rs.10,

000/- per month as was directed by the Judicial Magistrate, 1st

class, Baruipur, South 24 Parganas in M.P Case No.21 of 2012, and

affairmed by the first appellate court in the impugned judgement, to

be paid towards maintenance of the petitioner in accordance with the

terms specified, without any departure.

11) C.R.R No.2570 of 2021 along with all connected applications are thus

disposed of.

12) There shall be no order as to costs.

13) Urgent photostat Certified Copy of this judgment, if applied for, be

given to the parties, on priority basis.

(Rai Chattopadhyay, J.)