SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

An Application Under Section … vs Prasenjit Sadhu & Ors on 12 December, 2019

1

Sl. December C.R.R. 2540 of 2019
8 12, 2019

9.
In the matter of: An application under Section 497/Section401 of the Code of
Criminal Procedure;

And
In the matter of : Prasenjit Sadhu ors.

Versus
State of West Bengal anr.

With

C.R.R. 2541 of 2019

In the matter of : An application under Section 497/Section401 of the Code of
Criminal Procedure;

And
In the matter of : Arun Kumar Sadhu
Versus
State of West Bengal anr.

Mr. Samarendra Nath Biswas,
…for the petitioners.

Mr. Alrujit Ganguly,
Mr. Sanjib Kumar Dan,
…for the State.

Mr. Seklhar Barman,
…for the opposite party no. 2.

Both the revisional applications are taken up together for consideration

on consent of the learned advocates appearing for the parties. As the issues involved in both the

revisional applications are the same and the parties are also the same, the revisional

applications can be disposed of by a common order, which I propose to pass.

The petitioner in C.R.R. 2541 of 2019 is the father in law of the

aggrieved person being the opposite party no. 2 in both the revisional applications and is also
2

one on the petitioners, being the petitioner no. 2, in C.R.R. 2540 of 2019.

In both the revisional applications, Order dated July 30,

2019 passed by the learned Sessions Judge at Suri, Birbhum, in Criminal Appeal

No. 11 of 2019, is under challenge, inter alia, on the ground that although the

learned Judicial Magistrate, Third Court at Suri, Birbhum, rejected the prayer of

interim maintenance of the opposite party no. 2/wife on the basis of

maintainability of the application under Section 12 of the Protection of Women

from SectionDomestic Violence Act, 2005, nevertheless in appeal preferred by the

opposite party no. 2, the appellate court below allowed the prayer of the opposite

party no. 2 by the order impugned in the revisional applications granting

monetary relief in favour of the opposite party no. 2.

It would be apt to take note of the observations made by the

appellate court below to the effect that the husband is liable to maintain his wife

and he has to provide adequate monetary relief to maintain his wife and minor

daughter. The appellate court below considered Rs. 7,000/- per month would be

sufficient for the opposite party no. 2/wife to maintain herself and Rs. 8,000/-

per month would be sufficient for maintenance and education expenses of the

minor daughter.

It has been urged on behalf of the petitioners that no case of domestic

violence has been made out and there was no report in respect of the domestic violence at all

concerning the shared household. That apart, the opposite party no. 2 has never filed any

complaint under Section 498A of the Indian Penal Code against her husband or any member of

the family of the husband.

It appears from the observations made in the order dated January 17,
3

2019 passed by the learned Judicial Magistrate in Miscellaneous Case No. 151 of 2018 that,

according to the present petitioners, the opposite party no. 2/wife and her family members had

continuously pressurized the husband, who is the petitioner no. 1 in C.R.R. 2540 of 2019, to

stay separately with his wife away from his parent and also put pressure on him to get the house

registered by way of transfer together with the shop room in the name of the opposite party no.

2/wife. The dispute arose at this juncture when the husband refused to fulfill the desire of his

wife.

This is how, it is submitted, there has been no violence or any

harassment meted out to the opposite party no. 2 in the matrimonial home. Rather, the learned

Magistrate relied on copies of the complaint lodged before the Inspector in-charge, Women

Police Station, by the father in law of the opposite party no. 2/wife on May 3, 2017 and

complaint made to the Superintendent of Police, Suri and thereafter to Inspector in-charge, Suri

Police Station.

It is admitted fact that none of the three police authorities had

undertaken any exercise on the complaints made by the father in law. on contrary, it is pointed

out that the father in law is instrumental in creating all these situations as he has got the trade

licence in respect of the shop establishment standing in the name of Subham Jagannath Store

exclusively in his name in the year 2018-19 whereas the shop establishment in the name of

Shubham jgannath Store was in the joint names of the father as also the son, being the

petitioners no. 1 and 2 in C.R.R. 2540 of 2019.

Be that as it may, the learned Magistrate negated the monetary relief to

be awarded to the opposite party no. 2 only on the basis of the allegation so made by the father

in law against the opposite party no. 2/wife before the police officials, but without considering

any enquiry report on this count. Therefore, the learned Magistrate has committed undoubtedly

an error in not awarding any monetary relief to the opposite party no. 2. As a result, the

opposite party no. 2 preferred an appeal being Criminal Appeal No. 11 of 2019, which has been

allowed by the appellate court below under the provisions of Section 29 of the Protection of

Women from SectionDomestic Violence Act and the appellant/opposite party no. 2 was favoured with
4

an interim monetary relief of Rs. 7,000/- per month for herself and Rs. 8,000/- per month for

the minor child to be paid by the husband/petitioner in default the father in law was directed to

pay the same till disposal of the application under Section 12 of the Protection of Women from

SectionDomestic Violence Act.

With regard to the default clause made in the impugned order by the

appellate court below, the learned advocate appearing on behalf of the petitioners is mainly

aggrieved and has referred to a decision of the Supreme Court in the case of S. R. Batra

anr. vs. Smt. Taruna Batra reported in A.I.R. 2007 S.C. 1118 wherein it has been held that

the wife is only entitled to claim a right of residence in the shared household, which would only

mean the house belonging to or taken on rent by the husband, or the house which belongs to the

joint family of which the husband is a member.

The property in the cited case was in the name of mother in law

exclusively. So, obviously it was held that the house stood in the name of mother in law could

not be called a shared household and that the wife would not be entitled to claim residence

order as against her mother in law. As such, the decision referred to as above, is distinguishable

from the facts and circumstances of the instant case as the appellate court’s order revised

against is in respect of the interim monetary relief awarded to the appellant/opposite party no.

2.

While granting the order and directing the father in law to pay

maintenance to the wife in case of default on the part of the husband in making such payment,

it was taken into consideration that even if the husband of the opposite party no. 2 is considered

to be an employee of the grocery business of his father even then the father in law might be

directed to pay the interim monetary relief to the appellant/opposite party no. 2 in the capacity

of an employer of the husband.

I am unable to agree with such observation of the appellate court

below. An employer cannot be held responsible for payment of maintenance to the wife of its

employee. Therefore, this court is pleased to modify the order of the appellate court below to

this extent that the opposite party no. 2/wife will be entitled to interim monetary relief of Rs.
5

7,000/- for herself and Rs. 8,000/- for the minor child, as awarded by the appellate court below,

but it will be operative only against her husband, being the petitioner no. 1 in C.R.R. 2540 of

2019 and not against anybody, since it is for the husband, if he is able-bodied, to maintain his

wife and children.

With the aforesaid modification, the revisional applications are

disposed of.

Let a copy of this order be placed before the learned Judicial

Magistrate, Third Court at Suri, Birbhum, to make him able to start and conclude the summary

trial of the proceeding under Section 12 of the Protection of Women from SectionDomestic Violence

Act, 2005 as expeditiously as possible, preferably within six months from the date of

communication of this order, the learned Magistrate shall make all endeavours to obtain

domestic violence report against the petitioners.

Photostat certified copy of this order, if applied for, will be made

available to the applicant within a week from the date of putting in the requisites.

( Shivakant Prasad, J. )

dns

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation