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Kaustav Sinha vs Saswati Sinha on 2 August, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:

The Hon’ble Justice Madhumati Mitra

C.R.R. 414 of 2019
With
CRAN 2051 of 2019

Kaustav Sinha

Versus

Saswati Sinha

Advocate for the Petitioner : Ms. Subhasree Patel
Ms. Pallabi Biswas

Advocate for the Opposite Party No.2 : Mr. Abdur Rakib
Mr. Jnip Bose

Judgment on : 02.08.2019

Madhumati Mitra, J. :

This is an application under Section 401 read with Section 482 of the Code

of Criminal Procedure filed by the petitioner challenging the impugned judgment

and order dated 10.12.2018, passed by the Learned Additional District and

Sessions Judge, Second Court, Sealdah, South 24 Parganas. By the impugned

order, the Learned Judge allowed the Criminal Appeal no.17 of 2017 preferred by
the opposite party and set aside the order dated 02.02.2017, passed by the

Learned Judicial Magistrate, 1st Court, Sealdah, South 24 Parganas, directing the

present petitioner to pay Rs.4,500/- per month towards maintenance of the

opposite party since the date of the application under Section 23 of the Protection

of Women from SectionDomestic Violence Act.

Facts

which are necessary for disposal of this revisional application may be

summarized as under:-

Admittedly the opposite party is the legally married wife of the present

petitioner. Their marriage was solemnized on 12.08.2013 in accordance with

Hindu Rites and Ceremonies. The marriage of the petitioner and opposite party

was the outcome of their love affairs. After marriage, the opposite party/wife

started to reside at her matrimonial home with the petitioner and her in-laws.

The marriage of the petitioner and opposite party was not happy one. On

30.07.2014, the opposite party filed an application under Section 23 of Protection

of Women from SectionDomestic Violence Act against the petitioner making allegations

that she was subjected to cruelty and torture by her husband and in-laws for

demand of dowry. Opposite party also initiated criminal proceeding against her

husband and in-laws for commission of alleged offences under Section

498A/Section406/Section411 of the Indian Penal Code.

From the order passed by the Learned Magistrate, it transpires that the

prayer for maintenance of the wife was refused on the ground that the
petitioner/present opposite party is a working lady and she is not unemployed.

Learned Magistrate also observed that present opposite party did not state

anything regarding her status, position and the salary. Accordingly, the Learned

Magistrate refused the prayer for interim maintenance on the ground that she is

not at all in urgent need of maintenance.

Present opposite party challenged the order of rejection of her maintenance

by preferring an appeal under Section 29 of the Protection of Women from

SectionDomestic Violence Act. That appeal was registered as Criminal appeal no.17 of

2017. On 10th December, 2018 the Learned Additional Sessions Judge, Second

Court, Sealdah, has allowed the said criminal appeal on contest and set aside the

order passed by the Learned Magistrate. The present petitioner has been the

directed to pay Rs.4,500/- per month towards maintenance of the present

opposite party wife from the date of the application under Section 23 of the

Protection of Women from SectionDomestic Violence Act.

The order of maintenance granted to the present opposite party by the

Learned Appellate Court is under challenge.

During the course of hearing the Learned Advocate appearing for the

petitioner has contended that the Learned Appellant Court has committed an

error in granting interim maintenance in favour of the wife. She has assailed the

impugned order on the ground that the Learned Judge at the time of passing the

impugned order has overlooked to consider the conduct of the opposite
party/wife and granted the interim maintenance to her from the date of filing of

the application for maintenance. It is the specific contention of the petitioner,

the delay in disposal of the application was caused by the wife herself. Learned

Advocate for the petitioner has invited the attention of the Court to the copies of

orders of the Learned Magistrate passed in connection with case no.C-401/14

and has vigorously argued that the present opposite party/wife herself was

responsible for delay in disposal of the application for interim maintenance.

According to her contention Learned Appellate Court has committed an error in

awarding interim maintenance from the date of the filing of the application for

maintenance.

On the other hand, Learned Advocate appearing for the present opposite

party/wife has contended that hearing was not taken place due to the

adjournments sought for by the present petitioner/husband and Learned Judge

has rightly passed the impugned order directing the husband to pay interim

maintenance from the date of filing of the application for maintenance.

From the submission and counter submission made by the Learned

Counsel for the parties, it appears that main grievance of the petitioner/husband

regarding the direction of the Appellate Court to pay interim maintenance from

the date of filing of the application.

On perusal of the materials placed on record, it appears that the present

opposite party took several adjournments and also remained absent without

taking any step. The conduct of the opposite party was not at all satisfactory.

The opposite party/wife asked for interim maintenance but she herself was not at

all diligent and she herself remained absent before the Learned Magistrate when

the matter was called on for hearing. She herself was responsible for delay in

disposal of her application for interim maintenance.

I find force in the submission made by the Learned Advocate appearing for

the petitioner/husband. The order of maintenance granted to the wife is interim

in nature.

It has been contended on behalf of the petitioner that opposite party is

employed and she has sufficient means to maintain herself. This contention has

been denied by the opposite party. I do not think it proper to interfere with the

quantum of the maintenance right now. Moreover, at the time of considering the

prayer of interim maintenance the Court should not delve deep into the disputed

question facts.

Considering the nature of impugned order and the submissions made by

the Learned Counsel for the parties, I do not find any reason to interfere with the

quantum of interim maintenance assessed by the Learned Judge in appeal. I

have already observed that the delay in disposal of the application for interim
maintenance was caused by the opposite party/wife as she sought for

adjournment on several occasions and remained absent before the Learned

Magistrate without taking any step. As such, I think that it would be reasonable

and justified to direct the petitioner to give interim maintenance from the date of

the order as passed by the Learned Appellate Court.

The order passed by the Learned Appellate Court hereby is modified to the

effect that the petitioner will pay interim maintenance to the opposite party/wife

from the date of the order passed by the Appellate Court in Criminal Appeal

no.17 of 2017. The impugned order dated 10.12.2018 passed in Criminal Appeal

no.17 of 2017 is hereby modified. The remaining portions of the impugned order

remain unchanged.

The application under Section 401 read with Section 482 of the Code of

Criminal Procedure is allowed in part.

Thus the application being C.R.R.No.414/2019 is disposed of.

Re: CRAN 2051 of 2019

In view of the order passed in CRR 414 of 2019, the present application

becomes infructuous and stands dismissed.

Urgent Photostat certified copy of this judgment, if applied for, be given to

the parties, upon compliance with all necessary formalities.

(Madhumati Mitra, J.)

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