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Kc vs The State Of West Bengal & Ors on 19 March, 2019

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66 W.P. No. 2653(W) of 2019
19.03.2019
Rampada Sardar Ors.
KC Vs.
The State of West Bengal Ors.

Mr. Nibaran Kumar Das
Mr. Manish Kumar Das.
… for the petitioner.

Mr. Joyak Kumar Gupta.
… for the CESC Limited.

Mr. S. Adak.
… for the State.

Learned advocate appearing for the petitioner seeks a

direction upon the police to ensure that, the petitioner is in a position to

return to his residence and live there peacefully.

Learned advocate for the petitioner submits that, the third

petitioner was driven out from his home by his wife. Although, there are

proceedings under Section 125 of the Code of Criminal Procedure (the Cr.

P. C.) and a criminal proceeding inter alia under Section 498A of the Indian

Penal Code (I.P.C.) pending, the petitioners are on bail. The third

petitioner is ready and willing to stay with his wife.

The State and the private respondent are represented.

Learned advocate for the private respondent submits that,

the petitioners left the house on their own. The petitioners are guilty of

torturing the private respondent. There is a daughter of two years of age

born out of the wedlock. The third petitioner is not paying any
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maintenance despite the pendency of the proceedings under Section 125 of

the Cr. P. C. In fact, the petitioner is taking adjournment in such

proceedings.

Learned advocate for the State submits that, the

petitioners are on bail in the proceedings under Section 498A of the I.P.C.

In the facts of the present case, the petitioners complain

that, the private respondent has driven out the petitioners from their

residence. The facts depict that, the private respondent is the wife of

the third petitioner. She is maintaining herself without any financial

assistance from the third petitioner. The private respondent and the

third petitioner has a daughter born out of the wedlock, who is two years

old. Such a child requires support. The private respondent also requires

support. There is no order of maintenance in the proceedings under

Section 125 of the Cr. P. C. Learned advocate appearing for the

petitioners claims that, the third petitioner is not earning more than

Rs.4,000/- per month. He does not disclose any material in support of such

contention. It is unbelievable that a person with an income of Rs. 4,000/-

per month is in a position to survive as claimed by the third petitioner. The

records made available to Courts demonstrate that the third petitioner

underwent an operation at a hospital expending money. Therefore, he has

money available to himself which he is not willing to part with for the

purpose of maintaining of his wife and child. The petitioners are using

their financial position as a bargaining chip so as to enter the residence.
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The private respondent is the wife of the third petitioner and as such is

entitled to reside at her matrimonial house. Such right is recognised in

the Domestic Violence Act. Therefore, it would be improper to dislodge

the private respondent from her matrimonial house. The fact that the

petitioners are using their financial position as a bargaining chip vis a vis

the private respondent disentitles their return to the matrimonial house of

the private respondent. The police will, therefore, ensure that none of the

petitioners are in a position to approach the private respondent or disturb

the private respondent in or about her matrimonial house in any manner

whatsoever. On a query from the Court, learned advocate for the

petitioner submits that, the third petitioner is in a position to pay

Rs.3,000/- per month as maintenance to his wife.

In the facts of the present case without prejudice to the

rights and contentions of the parties, particularly without prejudice to the

proceedings under Section 125 of the Cr. P. C., the third petitioner will pay

maintenance to the private respondent at the rate of Rs. 3,000/- per

month commencing from the date of initiation of the proceedings under

Section 125 of the Cr. P. C. till date. The arrears will be paid within seven

days from date. The petitioner will continue to pay the monthly

maintenance month by month subject to orders passed in the proceedings

under Section 125 of the Cr. P. C. within seven days of every month. In the

event of default, the private respondent is at liberty to execute this order

before the appropriate forum. The Court in seisin of the proceedings
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under Section 125 of the Cr. P. C. is at liberty to arrive at any other figure

than fixed by this Court so far as maintenance is concerned.

W.P. 2653(W) of 2019 is disposed of without any order as to

costs.

Urgent certified website copies of this order, if applied for,

be made available to the parties upon compliance of the requisite

formalities.

(Debangsu Basak, J.)

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