IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
The Hon’ble Justice Jay Sengupta
C.R.R. 1395 of 2018
Smt. Rinki Chakraborty
For the petitioner : Mr. Ayan Bhattacharjee
: Mr. Sharequl Haque
: Mr. Karan Daga
For the Opposite Party : Mr. Supriyo Das
Heard on : 01.08.2018
Judgment on : 18.09.2018
Jay Sengupta, J.:
1. This is an application challenging the judgment and order dated
02.04.2018 passed by the Learned Additional Sessions Judge, Bench-II, City
Sessions Court, Bichar Bhawan, Calcutta in Crl. Appeal Case No. 86 of
2017, thereby affirming the order dated 21.04.2017 passed by the Learned
Metropolitan Magistrate, 20th Court, Calcutta in Misc Execution Case No. 2
of 2015 under Section 12 of the Protection of Women from Domestic
Violence Act, 2005 (Act of 2005, for short).
2. The Learned Advocate appearing on behalf of the husband/petitioner
submits that in a proceeding under Section 125 of the Code of Criminal
Procedure initiated by the wife, the Learned Magistrate was pleased to grant
Rs. 3000/- as monthly maintenance allowance to the wife. He submits that
by an order under Section 24 of the Hindu Marriage Act, she was granted
Rs. 4000/- per month as maintenance pendente lite. He further submits
that by an order under Section 12 of the Act of 2005, she was granted Rs.
1500/- as monetary relief and Rs. 3000/- as expenses for residence.
3. The Learned Advocate of the petitioner submits that in the meantime
on 13.06.2016, this Hon’ble Court was pleased to pass an order in C.O. No.
3602 of 2015, thereby, inter alia, affirming an order of the Learned Civil
Court granting Rs. 4000/- per month as maintenance pendente lite and a
litigation cost of Rs. 10,000/- and directing that the “Learned Trial Court
will consider the highest amount awarded in these three cases”.
4. The Learned Advocate for the petitioner further contends that in Lata
Devi Madan Lal Another vs. Madan Lal, 2016 CLJ 4432, an Hon’ble Single
Judge of the Himachal Pradesh High Court held that a payment of
maintenance allowance under Section 125 of the Code may include the
expenses for residential accommodation. He submits that as such, the wife
is entitled to the highest amount i.e. Rs. 4000/- in this case.
5. The Learned Advocate appearing on behalf of the wife/opposite party
strongly opposes the application. He submits that the highest amount refers
to the amount of maintenance allowance alone and does not include the
expenses for residential accommodation. He submits that otherwise, this
Hon’ble High Court would have fixed Rs. 4500/- (Rs. 3000/- + Rs. 1500/-)
as the amount payable in the civil case.
6. The explanation given by the Learned Advocate for the wife reflects the
reasoning cited in the impugned order.
7. It is absolutely clear that the Hon’ble Himachal Pradesh High Court
wanted to include the expenses for residential accommodation within the
ambit of Section 125 of the Code for the benefit of women. But, the decision
does not lay down a ratio that when juxtaposed with the provisions of the
Act of 2005, maintenance allowance under Section 125 of the Code would be
treated at par with monetary relief together with expenses for residential
accommodation as contained in the Act of 2005.
8. As an exceptional case, here one may refer to the objects and reasons
for promulgating the Act of 2005. In the Statement of Objects and Reasons
for the Act of 2005, it was, inter alia, provided as under:
” 4. The Bill, inter alia, seeks to provide for the following :-
(iii) It provides for the rights of women to secure housing. It also provides for
the right of a woman to reside in her matrimonial home or shared
household, whether or not she has any title or rights in such home or
household. This right is secured by a residence order, which is passed by
9. Therefore, it is abundantly clear that one of the prime objectives of the
Act of 2005 was to provide a separate provision for residential
accommodation of the women wronged by the respondents in domestic
relationships, which obviously included husbands.
10. Whether expenses for residential accommodation could have been
included in maintenance allowance payable under Section 125 of the Code
or not, after coming of the Act of 2005, a separate provision has been made
in this Act and based on certain clear parameters.
11. A monetary relief as defined in Section 20 of the Act of 2005 may
include maintenance which may be equal to or in addition to maintenance
allowance as contemplated under Section 125 of the Code. The relevant
portion of Section 20 is quoted as under:-
” 20. Monetary reliefs. – (1) While disposing of an application under sub-
section (1) of Section 12, the Magistrate may direct the respondent to pay
monetary relief to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a result of the
domestic violence and such relief may include, but is not limited to,-
a) the loss of earnings;
b) the medical expenses;
c) the loss caused due to the destruction, damage or removal of any property
from the control of the aggrieved person; and
d) the maintenance for the aggrieved person as well as the children, if any,
including an order under or in addition to an order of maintenance under
Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other
law for the time being in force.
12. Again, a residence order is quite distinctly provided for under Section
19 of the Act of 2005. The relevant portion of Section 19 may be quoted as
” 19. Residence orders. -(1) While disposing of an application under sub-
section (1) of Section 12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order –
a) restraining the respondent from dispossessing or in any other manner
disturbing the possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or equitable interest in
the shared household;
b) directing the respondent to remove himself from the shared household;
c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person resides;
d) restraining the respondent from alienating or disposing off the shared
household or encumbering the same;
e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or
f) directing the respondent to secure same level of alternate accommodation
for the aggrieved person as enjoyed by her in the shared household or to pay
rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person
who is a woman
13. If one accepts the proposition of the Learned Advocate for the
petitioner that expenses for residential accommodation are included in
Section 125 of the Code to the extent as defined in Section 19 of the Act of
2005, then, it would imply that by passing the Act of 2005, our Legislature
tried to curtail the rights available to women by trying to compartmentalise
their needs and trying to conceive of a situation where a maintenance
allowance under Section 125 of the Code could be granted at a lesser rate
when expenses need not be apportioned for a residential accommodation.
Such an interpretation would be completely antithetic to the spirit of Article
15 of the Constitution of India.
14. On a harmonious reading of the provisions of Section 125 of the Code
and Sections 19 and 20 of the Act of 2005, it would appear that expenses for
residential accommodation, in a generic sense, might have remained an
inherent component of maintenance under Section 125 of the Code. But,
that cannot be equated with the expenses for residential accommodation
provided for under Section 19 of the Act of 2005. In the 2005 Act, it is
defined in relation to an act of domestic violence and in reference to the
parameters for the grant of such a sum. More importantly, as per the very
definition, monetary relief under Section 20 of the Code may include
maintenance, which may, in turn, include a maintenance allowance payable
under Section 125 of the Code. So, it is quite obvious that a monetary relief
coupled with expenses for residential accommodation under the Act of 2005
cannot be equated with a mere maintenance allowance under Section 125 of
15. In Juveria Abdul Rajid Patni vs. Atif Iqbal Mansoori, (2014) 10 SCC
736, the Hon’ble Supreme Court held that the monetary relief as stipulated
under Section 20 is different from maintenance, which can be in addition to
an order of maintenance under Section 125 Cr.PC or any other law.
16. Therefore, if one is to find out the highest sum to be paid out of the
three, one has to compare with each other the sums payable as
maintenance allowance under Section 125 of the Code, maintenance
pendente lite under Section 24 of the Hindu Marriage Act and maintenance
allowance component of monetary relief under Section 20 of the Act of 2005.
17. Moreover, I do agree with the submissions of the Learned Advocate for
the opposite party that had this Hon’ble Court equated maintenance
allowance under Section 125 of the Code with monetary relief together
expenses for residential accommodation, it would have awarded Rs. 4500/-
as the highest amount payable.
18. In view of the above discussions, I do not find any merit in the
revisional application. Accordingly, the same is dismissed.
19. However, there shall be no order as to costs.
20. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
(Jay Sengupta, J)