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Somnath Chakraborty vs Smt. Rinki Chakraborty on 18 September, 2018

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Jay Sengupta

C.R.R. 1395 of 2018

Somnath Chakraborty

Versus

Smt. Rinki Chakraborty

For the petitioner : Mr. Ayan Bhattacharjee
: Mr. Sharequl Haque
: Mr. Karan Daga
….. Advocates

For the Opposite Party : Mr. Supriyo Das
……Advocate

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

the Magistrate.

……..”

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

under:-

” 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

the Code.

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

formalities.

(Jay Sengupta, J)

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