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2010 DIGILAW 815 (CAL)

Sanjoy Sharma v. Seema Sharma

2010-07-15

MRINAL KANTI SINHA

body2010
JUDGMENT 1. THE Judgment of the Court was as follows : Heard learned Advocates for both the petitioner and the opposite party. 2. THE petitioner/husband has filed this revisional application against the opposite party/wife praying for setting aside of the order dated 29th August, 2009 passed by learned Metropolitan Magistrate, 1.5th Court, Calcutta in Case No. C- 1897 of 2009. It is the case of the petitioner/husband that the opposite party filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, being Case No. C-1897 of 2009 against him alleging therein that their marriage was solemnized on February 16,1993 according to Hindu rites and customs and out of the said wed-lock, a male child was born, who is aged about seven years. Due to change in behaviour and conduct, the petitioner started neglecting the opposite party and developed illicit relation with one neighbouring girl and ultimately in June, 2007, the petitioner withdrew himself from the society of the opposite party. The opposite party being unable to maintain themselves instituted Misc. Case No. 2 of 2007 under Section 125 of the Criminal Procedure Code before the learned Family Court, Calcutta, praying for maintenance for herself and for her minor son. The petitioner is a businessman and is earning about Rs. 60,000/- per month. So, the opposite party prayed for maintenance allowance to the tune of Rs. 8,000/- for herself and Rs. 7,000/- for her minor son. The opposite party also filed an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 in that proceeding. Learned Magistrate by his order dated 6.7.2009 passed in Case No. C-1897/2009 directed the respondent/petitioner to pay Rs. 5,000/- per month to the petitioner/wife (Rs. 3,000 to the opposite party/wife and Rs. 2,000/- for her minor son) as interim maintenance till further order. Learned Magistrate rejected the petition of the respondent/husband filed on 14.08.2009 challenging the maintainability of the petition of the Opposite Party under Section 12 of the said Act, by an order dated 29.8.2009 passed in Case No. C-1897/09. 3. BEING aggrieved by and dissatisfied with the impugned order dated 29th August, 2009 the petitioner filed the instant revisional application. 4. THE opposite party/wife is contesting the revisional application denying the case of the petitioner/husband. 3. BEING aggrieved by and dissatisfied with the impugned order dated 29th August, 2009 the petitioner filed the instant revisional application. 4. THE opposite party/wife is contesting the revisional application denying the case of the petitioner/husband. Thereafter, an interim order was passed by this Court with direction that the petitioner shall go on paying a sum of Rs. 2,000/- each per month to the opposite party/wife as well as to her minor child as their monthly maintenance together with arrear maintenance by instalment till liquidation, while operation of the impugned order was stayed, 5. IT is to be considered now as to whether the impugned order suffered from any illegality or irregularity and the impugned order was justified or not. 6. IT has been submitted by Mr. Manik lal Poddar, learned Counsel appearing for the petitioner that in Case No. C-1897 of 2009 the present petitioner as respondent filed a petition on 14.8. 2009 challenging the maintainability of the said case on the ground that the present opposite party filed an application under Section 125 of the Criminal Procedure Code being Misc. Case No. 2 of 2007 before the Family Court at Calcutta, and the said case has been fixed for evidence and for that reason the present case under Section 12 of Protection of Women from Domestic Violence Act, 2005 is not maintainable and the present petitioner is now paying Rs. 4,000/- per month to the O.P/wife and her minor child as their monthly maintenance allowance together with Rs. 1,000/-per month as arrear maintenance allowance as per order of this Court and such order may be continued till disposal of the main maintenance application bearing Case No. C-1897 of 2009 and the trial of the said case may be expedited. On the other hand, Mr. 1,000/-per month as arrear maintenance allowance as per order of this Court and such order may be continued till disposal of the main maintenance application bearing Case No. C-1897 of 2009 and the trial of the said case may be expedited. On the other hand, Mr. Brajesh Jha, learned Counsel for the opposite party has contended that the present opposite party/wife filed Case No. C-1897 of 2009 under Section 12 of Protection of Women from Domestic Violence Act, 2005, against her husband, the present petitioner Sanjay Sharma, praying for relief, but the present petitioner challenged the maintainability of the O.P/wife's petition under Section 12 of the said Act filed by the O.P./wife, who filed an objection to the said petition of the present petitioner, and hearing both the sides learned Metropolitan Magistrate 15th Court, Calcutta, rejected the petition filed by the respondent on 14.8.2009 challenging maintainability of the O.P./wife's petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, and as per order of this Court the present petitioner is paying Rs. 4,000/- per month to her as Interim allowance for herself and minor child together with Rs. 1,000/- per month as arrear maintenance allowance. So the petition filed by the respondent/husband on 14.8.2009 challenging the maintainability of O.P./ wife's petition under Section 12 of the said Act has rightly been rejected by the learned Metropolitan Magistrate, 15th Court, Calcutta, the present revisional application of the petitioner/husband has no merit, but the petitioner should be directed to pay interim maintenance allowance of Rs. 4,000/- per month to herself and her minor child together with arrear maintenance allowance of Rs. 1,000/- as per order of this Court. 7. IT appears that by the impugned order the learned Metropolitan Magistrate, 15th Court, Calcutta, rejected the petition of the present petitioner, who is the respondent/husband in Case No. C-1897/09, by which maintainability of the said case was challenged, with the finding that as per the provisions of Section 26 and Section 36 of the Protection of Women from Domestic Violence Act, 2005, the petition filed by the O.P./wife under Section 12 of Protection of Women from Domestic Violence Act, 2005 was very much maintainable in its present form. 8. 8. THE provision of Section 26 of Protection of Women from Domestic Violence Act, 2005 states that :- (1) Any relief available under Sections 18,19,20,21 and 22 may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. While the provision of Section 36 of the said Act states that :- The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for time being in force. 9. THIS provision of Section 36 of the said Act stipulates that the provisions of the said Act shall be addition to and not in derogation of the provisions of any other law. 10. IT is clear from aforesaid provisions of law that any relief available under Sections 18,19,20,21 and 22 of the said Act may also be sought for in any legal proceeding before a Civil Court, Family Court affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act, and the provision of this Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. In that case even if the O.P./wife initiated. Misc. Case No. 2/07 under Section 125 of the Criminal Procedure Code before the Family Court against her husband praying for maintenance allowance and other relief from her husband for herself and her minor child, then also there was no legal bar in her claiming relief in any other case before any other Court, though of course she shall not be permitted to secure relief from both the Courts. From that point of view it appears that the learned Magistrate has not done anything wrohg by rejecting the petition of the respondent/husband challenging the maintainability of the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the O.P./wife, nor the learned Magistrate has done any illegality or material irregularity in passing the impugned order, nor he was unjustified in passing the impugned order which calls for any interference by this Court. It also appears from the record that in pursuance of an application filed by the O.P/Wife under Section 23 of the Protection of Women from Domestic Violence Act, 2005, learned Metropolitan Magistrate, 15th Court, Calcutta directed the respondent/husband to continue payment of Rs. 5,000/- per month to the petitioner (Rs. 3,000/- for herself, Rs. 2,000/- for minor son) as interim maintenance till further order vide order passed in Case No. C-1897/09 on 6.7.2009. 11. THEREAFTER this Court vide an interim order dated 30.11.2009 (58) passed in CRR No. 3700/09 stayed the operation of the impugned order on condition that the petitioner shall go on paying a sum of Rs. 2,000/- per month each to the Wife/O.P. as well as towards minor child as their monthly maintenance together with arrear maintenance allowance by instalments till liquidation of the same. 12. AS per the submission of leaned Counsel for the parties the petitioner husband of this case is paying Rs. 2,000/- each to the O.P./Wife and her minor child as their monthly maintenance together with Rs. 1,000/- as arrear maintenance allowance and both the parties intended to make such payment and receive such payment till disposal of the Case No. C-1897/09. Be that as it may the petitioner shall go on paying that amount of Rs. 2,000/- each per month to the O.P./wife and her minor child as the monthly maintenance allowance together with Rs. 1,000/- towards arrear maintenance allowance till final disposal of Case No. C-1897/09. 13. HAVING regard to the submission of the learned Counsels for the parties and considering all the circumstances of the case it appears that the learned Metropolitan Magistrate, 15th Court, Calcutta, has not done any such illegality, material irregularity or wrong in passing the impugned order dated 29th August, 2009 in Case No. C- 1897/09 which calls for any interference in this revision, and the learned Metropolitan Magistrate was legally justified in passing the impugned order. 14. AS a result revisional application against order dated 29.8.2009 passed by learned Metropolitan Magistrate, 15th Court, Calcutta, in Case No. C-1897/09 fails and is dismissed. Stay vacated. The CRR No. 3700 of 2009 is thus disposed of. 15. HOWEVER, the learned trial Court shall expedite the disposal of Case No. C-1897/09 without being influenced by the finding of this Court regarding interim maintenance allowance. 16. URGENT xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible. Let a copy of this order be sent to the learned Metropolitan Magistrate, 15th Court, Calcutta, for information and necessary compliance.