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2011 DIGILAW 1115 (CAL)

SWAPAN KR. DAS v. ADITI DAS

2011-08-16

KANCHAN CHAKRABORTY

body2011
Judgment 1. This revisional application is pertaining to a proceeding under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "said Act of 2005"). The opposite party herein Smt. Aditi Das Filed an application under section 12 of the said Act of 2005 in the Court of learned, Chief Judicial Magistrate at Burdwan praying for monetary relief as she was ill-treated and ousted from her matrimonial house by the petitioner husband herein. That matter was ultimately heard by the learned Chief Judicial Magistrate at Burdwan in Miscellaneous Case No. 455 of 2008. The Chief Judicial Magistrate allowed the prayer of the opposite party exparte and awarded Rs.8000.00 per month as monetary relief and in addition to that the learned Chief Judicial Magistrate also awarded compensation Rs.50,000.00 to the opposite party-Wife for ill-treatment. The petitioner herein challenged the order in an appeal being Criminal Appeal No.7 of 2009 ultimately heard by Mr. A.K. Bhattacharjee, learned Additional Sessions Judge, Second Court at Burdwan. The learned Judge dismissed the appeal on contest and thereby affirmed the order passed by the learned Chief Judicial Magistrate. The petitioner-husband has come up with this application challenging the legality, validity and propriety of the order passed in the Court of Appeal. 2. Mr. Sourav Sen, learned counsel appearing on behalf of the petitioner, submits that he has no objection whatsoever in respect of the monthly monetary relief awarded by the learned, Court but it would be taxation on him if he is directed to pay Rs.50,000.00 towards compensation. He submits further that compensation was awarded by the learned Chief Judicial Magistrate and affirmed by the learned Appeal Court without assigning any reason whatsoever. He takes me to under section 22 of the Act and contends that the order was passed exparte without assigning any reason. Therefore, according to him, the order impugned is liable to be set aside and interfered with. 3. Mr. Uday Shankar Chatterjee, learned counsel appearing on behalf of the opposite party-wife submits that the petitioner herein could have prayed for setting aside the exparte order in the learned Trial Court in view of the provisions laid down in section 28 of the Act itself. Instead of doing so, he preferred an appeal which had gone against him. Mr. Mr. Uday Shankar Chatterjee, learned counsel appearing on behalf of the opposite party-wife submits that the petitioner herein could have prayed for setting aside the exparte order in the learned Trial Court in view of the provisions laid down in section 28 of the Act itself. Instead of doing so, he preferred an appeal which had gone against him. Mr. Chatterjee submits further that in view of the provisions of section 22 of the Act Court can award compensation in addition to any relief as provided in the Act when it comes to a conclusion that the aggrieved person was ill-treated. Mr. Chatterjee submits that the order is not suffering from any illegality, impropriety and incorrectness and, as such, no interference is required. 4. I have carefully gone to the order of the learned Chief Judicial Magistrate as well as the learned Appeal Court. There is concurrent findings of fact and on the first blush this Court does not like to interfere and upset the order. However, since a legal question as to necessity to assign reason has been raised, this Court is duty bound to explain the position of law. 5. Under section 28 of the Act, a proceeding under the Act is to be conducted according to the provision of the Code of Criminal Procedure. This Act "Protection of Women from Domestic Violence Act, 2005" is akin to a procedure a wife can initiate under section 125 of the Code of Criminal Procedure. The reason behind it that both the proceedings either under Code of Criminal Procedure or under this Act are quasi-civil in nature. In such a case when a party is entitled to ask for setting aside an exparte order, a prayer of like nature can well be made in a proceeding under this Act. That has not been done by the petitioner-husband in the case in hands. 6. Apart from that, I find that the provisions of section, 22 of the Act does not make obligatory on the part of the Court, to assign specific reason for awarding compensation in addition to any relief. In case Court find that the aggrieved person, is ill-treated mentally or physically or emotionally distressed in "shared household", Court can pass an order of compensation. In case Court find that the aggrieved person, is ill-treated mentally or physically or emotionally distressed in "shared household", Court can pass an order of compensation. In the instant case, the judgment challenged in the Court of Appeal clearly indicates that the learned Trial Court come to a finding that the petitioner therein was ill-treated, neglected and refused to be maintained. That part of the case of the respondent-wife remained unchanged. The Court also came to a finding that the wife was having no source of income also. Admittedly, the petitioner herein earns Rs.70,000.00 per month as salary, if not more. Therefore, award of compensation does not appear to be astronomical or exorbitant. 7. There is no apparent and manifest illegality, impropriety and irregularity in the order passed. I find no reason to upset the order. Accordingly, the revisional application is dismissed and, thus, disposed of. 8. The petitioner is, however, given liberty to file an application to the learned Trial Court for installment in the matter of pending compensation. Urgent Photostat copy of the order, if applied for, shall be given to the parties on the usual undertakings.