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2017 DIGILAW 161 (CAL)

Priti Gupta v. Promod Gupta

2017-02-10

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : Siddhartha Chattopadhyay, J. The petitioner challenges the judgment and order dated 31.07.2013 passed by the learned Additional Sessions Judge, Fast Track, 4th Court, at Alipore, South 24 Parganas in connection with Criminal Appeal No. 78 of 2012 on the ground of that the learned First Appellate Court, without application of mind, has set aside the order dated 14.08.2012 passed by the learned Judicial Magistrate, 7th Court, at Alipore, South 24 Parganas in connection with Case No. C-1384 of 2012. 2. According to the petitioner she had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and prayed for a relief in terms of Sections 18, 19 and 20 of the said Act. Learned Trial Court has passed an order in her favour and directed the opposite party to pay Rs.10,000-/ per month as maintenance to the petitioner and her son. Challenging the said order, the present opposite party had filed an appeal, without serving any notice upon her. Without satisfying himself about the service on the petitioner, the learned 1st Appellate Court proceeded to dispose of the said appeal in the absence of the petitioner. 3. At the time of hearing, the learned Counsel appearing on behalf of the petitioner contended that the impugned order passed by the learned First Appellate Court is bad-in-law on the ground that the learned Trial Court did not give any opportunity to the present petitioner for a hearing. In her absence the said appeal was disposed of. 4. As against this learned Counsel appearing on behalf of the opposite party contended that every formalities have been observed and the impugned order does not call for any interference. On perusal of the impugned order I find that the learned First Appellate Court has considered the relevant provision of Section 12 (1) of the Domestic Violence Act. In the said Act, there is a proviso that before passing any order on such application the magistrate shall take into consideration any domestic incident report received by him from protection officer or the service provider. Therefore, apparently there is no mistake committed by the learned First Appellate Court. Since domestic incident report was not available before the learned Trial Court, the said Court ought not to have passed any interim order. Therefore, apparently there is no mistake committed by the learned First Appellate Court. Since domestic incident report was not available before the learned Trial Court, the said Court ought not to have passed any interim order. However, it appears from the record that vide Memo No. 838/DSW dated 11.05.2012 the protection officer has sent a message to the present opposite party to appear before him on 15.05.2012 at 12 noon. There is nothing on record as to what has been done thereafter. 5. Therefore, it can be safely said that the protection officer had taken steps for making a domestic incident report but that has not been available before the learned Trial Court. The learned First Appellate Court has set aside the impugned order of the learned Trial Court mainly on the ground the domestic incident report was not available. It is true that without domestic incident report, no such interim order can be passed under Section 12 (1) of Protection of Women from Domestic Violence Act, 2005. 6. The present petitioner has also some grievance that she had not given any opportunity of being heard and that no notice was sent upon her. In such circumstances, I am of the view that the matter be remanded to the learned Trial Court to hear afresh regarding the petition filed by the present petitioner under Section 12 of the said Act and in that case the Trial Court shall initially obtain domestic incident report from the protection officer and thereafter shall dispose of the application under Section 12 after giving an opportunity of being heard to both sides. With this direction, the criminal revisional application stands disposed of. Accordingly, the connected application (C.R.A.N. No. 3784 of 2014) is also disposed of. 7. Let a copy of this judgment and the L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 8. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.