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2017 DIGILAW 963 (CAL)

Guru Prasad Chattopadhyay v. State of West Bengal

2017-12-08

MD.MUMTAZ KHAN

body2017
JUDGMENT : MD. MUMTAZ KHAN, J. 1. The instant revision has been preferred by the petitioner/husband assailing the judgment and order dated September 17, 2015 passed by the learned Sessions Judge, Birbhum in Criminal Appeal No.34 of 2013 dismissing the appeal. 2. The facts leading to the instant revision, in brief, are as follows: Opposite party no.2/wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act, or Act, 2005) against the husband namely the petitioner, her brother-in-law and sisters-in-law before the learned Chief Judicial Magistrate seeking reliefs under Sections 18, 19, 20, 21 and 22 of the said Act. It was registered as Misc. Case No. 129/2010 and notices were issued. In consequence to the said notice only petitioner/husband appeared and contested the said application by filing written objection. Both parties adduced their respective evidences and thereafter, learned Chief Judicial Magistrate after hearing both parties allowed the application of the opposite party no.2/wife directing the husband, the petitioner herein, to pay a maintenance allowance @ Rs.15,000/- per month to the wife, the opposite party no.2 herein, till his retirement and thereafter @ Rs.8,000/- per month under the provision of Section 20 of the PWDV Act and also a sum of Rs.5,00,000/-(rupees five lakh) as compensation to her under the provision of Section 22 of the PWDV Act with further direction upon the petitioner/husband to arrange alternative accommodation to the wife/opposite party no.2 under the provision of Section 19 of the PWDV Act within local jurisdiction of Bolpur measuring not less than 750 sq. ft. with reasonable amenities for living therein and the rent thereof not exceeding Rs. 5,000/- per month excluding the electricity charges. A protection order in view of the provision of Section 18 of the PWDV Act was also passed in favour of the opposite party no.2, permanently restraining the petitioner/husband from entering into the said tenanted house and perpetrating any act of domestic violence upon the opposite party no.2/wife either himself or by aiding or abetting the commission thereof and also restrained him from keeping any contact whatsoever either personally or by any sort of oral, documentary, electronic or telephonic contact. 3. The said order was directed to take effect from the date of the judgment i.e. from June 27, 2013. 4. 3. The said order was directed to take effect from the date of the judgment i.e. from June 27, 2013. 4. Being aggrieved by the same, petitioner /husband preferred appeal before the learned Sessions Judge, Birbhum being Criminal Appeal no. 34 of 2013 and the learned Sessions Judge after hearing the parties declined to interfere with the order of the learned Magistrate with regard to the maintenance order granted under Section 20, alternative accommodation with specification and the amount of rent granted under Section 19, protection order granted under Section 18 of the PWDV Act but enhanced the amount of compensation granted under Section 22 of the Act to Rs.6,00,000/-(rupees six lakh) with a direction that entire arrear amount to be paid within 4 months from the date of the order and the amount of Rs.6,00,000/-(rupees six lakh) to be paid in 5 equal installments in 5 consecutive months. 5. Being aggrieved by and dissatisfied with the same petitioner/husband has preferred the instant revision assailing the impugned judgment and order passed by the learned Sessions Judge. 6. Mr. Ayan Bhattacharya, learned Advocate appearing for the petitioner/husband, submitted that petitioner's only grievance is with regard to alternative accommodation and compensation granted under Sections 19 and 22 of the PWDV Act respectively and not against the maintenance order granted under the provision of Section 20 of the PWDV Act. 7. According to Mr. Bhattacharya, for granting compensation under Section 22 of the PWDV Act a separate application is required and as there was no such separate application for grant of compensation learned Magistrate was not justified in awarding compensation in favour of the wife. He also submitted that it was the petitioner/husband who preferred appeal against the order of the Magistrate and there was no grievance or prayer of the wife for enhancement of the compensation amount but in spite of that learned Sessions Judge without any cogent reason enhanced the amount of compensation from Rs.5,00,000/-(rupees five lakh) to Rs.6,00,000/-(rupees six lakh) which was not proper. According to Mr. According to Mr. Bhattacharya, petitioner is ready and willing to take back the opposite party no.2/wife at his house but it is the opposite party no.2 who is not willing to reside at his house and she is only interested for house rent though she is staying at her parents house and not in any rented house and as such she is not entitled to any house rent allowance. He also submitted that petitioner is a retired person and both the children are staying with him and he has to bear the cost of their education besides other expenses and as such learned court below was not justified in awarding compensation and alternative accommodation and house rent in favour of the opposite party/wife. 8. Mr. Bhattacharya relied upon the decision in the matter of Gurudevdatta Vksss Mary Adit and Others vs. State of Maharashtra and Others reported in (2001)4 SCC 534 in support of his submissions. 9. Mr. Tapas Ghosh, learned Advocate appearing for the opposite party no.2/wife, submitted that opposite party no.2 duly made application before the learned Chief Judicial Magistrate praying for compensation under Section 22 of the PWDV Act amongst other reliefs. According to Mr. Ghosh Section 22 of the PWDV Act does not provide that any separate application has to be made for getting compensation. He further submitted that opposite party no.2/wife has no residence of her own to reside and she is residing at a charitable places and she is very much in need of her own accommodation so that she may reside there with dignity. According to him learned Sessions Judge duly assigned reason in enhancing the amount of compensation and there was no illegality or irregularity in the same which requires any interference from this Court. 10. I have considered the submissions of the learned counsels appearing for the respective parties and gone through the impugned judgment and the documents annexed with the instant revision. 11. Admittedly, petitioner and the opposite party no.2 were married according to Hindu Rights and Customs on November 19, 1992 and after marriage they started living together as husband wife and out of their wedlock one male and one female child was born to them. It is also admitted position that petitioner and the opposite party no.2 are now residing separately and both their children are staying with the petitioner. It is also admitted position that petitioner and the opposite party no.2 are now residing separately and both their children are staying with the petitioner. It is also not in dispute that petitioner who was working as professor at Visva Bharati University, Santiniketan, Bolpur is now a retired person. 12. Chapter IV of the Protection of Woman from Domestic Violence Act, 2005 provides for “PROCEDURE FOR OBTAINING ORDERS OF RELIEFS”. Sub-section(1) of Section 12 of the Act, 2005 has given right to the aggrieved person or a protection Officer or any other person on behalf of the aggrieved person to present an application to the Magistrate seeking one or more reliefs under the Act. 13. Sub-section(2) of Section 12 of the Act, 2005 provides for the reliefs sought for under Sub-section(1) which may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent. 14. Sub-section(3) of Section 12 of the Act,2005 provides that every application under sub-section(1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. 15. Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 states that every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible. From the Form II, as per Rule 6 of the PWDV Rules, it is evident that compensation under Section 22 can be claimed with other reliefs in the application to the Magistrate under Section 12 of the PWDV Act, 2005. Besides the Form II no other Form has been prescribed in the Rule. Moreover, on harmonious reading of section 22 of the PWDV Act, 2005 it appears that though the section provides that an application has to be made for payment of compensation and damages but that does not mean that in addition to the application under section 12 of the Act a separate application has to be made before the Magistrate and/or that Magistrate is not empowered to grant such relief, though prayed for, while disposing of the application under section 12 of the Act. In view of the above, I do not agree with the submission of the learned Advocate for the petitioner that in the absence of any separate application learned Magistrate was not justified in awarding compensation while disposing the application under section 12 of the Act, 2005. 16. The decision of Gurudevdatta Vksss Mary Adit and Others (supra) do not help the petitioner in the facts of circumstances of the instant case. 17. Regarding grant of compensation by the learned Magistrate and subsequent enhancement by the learned Sessions Judge, it is evident from the record that the learned Magistrate took into account the evidence and documents on record to arrive at a conclusion that opposite party no.2/wife was made to suffer physical and mental torture and emotional distress consequent to the acts of domestic violence committed by the petitioner/husband and his family members during her stay with them and due such atrocities opposite party no.2/wife was compelled to be deprived of her matrimonial abode and social prestige alongside loosing one of her kidneys and further deteriorating the other one and the petitioner’s reluctance to extend financial assistance or assistance of any kind whatsoever to the opposite party no.2/wife forced her to take refuge at the Asha Short Stay Home at Bolpur and accordingly awarded compensations of Rs.5,00,000/-(rupees five lakh) in favour of the opposite party no.2/wife. Learned Sessions Judge also concurred with the above findings of the learned Magistrate but while taking into account the above circumstances was of the opinion that the amount of Rs.5,00,000/-(rupees five lakh) directed to be paid as compensation to the petitioner/wife is a bit on the lower side considering the present socio economic condition of the country and the status of the contending parties and accordingly enhanced the compensation amount to Rs.6,00,000/-(rupees six lakh). Admittedly the appeal was preferred at the instance of the petitioner/husband and there was no such prayer from the side of the opposite party no.2/wife that the amount of compensation of Rs.5,00,000/-(rupees five lakh) awarded to her was insufficient which required to be enhanced. Admittedly, petitioner is now a retired person and he has to look after the children also who are staying with him besides costs of their education and other expenses. 18. Admittedly, petitioner is now a retired person and he has to look after the children also who are staying with him besides costs of their education and other expenses. 18. Therefore, taking into account the above circumstances, I am of the opinion that the learned Sessions Judge was not justified in enhancing the amount of compensation from Rs.5,00,000/-(rupees five lakh) to Rs.6,00,000/-(rupees six lakh). Regarding other reliefs granted to the opposite party no.2/wife against the petitioner including alternative accommodation and the rent thereof under Section 19 of the PWDV Act, it appears that the learned Magistrate after scrutiny of the evidence on record found that the opposite party no.2/wife has no residence of her own to reside and since July 16, 2007 she has been sheltered at several places at the charity of different institutions and the misery is still on. Learned Sessions Judge also concurred with the above findings of the learned Magistrate and affirmed the order with regard to the alternative accommodation and rent for the opposite party no.2/wife along with the specification and location excluding the electricity charges besides protection order in view of Section 18 of the PWDV Act. So, there was a concurrent finding of both the learned courts below with regard to those reliefs granted to the opposite party no.2/wife. There appears no irregularity or illegality in the same which requires any interference from this Court. In the result the criminal revision succeeds in part. The impugned order passed by the learned Sessions Judge, Birbhum in Criminal Appeal no.34 of 2013 only to the extent of enhancement of compensation amount to Rs.6,00,000/-(rupees six lakh) is set aside and the order awarding compensation of Rs.5,00,000/-(rupees five lakh) and other reliefs granted by the learned Magistrate is affirmed. 19. The instant criminal revision is thus disposed of. 20. There shall be no order as to costs. 21. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.