Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 406 (CAL)

Ram Ganesh Polley v. Swarupa Polley (Das)

2019-03-27

SUBHASIS DASGUPTA

body2019
JUDGMENT : Subhasis Dasgupta, J:- 1. The impugned orders dated 18th December, 2018 passed by learned Additional Sessions Judge, 13th Court at Alipore in Criminal Appeal No. 220 of 2018 arising out of an order dated 12th September, 2018 passed by learned Judicial Magistrate 4th Court at Alipore in A.C. No. 3033 of 2017 and order dated 18th May, 2018 passed by learned Additional Sessions Judge, 16th Court at Alipore in Criminal Appeal No.30 of 2018 arising out an order dated 8th January, 2018 passed by learned Judicial Magistrate 4th Court at Alipore in self same case No A.C 3033 of 2017 are the subject matter of challenge in this revisional application under Article 227 of the Constitution of India. 2. In this revisional application the propriety of the order granting interim monetary assistance under Section 23(2) of the P.W.D.V Act at the rate of Rs. 30,000/- per month for each of the wife and child together with cost of alternative accommodation to the extent of Rs.20,000/- per month under Section 19(i)(f) of the same Act was sought to be challenged alleging the same to have been granted ex parte, and particularly when the same was attempted to be challenged by filing an application under Section 25(2) of PWDV Act. The matter in issue, according to revisionist, could not be duly considered by both the Courts below, causing him to suffer extreme financial hardship. 3. The estranged wife being a victim of commission of domestic violation in the hands of her-in-laws member particularly, revisionist/husband, left her matrimonial home at Vadodara, Gujarat under compelling circumstances and took shelter in her father’s house for her sustenance. The Marriage between the parties is not a disputed one. The paternity of the male baby born out of their wedlock was not a subject matter of challenge in this case. 4. Since the wife had no income to support herself, and since the male baby was perusing his study in class-II of Delhi Public School, Joka, Kolkata, a petition was filed under Section 12 read with Section 23 of the P.W.D.V Act seeking reliefs, particularly with respect to maintenance and cost of alternative accommodation. The learned Magistrate disposed of the same relying on the affidavit furnished by the wife granting interim monetary assistance to the tune of Rs. The learned Magistrate disposed of the same relying on the affidavit furnished by the wife granting interim monetary assistance to the tune of Rs. 30,000/- per month to wife and Rs.30,000/- per month to minor son together with Rs.20,000- per month as cost of alternative accommodation. 5. The learned Magistrate then proceeded to dispose of the main application under P.W.D.V Act under Section 12 fixing 02.01.18 for ex parte hearing due to non-appearance of the revisionist/husband relying on track report of postal authority together with the postal receipt produced. Evidence of PW1 was thereafter taken ex parte fixing for passing ex parte order on 05.01.18. The day when the case was fixed for passing ex parte order, as regards the main application under P.W.D.V Act, the husband appeared by filing a petition for vacating ex parte hearing. The learned Magistrate vacated the ex parte hearing allowing revisionist/husband to contest the case with a cost of Rs.20,000/-. The learned Magistrate, however, after vacating the ex parte hearing proceeded to fix next date of hearing of application dealing with prayer for interim maintenance. 6. The wife felt aggrieved with such order and preferred appeal in connection with criminal appeal No.30 of 2018. 7. The Additional Sessions Judge 16th Court Alipore disposed of Criminal Appeal No. 30 of 2018 allowing the appeal in part with some modification that the interim order which was passed on 26.10.17 granting interim maintenance together with cost of alternative accommodation shall be continued till the disposal of the case. 8. When the case was proceeded further after the appearance of revisionist/husband before the learned Magistrate with an aim to dispose the main application under P.W.D.V Act, suddenly the revisionist/husband filed a petition on 12.09.18 alleging that his petition under Section 25(2) of the PWDV Act could not be disposed of by the learned Magistrate. The learned Magistrate rejected such prayer of the revisionist/husband observing therein that no such application under Section 25(2) of the PWDV Act was preferred by the revisionist/husband. Against such rejection, the husband preferred an appeal in connection with Criminal Appeal No. 220 of 2018. The learned Additional Sessions Judge 13th Court alipore dismissed the Criminal Appeal No. 220 of 2018. The learned Magistrate rejected such prayer of the revisionist/husband observing therein that no such application under Section 25(2) of the PWDV Act was preferred by the revisionist/husband. Against such rejection, the husband preferred an appeal in connection with Criminal Appeal No. 220 of 2018. The learned Additional Sessions Judge 13th Court alipore dismissed the Criminal Appeal No. 220 of 2018. It was observed in such appeal that when learned Judge in connection with criminal appeal No. 30 of 2018 modified the order dated 08.01.18 of the learned Magistrate continuing the interim order till the disposal of the case, the application, if any filed, under Section 25(2) of the PWDV Act dated 08.01.17 impliedly became redundant and the petition dated 08.01.17 was nothing but a show cause with a prayer for vacating the exparte hearing. It was also observed in connection with Criminal Appeal No. 220 of 2018 that the order passed in Criminal Appeal No. 30 of 2018 directing the interim order dated 26.10.17 granting interim monetary assistance allowance together with cost of alternative accommodation shall continue till the disposal of this case even could not be challenged before the upper forum. 9. Learned Advocate for the revisionist/husband argued with all emphasis furnishing a supplementary affidavit supported by some income tax returns of some preceding years in order to reveal the extent of the income of husband, that the order granting interim monetary assistance together with the cost of alternative accommodation totalling to Rs.80,000/- per month was a repressive to husband causing financial hardship to him, and further both the courts below failed to visualise the application filed by him under Section 25(2) of the PWDV Act on 08.01.17 aiming to modify and/or alter the allowances for the reasons, as set forth in the petition itself. 10. Learned advocate for the O.P/wife submitted with all fairness repelling the contention of the revisionist/husband that with the disposal of the two appeals being Criminal Appeal No.30 of 2018 and criminal appeal no. 220 of 2018, there left nothing to revisit the order granting allowances, passed with respect of Section 23 read with Section 19(i) (f) of PWDV Act. Thus according to OP/wife, the quantum fixing the interim monetary assistance and the cost of alternative accommodation were not at all the subject of challenge in either of the two appeals. 220 of 2018, there left nothing to revisit the order granting allowances, passed with respect of Section 23 read with Section 19(i) (f) of PWDV Act. Thus according to OP/wife, the quantum fixing the interim monetary assistance and the cost of alternative accommodation were not at all the subject of challenge in either of the two appeals. Since, the revisionist/husband was a big merchant having garment factory with an income of Rs.7,00,000/- per month, the learned Magistrate rightly decided the quantum of allowances, which even could not be doubted in the appeal being No.30 of 2018 preferred against order dated 08.01.18 passed by learned Judicial Magistrate 4th Court at Alipore. 11. The further contention of the OP/wife is that till date, the husband did not deposit anything towards the allowances granted by the court below doing necessary compliance, besides making deposit of Rs. 20,000/-, as costs, so as to contest the application filed under PWDV Act. That for obstinate attitude shown as regards doing necessary compliance of the order passed by both the courts below, the O.P/wife had to initiate execution proceeding, which is alleged to be pending, learned advocate for the OP/wife submitted. 12. Upon perusal of the petition dated 08.01.17, it appears that the averments contained therein clarified the circumstances as to what prevented the revisionist husband from contesting the case, though in the prayer portion, he sought for modification and/or alteration/revocation of the interim order passed in this case in application of Section 25(2) of the P.W.D.V Act. 13. The first Appellate Court in connection with Criminal Appeal No. 220 of 2018 attempted to make out meaning from the text of the averments contained therein and thereafter came to a finding that it was nothing but a show cause clarifying the circumstances preventing the revisionist/husband from contesting the case. 14. Section 25 of PWDV Act deals with alteration of orders, which may be mentioned as hereunder. “25. Duration and alteration of orders.-(1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge. (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.” 15. (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.” 15. Sub-Section 1 of Section 25 speaks for validity of the protection order granted under Section 18 of the Act specifying therein that the same shall remain in force till the aggrieved person applies for discharge. 16. Sub-Section 2 of Section 25 of the said Act, however, speaks for alteration/modification and revocation of any order made under this Act on proof of change in circumstances, which may be done by the Magistrate on receipt of an application, either from the aggrieved person or from the respondent. 17. When statute has as provided provision to raise an issue dealing with the modification, alteration and revocation of any order made under this Act under Section 25(2) of the Act, the Court should not be so hypertechnical in addressing a particular situation, like the instant one. The power to grant interim ex parte order under Section 23 of the DV Act is extended to aggrieved wife in the given circumstances of the case, being a peace of social legislation, which is however, subject to proof, while deciding the case finally upon taking version of both the parties involved in this case. When the revisionist/husband felt aggrieved with the order granting interim allowances, justice demanded in such case a proper resolution of the dispute in terms of the materials produced by either of the parties to this case. So an opportunity, if extended at the time of final hearing of this case, that will not frustrate the ultimate objective of this piece of social legislation. 18. Needless to mention that any interim order passed in application of Section 23 of the PWDV Act is subject to final decision of the learned Magistrate, to be given under Section 12 of PWDV Act. The modification/alteration or revocation may, however, be done with respect to any order made under this Act, by the Magistrate, upon proof of change in circumstances. It is, therefore, obligatory on the part of revisionist/husband. Oral assertion, or rather mere assertion, without proof of change in circumstances, would not do, favourable to the purpose of husband. The modification/alteration or revocation may, however, be done with respect to any order made under this Act, by the Magistrate, upon proof of change in circumstances. It is, therefore, obligatory on the part of revisionist/husband. Oral assertion, or rather mere assertion, without proof of change in circumstances, would not do, favourable to the purpose of husband. The revisionist/husband though contested, in either of the two appeals, did not venture to produce anything in order to establish a change in the circumstances justifying alteration/modification or revocation, as sought to be established. The income tax returns now furnished before this Court are to be appreciated in terms of the provisions of the law being a subject of consideration by the learned Magistrate. The cost of alternative accommodation is given simply to secure same level of alternative accommodation for the aggrieved wife, as enjoyed by her in the share household, or to pay rent for the same, if the circumstances so required, the determination of which is mixed question of facts and law. The facts involved therein as regards the determination of cost of alternative accommodation are also subject of proof. 19. Whenever a prayer was initiated seeking modification and/or alteration of the interim allowances granted by the learned Magistrate, though not in proper forum, but if it is adjudicated giving sufficient opportunities to either of the parties to this case at the time of rendering final decision of this case, that will however, sub-serve the purpose of justice. 20. When in this case the revisionist/husband contended that the interim allowance to be repressive to him causing him to suffer financial hardship and thereby admitting his liability to maintain his wife and son providing a modest life, a little modification of quantum, without venturing into the merits of the case, will not cause any prejudice to either of the parties to this case. The Court makes it clear that this modification is passed without considering the merits and it will have no persuasive effect on the merits of the case, to be decided finally after giving opportunities to either of the parties to this case. The case is accordingly left to be decided independently on its merits without being untrammeled by the observation, made in the body of this order. 21. The revisional application thus may be disposed of with some modification. 22. The case is accordingly left to be decided independently on its merits without being untrammeled by the observation, made in the body of this order. 21. The revisional application thus may be disposed of with some modification. 22. The impugned order dated 18th May, 2018 passed in Criminal Appeal No.30 of 2018 by the learned Additional Sessions Judge 16th Court Alipore allowing the appeal in part with modification that the interim order dated 26.10.2017 passed by the learned Judicial Magistrate 4th Court at Alipore in AC No. 3033 of 2017 granting the interim monetary assistance and cost of alternative accommodation to continue till the disposal of the case is modified to the extent as follows:- 23. The interim order granting interim monetary assistance under Section 23(2) of PWDV Act read with cost of alternative accommodation under Section 19(i) (f) of PWDV Act is modified to Rs.60,000/- per month in all instead of 80,000/- per month inclusive all allowances covered under the interim order with effect from the date, as already ordered by learned Magistrate. 24. Since a warrant of arrest is pending against the revisionist/husband in connection with execution proceeding, initiated at the instance of OP/wife for realisation of all allowances, due to be recovered from revisionist/husband, as it is evident from xerox copy of the order dated 08.02.19 passed by Judicial Magistrate 4th Court, Alipore in connection with execution case no. M.Ex-66 of 2018, as produced by revisionist/husband, the execution of warrant of arrest be stayed for a period of fortnight from hence. The revisionist/husband is directed to surrender before the Magistrate within the period, so stipulated, and in the event if any prayer for bail/bond is furnished, the same shall be disposed of upon liquidating the entire amounts taking a note of modification of allowances, due to be recovered in accordance with law. 25. The revisionist/husband is given liberty to raise the issue, now raised, in accordance with law, and if any point so raises, the learned Magistrate shall duly address the same and decide the issue in accordance with law providing sufficient opportunity to either of the parties to this case. 26. With this observation, the revisional application stands disposed of. 27. Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties upon compliance with all formalities.