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2019 DIGILAW 558 (CAL)

Rina Roy v. State of West Bengal

2019-05-02

JAY SENGUPTA

body2019
JUDGMENT : 1. This is a revisional application challenging a judgment and order dated 13.12.2017 passed by the Learned Additional Sessions Judge, 17th Court, Alipore, South 24 Paraganas in Criminal Appeal No. 106/2017 under Section 29 of the Protection of Women from Domestic Violence Act, thereby allowing the appeal, setting aside the order dated 11.04.2017 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas in M-EX Case No. 90 of 2016, remanding back the matter before the Learned Magistrate and directing him to proceed onwards and to adjust and amount paid by the husband for the educational expenses of the children. 2. The Learned Advocate appearing on behalf of the petitioner submitted as follows. the petitioner/wife and the opposite party no. 2/husband got married on 07.12.1996. A son and a daughter were born to them. The son became a college student. The petitioner suffered immense torture at the hands of the husband and finally she was driven out of the matrimonial home with her two children. The opposite party no. 2 was a businessman. He had a business of food catering at the La Martinier School and other reputed schools. As such, he earned a handsome income. On 31.05.2015 the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Paraganas was pleased to dispose of an application of the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, thereby, inter alia, directing the opposite party not to commit domestic violence against the petitioner, the Officer-in-Charge of the local police station to look into the matter for the petitioner's protection, the opposite party no. 2 not to disturb the peaceful residence of the petitioner and the children in the shared household, the opposite party no. 2 to pay a sum of Rs. 23000/- per month to the petitioner as monetary relief for herself and for her two children and to pay a sum of Rs. 50000/- as compensation for the pain and suffering caused to the petitioner. The opposite party no. 1 did not comply with the directions because of which all these arrears of maintenance piled up. After about a year, the wife received a paltry sum. The petitioner filed two execution cases for recovery of the arrears of maintenance allowance. The husband did not challenge the original order directing payment of maintenance. The opposite party no. 1 did not comply with the directions because of which all these arrears of maintenance piled up. After about a year, the wife received a paltry sum. The petitioner filed two execution cases for recovery of the arrears of maintenance allowance. The husband did not challenge the original order directing payment of maintenance. But, he took up a plea in the instant execution case that he was making payment separately and as such, the execution case would not lie. His claim was rejected by an order dated 11.04.2017. Challenging this, the husband preferred an appeal that resulted in the impugned order. Till date the petitioner wife had received only a small sum from the opposite party. In any event, a payment made by the opposite party other than the stipulated sum of maintenance allowance as awarded by the Learned Magistrate would have to be taken as an independent voluntary act of the opposite party no. 2. Such purported irregular, yet voluntary, payments could not be treated to be in lieu of payment of maintenance allowance as per the Court's order and therefore, could not be adjusted with the sum awarded. 3. The Learned Advocate appearing on behalf of the opposite party submitted as follows. There were no dues for the arrears of maintenance. Referring to the affidavit in reply filed on behalf of the petitioner, it was submitted that some payments made by the opposite party no. 2 were admitted by the petitioner. Reference was also made to an annexure in the affidavit in opposition in respect of evidence in a collateral proceeding and it was submitted that the husband was paying sums of money to the petitioner. Besides, the petitioner was occupying the husband's house. Relying on A. Palaniswamy vs. Alagammal, P. Chitra and State, (2007) 3 AICLR 554, it was submitted that a joint award of maintenance to more than one person is absolutely bad. If a joint award is passed and subsequently an award of maintenance is rejected in respect of one of the two persons who were awarded maintenance, then it would be difficult for the superior Court to determine what quantum of maintenance had been awarded to the other. An executing Court can go into the original order under exceptional circumstances like when the order is vague. 4. An executing Court can go into the original order under exceptional circumstances like when the order is vague. 4. In his brief reply, the Learned Advocate for the petitioner submitted that without challenging the impugned order, the opposite party no. 1 could not take up the plea that the original order of maintenance had no bifurcation. There is no exceptional circumstance that would warrant the Learned executing Court to go beyond the order passed by the learned original Court. 5. I heard the submissions of the Learned Advocate appearing on behalf of the petitioner and the opposite party no. 2 and perused the revision petition and the affidavits filed in this case. 6. Even if it is accepted that some payments, albeit irregular, were made by the present opposite party no. 2 for the tuition fees for the children, etc, it was clearly not in terms of the order passed by the Learned Magistrate, inter alia, awarding maintenance allowance in favour of the petitioner and the children. When an order is passed by a learned court of law, it is to be complied with in its entirety. Therefore, such ad-hoc payments have to be taken as voluntary acts of the present opposite party no. 2, supposedly out of benevolence. There is no evidence whatsoever to indicate that the petitioner had either coaxed the opposite party no. 2 to do so or accepted the said sums in lieu of payment of maintenance allowance. In view of the same, the opposite party no. 2 cannot have such sums purportedly paid by him in the intervening period adjusted with the arrears of monthly maintenance allowance in an execution proceeding. 7. As neither an application had been made to alter the original order for any change in circumstance in respect of the time period in question nor had the said original order been challenged in respect of any of the beneficiaries, I do not find any need to bifurcate the sums of maintenance allowance in the present revision. 7. As neither an application had been made to alter the original order for any change in circumstance in respect of the time period in question nor had the said original order been challenged in respect of any of the beneficiaries, I do not find any need to bifurcate the sums of maintenance allowance in the present revision. Nonetheless it may be germane to indicate that in A. Palaniswamy's Case (supra) although it was held by this Court that a joint award of maintenance to the wife and children was illegal, nevertheless it was left open to the High Court, by invoking its inherent powers, to make the necessary amendment in the order so that the irregularity in granting a joint award could be removed. Thus, it is clear that when such non-bifurcation becomes an issue, the same can be dealt with by this Court. But, even in A. Palaniswamy's Case the bifurcation was effected by this Court on an application challenging the original order. 8. Moreover, I do not think there is any other exceptional circumstance for which the learned executing Court ought to have been gone beyond the order passed by the learned original Court to cure any purported irregularity. The order of grant of the maintenance allowance was quite clear and there was no vagueness left in it. 9. As would be evident from the Statement of Objects and Reasons behind the promulgation of the Protection of Women from Domestic Violence Act 2005, the Act falls, inter alia, within the sweep of Article 15 of the Constitution of India. Therefore, the relief granted to a woman or a female child cannot be disturbed or delayed by raking up technical irregularities, especially when the purported irregularity had remained unchallenged and in fact, had not taken its supposed toll so far as the period for which the dues accrued is concerned. 10. In view of the above, I do not think the purported payments made by the opposite party no. 1 to the petitioner irregularly, in an ad-hoc manner although of his own volition, but not in terms of the order passed by the learned original Court, could be adjusted by a learned executing Court with the arrears of maintenance allowance payable. The learned appellate Court therefore erred in passing the impugned order. 11. 1 to the petitioner irregularly, in an ad-hoc manner although of his own volition, but not in terms of the order passed by the learned original Court, could be adjusted by a learned executing Court with the arrears of maintenance allowance payable. The learned appellate Court therefore erred in passing the impugned order. 11. In view of the above discussions, the revision is allowed and the impugned order is set aside. 12. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.