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2019 DIGILAW 804 (CAL)

Ujjwal Agarwal v. Ekta Agarwal

2019-08-14

MADHUMATI MITRA

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JUDGMENT : Madhumati Mitra, J. 1. This is an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure filed by the petitioner challenging the order dated 16th February, 2019 passed by the Learned Chief Judge, City Sessions Court, Calcutta in Criminal Appeal No.58 of 2018, thereby directing the petitioner to pay interim maintenance amounting to Rs.12,000/- each to the two minor children and Rs.20,000/- to the wife/opposite party per month from May, 2018 till disposal of the Miscellaneous Case pending before the Learned Magistrate. 2. The petitioner having been dissatisfied with the judgment and order passed in Appeal has preferred the present application. 3. The facts which are essential for disposal of the present application are as follows:- 4. Present opposite party is the legally married wife of the present petitioner no.1 and petitioner nos.2 and 3 are the parents in law of opposite party. On 16.01.2018, the opposite party filed a petition under Section 12 of the Protection of Women from Domestic Violence Act 2005, against the petitioners before the Learned Chief Metropolitan Magistrate at Calcutta being Misc. Case No.03/2018. The Learned Trial Magistrate posted the said Miscellaneous Case No.03/2018 for ex parte hearing on 16.02.2018 as the petitioners refused to accept the summons. 5. On 11th May, 2018 the Learned Trial Court disposed of the said Miscellaneous Case directing the present petitioner no.1 to pay a sum of Rs.55,000/- in total per month to the opposite party. Petitioner stated that he was not aware about the Misc.Case filed by the opposite party. On 28.06.2018 petitioner no.1 received the copy of the order passed by the Learned Magistrate ex parte. 6. The petitioners had challenged the order passed by the Learned Magistrate in Misc. Case No.3 of 2018 by preferring Criminal Appeal being No.58 of 2018 under Section 29 of the Protection of Women from Domestic Violence Act along with an application under Section 5 of the Limitation Act, 1963 before the Learned Chief Judge, City Sessions Court, Calcutta, praying for setting aside the said ex parte order dated 11.05.2018. Learned Chief Judge City Sessions Court allowed the said appeal on contest and set aside the order dated 11.05.2018 passed by the Learned Magistrate in Misc. Case No.03/2018. Learned Chief Judge City Sessions Court allowed the said appeal on contest and set aside the order dated 11.05.2018 passed by the Learned Magistrate in Misc. Case No.03/2018. In the said order the appellant No.1 has been given an opportunity to prove his income and all the appellants have been given opportunity to counter the allegations levelled against them by the respondent no.1. 7. The order passed in Criminal Appeal No.58 of 2018 is as under:- “The appellant no.1 is directed to pay an interim maintenance amounting to Rs.12,000/- each to the minor children and Rs.20,000/- to the wife from the date of the impugned order i.e. from May, 2018 till disposal of the misc. case. All the appellants are directed to restrain themselves from committing any Domestic Violence or any such acts which leads to Domestic Violence. All the appellants are directed to allow the respondent no.1 to reside in a portion of Madhusudan Apartment, Flat no.A/7, 5th Floor, P-18, Dobson Lane, Howrah or arrange an alternative accommodation to the respondent no.1 or pay Rs.10,000/- per month for the alternative accommodation to the respondent no.1. Amount of Rs.50,000/- paid by the appellant no.1 to the respondent no.1 during the proceeding of the appeal will be considered as the cost of the appeal borne by the respondent no.1/wife and that too will not be deducted from the interim maintenance or from alternative accommodation. Arrear interim maintenance will be paid by the appellant no.1 to the respondent no.1 along with current interim maintenance in more or less four equal installments. Both the appellants and respondent are directed to appear before the ld. Lower Court on 28.02.2019. Ld. Lower court is directed to give opportunity to the appellants to file objection and thereafter, give opportunity to all the parties to produce witnesses and documents afresh. Ld. Lower court is also directed to dispose of the misc. case preferably within six months without giving any unnecessary adjournments to any of the parties.” 8. The impugned order has been assailed by the Learned Advocate appearing for the petitioner on the ground that the quantum of maintenance assessed by the Learned Magistrate and Learned Judge in appeal is not based on the actual income of the petitioner. He has contended that both the Courts below determined the amount of maintenance without considering the income of the present petitioner. He has contended that both the Courts below determined the amount of maintenance without considering the income of the present petitioner. The amount of maintenance granted to the wife and children are not only excessive but also beyond the capacity of the petitioner no.1 to pay the same. 9. On the other hand, Learned Advocate for the opposite party has contended that the amount of maintenance determined by the Learned Magistrate which was subsequently modified in appeal preferred by the husband is quite justified and reasonable. It has been contended on behalf of the opposite party that the petitioner no.1 has sufficient means to discharge his obligation to maintain his wife and two minor children. He has further submitted that the children of the petitioner no.1 and opposite party are school going students. The amount of Rs.12,000/- per month to each of the children cannot be said to be excessive. As per his contention the amount of maintenance includes the educational and other essential expenses of the children. He has further contented that the amount of Rs.20,000/- for the maintenance of the wife is reasonable considering the fact the minor children stay with their mother and the mother has to take care of her children and she has to fulfill their day to day requirements. He has also submitted that the amount of Rs.10,000/- per month for the alternative accommodation to the wife is not at all exorbitant. 10. In support of their respective contention, the Learned Counsel appearing for the parties have tried to convince the Court by drawing attention on several documents and they have placed their reliance on the said documents to justify their rival submission. 11. On perusal of the entire materials placed on record, it appears that the Learned Magistrate on 11.05.2018 disposed of the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ex parte. That ex parte order was challenged by the petitioner by preferring an appeal under Section 29 of the Protection of Women from Domestic Violence Act. In appeal an opportunity has been given to the petitioner no.1 to prove his income and at the same time the petitioners have given opportunity to counter the allegations levelled against them by the opposite party. The order of maintenance passed by the Learned Magistrate has been set aside in appeal. In appeal an opportunity has been given to the petitioner no.1 to prove his income and at the same time the petitioners have given opportunity to counter the allegations levelled against them by the opposite party. The order of maintenance passed by the Learned Magistrate has been set aside in appeal. The amount of maintenance granted in appeal is interim in nature as it appeared from the order passed in appeal. Documents submitted by the petitioners during the course of hearing yet to be brought into evidence. The impugned order of maintenance passed in appeal is in the nature of interim maintenance and is subject to final adjudication on main application and the said interim maintenance to be payable till the main application is disposed of on hearing both the parties. 12. In the present case, the order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 granting maintenance to the wife and minor children has been set aside by the Learned Chief Sessions Judge in appeal. The appellate Court while setting aside the order of ex parte maintenance has granted interim maintenance to the wife and minor children and also granted liberty to the petitioner no.1 to prove his income. Petitioner no.1 has claimed that he has no capacity to pay the amount of maintenance assessed by the appellate Court. On the contrary, the opposite party has strongly submitted that her husband has the ability to pay the amount of maintenance as directed by the Appellate Court. It is a question of fact to be decided on evidence. The High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure cannot assume the jurisdiction of the trial Court and cannot delve deep into the factual merit of the case. 13. The impugned order is purely interim in nature and the parties have been granted opportunity by the Learned Appellate Court to prove their respective cases during trial by way of adducing evidence. I do not find any justification to interfere with the impugned order at this stage. 14. As a result, the application under Section 482 of the Code of Criminal Procedure is devoid of merit and stands dismissed. 15. Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.