Amir Aziz vs Henna Tarannum

Shivakant Prasad, J

In this revisional application the petitioner‐husband has assailed the judgment and order dated 31.08.2019 passed by the learned Additional District and Sessions Judge, Fast Track Court, 2nd Court in Criminal Appeal No.297 of 2018 challenging the order dated 22.06.2018 passed by the Court of the Learned Judicial Magistrate, 7th Court, Alipore in connection with C‐1079 of 2016 under Section 23 of the Protection of Women from Domestic Violence Act, 2005, inter alia, on the ground that the petitioner‐husband is an unemployed person and no income of his own and that the opposite party could not produce any supportive document when the petitioner‐husband has huge salary from the employment before the learned Appeal Court below.

It is submitted that the learned Court below has failed to consider the settled principles of law that the rule of Audi Alteram Partem is sine qua non for conducting a fair and proper hearing to obey the rule of actus curae neminem grevebit.

Accordingly, the petitioner has prayed for setting aside the order as bad in law and arbitrary.

Affidavit of service filed in Court in response to which the opposite party wife has entered appearance be taken on record.

I have heard the learned counsel for both the parties at length. Briefly stated in the facts and circumstances of the case, that the opposite party‐wife as the aggrieved person filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in complaint No.C‐1079 of 2016 before the Judicial Magistrate, Alipore which stood transferred to the Court of learned Judicial Magistrate, 7th Court, Alipore wherein the learned Judicial Magistrate by his order dated 22.06.2018 directed the present petitioner‐husband to pay a sum of Rs.10,000/‐ each per month for the maintenance of two minor children of the present petitioner‐husband under the provisions of Section 23 of the Protection of Women from Domestic Violence Act, 2005 from the date of the order and further directed that a sum of Rs.5,000/‐ per month to be paid to the opposite party for alternative accommodation or to provide better accommodation to the aggrieved opposite party‐wife.

Thus, the said order was appealed before the learned Additional District and Sessions Judge, Fast Track 2nd Court, Alipore, South 24 Parganas who by his order dated 31st August, 2019 was pleased to modify the order of interim maintenance and the protection order to the effect that the appellant‐husband shall pay Rs. 7,500/‐ each to his two minor children per mensem, payable by the 7th of every English calendar instead of Rs.10,000/‐ each. However, the order in respect of alternative accommodation and payment of a sum of Rs.5,000/‐ per month on that count was set aside.

The opposite party‐wife in her application under Section 12 and Section 23 has clearly maintained that she was married to the present petitioner‐husband and out of their wedlock two children were borne, who are now school going children.

She has narrated with regard to the agony suffered by her which compelled her to file the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. She has clearly averred in her petition at paragraph 13 that she has been passing great hardship alongwith her children at her parental home and gets financial support from her parents and brothers who have modest source of income.

Though the aggrieved person, opposite party‐wife herein has earning of a sum Rs.20,000/‐ per month from her employment in a private company dealing with cosmetic items, but the respondent no.1, the present petitioner‐husband is engaged in Real Estate business from which he has income to the tune of Rs.40,000/‐ to Rs.45,000/‐ per month and he has earning of Rs.15,000/‐ per month from his shares from the joint family business in the name and style of "Novelty Cloth Store" as well as share from the footwear business in the name of "Shalimar Footwear", situated at Rabindra Sarani, Lower Chitpore Road, Kolkata from which the monthly rent is derived at the rate of Rs.50,000/‐ per month. Moreover, the present petitioner has also a considerable share in the joint family property of his father and receives a sum of Rs.10,000/‐ per month as part of his share and despite having sufficient source of income to the tune of Rs.80,000/‐ per month, he has failed and neglected even to maintain the children. It is evident from the prayer made in the application itself that the opposite party wife has simply asked for maintenance for her two minor children @ Rs.15,000/‐ per month each.

With regard to the contentions so made on behalf of the opposite party‐wife in her application, the present petitioner‐husband despite appearance in Court has failed and neglected to file written objection denying categorically about his income as narrated by the wife‐opposite party herein. There is no contention filed even so made before the Magistrate and before the learned Court below to show that what was his income. Therefore, the Court below has rightly held that the petitioner as the father has a moral duty as well as legal obligation to maintain his two minor children, however, modified the maintenance of Rs.10,000/‐ as awarded by the Magistrate directing payment of Rs.7,500/‐ each per month to the minor children, but set aside the order for payment of Rs.5,000/‐ towards alternative accommodation.

Having heard learned advocate for both the parties and after going through the materials on record and finding no prima facie evidence to the contrary, I do not find any ground for this revisional application to sit over the order impugned passed by the learned Appellate Court below.

However, since, the matter in dispute is with regard to the quantum of earning of the present petitioner‐husband, the issue can be decided as per evidence to be adduced by the parties to the proceeding under Section 12 of the Domestic Violence Act, 2005 which ought to be decided summarily preferably within a period of six months from the date of communication of this order, as per the requirement of law under Section 12(5) of the Domestic Violence Act, 2005.

In the context above, the revisional application being C.R.R. No. 3309 of 2019 is hereby dismissed.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.