Sk. Hamid Mallik vs State of West Bengal & Anr.

Learned counsel for the petitioner seeks leave to amend the cause title of the revisional application.

Leave sought for is granted. Necessary correction may be made in the cause title of the application here are now.

By the present application petitioner has assailed the judgement and order dated 07.11.2017 passed by the learned Sessions Judge, Purba Medinipur in Criminal Appeal No. 2 of 2017 arising out of the judgement and order dated 23.02.2017 passed by the learned Judicial Magistrate, 2nd Court, Tamluk in Misc. Case No. 419 of 2012 in a proceeding under Section 12 of Protection of Women from Domestic Violence Act, 2005.

The brief facts leading to the present application may be summarized as follows :

The opposite party No. 2 herein filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 against the petitioner herein which was registered as Misc. Case No. 419 of 2012 before the Judicial Magistrate, 2nd Court, Tamluk seeking restoration of shared household, protection order under Section 18, return of her personal articles, residence order under section 19 and monetary relief under section 20 of the Act. The aforesaid misc. Case was allowed in part and the petitioner herein was directed to pay Rs. 4,000/- per month to the wife/opposite party No. 2 herein as maintenance in terms of Section 20 of the Domestic Violence Act. Aggrieved by the aforesaid order, the husband/petitioner herein preferred an appeal before the Sessions Judge being Criminal Appeal No. 2 of 2017 which was allowed in part by the impugned judgement and order the operative part of which reads as follows : -

"That the Crl. Appeal be and the same is allowed in part but without costs.

There will be an order that the wife would get maintenance @ Rs. 4,000/- per month subject to adjustment against the order passed by Hon'ble Court in C.R.R. No. 1543/16. The rest part of the order impugned will remain unaltered."

Learned counsel for the petitioner / husband submits that maintenance at the rate of Rs. 8,500/- per month is being paid pursuant to the order passed in Misc. Case No. 168 of 2009 under Section 125 Cr.P.C. together with Rs. 11,500/- per month towards arrear maintenance in view of the order passed by this Court in C.R.R. No. 1543 of 2016. In view of the aforesaid financial burden with which the petitioner is already saddled, it is not possible for him to pay Rs. 4,000/- per month in terms of the order passed in Misc. case No. 419 of 2012 under the Domestic Violence Act. It is contended that the petitioner has to maintain his ailing mother apart from other financial obligations which he has to discharge with his salary of Rs. 25,000/- per month.

Learned counsel for the opposite party no. 2/wife submits that Rs. 4,000/- per month is required to be paid towards rent in respect of the rented accommodation for the opposite party No. 2 and her three children. It is argued that the amount of Rs. 8,500/- per month which has been awarded as maintenance for the wife and three children in the proceeding under Section 125 Cr. P.C. is not sufficient to meet their requirement. It is further contended that the obligation for payment of arrear maintenance at the rate of Rs. 11,500/- per month will come to an end in May/June, 2019. So, the total amount payable by the husband /petitioner herein would be Rs. 12,500/- only.

I have considered the submissions advanced with reference to the facts and circumstances of the case. The petitioner herein/husband is a constable in the police force whose salary in the year 2016 was Rs. 25,000/- per month. Considering the socio-economic status of the parties, the income of the petitioner/husband and the escalating prices of the essentials of daily life, I am of the view that the amount of Rs. 4,000./- per month awarded as maintenance in favour of the opposite party No. 2 under section 20 of the Domestic Violence Act is just and reasonable. At this juncture it is pertinent to mention that maintenance was awarded in favour of the wife/opposite party No. 2 herein in two different proceedings which are independent of each other. In view of Section 20 (1) (d) of the Domestic Violence Act the power to award maintenance under the Act is in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure or any other law for the time being in force.

Section 36 of the Domestic Violence Act reads as follows : -

"36. Act not in derogation of any other law - The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force."

There is no merit in the submission advanced by the learned counsel for the petitioner that since the judgement and order of Bombay High Court in the case of Prakash Babulal Dangi Versus The State of

Maharashtra reported in 2017 SCC Online Bom 8897 directing the payment of maintenance under the Domestic Violence Act has been stayed by the Supreme Court in Special Leave to Appeal (Cri) Nos. 10280-10281/2017, the petitioner/ husband should be exonerated from the liability of payment of maintenance under the Domestic Violence Act. Learned counsel for the petitioner/husband could not refer to any proposition of law in support of his submission that the wife is not entitled to maintenance under the Domestic Violence Act if she is getting maintenance under Section 125 Cr.P.C.

For the reasons aforestated, no interference is warranted with the judgement and order impugned.

The application being C.R.R. 172 of 2018 is accordingly dismissed.

No order as to cost.

The application being C.R.A.N. 804 of 2018 is thus disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.