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High Court Of Calcutta
Syamal Kanti Chakrabarti, J.
Amalendu Bikash Saha - Appellants
Vs
Kalyani Saha - Respondents
C.R.R. No. 2650 of 2010
Decided on: July 29, 2011
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 - SECTION 12, 18, 19, 20, 22, 23, 25, 29 - MAINTENANCE - INHERITANCE - JURISDICTION - DOMESTIC RELATIONSHIP - ECONOMIC ABUSE - A widow can claim maintenance and share in the joint inherited property from the surviving brothers-in-law under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
Fact of the Case:
A widow filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking reliefs under Sections 18, 19, 20, and 22 of the Act, along with an application under Section 23 of the Act for interim reliefs. The Chief Judicial Magistrate at Alipore passed an order directing the petitioners and proforma opposite parties to pay a sum of Rs. 2,000/- per mensem each, i.e., a total sum of Rs. 10,000/- per mensem to the opposite party no. 1 until further order. The Court also passed an order restraining the opposite parties from committing any domestic violence in the nature of threatening and from committing any act which is derogatory, undignified to the opposite party no. 1 and also directed them not to evict or oust the opposite party no. 1 from the share of the household particularly from two rooms at first floor and two rooms at fourth floor in occupation of opposite party no. 1 at premises no. 91/3C, Tollygongue Road, P.S. Charu Market, District 24 Parganas.
Finding of the Court:
The Court held that the widow was entitled to maintenance and share in the joint inherited property from the surviving brothers-in-law under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Court also held that the Chief Judicial Magistrate had the jurisdiction to pass the impugned order and that the order was not illegal or infirm.
Issues: 1. Whether deceased brothers wife can claim any relief or maintenance as well as share in the joint inherited property from the surviving brothers-in-law under Section 12 of the Protection of Women from Domestic Violence Act, 2005 to be read with Sections 3(iv), 18, 19 and 20 of the said Act? 2. Whether the learned First Revisional Court is justified in passing the impugned order or not.
Ratio Decidendi: 1. The Court held that the widow was entitled to maintenance and share in the joint inherited property from the surviving brothers-in-law under Section 12 of the Protection of Women from Domestic Violence Act, 2005, as she had a domestic relationship with them and was subjected to economic abuse by them. 2. The Court also held that the Chief Judicial Magistrate had the jurisdiction to pass the impugned order and that the order was not illegal or infirm, as it was passed after considering all the relevant facts and circumstances of the case.
Final Decision: The Court dismissed the revisional application filed by the petitioners.
Syamal Kanti Chakrabarti, J.
1. IN the instant revisional application order dated 31.07.2010 passed by the learned Additional Sessions Judge, 8th Court at Alipore in Criminal Appeal No. 52 of 2010 has been assailed.
2. THE petitioners contend that the opposite party no. 1 Smt. Kalyani Saha filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking reliefs under Sections 18, 19, 20 and 22 of the said Act along with an application under Section 23 of the said Act for interim reliefs. On 12.04.2010 the learned Chief Judicial Magistrate at Alipore has passed an order in the said complaint case no. C-2276 of 2007 directing the three petitioners and the proforma opposite party nos. 3 and 4 to pay a sum of Rs. 2,000/- per mensem each, i.e., a total sum of Rs. 10,000/- per mensem to the opposite party no. 1 until further order. THE learned Court below has also passed an order restraining the opposite parties including the proforma opposite parties from committing any domestic violence in the nature of threatening and from committing any act which is derogatory, undignified to the opposite party no. 1 and also directed them not to evict or oust the opposite party no. 1 from the share of household particularly from two rooms at first floor and two rooms at fourth floor in occupation of opposite party no. 1 at premises no. 91/3C, Tollygongue Road, P.S. Charu Market, District 24 Parganas.
The further contention of these petitioners is that on receipt of such notice along with copy of the order dated 12.04.2010 which was passed ex parte, the petitioners were asked to appear before he learned Court below on 17.04.2010 for filing objection and hearing. Accordingly, they filed objection and prayed for revocation of the said ex parte order. After hearing both the parties the learned Magistrate has upheld his interim order by a subsequent order dated 07.05.2010. Thereafter, the petitioners preferred an appeal under Section 29 of the Act challenging the legality and propriety of both the aforesaid orders dated 12.04.2010 and 07.05.2010 passed by the learned Magistrate concerned for setting aside the same. But by order dated 31.07.2010 the learned Additional Sessions Judge, 8th Court at Alipore has dismissed the Criminal Appeal, being no. 52 of 2010 confirming the judgement and orders dated 12.04.2010 and 07.05.2010 passed by the learned Magistrate concerned in Criminal Case No. 2276 of 2010. Being aggrieved by and dissatisfied with such order the petitioners have now preferred instant revisional application contending, inter alia, that the learned Appellate Court has failed to consider the fact that a probate case being no. 70 of 2010 is pending and as such the learned Magistrate has no power to protect the right of residence demarcating any portion of the disputed premises which amounts to usurpation of the power of Civil Court. The learned Appellate Court has also omitted to consider that the opposite party no. 1 has not prayed for any protection for possession of any room in her application and as such the reliefs have been granted beyond prayer which is not tenable in law. He has also failed to consider the provisions of Section 3(iv) of the Act pertaining to economic abuse but granted monitory relief under Section 20 of the Act which is equally untenable. The learned Court has also failed to consider the documents of New Shri Ramkrishna Bakery which clearly spell out the opposite party no. 1 from the business. The learned Court below has also omitted to consider that the petitioner no. 1 Amalendu Bikash Saha has no business. Nevertheless, he has been asked to pay Rs. 2,000/- per mensem to opposite party no. 1 and that there is no such law that the brothers-in-law are liable to make any payment of maintenance. The petitioners have also questioned the legality and propriety of granting any relief in favour of the opposite party to get usufruct of their partnership business after the death o
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