Back
2019 Supreme(Cal) 303
IN THE HIGH COURT OF CALCUTTA
SUBHASIS DASGUPTA, J.
Ram Ganesh Polley – Appellant
Versus
Swarupa Polley (Das) & Anr. – Respondent
CRR No. 364 of 2019
Decided on : 27-03-2019
Advocate Appeared:
For the Appellant : Mr. T.K. Mukherjee, Mr. Balaram Neogi, Adv.
For the State : Mr. Binoy Kumar Panda, Mr. Subham Bhakat, Mr. Debasish Roy, Mr. Avik Ghatak, Adv.
The obligation to provide evidence to establish a change in circumstances for alteration/modification or revocation of any order made under the P.W.D.V Act.
Headnote:
P.W.D.V Act - Maintenance and Alternative Accommodation - Section 23(2), Section 19(i)(f), Section 25 - The court discussed the application of Section 23(2) and Section 19(i)(f) of the P.W.D.V Act, and the implications of Section 25 for alteration of orders. The court emphasized the need for proof of change in circumstances for alteration/modification or revocation of any order made under the Act, and highlighted the obligation to provide evidence to establish a change in circumstances.
Fact of the Case:
The case involved a dispute over the grant of interim monetary assistance and cost of alternative accommodation under the P.W.D.V Act. The husband challenged the ex parte order granting the allowances, alleging financial hardship. The wife sought to continue the allowances till the disposal of the case, citing the husband's non-compliance with the orders.
Finding of the Court:
The court found that the husband's application under Section 25(2) of the P.W.D.V Act was not properly filed and clarified that the power to grant interim ex parte order is subject to proof and final decision by the Magistrate. The court emphasized the need for proof of change in circumstances for alteration/modification or revocation of any order made under the Act.
Issues: The issues included the propriety of the interim monetary assistance and cost of alternative accommodation, the husband's non-compliance with the orders, and the application of Section 25(2) of the P.W.D.V Act.
Ratio Decidendi: The court emphasized the obligation to provide evidence to establish a change in circumstances for alteration/modification or revocation of any order made under the Act, and highlighted the need for proper resolution of the dispute at the time of final hearing of the case.
Final Decision: The court modified the interim order, reducing the allowances to Rs.60,000 per month and stayed the execution of the warrant of arrest against the husband for a fortnight. The husband was given liberty to raise the issue in accordance with the law, and the Magistrate was directed to address and decide the issue in accordance with the law.
JUDGMENT :
Subhasis Dasgupta, J:-
1. The impugned orders dated 18th December, 2018 passed by learned Additional Sessions Judge, 13th Court at Alipore in Criminal Appeal No. 220 of 2018 arising out of an order dated 12th September, 2018 passed by learned Judicial Magistrate 4th Court at Alipore in A.C. No. 3033 of 2017 and order dated 18th May, 2018 passed by learned Additional Sessions Judge, 16th Court at Alipore in Criminal Appeal No.30 of 2018 arising out an order dated 8th January, 2018 passed by learned Judicial Magistrate 4th Court at Alipore in self same case No A.C 3033 of 2017 are the subject matter of challenge in this revisional application under Article 227 of the Constitution of India.
2. In this revisional application the propriety of the order granting interim monetary assistance under Section 23(2) of the P.W.D.V Act at the rate of Rs. 30,000/- per month for each of the wife and child together with cost of alternative accommodation to the extent of Rs.20,000/- per month under Section 19(i)(f) of the same Act was sought to be challenged alleging the same to have been granted ex parte, and particularly when the same was attempted to be challenged by filing an application under Section 25(2) of PWDV Act. The matter in issue, according to revisionist, could not be duly considered by both the Courts below, causing him to suffer extreme financial hardship.
3. The estranged wife being a victim of commission of domestic violation in the hands of her-in-laws member particularly, revisionist/husband, left her matrimonial home at Vadodara, Gujarat under compelling circumstances and took shelter in her father’s house for her sustenance. The Marriage between the parties is not a disputed one. The paternity of the male baby born out of their wedlock was not a subject matter of challenge in this case.
4. Since the wife had no income to support herself, and since the male baby was perusing his study in class-II of Delhi Public School, Joka, Kolkata, a petition was filed under Section 12 read with Section 23 of the P.W.D.V Act seeking reliefs, particularly with respect to maintenance and cost of alternative accommodation. The learned Magistrate disposed of the same relying on the affidavit furnished by the wife granting interim monetary assistance to the tune of Rs. 30,000/- per month to wife and Rs.30,000/- per month to minor son together with Rs.20,000- per month as cost of alternative accommodation.
5. The learned Magistrate then proceeded to dispose of the main application under P.W.D.V Act under Section 12 fixing 02.01.18 for ex parte hearing due to non-appearance of the revisionist/husband relying on track report of postal authority together with the postal receipt produced. Evidence of PW1 was thereafter taken ex parte fixing for passing ex parte order on 05.01.18. The day when the case was fixed for passing ex parte order, as regards the main application under P.W.D.V Act, the husband appeared by filing a petition for vacating ex parte hearing. The learned Magistrate vacated the ex parte hearing allowing revisionist/husband to contest the case with a cost of Rs.20,000/-. The learned Magistrate, however, after vacating the ex parte hearing proceeded to fix next date of hearing of application dealing with prayer for interim maintenance.
6. The wife felt aggrieved with such order and preferred appeal in connection with criminal appeal No.30 of 2018.
7. The Additional Sessions Judge 16th Court Alipore disposed of Criminal Appeal No. 30 of 2018 allowing the appeal in part with some modification that the interim order which was passed on 26.10.17 granting interim maintenance together with cost of alternative accommodation shall be continued till the disposal of the case.
8. When the case was proceeded further after the appearance of revisionist/husband before the learned Magistrate with an aim to dispose the main application under P.W.D.V Act, suddenly the revisionist/husband filed a petition on 12.09.18 alleging that his petition und
