An able-bodied husband is under a legal obligation to maintain his wife, and lack of disclosed income does not absolve the husband from this liability.

JUDGMENT :

Kausik Chanda, J.

Despite service, none appears on behalf of the husband/opposite party.

2. In this revisional application, an order dated January 31, 2014, passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Sealdah, South 24-Parganas, has been challenged. By the order impugned, the learned Sessions Judge affirmed an order passed by the learned Judicial Magistrate, 5th Court, Sealdah, rejecting the prayer of the wife/petitioner for interim monetary assistance under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the said Act’).

3. Learned Magistrate rejected the application under Section 23 of the said Act mainly on the ground that the petitioner did not disclose the income of the husband/opposite party. The learned Magistrate observed that the income of the husband is subject to concrete evidence, and before him, it was a war of affidavit-versus-affidavit. When the wife/petitioner has not specifically disclosed the income of the husband, no relief under Section 23 of the said Act could be granted.

4. The learned Sessions Judge approved the reasoning of the learned Magistrate and further observed that when the husband produced municipal tax receipts showing that he had no right over the alleged shared-household or the business, then the Court could not ignore the same in absence of documents from the side of the wife negating the same. The learned Sessions Judge was of the view that the learned Magistrate rightly observed that a full-fledged trial was required for passing such an order.

5. The learned Sessions Judge also rejected the contention of the petitioner that the learned Magistrate ought to have considered the report of the protection officer before passing an order under Section 23 of the said Act. According to the learned Sessions Judge, it was not mandatory for the learned Magistrate to consider the report of the protection officer before passing an order of interim compensation under Section 23 of the said Act. The learned Sessions Judge observed that legislature has not incorporated any word in Section 23 of the said Act, making it mandatory for the Magistrate to consider the domestic incident report of the protection officer or the service provider before passing any interim order as opposed to Section 12 of the said Act. According to the learned Sessions Judge, it was the intentional omission of the legislature since an interim relief always provides for emergent relief in case of exigency.

6. In my view, the orders of the learned Sessions Judge and the learned Magistrate in the Court below cannot be sustained.

7. Section 23 of the said Act empowers the Magistrate to grant interim and ex-parte orders. For passing an ex-parte order, the Magistrate requires to confine himself to the averments made in the application for such interim order. The legislature, with an object to attach credence to the statements made in the application for an interim order, thought it fit that such application should be supported by an affidavit unlike an application under Section 12 which requires to be verified only. If the application for an interim order, on a plain reading, prima facie, discloses that there has been an act of domestic violence or likelihood of committing an act of domestic violence, the Magistrate may grant ex-parte order on the basis of the averments made in the application itself. The version of the opposite party need not be considered while passing an ex-parte interim order.

8. If for any justifiable reasons the learned Magistrate declines to grant an ex-parte order of monetary reliefs on an application under Section 23 of the said Act, he should decide the said application upon considering the affidavits of the respective parties as directed by the Supreme Court in the judgment reported at (2021) 2 SCC 324 (Rajnesh v. Neha).

9. The Supreme Court in the said judgment has laid down, inter alia, the guidelines for deciding an application for interim mainten