- (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 of her husband in 1982 by virtue of the partnership deed executed in 1992 after a lapse of 18 years from the date of execution of the partnership deed which can ony be decided by the competent Civil Court. Under the circumstances they have prayed for setting aside the order dated 31.07.2010 passed by the learned First Appellate Court in Criminal Appeal No. 52 of 2010. The opposite party no. 1 has opposed the move and contended, inter alia, that she was married to one Ardhendu Bikas Saha on 10th December, 1980 and since then is occupying three rooms on the fourth floor of the five-storied building at 91/3-C, Tollygongue Road, Kolkata 700 033 at that time her matrimonial family comprised of her husband, her mother-in-law Smt. Sushma Bala Saha, her fatherin- law Santosh Kumar Saha, six brothers-in-law and four sisters-inlaw. At present she has five brothers-in-law and three sisters-in-law. Her father-in-law used to run a partnership business under the name and style of Shri Ramkrishna Bakery with his brother Pranotosh Kumar Saha, who is still living in a separate portion of the aforesaid premises. They had also another partnership business in the name and style of Ellora Bakery, since closed. Subsequently, the property and the partnership business of the two brothers were partitioned and the said Ramkrishna Bakery was allotted in favour of Santosh Kumar Saha with 50 per cent ownership of the landed property at premises no. 91/3-C, Tollygoungue Circular Road, Kolkata 700 033. The said premises is a five-storied building with five rooms in each floor along with bath and bath privy. After one year and 11 months of her marriage her husband died on 06.11.1982 under mysterious circumstances. Her father-in-law also died on 20.04.1987. Thereafter, at the instance of her mother-in-law she used to stay with her in her room in the first floor which was adjacent to their Puja room meant for the entire family and she was entrusted by her mother-in-law to perform all the duties of daily and occasional Pujas but she was neglected and subjected to various kinds of torture. Her mother-in-law in the meantime died on 01.07.2007. Thereafter, her three brothers-in-law, namely, Purnendu Bikas Saha, Amalendu Bikas Saha and Hemendra Bikas Saha took away all family jewelry of the mother-in-law of the opposite party no. 1 which were kept in her Almirah for her daily use on the plea of keeping the same in a bank locker at United Bank of India, Tollygongue Branch standing in the name of Hemendra Bikas Biswas which was all along been used by her mother-in-law. The opposite party no. 1 was surviving with the expenses brought to her motherin- law from their family business. But after her death the said financial assistance was discontinued and thereby she was deprived from her legitimate share in the family business as well as family property. Her signature was obtained on blank papers by her brothers-in-law in the name of running their family business and for providing her maintenance allowance which was subsequently denied. Ardhendu Bikas Saha is an accused in connection with Charu Market P.S. Case No. 99(7)/04 under Sections 306/384/34 IPC and facing the charges that he was instrumental in causing unnatural death of Nabendu Bikas Saha along with his family members who was in occupation of three rooms in the second floor of the aforesaid premises. In fact in various ways she has been deprived of her legitimate share in their joint family business and joint family property for which she was compelled to approach the learned Chief Judicial Magistrate, Alipore for reliefs and entire reliefs as aforesaid. It is further contended that the revisional application has been filed only by her three brothers-in-law and two others namely, Dibyendu and Sukhendu Bikas Saha are not contesting the same. Rather they are paying her Rs. 2,000/- per mensem with effect from 12.04.2008 as usual as per above order. The learned Additional Sessions Judge after careful consideration and scrutiny of all the materials on records has passed the impugned order which should not be interfered with and there is no merit at all in this revisional application which is liable to be dismissed.
(3.) From the rival contention of all the parties it appears that the following points need be considered: a) Whether deceased brothers wife can claim any relief or maintenance as well as share in the joint inherited property from the surviving brothers-inlaw 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; AND b) Whether the learned First Revisional Court is justified in passing the impugned order or not. The order of the learned Magistrate was assailed on the grounds that the period of appeal under Section 29 of the Act is 30 days and that period has expired with effect from the expiry of the order dated 12.04.2010 while the appeal was filed after expiry of the period of limitation on 19.05.2010. The appeal was also assailed on the grounds that two orders dated 12.04.2010 and 07.05.2010 cannot be clubbed together for preferring single appeal.;