- (1.) In this application under Section 482 of the Code of Criminal Procedure, 1973 (for short CrPC), the judgment and order dated 15th September, 2014 passed by the Ld. Sessions Court, Howrah in Criminal Appeal No. 15 of 2014 directing the petitionerhusband to pay a sum of Rs. 8000/- per month and thereby setting aside the order dated 13th January, 2014 passed by the Ld. 6th Judicial Magistrate, Howrah in Misc. Case No. 344 of 2013 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (for short PDV Act). By the judgment and order impugned dated 15th September, 2014 the Appellate Court was pleased to, inter alia, find that the Ld. Magistrate had observed that it is the social and legal responsibility of an able bodied person to maintain his wife and children. The Ld. Appellate Court was also pleased to notice the allegations and counter allegations of physical and mental torture levelled against each other by the parties. The Ld. Magistrate was also pleased to consider an injury report by which the petitioner-husband claims to have been tortured by his elder daughter. Therefore, the Ld. Magistrate came to the view that in view of the allegations and counter allegations no interim relief can be granted in favour of the OP-wife who had applied under Section 23 of the PDV Act.
(2.) While refusing interim relief in favour of the present OP-wife the Ld. Magistrate also noticed that an earlier complaint case being C- 816/2011 filed under the PDV Act before the Ld. 1st Judicial Magistrate, Sealdah by the OP-wife stood compromised. However, the Ld. Appellate Court found that the present petitioner-husband has stated that he earns Rs. 3000/- to 4000/- per month from his electrical business and is also the Secretary of the Howrah Electric Babshayee Kalyan Samiti. The Ld. Appellate Court also found that since the Complaint Case No. C-816/2011 stood compromised the petition filed by the present OP-wife for maintenance under Section 125 CrPC was also dismissed for non-prosecution. With regard to the purported disability suffered by the present petitioner-husband, his Ld. Appellate Court noticed a series of documents from which the permanent disability was assessed at 50%. The petitioner-husband was also found to be suffering from other ailments. He claims to have received a notice dated 25th September, 2012 under Section 13 (2) of the Securitisation Act, 2002 from the State Bank of India directing him to liquidate his outstandings to the tune of Rs. 3, 20, 700/-. Therefore, according to the petitionerhusband, both his disability and financial hardship do not enable him to pay maintenance in favour of the OP-wife and their daughters.
(3.) The Ld. Appellate Court upon careful consideration concluded that the Ld. Magistrate was in manifest error in not considering the reliefs prayed for by the OP-wife under Sections 18, 19, 21 and 23 of the PDV Act for protection, right of residence, maintenance and interim reliefs respectively. Holding further that the appeal and the connected Misc. Case No. 344 of 2013 do arise out of incidents between the parties in a domestic relationship, the Ld. Appellate Court found that even with his claimed disability of 50%, the present petitioner-husband has been running a business under the name and style of New Manna Electric and, was appointed the Secretary of the Howrah Electric Babshayee Kalyan Samity as recently as in the year 2012.;