Bandita Kundu vs The State of West Bengal and Another

Dipak Saha Ray, J.—The present case arises out of an application u/s 401 read with Section 482 of the Code of Criminal Procedure, 1973 for setting aside the judgment and order dated 6.10.10 passed by the Learned Additional District and Sessions Judge, 4th Court Barasat, in Criminal Appeal No. 4 of 2010 affirming the judgment and order dated 6.3.2010 passed by the Learned Additional Chief Judicial Magistrate, Bidhan Nagar, North 24 Parganas, in C. Case No. 414 of 2008 u/s 12 of the Protection of Women from Domestic Violence Act, 2005. The relevant facts of the present case are, in a nutshell, as follows:

The petitioner herein filed one application u/s 12 of the Protection of Women from Domestic Violence Act, 2005 before the Additional Chief Judicial Magistrate, Bidhan Nagar, North 24 Parganas, which was registered as C. Case No. 414 of 2008. In the said application the petitioner prayed for residential relief u/s 19 of the said Act, on the ground that on account of the superannuation of her husband, she vacated the Government quarters where she used to reside and she had to take rented accommodation. In the said application, it is contended that her husband was the owner of the flat situated at 1/1,221/8 Sakin Apartment, Roypur Road, Lotus Park, under Jadavpur Police Station, Calcutta-700 047 and accordingly, she may be given the right to reside in the said flat of her husband. The learned Magistrate after recording evidence of both the parties and considering the materials on record allowed the prayer of the petitioner and passed the following orders: "....the petnr. has right of residence at the Flat No. 1/1, Sakin Apartment, Roypur Road, Lotus Park, Cal-47, P.S. Jadavpur. The Respondent is hereby directed to secure accommodation at the said flat for the petnr. The Respdt. is hereby restrained from depriving the said right of the petnr. and to dispossess the petnr. from the said flat...."

Being aggrieved by the said order dated 15.11.2008 passed by the Learned Magistrate, the Husband/Respondent preferred an appeal which was registered as Criminal Appeal No. 17 of 2009. The said appeal was allowed and the order of the learned Trial Court was set aside and the case was remanded back to the Trial Court. After retrial of the said case, the Learned Additional Chief Judicial Magistrate passed an order on 6.3.2010 allowing the petitioner to stay at flat No. 1/1,221/8 Sakin Apartment, Roypur Road, Lotus Park, under Jadavpur Police Station, Calcutta-700 047 of the Opposite Party/Husband and the Opposite Party/Husband was directed to pay the monthly maintenance charges, electricity charges, charges for water connection, Municipality Tax etc. during the stay of the petitioner in the said flat. In the said order, the Learned Magistrate also allowed the ailing son of the petitioner to stay in the said flat with the petitioner and the petitioner was restrained from driving out her son from that flat. The Opposite Party/Husband was also allowed by that order to search for alternate accommodation for him as per his (Opposite Party/Husband) evidence dated 18.2.2010.

Being aggrieved by the said order the Petitioner/Wife as appellant preferred an appeal which was registered as Criminal Appeal No. 4 of 2010. The Learned Appellate Court (Additional District and Sessions Judge, Fast Track 4th Court, Barasat), after hearing both sides dismissed the said appeal and thereby confirmed the Judgment and Order passed by the Learned Additional Chief Judicial Magistrate, Bidhan Nagar, on 6.3.2010 in connection with C. Case No. 414 of 2008.

Now, on careful perusal of the Judgment passed in Criminal Appeal No. 4 of 2010 it appears that at the time of hearing, the Learned Advocate appearing for the petitioner argued only one point i.e., regarding the order of the learned Magistrate in the matter of allowing the ailing son of the petitioner to stay in the said flat with the petitioner as no such relief was prayed for before the Learned Trial Court. It further appears that the Learned Appellate Court rightly observed that Section 9 of the Protection of Women from Domestic Violence Act, gives protection to the wife from her dispossession from the shared household which does not mean that the other who resides in the said premises should be ousted therefrom.

The Learned Counsel for the petitioner herein has submitted that the petitioner is old and ailing person requires continuous supervision by her close persons and accordingly she has to take rental accommodation near the house of her brother who will take care of her. Accordingly, she has prayed that the Opposite Party/Husband herein may be directed to pay Rs. 3,500/- so that she can arrange an alternative rented accommodation.

In the instant case, there is no controversy that the petitioner in complaint case no. 414 of 2008 specifically prayed for allowing her to reside at 1/1,221/8 Sakin Apartment, Roypur Road, Lotus Park, Jadavpur Police Station, Calcutta-700 047 and the her husband may be restrained from dispossessing her from the said flat. There is also no controversy that during pendency of the said case the petitioner also filed an application for ad interim relief praying that her husband may be directed to pay Rs. 3000/- per month for her accommodation till disposal of the C. Case No. 414 of 2008.

There does not appear to be any controversy that in the original application u/s 12 of the Protection of Women from Domestic Violence Act on the basis of which C. Case No. 414 of 2008 was initiated; the petitioner never alleged that she requires continuous supervision of her near persons as she has been suffering from various ailments. So it is evident that after disposal of two appeals arising out of the said C. Case No. 414 of 2008, the Petitioner/Wife has come to this Court with a new prayer which was not urged in her application on the basis of which the impugned Judgment and order dated 6.10.10 was passed. Accordingly, such new prayer of the petitioner cannot be entertained at this stage.

Considering the above facts and circumstances, it appears that the impugned Judgment and Order dated 6.10.2010 does not suffer from any illegality, impropriety or material irregularities.

In view of the matter, the instant application must be dismissed. Accordingly, the instant application fails.

CRR No. 119 of 2011 is dismissed and in the nature and background of the case without cost.

Impugned order dated 6.10.2010 passed by the Additional District & Sessions Judge, Fast Track, 4th Court, Barasat, North 24-Parganas in Criminal Appeal No. 4 of 2010 is hereby affirmed.

Let a copy of this judgment be sent to the learned trial court for information and necessary action. Urgent Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.