Sakti Manna vs Gayatri Manna

Subrata Talukdar, J—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 petitioner-husband 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.

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 petitioner-husband, both his disability and financial hardship do not enable him to pay maintenance in favour of the OP-wife and their daughters.

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.

The Ld. Appellate Court also held that the OP-wife has a right of residence in her matrimonial home of the petitioner-husband and therefore the Ld. Magistrate ought to have protected such right during the pendency of the proceeding.

Accordingly, the Ld. Appellate Court granted the maintenance of Rs. 8000/- total to the OP-wife and their daughters per month as well as the right of residence at her present address. The petitioner-husband was directed not to interfere with the peaceful residence of the OP-wife and the daughters till disposal of Misc. Case No. 344 of 2013.

Sri Partha Chakraborty, Ld. Counsel appearing for the petitioner-husband argues from several documents on record that there is no evidence from the OP-wife that cruelty was inflicted upon her and her daughters by the petitioner-husband. The conclusion of cruelty as arrived at by the Protection Officer is vague.

Sri Chakraborty, Ld. Counsel reiterates that the OP-wife has now come up with the instant Misc. Case No. 344 of 2013 inasmuch as the previous complaint under the PDV Act stood compromised and the application for maintenance also stood dismissed for non-prosecution. Arguing further that an interim relief of maintenance can only be given in support of the final relief, Sri Chakraborty argues that no application under Section 12 of the PDV Act has been filed by the OP-wife. Taking this Court to the Statement of Object of Reasons of the PDV Act, Sri Chakraborty argues that remedy in interim form is only permissible in the event an application is filed under Section 12 of the PDV Act as provided.

Ld. Counsel for the petitioner-husband further argues that he is suffering an eviction notice from the bank. No trade licence has been filed by the OP-wife to show that the petitioner-husband is carrying on the electrical business. According to Sri Chakraborty the wife is admittedly in service and even the eldest daughter, who is major, is in service. The Ld. Magistrate was therefore correct in refusing the interim relief in view of the allegations and the counter allegations holding further that the reliefs should await the evidence.

Sri Chakraborty also submits that since the petitioner-husband is admittedly disabled, it cannot be presumed that he is running the business successfully and no evidence of the income earned by the petitioner-husband has been produced before this Court by the OP-wife.

Per contra, Mrs. Anee Ray, Ld. Counsel appearing for the OP-wife heavily relies upon the supplementary affidavit filed on behalf of the OP-wife with copy served to Sri Chakraborty. Mrs. Ray argues that from several certificates annexed to the supplementary affidavit it shall transpire that as recently as in 2012 the petitioner-husband was engaged as an electrical workman in respect of a particular electrical job.

Taking this Court to the other documents in the supplementary affidavit Mrs. Ray points out that the Howrah Electric Babshayee Kalyan Samity was established in 2012, i.e. after the accident of the petitioner-husband purportedly rendering him disabled to the extent of 50% and, the petitioner-husband was appointed as its Secretary. Therefore, even after the accident and the treatment, the petitioner-husband is fit to perform his work in the electrical business.

Ld. Counsel for the OP-wife also points out that on the 10th of April, 2012 the petitioner-husband wrote to the Officer-in-Charge, Shibpur P.S. and, in the complaint has, inter alia, admitted that he runs an electrical business. Moreover, from a letter written on behalf of one Goswami Electric in his capacity as Secretary of the Samity the petitioner-husband wrote on 27th September, 2012 to the customer to clear the dues of the said Goswami Electric. Mrs. Ray, Ld. Counsel also brings to the notice of this Court the cash memo in the name of New Manna Electric dated 29th August, 2011 whereby for several electrical jobs a total bill of Rs. 20,000/- was raised deducting the advance of Rs. 2000/- in favour of the petitioner-husband. Therefore, Mrs. Ray submits that both on the ground of purported financial hardship and disability the story of the petitioner-husband must be discarded.

Having heard the parties and considering the materials on record on the point of disability claimed by the petitioner-husband this Court is required to notice the Disability Certificate issued by the District Hospital, Howrah dated 1st March, 2014. A copy of the said Disability Certificate has been submitted on behalf of the petitioner-husband as appears at page 65 of the present CRR.

From the Disability Certificate at page 65 of the present CRR it is found that on examination by a Medical Board it has been certified that the petitioner-husband is physically (orthopaedically) disabled. In other words his physical and orthopaedical disability has been certified to by the Medical Board by ticking the appropriate findings at serial No. 1 of the said Disability Certificate.

At serial No. 2 it has been stated with a tick that the disability has been caused by an injury. At serial No. 3 the disability has been calculated at 50% with the word permanent ticked. At serial No. 7 it has been affirmed with a tick that he cannot travel without assistance of an escort.

However, this Court notices that at serial No. 9 which pertains to the effect of the disability on earning of a livelihood by the disabled person reads as follows:--

"he/she is not able to earn his/her livelihood independently" is not (emphasis supplied) ticked by the Medical Board."

Therefore, this Court must notice that the Medical Board was of the opinion that the disability on orthopaedic grounds although rendering the petitioner-husband unable to travel without escort, was not of a nature that the petitioner-husband is unable to earn his livelihood independently.

Neither from the discharge summary of Christian Medical College, Vellore appearing as page 5 of the supplementary affidavit does this Court find that the disability has been described to be such which prevents the petitioner-husband from earning his livelihood independently.

In the above context this Court is sufficiently persuaded to hold that the contemporaneous documents relied upon by the OP-wife with regard to the functioning of the petitioner-husband in the electrical business as well as his role as the Secretary of the said Samity assumes credence. From the contemporaneous nature of the documents this Court is sufficiently persuaded to hold that the petitioner-husband is able to run his electrical business with regularity.

Therefore, both on the grounds of disability and financial hardship this Court is persuaded enough to hold against the petitioner-husband.

On the point of law raised by Sri Chakraborty, Ld. Counsel that the earlier complaint under the PDV Act stood compromised, this Court is required to notice the evidence of the petitioner-husband in C-816/2011 as recorded on 3rd February, 2012 expressing affection for the OP-wife and stating that he will never inflict any kind of torture upon her. In the same evidence the petitioner-husband admits to earning about Rs. 3000/- to 4000/- per month from his electrical business. He also promises to look after his daughters. Thereafter, in her evidence given on the same date, i.e. 3rd February, 2012 the OP-wife, in view of the willingness of the petitioner-husband to lead a peaceful conjugal life with her and three daughters expressed the intention not to proceed with the complaint.

However, this Court finds that the petitioner-husband having reneged on the assurance given on oath before the Ld. Court on the 3rd of February, 2012 (supra), the OP-wife was compelled to file afresh for necessary reliefs under Section 23 of the PDV Act.

Answering the argument of Sri Chakraborty, Ld. Counsel that no application under Section 23 of the PDV Act could be filed praying for reliefs in several forms under Sections 18, 19 and 21 of the said Act in the absence of an application under Section 12, this Court is persuaded to hold that the PDV Act is in the nature of a remedial legislation and such view has been held by the Rajasthan High Court in Sabana (Smt.) @ Chand Bai and Another Vs. Mohd. Talib Ali and Another, (2014) CriLJ 866 : (2014) 1 DMC 841 : (2014) 2 RCR(Criminal) 293 : (2014) 1 RLW 26 : (2013) 4 WLN 306 .

For the above reasons and also holding the view that the substance of the reliefs sought for shall override their nomenclature, the judgment and order impugned dated 15th September, 2014 passed by the Ld. Sessions Court, Howrah in Criminal Appeal No. 15 of 2014 does not warrant any interference.

CRR 3761 of 2014 stands accordingly dismissed.

In the event of noncompliance of the terms of the order dated 15th September, 2014 by the petitioner-husband, the OP-wife shall be entitled to put the same to execution forthwith.

CRAN 888 of 2015, which is an application for early hearing, also stands disposed of.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.