Shyama Prasad Agarwal (Todi) & Ors vs Shilpa Agarwal (Todi)

Shivakant Prasad, J

In this revisional application the petitioners being the father-in-law, mother-in-law, two sisters-in-law and two brothers-in-law have challenged the

order dated 13th February, 2020 passed by the learned Chief Judicial Magistrate, Alipore, South 24 Parganas in Case No.C-2939/2019 arising out of

Section 12 of the Protection of Women from Domestic Violence Act, 2005 which has been practically assailed by these petitioners by filing an

application for maintainability of the proceeding under Section 12 of the Act which was filed on 27th November, 2018 and was fixed for hearing on

14.01.2019 but the hearing was deferred for many other reasons including the resolution of the Bar but the fact is that on 23.04.2019, the aggrieved

person filed a put up petition with an application under Section 23 of the P.W.D.V. Act praying for interim relief, corollary to the main prayer made in

the application under Section 12 of the Act. These two applications have been fixed by the impugned order for hearing with direction to file written

objection, if any, in the meantime. As such, I do not find any fault with the order of learned Magistrate but the fact as disclosed by the learned

advocatefor the petitioners is that the aggrieved party has not impleaded her husband as the respondent in the proceeding under Section 12 of the Act

and the husband of the aggrieved party appears to be in hand in glove with his wife who has taken out such an application being harassive in nature to

put pressure upon the petitioners with an object to get the share partitioned in the household and the family business.

On this count, the petitioners have challenged the maintainability of the proceeding under Section 12 of the D.V. Act. It is true that the wife who

happens to be the aggrieved person under the D.V. Act should have grievances at the first instance against her husband being the first respondent to

mitigate her grievances and provide whatever the protection order or the relief is required under the proceeding. But, it is curious to take note that the

other in-laws of the family barring the husband have been made, the respondents in the proceeding under Section 12 of the D.V. Act and for that the

petitioners have got grievances and have challenged the maintainability which ought to be heard with priority. Thereafter, the proceeding if

maintainable, can be taken into consideration on its evidence summarily. If the learned Magistrate is in a position to dispose of the proceeding under

Section 12 of the Act summarily, then there is no justification for providing interim relief under Section 23 of the Act, as the main relief in the

proceeding can be considered.

Therefore, this Court is of the view that an appropriate order is required to be passed and it will not prejudice the opposite party allegedly if the notice

is not served upon her.

Therefore, this revisional application being, C.R.R. 821 of 2020 is disposed of with direction upon the learned Chief Judicial Magistrate to take up the

application for maintainability as filed earlier by the petitioners and thereafter to proceed with the disposal of the application under Section 12 of the

D.V. Act or under Section 23 taken together on evidence, if required as expeditiously as possible, but the issue has to be decided as to why the

aggrieved party has left out her husband not being the respondent who could satisfy her with the relief sought for in the proceeding.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.