Either lump sum OR monthly maintenance u/s 20 DV act. NOT both ! Cal HC Gem !

a mother files DV case on three of her children. The learned MM allows her petition and orders Rs 2000 p.m. from each of her sons AND a fixed deposit of rs 50,000/- per head. Sons appeal to sessions court who sets aside the lump sum payment and grants enhanced monthly maintenance of Rs 2500 per month per son. Mother goes on appeal to HC. HC appreciates the facts and points out that sec 20 of DV act allows only for lump sum OR monthly maintenance AND NOT both !! So HC affirms sessions court judgement and confirms that either Either lump sum OR monthly maintenance can only be granted under Sec 20 DV act !!


IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present : THE HON’BLE JUSTICE SANKAR ACHARYYA

C.R.R. No. 1012 of 2015

In the matter of :

Shahira Khatoon Mullick
     Vs.
Rabiul Haque Mullick & Ors.

For the petitioner    : Mr. Suman De; advocate.

For the private respondents  : Mr. S.K. Humayun Rezzak; advocate.

Heard on              : 06.01.2016, 20.01.2016, 29.01.2016,

08.02.2016.

Judgment on           : 29.03.2016

SANKAR ACHARYYA, J.

This revisional application under Sections 397/401/482 of the Code of Criminal Procedure has been filed by petitioner Shahira Khatoon Mullick against her three sons as opposite party nos. 1, 2 and 3 and the State of West Bengal as proforma respondent no. 4.

Petitioner has challenged the judgment dated 13.02.2015 passed by learned Additional Sessions Judge, Arambagh, Hooghly in Criminal Revision No. 01 of 2014 arising out of order dated 31.03.2014 passed by learned Judicial Magistrate, Additional Court, Arambagh in M.C. 83 of 2013.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Petitioner filed M.C. 83 of 2013 under the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act) against her three sons who are opposite party nos. 1, 2 and 3 herein. In the order dated 31.03.2014 learned Judicial Magistrate passed residence order and order granting monetary reliefs in favour of the petitioner. In that order direction was given to the opposite party nos. 1, 2 and 3 to provide Rs.2000/- each as monthly maintenance to the petitioner and to contribute Rs.50,000/- each in the fixed deposit to be opened in the name of the petitioner in some nationalised bank which is to be dedicated towards her unforeseen medical expenses and needs and treatments expenditure. Said order was challenged by opposite party nos. 1, 2 and 3 in Criminal Revision No. 01 of 2014. In that case learned Additional Sessions Judge, Arambagh allowed the revisional application in part and modified the order of learned Judicial Magistrate setting aside the order for contributing Rs.50,000/- each by the three opposite party nos. 1, 2 and 3 in favour of petitioner as fixed deposits and enhancing the sum of monthly maintenance allowance of the petitioner from Rs.2000/- to Rs.2500/- each payable by said three opposite parties. In this revisional application petitioner has challenged the legality, propriety and correctness of the impugned judgment passed by learned Additional Sessions Judge.

I have gone through the certified copy of the impugned judgment, revisional application and its annexure filed by the petitioner. Undisputedly, the petitioner is mother of the opposite party nos. 1, 2 and 3 and the petitioner is an octogenarian lady having other sons and daughters also.

In this revisional application, inter alia, it has been contended that learned Additional Sessions Judge erred in law setting aside the direction of learned Judicial Magistrate regarding the contribution of Rs.50,000/- each of the three opposite parties towards medical expenses of the petitioner. It has been claimed by the petitioner that Section 20 (1) (b) of the P.W.D.V. Act deals with medical expenses and according to Section 20 (3), maintenance may be paid in lump or monthly basis. Further claim of the petitioner is that in terms of Section 20 (1) (b) of the said Act, the Magistrate, which disposing of an application under Section 12 (1) of the said Act, may direct the respondent to pay medical expenses in addition to other monetary relief. In the same tune, Mr. Suman De, learned counsel advanced his arguments that learned Additional Sessions Judge failed to appreciate that the power of learned Magistrate under Section 20 (3) of the said Act is in addition to the provisions of Section 20 (1) of the said Act and not disjunctive in nature. Petitioner also contended that in view of the provision of appeal under Section 29 of the Act learned Additional Sessions Judge ought to have dismissed the revisional application against the order of learned Judicial Magistrate.

Mr. Rezzak, learned counsel for the opposite party nos. 1, 2 and 3 argued that learned Magistrate erred in passing order for payment of monthly maintenance and lump sum amount both although Section 20 (3) of the P.W.D.V. Act provides for payment of either monthly maintenance or a lump sum amount. He advanced arguments that learned Additional Sessions Judge rightly modified the order of learned Magistrate by proper interpretation of the statutory provisions which requires no interference by this Court.

Regarding maintainability of the revisional application in the Court of learned Additional Sessions Judge, I like to mention that said learned Court is competent to hear an appeal under Section 29 of the P.W.D.V. Act. Statutory bar under Section 397 (2) of the Code of Criminal Procedure is not attracted against the revisional application as per determining question in that Court. In the impugned judgment learned Additional Sessions Judge did not take up for consideration of any matter beyond the scope of determination in an appeal under Section 29 of the P.W.D.V. Act. Yet, it was proper for the opposite party nos.1and 3 to file their petition of appeal under Section 29, P.W.D.V. Act instead of their revisional application before the Court below. It does not appear from the materials on record that present petitioner raised the question of maintainability of revisional application before learned Additional Sessions Judge. Having considered the above aspects I am of the view that excepting the form of application instead of petition of appeal under Section 29 of the P.W.D.V. Act filed by the petitioners in the Court below there was no major defect in proceeding the revisional application before learned Additional Sessions Judge. In my considered opinion, when the substance of the revisional application was entertainable in law and was considered judicially by a competent Court, the defect in form of application which was presented before it does not vitiate the entire proceeding. As such, the legality, propriety and correctness of the impugned judgment should be considered on merits by this Court in the present case.

In respect of observation made in the impugned judgment about enhancement of monthly maintenance of the petitioner from Rs.2000/- to Rs.2500/- payable by each of the three sons of the petitioner there is no challenge from either party before this Court. The only point in issue on merit is whether learned Additional Sessions Judge has fallen in error making observation that the provision under Section 20 (3) of the P.W.D.V. Act empowers the Magistrate to pass an order for an appropriate lump sum payment or monthly payment of maintenance, as the nature and circumstances of the case may require and that the learned Court below has passed an order directing the petitioners (opposite party nos. 1 and 3 herein) to pay both monthly maintenance and also to pay Rs.50,000/- each which is beyond the scope of the provisions of Section 20 (3) of the P.W.D.V. Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

|  Section 20 of the P.W.D.V. Act reads as:-
  |  
  |  “20. Monetary reliefs.-
  |  
  |  1. While disposing of an application under Sub-Section (1)
  |  of Section 12, the Magistrate may direct the respondent to
  |  pay monetary relief to meet the expenses incurred and
  |  losses suffered by the aggrieved person and any child of
  |  the aggrieved person and as a result of the domestic
  |  violence and such relief may include, but is not limited
  |  to,-
  |  
  |  a). the loss of earnings;
  |  b). the medical expenses;
  |  c). the loss caused due to the destruction, damage or
  |  removal of any property from the control of the aggrieved
  |  person; and
  |  d). the maintenance for the aggrieved person as well as
  |  her children, if any, including an order under or in
  |  addition to an order of maintenance under Section 125 of
  |  the Code of Criminal Procedure, 1973 (2 of 1974) or any
  |  other law for the time being in force.
  |  
  |  2. The monetary relief granted under this Section shall be
  |  adequate, fair and reasonable and consistent with the
  |  standard of living to which the aggrieved person is
  |  accustomed.
  |  
  |  3. The Magistrate shall have the power to order an
  |  appropriate lump sum payment or monthly payments of
  |  maintenance, as the nature and circumstances of the case
  |  may require.
  |  
  |  4. The Magistrate shall have the power to order for
  |  monetary relief made under Sub-Section (1) to the parties
  |  to the application and to the in-charge of the police
  |  station within the local limits of whose jurisdiction the
  |  respondent resides.
  |  
  |  5. The respondent shall pay monetary relief granted to the
  |  aggrieved person within the period specified in the order
  |  under Sub- Section (1).
  |  
  |  6. Upon the failure on the part of the respondent to make
  |  payment in terms of the order under Sub-Section (1), the
  |  Magistrate may direct the employer or a debtor of the
  |  respondent, to directly pay to the aggrieved person or to
  |  deposit with the Court a portion of the wages or salaries
  |  or debt due to or accrued to the credit of the respondent,
  |  which amount may be adjusted towards the monetary relief
  |  payable by the respondent”.

In the instant case applicability of the P.W.D.V. Act is not in question. In Sub-Section 1 of Section 20 of that Act Clauses (a), (b), (c) and (d) illustrations have been mentioned for taking into consideration of the monetary relief in composite. In the impugned judgment learned Additional Sessions Judge considered the adequacy, fairness, reasoning and consistency with the standard of living of the petitioner herein for determining the monthly maintenance of the petitioner and for exempting the opposite party nos. 1 and 3 from any liability for payment of lump sum amount in connection with the order of learned Judicial Magistrate. In this case the only determining factor centres around the question as to whether the word ‘or’ mentioned in Sub-Section (3) of Section 20 of the P.W.D.V. Act is conjunctive or disjunctive. Learned counsel for the petitioner tried to impress upon this Court that the said word has been used in the statute to denote conjunctive but learned counsel for the opposite party nos. 1 and 3 argued that the said word is disjunctive. In the impugned judgment said word has been interpreted as disjunctive. Plain reading of the Sub-Section (3) of Section 20 of the P.W.D.V. Act empowers the Magistrate to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In my opinion, according to the said provisions the Magistrate shall consider the requirement of the aggrieved person according to the nature and circumstances of the case and pass order for payment of monetary relief to the aggrieved person by respondent either in the form of appropriate lump sum amount or in the form of monthly payment of maintenance but not both. As such, said word “or” has been used by the legislature in the statute to denote it as disjunctive. Therefore, I find that learned Additional Sessions Judge has rightly interpreted that word as disjunctive in the impugned judgment. Learned Additional Sessions Judge, maintaining propriety observed correctly that learned Magistrate has ordered both an appropriate lump sum and monthly payment of maintenance which is beyond the scope of the provision of Section 20 (3) of the P.W.D.V. Act.

In summing up my discussions made above I find and hold that the impugned judgment does not suffer from material infirmity on merit and it needs no interference in this revisional process. As a result, this revisional application is liable to be dismissed.

Accordingly, this revisional application is dismissed on contest but without any order as to costs. A copy of this judgment be sent to the learned Additional Sessions Judge, Arambagh for drawing his attention to the provisions of Section 29 of the P.W.D.V. Act and for future guidance.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.

(SANKAR ACHARYYA, J.,)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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