Friday, November 1, 2013

MAN EARNING 4000 ordered to pay 10000 pm as int maint to wife !! quash REFUSED, told to appeal !!


MAN EARNING 4000 ordered to pay 10000 pm as int maint to wife !! quash REFUSED, told to appeal !!


Notes
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* wife files DV case and seeks interim maint
* man says wife earning independantly, shows she is an INC Tax assessee etc 
* man also says he has little or no income and is earning only rs 4300 per month 
* still honourable MM court says go pay 10000 per month !!!
* man runs to HC for quash
* HC says no quash possible, go on appeal !!

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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. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

C.R.R. No.1341 of 2012
WITH
C.R.R. No. 1194 of 2012


Present : The Hon'ble Justice Toufique Uddin


VINAY KUMAR SETHIA.
Versus
VINITA SETHIA & ANR


For the Appellant : Mr. Somnath Mukherjee 
For the Opposite Partye : Mr. Manas Kumar Barman 
Heard on : 5.9.2012
Judgement on : 04 October, 2012

This revision arose out of an order dated 14.3.2012 passed by learned District Judge, Howrah vide Criminal Appeal Case No. 10 of 2012 against an interim order passed by the learned Judicial Magistrate 1st Court at Howrah in Miscellaneous Case No. 438 of 2010 in respect of Section 23(2) of Protection of Women from Domestic Violence Act, 2005.

Heard learned advocates of both sides.

None appears on behalf of the State.

The back ground of this revision in short is as follows : The respondent No. 1 wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned Chief Judicial Magistrate at Howrah who transferred the case to the Court of 4th Judicial Magistrate, Howrah . http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

The husband petitioner approached the court under Section 410 Criminal Procedure Code for transfer of case and by order dated 25.5.2011, the learned Chief Judicial Magistrate transferred the case to the court of learned 1st Judicial Magistrate at Howrah for adjudication. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

The wife filed another petition under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act) praying for interim relief.

The present petitioner contested therein by filing an objection taking the ground that the respondent wife has an income tax file and she is a qualified lady having sufficient income from her own business of share. On the other hand, the petitioner is a mere employee of Fibreglass Moulders & Fabricators at Kanaipur, Hooghly and he earns only Rs. 4,200/- per month but the learned Judicial Magistrate, 1st Court, Howrah on hearing of both parties passed interim order on 2.2.2012 for payment ad-interim maintenance of Rs. 10,000/- per month to the wife from the date of passing of the order i.e., 2.2.2012. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Against the said order, the petitioner preferred the appeal before the learned Dsistrict Judge at Howrah being Criminal Appeal No. 10 of 2012 along with the prayer for stay of further proceedings.

Upon hearing the appeal, the learned District Judge, Howrah granted conditional stay of operation of the order dated 2.2.2012 passed by the learned Judicial Magistrate, 1st Court, Howrah subject to payment of Rs. 5,000/- per month holding that the petitioner has capacity of earning to pay such amount of interim maintenance.

It was contended by the learned lawyer of the petitioner that the petitioner is earning simply a sum of Rs. 4,500/- per month whereas the wife has share business and has been earning Rs. 6,000/- per month.

On the other hand, learned lawyer of the opposite party submitted that this present revision is not at all maintainable because the application was couched under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India which cannot be heard because this is a revisional forum. Further it was contended by the learned lawyer of the opposite party that the actual remedy is not here but in term of Section 29 of the said Act at the court of appeal. I find substance in the contention of the learned lawyer of the opposite party. The learned lawyer of the opposite party placed before me the decision as reported in (2012) 1 SCC (Cri) 371 wherein it was propounded that in revision against maintenance order passed in proceedings under Section 125 of the Cr.P.C, revisional court has no power to reassess evidence and substitute its own findings. Another decision as reported in (2012) 2 C Cr.LR (Cal) 621 was cited in regard to Sections 23 and 29 of the Protection of Women from Domestic Violance Act, 2005 wherein the Hon'ble Court held that against interim order granted, the remedy lies in preferring appeal against the order and revisional application for quashing the order was not maintainable. The said decision fits in toto in this case.Further the decision as reported in (2012) 2 SCC(Cri) 102 shows that condition of period even prior to coming into force of 2005 Act can be taken into consideration while passing the order. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

It was transpired from the materials on record that the criminal appeal under the provision of Section 29 of the said Act has been filed before the learned District Judge, Howrah and that appeal is pending. The impugned order was passed by the learned District Judge, when the appeal was at nascent stage. Some question of fact and question of law are inherently related for which the revisional court ought not to go deep into them.

Income is a question of fact. The learned trial court has to adjudicate. There appears to be no ground for quashing the impugned order. Accordingly, the instant revision stands dismissed on contest. This order will also govern the other related revision being CRR 1194 of 2012. Thus both the revision applications stand disposed of. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on priority basis.

(Toufique Uddin , J.)




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