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 THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present : JUSTICE SANKAR ACHARYYA
C.R.R. No. 1012 of 2015
Shahira Khatoon Mullick
Vs.
Rabiul Haque Mullick & Ors.
Judgment on : 29.03.2016
Citation: 2017 CRLJ 78 Cal
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.
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 Iam 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.
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 SubSection
(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 theadequacy, 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.,)
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