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ITEM NO.40 COURT NO.14 SECTION II-B

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).2600-2601/2016

(Arising out of impugned final judgment and order dated 17-09-2015

in CRR No. 3104/2014 17-09-2015 in CRAN No. 559/2015 26-11-2015 in
CRR No. 3104/2014 26-11-2015 in CRAN No. 559/2015 passed by the
High Court At Calcutta)

SANGITA SAHA Petitioner(s)

VERSUS

ABHIJIT SAHA & ORS. Respondent(s)

Date : 28-01-2019 These petitions were called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE L. NAGESWARA RAO
HON'BLE MR. JUSTICE M.R. SHAH

For Petitioner(s) Mr. P.S.Datta,Sr.Adv.

Ms. Anwesha Saha,Adv.
Mr. Fuzail Ahmad Ayyubi, AOR

For Respondent(s) Mr. Subhasish Bhowmick, AOR

Mr. Goldy Goyal,Adv.
Ms. Meera Kaura Patil,Adv.

UPON hearing the counsel the Court made the following

O R D E R

The petitioner is the wife of the respondent

No.1. The respondent Nos.2 and 3 are the Father-in-law

and Mother-in-law. Respondent No.4 is the Sister-in-law,

Signature Not Verified
who is married. The petitioner filed a case under the
Digitally signed by
BALA PARVATHI
Date: 2019.01.29
18:02:12 IST
Reason: Protection of Women from Domestic Violence Act, 2005

seeking right of residence in the share household and

for maintenance to herself and her daughter. The

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Magistrate dismissed the case filed by the petitioner

dated 18.5.2013. The appeal filed by the petitioner was

allowed by the District Judge on 23.6.2014 by holding

that the petitioner has a right to accommodation in the

share household and maintenance of Rs.2,500/- for

herself and Rs.4,000/- for the child.

The respondent filed a revision before the High

Court, which was allowed. The High Court set aside the

order passed by the learned District Judge in the appeal

by observing that the petitioner was unable to establish

any incident of torture or demand of money or physical

violence. In that view of the matter, the High Court

was of the opinion that the petitioner was not entitled

to any order in her favour. It is pertinent to state

that the High Court held that the petitioner was

entitled to claim residence in the shared household.

But that entitlement is only in case she establishes

domestic violence, which she did not.

The learned counsel appearing for the petitioner

submitted that the High Court fell in error in adding

that the petitioner could not produce any evidence in

support of her claim. According to him, the evidence of

the petitioner was sufficient to conclude that she was

subjected to domestic violence. He also submitted that

in any event, the child is entitled for maintenance.

We are in agreement with the finding recorded by

the High Court that there is absolutely no evidence to

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prove domestic violence. However, we are of the

considered opinion that the child has to be paid

maintenance at the rate of Rs.4,000/- as was determined

by the learned District Judge. The learned counsel for

the respondent fairly acceded to the same.

For the aforementioned reasons, we dismiss the

Special Leave Petition.

The respondent No.1 is also directed to pay Rs.

4,000/- p.m. as maintenance to the child w.e.f. May,

2013.

Pending application(s), if any, stand disposed

of.

(B.Parvathi) (Kailash Chander)

Court Master Assistant Registrar
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side

Present :

THE HON’BLE JUSTICE SANKAR ACHARYYA

C.R.R. No. 3104 of 2014

With

CRAN 559 of 2015

In the matter of :

Sri Abhijit Saha and Ors.

Vs.

Smt. Sangita Saha

For the petitioners : Mr. Mritunjoy Chatterjee; adv.

Heard on : 31.08.2015, 28.08.2015, 24.08.2015,

21.08.2015, 17.08.2015, 13.08.2015,
12.08.2015, 10.08.2015, 4.8.2015,
16.07.2015,

Judgment on : 17.09.2015

SANKAR ACHARYYA, J.
This revisional application C.R.R. No. 3104 of 2014 has been
filed by four petitioners Abhijit Saha, Nikhil Chandra Saha, Smt.
Manasa Mangali Saha and Smt. Manjuari Saha jointly challenging
the legality, propriety and correctness of the judgment and order
passed by learned Additional District and Sessions Judge,
Jangipur, Murshidabad in Criminal Appeal No. 02/2013 arising out
of judgment and order dated 18.05.2013 passed by the learned
Judicial Magistrate, 2nd Court, Jangipur, Murshidabad in Misc.
Case No. 14 of 2013 under Sections 12/18/19/20/22/23 of the
Protection of Women from Domestic Violence Act, 2005.
 During pendency of this case the petitioners have filed CRAN
No. 559 of 2015 for stay of the operation of the impugned judgment
and order dated 23.06.2014 till disposal of this case. No interim
order has yet been passed.

Since despite service of notice of the revisional application and

application of stay on the opposite party Smt. Sangita Saha no one
appeared to contest, these two matters have been heard ex parte.
On joint hearing on CRR No. 3104 of 2014 and CRAN No. 559 of
2015 this Court is of the considered opinion that when the subject
matter of CRAN No. 559 of 2015 is relating to the disposal of CRR
No. 3104 of 2014 and the CRR No. 3104 of 2014 is going to be
disposed of by this judgment the CRAN No. 559 of 2015 has become
infructuous. With such observation said CRAN No. 559 of 2015 is
disposed of as infructuous.

At the time of hearing learned counsel for the petitioners has

drawn my attention to the copies of impugned judgment passed by
learned Additional District and Sessions Judge, Jangipur,
Murshidabad and the other annexures to the revisional application.
He has advanced his arguments that the said judgment is liable to
be set aside as the judgment of learned Judicial Magistrate, 2nd
Court, Jangipur, Murshidabad left no room to interfere with and
based on sound reasoning and legal support.

In my view, scope of determination in this revisional

application is limited to the legality, propriety and correctness of the
impugned judgment passed by learned Additional District and
Sessions Judge, Jangipur, Murshidabad in Criminal Appeal No. 02
of 2013 because this is not an appeal against that judgment. This
Court may consider as to whether propriety has been maintained or
gross illegality has been caused by the impugned judgment arriving
at an incorrect decision.

With such view I have gone through both the copies of said
judgments to which my attention has been drawn.
 It comes to my notice that the opposite party is undisputedly,
the wife of petitioner no. 1 and out of their wedlock one female child
has born. Admittedly, petitioner nos. 2, 3 and 4 are father, mother
and married sister respectively of petitioner no. 1. On going
through the annexures of revisional application it comes to my
notice that the petitioner no. 4 has her matrimonial home at Malda.
She has one ten years old school-going daughter and one three
years old son. Her husband deals in medicine. She is a house wife
and looks after her children there. Since sometime past the
petitioner No. 1 has been living in the matrimonial house of his said
sister at Malda leaving his residential accommodation of village
Beniagram (Singh Para), P.O. Jafargunj, P.S. Farakka, District
Murshidabad where the petitioner nos. 2, 3 and opposite party with
her daughter and one attendant ‘Chhotoburi’ @ Panchami have
been residing. Opposite party is an agent of L.I.C.I. She earned
Rs.73,000/- as her commission as agent of L.I.C.I. in 2012-2013
financial year. She pays Rs.31,000/- per year for education of her
minor daughter. Petitioner no. 2 is aged ill person. At the time of
hearing the case in the Court of learned Judicial Magistrate the
opposite party of this case as petitioner examined herself and one
Ganesh Ghosh as witnesses. She did not examine to her father
although she claimed that the present four petitioners demanded
money from her father and alleged that they also assaulted opposite
party Sangita Saha and her father. She also did not examine
aforesaid Chhotoburi @ Panchami as her witness. Although the
opposite party alleged her husband’s stationary shop at Farakka
and medicine business but no positive convincing corroborative
evidence to that effect was adduced by her. Her witness Ganesh
Ghosh deposed about his knowledge derived from opposite party
Sangita Saha but Sangita did not state any fact as she narrated to
Ganesh Ghosh. As a result, most of the statements of Ganesh
Ghosh have become ‘hearsay’. There is no evidence in substance to
establish that the petitioners of this case told the opposite party for
going out of her residence. Learned Judicial Magistrate has
elaborately discussed the relevant legal provisions of The Protection
of Women from Domestic Violence Act, 2005. He dismissed the
case. He did not believe that domestic violence was committed
upon the aggrieved person wife (opposite party herein) by the
present petitioners. He observed that present petitioner no. 1 that
is husband of the aggrieved person had no share in the house. This
fact remains undisputed. With such observation learned Magistrate
held the said house is not share household under Section 2(s) of the
Act. He did not deny right of opposite party of residence in the
house. He did not accept any domestic relationship between the
present petitioner nos. 3 and 4 on one hand and the opposite party
on the other.

All of them are female persons. As such, under Section 2 (q)

the petitioner nos. 3 and 4 of this case do not come within the
definition – ‘respondent’ in the Court of learned Judicial Magistrate.
According to the facts regarding marriage of opposite party before
2012 and transfer of the house in 2012 by petitioner no. 2 in favour
of petitioner no. 3 by dint of exhibit- A and living of opposite party
in that house since after her marriage this Court is of the view that
the opposite party Sangita Saha is in domestic relationship under
Section 2(f) of the Act with present petitioner nos. 1, 2 and 3. I like
to mention that since long before marriage between the petitioner
no. 1 and the opposite party the petitioner no. 4 has been living in
her matrimonial home at Malda. As such, she is excluded from
domestic relationship with the opposite party. In the instant case,
while the petitioner no. 2 was owner of the household the opposite
party Sangita Saha was living in that household as daughter in law
of petitioner no. 2 (father of husband of opposite party) and still she
has been living in the same house, the said household comes within
the definition of ‘shared household’ under Section 2(s) of the Act. In
this connection, I agree with the finding of learned Additional
District and Sessions Judge that it being ‘shared household’ the
wife aggrieved person would be entitled to claim the right of
residence in such house as observed in page 9 of the impugned
judgment dated 23.06.2014.
 Regarding residence orders passed by learned Additional
District and Sessions Judge in the impugned judgment this Court
is of the view that before passing of such order satisfaction of the
concerned Court is necessary that domestic violence has been
caused. In the instant case the plea of domestic violence is under
consideration only on the basis of sole, solitary uncorroborated oral
testimony of the aggrieved wife (opposite party herein). In the eye of
law plea is not proof. Allegations of domestic violence are grave in
nature and have serious impact if really proved.

Unless it is satisfactorily established that domestic violence

has taken place neither any protection order under Section 18 nor
any residence order under Section 19 nor any order for monetary
relief under Section 20 nor any compensation order under Section
22 of the Protection of Women from Domestic Violence Act, 2005
should be passed.

In my view, learned Additional District and Sessions Judge

has failed to appreciate the facts that the aggrieved party wife failed
to establish any incident of torture on her or any incident of
demand of money and assault upon her and her father by present
petitioners and said learned Judge has overlooked the factum of
withholding the father and personal attendant of the opposite party
from the witness box. Although the learned Additional District and
Sessions Judge has discussed about giving birth by the opposite
party to a still born baby at the first instance but has overlooked
the fact that on that occasion she was admitted in nursing home at
Berhampore from her father’s house and not from her present
residence. Significantly, learned Judge overlooked the fact that the
husband and sister in law of opposite party arranged for her
medical treatment for her giving birth to her daughter and she
successfully gave birth to her only child.

Consequently, I cannot say the findings of learned Additional

District and Sessions Judge, Jangipur, Murshidabad on the
question as to domestic violence took place against the opposite
party Sangita Saha as appropriate or suitable to the requirements
of domestic violence according to the facts, circumstances and
evidence on record. Therefore, it cannot be said that propriety has
been maintained or there is correctness of findings of facts in the
impugned judgment.

As a result, in the light of my discussions made above, I do not

concur with the decision of learned Additional District and Sessions
Judge for setting aside the order of dismissal of Misc. Case No. 14
of 2013 passed by learned Judicial Magistrate, 2nd Court, Jangipur,
Murshidabad. Rather, I find and hold that the decision of learned
Additional District and Sessions Judge passed in favour of the
opposite party of this case revisional application is liable to be set
aside. The claim of opposite party for protection order, monetary
relief, compensation or any interim order made before the Trial
Court in Misc. Case No. 14 of 2013 is liable to be dismissed.

This revisional application, is therefore, allowed. Impugned

judgment and order dated 23.06.2014 passed in Criminal Appeal
No. 02 of 2014 stand set aside. Misc Case No. 14 of 2013 of the 2nd
Court of learned Judicial Magistrate, Jangipur stands dismissed.
This case is disposed of accordingly.

A copy of this judgment be sent to learned Additional District

and Sessions Judge, Jangipur, Murshidabad and a separate copy of
this judgment be sent to learned Judicial Magistrate, 2nd Court,
Jangipur, Murshidabad also for information and necessary action.

Urgent certified photocopy of this Judgment and order, if

applied for, be supplied to the parties upon compliance with all
requisite formalities

(SANKAR ACHARYYA, J.,)