appeal under Section 29 of the Protection of Women from Domestic Violence Act’ 2005

 

District : Howrah.

In the Court of the Learned Additional District Session Judge, at Uluberia, Howrah. Orisha Trunk Rd, Sizberia, Kalibari, Uluberia, Howrah, West Bengal 711315.

 

                                                Criminal Appeal no.                 of 2021

 

                                                          In the matter of :

An appeal under Section 29 of the Protection of Women from Domestic Violence Act’ 2005;

 

AND

 

In the matter of :

Impugned Order dated 21-08-2021, passed in Misc. Case no. 174 of 2020, by the Ld. ACJM, Uluberia.

 

AND

 

In the matter of :

1.   Sri Arnab De, Son of Sri Apurba Kumar De, aged about 40 years, residing at B1/4 003, Peerless Prantik Housing Complex, Sonarpur, Police Station – Narendrapur, District – South 24 Parganas, Kolkata – 700150, Mobile Number : 9860943019.

 

2.   Smt. Sutapa De, Wife of Sri Apurba Kumar De, residing at B1/4 003, Peerless Prantik Housing Complex, Sonarpur, Police Station – Narendrapur, District – South 24 Parganas, Kolkata – 700150,

 

3.   Shri Apurba Kumar De, Son of Late Haran Chandra De, residing at B1/4 003, Peerless Prantik Housing Complex, Sonarpur, Police Station – Narendrapur, District – South 24 Parganas, Kolkata – 700150,

   _____________Appellants.

 

-      Versus -

 

1.   The State of West Bengal;

 

2.   Smt. Tithi De Adhikary, Wife of Sri Arnab De, and Daughter of Sri Somnath Adhikary, residing at Village – East Burikhali, Post Office – Burikhali, Police Station – Bauria, District – Howrah - 711310,

                                                                    _________Opposite Parties.

 

The humble petition on behalf of the appellants above named most respectfully;

 

 

SHEWETH :

 

1.   That no appeal under Section 29 of the Protection of Women from Domestic Violence Act’ 2005, has ever been filed, pending or rejected by this Learned Court. No proceeding has ever been placed before the Hon’ble High court Calcutta. This is the First time appeal under Section 29 of the Protection of Women from Domestic Violence Act’ 2005, before this Learned Court.

 

2.   That the Opposite Party no.2, herein preferred an application under Section 12 of the Protection of Women from Domestic Violence Act’ 2005, before the Learned ACJM, Uluberia, which has been registered as Misc. Case no. 174 of 2020, against the appellants herein.

 

3.   That the appellants made their appearance in the said Misc. Case no. 174 of 2020, before the Learned ACJM, Uluberia, upon receipt of the notice under Section 13 of the Protection of Women from Domestic Violence Act’ 2005. The Appellants filed their answer being Written Objection or Show Cause with the mandatory Affidavit concerning the assets and Liability, etc.

 

4.   That in the said Misc. Case no. 174 of 2020, the Opposite Party no.2, herein has preferred one application for interim relief being an application on affidavit under Section 23 of the Protection of Women from Domestic Violence Act’ 2005, thereby praying for monetary relief only. The appellants filed their answer being Written objection or Show cause against the relief prayed for by the opposite party no.2, herein, before the Learned ACJM, Uluberia.

 

5.   That the application under Section 23 of the Protection of Women from Domestic Violence Act’ 2005, has been taken up for hearing by the Learned ACJM, Uluberia, and consequently passed necessary Order dated 21-08-2021, in Misc. Case no. 174 of 2020, and thereby directed the Respondent to pay maintenance allowance as monetary relief of Rs. 18,000/- p/m to the opposite party no.2, herein.

 

2.           That being high aggrieved and dissatisfied with the order dated 21-08-2021, in Misc. Case no. 174 of 2020, passed by the Learned ACJM, Uluberia, the appellants beg to prefer this appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005 before your Honour on the following amongst other on the following :

 

GROUNDS

 

I.             FOR THAT the Order and Judgement passed by The Learned Court below is whimsical, harsh, arbitrary and is based on surmises and conjectures and as such the same is liable to set aside;

 

II.           FOR THAT the Learned Court below failed to appreciate that the Order has been passed whimsically in a mechanical manner without going into the merits of the case and the same will vitiate trial of the proceeding;

 

III.          FOR THAT very surprisingly the Learned Court below did not take note of the earning of the Opposite Party no.2, herein. The Opposite Party no.2, categorically stated in her affidavit of Assets declaration that She is earning a sum of Rs. 13,732/- ( Rupees Thirteen Thousand and Seven Hundred Thirty Two ) only being Net Income per month from her Employer Tata Consultancy Services. Her Total Earning per month is as Rs. 16,560/- ( Rupees Sixteen Thousand and Five Hundred and Sixty ) only, per month, and the opposite party no.2, given a copy of her salary slip to substantiate such facts of her earning before the Learned Court below;

 

IV.         FOR THAT the Learned Court below did not accommodate the facts of the appellants that the appellant no.1, incurred huge expenses towards House Rent in Pune being work place at Pune, EMI for Car, Insurances, and most emergent medical expenses of old aged parents at Kolkata;

 

V.           FOR THAT the Opposite Party no.2, is a Working Lady and thereby She is Earning sufficiently to maintain herself;

 

VI.         FOR THAT the Learned Court below did not take any facts of the appellants while passing the impugned Order dated 21-08-2021, in Misc. Case no. 174 of 2020;

 

VII.        FOR THAT the Opposite Party no.2, herein withdraw Matrimonial Suit no. 238 of 2020, initiated by herself against the appellant no.1, herein, in the Court of the Learned Additional District Judge 1^st Court Uluberia;

 

VIII.      FOR THAT the Opposite Party no.2, herein withdraw a proceeding under Section 125 of Cr.P.C. initiated by herself against the appellant no.1, herein in the Court of the Learned Additional Chief Judicial Magistrate, Uluberia;

 

IX.         FOR THAT the Learned Court below siding with the Opposite Party no.2, herein which resulted in  erroneous impugned order;

 

X.           FOR THAT the Learned Court below erred in law vis-à-vis in facts of the case;

 

XI.         FOR THAT the Learned Magistrate observation and the purported order is under the violation of natural justice;

 

XII.       FOR THAT the impugned Order is otherwise bad in law and liable to be set aside.

 

6.     That the grounds stated above, the aforesaid order is liable to be set aside or vacated in the interest of administration of Justice.

 

7.   That the other ground/grounds will be agitated at the time of hearing of this appeal.

 

8.               That the appellants enclosing herewith the Original Certified Copy of the Order dated 21^st day of August’ 2021, passed in Misc. Case no. 174 of 2020, passed by the Learned Additional Chief Judicial Magistrate, Uluberia, Howrah.

 

9.               That the appellants enclosing herewith the followings :

 

a)    Affidavit of Assets by the Opposite Party no. 2;

b)   Payslip of the Opposite Party no.2;

 

10.          That the appellants crave leave to produce necessary documents before the Learned Court at the time of hearing.

 

11.          That this memo of appeal is made bona-fide and for the interest of administration of justice.

 

Under the aforesaid facts and circumstances, the appellant most humbly prays that Your Honour may graciously be pleased to admit the appeal, call for the Lower Court Case Records, issue notices upon the Opposite Parties and upon hearing be pleased to set aside the impugned Order dated 21^st day of August 2021, passed in Misc. Case no. 174 of 2020, by the Learned Additional Chief Judicial Magistrate, Uluberia ;

 

-And-

 

Pending hearing of the appeal further be pleased to stay the operation and or effect of the Order dated 21^st day of August 2021, in Misc. Case no. 174 of 2020, before the Learned Court of Additional Chief Judicial Magistrate, Uluberia ;

 

-And/or -

 

to pass such further Order/Orders and or necessary Order/Orders as Your Honour may deem fit and proper for the end of Justice.

 

And for this act of kindness, Your appellants as in duty-bound shall ever pray.

 

 

 

 

 

 

 

 

VERIFICATION

 

 

I, Arnab De, the appellant no.1, herein, do hereby declare and say that the statement made in  paragraphs 1 to __________are true to the best of my knowledge and the rest are my humble submission before this Learned Court. 

 

I signed this verification on

this    day of              2021

at the Court Premises

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

I, Sri Arnab De, Son of Sri Apurba Kumar De, aged about 40 years, by faith Hindu, by Occupation Service, residing at B1/4 003, Peerless Prantik Housing Complex, Sonarpur, Police Station – Narendrapur, District – South 24 Parganas, Kolkata – 700150, West Bengal, do hereby solemnly declare and affirm as follows :

 

1.   That I am competent to swear this affidavit, and I am authorized to swear this affidavit on behalf of the appellant no.2, and 3, who are my father and mother respectively.

2.   That I am the appellant no.1, herein in the present proceeding, before the Learned Court.

3.   That I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my Written Objection / schow cause.

4.   That the statements as made by me in the foregoing paragraphs in the written objection are true to the best of my knowledge and belief.

5.   That all the above statements are true to the best of my knowledge and belief.

 

 

 

 

DEPONENT

Identified by me,

 

Advocate.

Prepared in my Chamber,

 

Advocate

Date : __________________2021.

Place : Uluberia Court Premises.

NOTARY