Wednesday, March 13, 2024

written notes of argument in criminal appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005

 

In the Court of the Learned Additional District & Session Judge, 2nd Court, Uluberia, Howrah

 

Criminal Appeal No. 4 of 2021

 

In the matter of;

Sri Arnab De, & Others,

                             _____Appellants

-      Versus –

The State of West Bengal & Anr.

                   ______Opposite Parties

Written Notes of Argument

On behalf of the Appellants

 

The present appeal is challenging the proprietary of the impugned Order dated 21-08-2021, passed in Misc. Case no. 174 of 2020 by the Learned Additional Chief Judicial Magistrate, Uluberia, Howrah, which directed the husband Arnab De to pay maintenance allowance as interim monetary relief of Rs. 18,000/- (Rupees Eighteen Thousand) only per month to the wife Tithi De Adhikary.

The wife Tithi De Adhikary was employed in Tata Consultancy Services, and thereby she acquired her Gross Salary of Rs. 16,560/- (Rupees Sixteen Thousand and Five Hundred and Sixty) only and thereby the Net Income in hand as of Rs. 13,732/- (Rupees Thirteen Thousand and Seven Hundred Thirty Two) only, has been acquired by her. Presently, she produced a copy of letter dated 14th day of June’ 2023, which speaks about acceptance of her resignation letter dated 1st June’ 2023. The reason of such resignation has not been assigned therein, therefore it is well understood that she resigned voluntarily from her employment.

The Wife Tithi De Adhikary, is well qualified as B.Sc. Bio Science in 2005, from Calcutta University, and presently pursuing her LL.B. classes, having well experiences in her employment.

The Wife Tithi De Adhikary, have no dependent to maintain, as her family consists of her father, mother, Elder Brother who is married, and her younger Sister. Therefore the Elder Brother is solely responsible to take care of his father, mother, and sister with his wife and child if any.

The husband Arnab De having Educational Qualification as BCA, working for gain in M/s. Mphasis Private Limited, and thereby acquired Gross Salary as of Rs, 95,000/- (Rupees Ninety Five Thousand) only, per month, and acquired Net Income as Rs. 78,308/- (Rupees Seventy Eight Thousand and Three Hundred Eight) only, after statutory deductions. His father & mother are his dependent, whom he is responsible to maintain.

The Educational Qualification of the husband and the wife are at par, and presently she pursuing LL.B. Classes and after completion of the same her educational qualification will be higher than the husband’s qualification. She resigned voluntarily from her services and engaged herself in pursuing LL.B. Classes are clearly gave the circumstances of her ability to maintain herself sufficiently. She should not claim any maintenance sitting idle.

If wife is in possession of qualification it does not ipso facto mean that she did not make effort to get the job and for that reason to disallow the maintenance. The qualification of B.Sc. Bio Science in 2005, from Calcutta University, is sufficient as she was employed in Tata Consultancy Services, wherefrom she resigned recently in the month of June’ 2023.

In view of this, the question arises as to in what way Section 20 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get monetary relief at higher rate from other spouse in such condition ?

Section 20 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of monetarily relief.

The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose.

In the present case Tithi De Adhikary is a well-qualified woman possessing qualification like B. Sc. Bio Science in 2005, from Calcutta University, Till June’ 2023 she was serving in Tata Consultancy Services. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ?

It really puts a big question which is to be answered by Tithi De Adhikary with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself.

A lady who is fighting Domestic petition filed for monetarily relief, can not be permitted to sit idle and to put her burden on the husband for demanding maintenance allowance.

Section 20 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible.

The law does not help indolents as well idles so also does not want an army of self-made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of maintenance allowance, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself.

That cannot be treated to be aim, goal of Section 20 of the Act. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours.

In the case in hand wife is not entitle to get any maintenance from her husband.

 

Judicial References, relied on;

 

1.Bhushan Kumar Meen  Versus Mansi Meen @ Harpreet Kaur, (2010) 1 SCC 372 

2.Nisha Jain Versus Amit Jain, Mat.App.(FC) No.106/2015, decided on 24.8.2016 by the High Court of Delhi [2016 SCC ONLINE DEL 4866]

3.Smt Mamta Jaiswal  Versus Rajesh Jaiswal, Civil Revision N.1290/99, decided on 24.3.2000 by the High Court of Madhya Pradesh (Indore Bench) [2001 HINDULR 2 228]

4.Farzana Ansari Versus Abid Ali Ansari, Criminal Revision Application No.38/2013, decided on 24.2.2014 by High Court of Bombay at Goa.[ 2014 ALLMR CRI 1681]

 

=========================XXXX===========================

 

 

No comments:

Post a Comment