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 1st
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.
- 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 21st 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 21st 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 21st 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
