District : Howrah.
In the Court of the Learned Additional
District Session Judge, at Uluberia, Howrah.
Criminal
Appeal no. of 2021
In
the matter of :
An
application for Stay of operation 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 :
Sri Arnab De,& Others,
_____________Appellants
-
Versus -
The
State of West Bengal & another,
_________Opposite Parties.
The
humble petition on behalf of the appellants above named most respectfully;
SHEWETH :
1.
That the present appeal has been
preferred by the appellants under Section 29 of the Protection of Women from
Domestic Violence Act 2005, before the Learned Court, against the Impugned
Order dated 21-08-2021, passed in Misc. Case no. 174 of 2020, by the Ld. ACJM,
Uluberia.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
That the Opposite Party no.2, is a Working Lady
and thereby She is Earning sufficiently to maintain herself.
11.
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.
12.
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.
13.
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.
14.
That the Learned Court below siding with the
Opposite Party no.2, herein which resulted in
erroneous impugned order.
15.
That the Learned Court below erred in law
vis-à-vis in facts of the case.
16.
That the Learned Magistrate observation and the
purported order is under the violation of natural justice.
17.
That the impugned Order is otherwise bad in law
and liable to be set aside.
18.
That the aforesaid impugned order is liable to
be set aside or vacated in the interest of administration of Justice.
19.
That the appellants seeks stay of operation of
the impugned order dated 21-08-2021, passed in Misc. case no. 174 of 2020, by
the Learned ACJM, Uluberia, till disposal of the present appeal before this
Learned Court.
20.
That this application 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 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
