SHYAMAL DUTTA Vs. SHELI DUTTA

JUDGEMENT

(1.) In this revisional application impugned order dated 14.08.2019 passed by the Additional Sessions Judge, Fast Track Court-II, Howrah in connection with Criminal Appeal No. 100/2018 setting aside the judgment dated 20.07.2018 passed by the learned Judicial Magistrate, 3rd Court, Howrah in Misc. Case no. 452/2013, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is under challenge at the instance of the petitioner/husband with facts leading to the case that the petitioner retired as stenographer Grade-I from the office of the Chief Commissioner of Income Tax- 4 (CCIT-4), Kolkata, Aayakar Bhawan, Kolkata-700069 on 30.11.2018 is now suffering from Idiopathic Parkinson and cervical spondylosis and is under continuous medical surveillance.

(2.) It is alleged that the opposite party has been mounting pressure on the petitioner to stay separate from his elder brother since beginning and she became violent and started mental torture on his elder brother. She left her matrimonial home on July, 1998 for her father's house declaring that if the respondent wants to lead a conjugal life, he will have to leave his elder brother and his ancestral house. On 13.10.1998, the opposite party started abusing the petitioner and on 14.10.1998 on the next day the elder brother of the opposite party arrived at the ancestral house and started assaulting the mentally retarded elder brother of the petitioner. The said incident was reported to the S.I. of police, Howrah and the concerned Gram Panchayat and the Gram Panchayat called the parties for settlement of the dispute. Though the opposite party returned to her matrimonial home on January, 1999 and she became pregnant on 20.04.1999 and was blessed with a baby on 05.12.1999 but she had left her matrimonial home along with all her belongings on 27.03.2000. The petitioner wrote to the Legal Aid Services West Bengal for return of the opposite party to her matrimonial home. The petitioner arranged rental accommodation and as per direction of the Legal Aid Services West Bengal, and on 17.01.2001, opposite party with her child came to the house of the petitioner and requested him to forget the past and promised to lead a normal life in presence of the maternal uncle of the petitioner. The parents-in-law of the petitioner came to the house of the petitioner on 13.04.2001 and abused the petitioner for staying in his ancestral house. The opposite party lodged a case under Section 498A/34 of I.P.C. in Sankrail Police Station being P.S. case No. 73/2001, dated 23.04.2001 and a final report was submitted. On getting the notice of final report a "Protest Petition" was filed before the learned Sub-Divisional Judicial Magistrate, Howrah and the petitioner and his elder brother were discharged under Section 245(2) of the Code of Criminal Procedure on 19.5.2005 finding no prima facie case. Then she filed a maintenance case vide Misc. Case No. 154/2001 under Section 125 of the Cr.P.C. in which both the opposite party and minor child were awarded maintenance of Rs.2000/- in total. She also filed another complaint under Section 406 of the Indian Penal Code being case no. 1280C/2001. Yet, she filed a complaint under Section 12 of the D.V. Act, 2005 in the year 2013 after leaving her matrimonial home on her own volition just after four months of her stay with the petitioner during 15 years of their marriage. Opposite party contended that the petitioner had earned Rs. 45000/- from his service but she has no source of income of her own and at her parent's house, there is no space for her and her minor child and, therefore, she prayed for return of her "stridhan" articles, monetary relief of Rs. 50,000/- for the educational and medical expenses of the child and also for Rs. 10,000/- for her and Rs. 10,000/- for the minor child as maintenance per month. The Judicial Magistrate, dismissed the case on the finding that opposite party-wife has failed to specify the exact date on which her husband deprived the opposite party and her daughter of proper food and clothing and tortured them mentally and physically whereas the petitioner- husband admittedly had arranged for a rental accommodation after she left her matrimonial home.

(3.) She admitted that she has signed on the medical documents arranged by her husband for herself and her daughter but failed to produce any documentary proof that half of her said expenses were borne by her father and also observed the admitted fact that on 14.02.2012 she had received a bank draft along with a letter from the petitioner for expenses of her treatment of Tumour in her spinal cord. The opposite party stated during her evidence that her statement with regard to the stridhan articles is mentioned differently in the body of the petition and affidavit-in-chief and in the schedule of the "stridhan" properties, however, she could not furnish any receipt of gold ornaments. P.W.1 during her cross-examination stated that she had not detailed as to exactly which marital obligations her husband failed to fulfil. She has not specified the exact dates in the petition of complaint as to when her husband used to expect expensive gifts from her father.