MALAY KUMAR MANDAL Vs. SANGHAMITRA MANDAL

JUDGEMENT

(1.) This is an application under Sec. 482 of the Code Criminal Procedure praying for quashing of Complaint Case No. AC-46 of 2018 now pending before the learned Judicial Magistrate, 5th Court, Alipore under Sec. 15(4) of the Protection of Women from Domestic Violation Rules, 2006.

(2.) Admittedly the opposite party/wife has been living separately with her two children, one of whom is son and another is daughter since 24th Aug., 2011 in a flat of Kasba being E 4/1, Type II, GD Block, Purba Abasan, 1582/2 Rajdanga Main Road, Police Station Kasba, Kolkata 700 107, owned by the husband/petitioner/revisionist called as "shared household". The wife/opposite party submitted a complaint under Sec. 12 of the Protection of Women from Domestic Violation Act, 2005 seeking relief, which was registered as complaint case No. 9974 of 2011 and the same is still pending in the court of learned Judicial Magistrate 5th Court, Alipore. Besides the case under Domestic Violation Act, there are series of litigation pending between the parties. There is also a proceeding under Sec. 498A pending against the petitioner/husband. A matrimonial suit for divorce is also pending between the parties. In the pending proceeding under Sec. 12 of the DV Act, by order dated 10.02.12 the wife/opposite party was favoured with protection order under Sec. 18 of the DV Act restraining husband/petitioner from perpetuating any act of domestic violation upon the aggrieved party and her children with a further direction upon the respondents requiring him not to disturb the peaceful possession of wife/opposite party in respect of "shared household" at Kasba, and not to alienate and enter into the same. Besides the protection order under Sec. 18 of the DV Act, by self-same order wife/opposite party was also provided the interim monetary relief for herself and her two children. The petitioner/husband felt aggrieved with such order and preferred appeal against the order dated 10.02.2012, passed by the learned Judicial Magistrate, 5th Court, Alipore granting protection order and interim monetary relief in connection with Criminal Appeal No. 23 of 2012. According to the decision of the lower appellate court dated 03.07.2013, the quantum of interim monetary relief was reduced from Rs.30,000.00 to Rs. 25,000.00 per month. But the other operative portions of the order, however, remained unchanged. The decision of the lower appellate court dated 03.07.2013, and the order dated 21.03.2015 passed by the learned Additional Sessions Judge, 3rd Court, Alipore in criminal appeal No. 165 of 2014 affirming the order dated 8th Aug. 2014 passed by the learned Judicial Magistrate 5th Court, Alipore in Misc. Execution Case No. 58 of 2013 were challenged by filing two (02) criminal revisional applications being CRR 2509 of 2013 and CRR 1838 of 2015 before the High Court. In terms of the decision of CRR 2509 of 2013, dated 15.03.2017, the petitioner/husband was directed to pay school fees/educational expenses of his children and the maintenance charge in respect of the flat under possession of his wife and children. The decision delivered in CRR 2509 of 2013, dated 15.03.2017 was carried to Apex Court by filing special leave to appeal, and the Apex Court dismissed the special leave petition. The petitioner/husband, in view of the decision of the High Court passed in CRR 2509 of 2013 dated 15.03.2017 followed by dismissal of Special Leave Petition by Apex Court, was under obligation to pay off the maintenance charges of the flat under possession of the wife. As there had been huge accumulation of maintenance charges for non-payment of quarterly maintenance charges within the period of time as provided therefor, the petitioner/husband appealed to the General Secretary on 11.08.2017 of flat owner's association of Purba Abasan complex of Kasba for waiving off the delay charges with an undertaking to clear off all his dues doing single transaction therefor. Subsequently, on 16.09.2017 the petitioner/husband cleared all outstanding dues towards maintenance charges of the flat under possession of his wife by paying three (3) cheques totalling to Rs. 65,000.00, which was duly acknowledged by Purba Abasan Apartment Residents' Welfare Association supplying receipt for the purpose. In order to effectively pursue such prayer pertaining to waiving off delay charges, it was alleged by petitioner/husband that the petitioner might have had the necessity to visit the community hall of Purba Apartment being a member of flat owner's association, to secure compliance of the order of the superior court, but the same should not be treated to have committed breach of the protection order, granted under Sec. 18 of the DV Act.

(3.) The allegation depicted in the complaint under Sec. 15(4) of Protection of Women for Domestic Violation Rules 2006 was that on 16.09.2017 the petitioner/husband deliberately visited the community hall, a place frequently visited by the complainant as well as her children, situated with in the Housing Complex, making breach of the interim order granted under Sec. 18 of the Act. It was alleged that on 16.09.2017 the petitioner/husband visited the community hall of the residential complex, described as Purba apartment, when the petitioner/husband started hurling abuses at the complainant and her two minor children seeing them present near there, kept ridiculing them in front of a few women, who were present with the petitioner/husband. The wife/opposite party and her two children were highly shocked and surprised with such unruly behaviour of petitioner committing sudden perpetuation of domestic violence. The petitioner/husband further threatened the wife and her two children to oust them from shared household uttering words that the petitioner/husband would not pay any more to his wife and two children. The incident was thereafter reported to Kasba Police Station on 17.09.2017 by furnishing information.