28.9.2026 Court No.34 Sl. No.6 sg CRR 2972 of 2023 In the matter of : Khurshida Bibi ..Petitioner. Mr. Sandipan Das Mr. Sobhendu Sekhar Roy Mr. Debabriya Samanta Mr. Samrat Ghosh …for the opposite party. 1. This revisional application has been filed against an order passed by the learned Additional District and Sessions Judge, 17th Court, Alipore, South 24 parganas (S) on December 19, 2022 in criminal appeal no. 11 of 2021 reducing the quantum of maintenance to amount of Rs. 7,000/-from Rs 14000/- as granted in her favour. 2. The facts of the case found from the record as well as from the submission advanced by the petitioner that the marriage between the parties took place on December 10, 1989 as per Muslim Rites and Rituals subsequently before the Muslim Registrar and Kazi appointed of Government of West Bengal the said marriage was registered and the parties started residing at the house of the present opposite party, at Murshidabad. The opposite party got enrolled in the Army on February 25, 1991 as 2 Havildar subsequently the petitioner gave birth to a female child on 26th December, 1995 and a male child born on January 24, 1999. Later on marital discord developed between the parties and it has been alleged by the present petitioner that she was subject to physical and mental torture and the opposite party no.2 also threatened her to kill along with children if she dares to complaint to his senior officers or any other persons about torture meted out to the present petitioner. Later on she further found that the opposite party no.2 having illegitimate relation with another lady and on asking the same she along with her daughter was severely assaulted and due to such extreme torture meted out to the her minor daughter then aged about 14 years, committed suicide . But since he was posted then at Command Hospital at Calcutta he influenced the investigating authority and the entire matter was shelved. 3. In the year, 2012 opposite party was posted somewhere in North India however it was not informed to the present petitioner and left the opposite party in his rented home with the assurance that he has been sent to North India on urgent temporary duty and would return within 15 days. Subsequently he did not return then on enquiry present petitioner came to learn that practically opposite party no.2 and her child are deserted. The minor was then studying in Kendriya Vidylaya CH, Kolkata. The Petitioner had no source of income from any corner hence she had write a 3 letter to superior officer of Army personnel and accordingly an order was passed directing deduction of 27.5% of the respondent’s salary for the petitioner and towards her minor son 22%, which was subsequently stopped since opposite party produced before the authority that the petitioner’s prayer was without intimating the present petitioner. 4. It is the contention of the learned advocate for the petitioner that the opposite party is an Army Official and his monthly salary of Rs. 61,873/- despite he has refused to maintain the present petitioner and her minor son and hence the petitioner had to file application under Section 23 (2) and Section 12 of PWDV Act of 2005 before the learned Judicial Magistrate, 17th Court, Alipore . She also obtained an interim order of Rs. 7,000/- per month to be paid to the present petitioner and subsequently it was enhanced of Rs. 14,000/-. Challenging the same present opposite party preferred a criminal appeal before the learned Court of Additional District and Sessions, 17th Court, learned Court passed the order on 7th November, 2022 ignoring resolution that was adopted by the members of Bar on September 20, 2022 for not passing any adverse order because of emergent situation as Covid, 2019 as prevailing then. 5. Learned advocate representing the petitioner further submits that order of Judicial Magistrate whereby an amount of Rs. 14,000/- was directed to be paid was the final order. It was 4 clearly mentioned in the said order in case of default the petitioner will be in a position to file Execution case in order to have the necessary relief. The grievance ventilated before this Court against the order passed by the learned Appellate Court whereby considering the facts and circumstances of the case modified the said order of Rs. 14,000/- and directed the husband to pay of Rs. 7,000/- per month. 6. On behalf of the opposite party/ husband the learned advocate raises objection and submits that the initial order granting maintenance in favour of present petitioner as well a towards her minor son was of Rs. 7,000/-. The prayer was not maintainable so far the son is concerned because he attained majority when the application under this provision was filed before the Court, therefore she did not come before the Court in clean hand. Subsequently on 7th November, 2020 when the amount of Rs. 7,000/- was increased to Rs. 14,000/it was disposed of finally without taking any evidence from any of the parties. The learned Court did not pass the order after considering any documents placed before the Court by way evidence either oral or documentary. That apart learned Court failed to consider that the son attained majority and daughter expired prior to filing of complaint hence learned Court ought to have assigned as to why amount of Rs. 7,000/- was enhanced to 5 Rs. 14,000/- when no subsequent development could be shown before the Court. 7. It is therefore assailed that the said order is not sustainable in the eye of law and present opposite party never had the opportunity to place his own case before the learned Court by filing documents which are mandated by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha((2021) 2 SCC 324 Accordingly prays for dismissal of the revisional application. 8. Heard the rival contentions made by both the learned advocates. On careful perusal of materials on record the factum of marriage is found to be not disputed and also that son attained majority before filing the application and this is also evident from the date of birth of the said .Therefore it is glaring visible that the said application was filed by suppressing such fact. Learned Magistrate passed ex parte interim order granting the maintenance of Rs. 4,000/- toward lady Rs. 3,000/- towards minor son total of Rs. 7,000/-in c0onsonance with the provision of PWDV Act. The petitioner herself being dissatisfied filed an application on 6th August, 2020 with a prayer for enhancing the amount of maintenance. 9. Learned Magistrate considered that the normal function of the court was not resumed and opposite party did not pay any maintenance to the petitioner since 2016 and passed the order enhancing the amount of Rs. 14,000/- per month. On 21st 6 October, 2020 it was otherwise scheduled to adduce evidence when nothing happened and case was adjourned on 2nd November, 2020 for passing necessary order. On that date both parties were present due to pandemic situation and the case was adjourned on 7.11.2020 when the date was fixed for passing the order. 10. It is interesting to see that on 7.11.2020 when the date was scheduled for passing necessary order no evidences adduced, no documents were directed to be filed and the court only expressed that the petitioner is in distressed condition due to Covid, 2019 pandemic situation and opposite party is evading payment of monthly allowance to the petitioner though he is in service in Indian Army hence directed the opposite party to pay Rs. 14,000/- per month. This order passed as final order in respect of application filed under PWDV Act. 11. It is settled proposition of law that in an application emanating from PWDV Act the Magistrate is empowered to pass interim order only on the basis of the affidavit placed before the learned Court and considering the domestic violence report, if any. 12. The learned Appellate Court before whom such subsequent order of enhancing amount of Rs. 14,000/- was challenged observed that the order dated 5.9.2020 did not discuss about the fate of earlier maintenance order passed on 30th March, 2019. 7 There was no reflection about the reason actually prompted the Court to pass such subsequent order of Rs.14,000/-and also no reason as to why Court enhanced Rs. 14,000/- from Rs. 7,000/-. 13. Learned Appellate Court set aside such order and reduced the amount of maintenance at the rate of Rs. 7,000/- per month directing the learned trial court to proceed with the case in accordance with law. 14. This Court fully agrees with the observation made by the learned Appellate Court as no reason can be found after careful scrutiny of the entire facts and circumstances for sudden enhancement to Rs. 14,000/-as final order without taking any evidence, when the interim order was granted of Rs. 7,000/- per month. In terms of celebrated decision of the Hon’ble Apex Court in Rajnesh Vs. Neha& Ors. (Supra) parties must file Affidavits of assets and liabilities before the Court for assessment of the actual income and the quantum to be decided by the learned Court. In the said decision it was held by the Hon’ble Apex Court that though the Magistrate is empowered to pass the interim order only on the basis of affidavits but at the time of final hearing opportunity to be given to both the parties to adduce evidence ,cross-examine and also determine the actual income and the capacity of other opposite party 15. In Union of India vs Mohanlal Capoor & Anrs. AIR 1974 SC 87, it was held that reasons are the links between the 8 materials on which certain conclusion are based and the actual conclusion. In the decision of 2024 0 Supreme (SC)769 State of Project Director ,UP Education for All project Board and ors vs Saroj Maurya, it was observed that reasoned judgement is essential for the legitimacy of judicial decision and proper functioning of the judicial system . 16. That apart it is apparent when prayer was made before the court for maintenance for her minor son, he already attained majority and therefore not entitled to receive any maintenance under section 125 Cr.P.C . 17. From the above facts and circumstances it is evident that the Learned Magistrate passed the final order without calling for any evidence and further failed to ascertain the actual income of the husband and also to assign any reason regarding the quantum so arrived or even the entitlement of the applicant .It is undisputed that the opposite party is in service as stated by the present petitioner but he did not disclose the present income which he is bound to produce before the Learned Court by filing affidavit of asset and liabilities in consonance with the mandate of the Hon’ble Apex court . 18. Therefore, considering all the aspects of the matter and upon threadbare discussions made hereinabove it is apparent that the order impugned do not suffers from any perversity and warrants interference at this stage. 9 19. The learned appellate Court rightly observed that the order of learned Magistrate enhancing the amount of Rs. 14,000/- was without having any basis therefore that order cannot be sustained in the eye of law which is devoid of any reason and is liable to be dismissed. 20. Therefore the instant criminal revisional application stands dismissed. However Parties are directed to produce their respective affidavits of assets before the learned court of Magistrate and learned Magistrate after considering all the aspects of the matter will dispose of the application in accordance with law within a reasonable period and as expeditiously as possible. 21. So far the maintenance amount is concerned the husband /opposite party is directed to pay the amount as directed by the learned Appellate Court of Rs. 7,000/- to the petitioner wife for her maintenance and to clear out the arrear amount if any accumulated considering the amount of maintenance as Rs. 7000/.Such arrear amount is to be paid along with the monthly maintenance amount till the same is exhausted. On the contrary if any excess amount is paid the same to be adjusted with the monthly maintenance amount which would be decided by the Learned Magistrate. 22. Therefore revisional application stands dismissed. 10 23. All parties shall act on the server copies of this order duly downloaded from the official website of this Court. [Chaitali Chatterjee (Das), J.]