1. The petitioner in both these writ applications, is the son of late Naresh Bhattacharjee. He lives in his ancestral house in Katihar Town. It appears, in the same house, the brothers of late Naresh Bhattacharjee live with their family as well. The families are Bengalis and governed by Dayabhag School of Hindu Law. Late Naresh Bhattacharjee, the father of petitioner died living behind a Will for getting it probated. Testamentary Case No. 1 of 2006 was pending before the District Judge, Katihar which has now become Testamentary Suit No. 2 of 2008 on contest before the District Judge, Katihar. The Will has been executed in relation to various properties on the basis that the properties mentioned therein were individual properties of late Naresh Bhattacharjee. He had created a beneficial interest in favour of Pranab Bhattacharjee, his younger brother and Shyamali Bhattacharjee, his sister. They were to receive fixed sums monthly under the Will for a certain period. Petitioner was made the sole executor of the said testamentary disposition. It appears the 2 beneficials under the will chose not to accept the Will and its dispositions. They led complaints before learned Sub-Divisional Judicial Magistrate, Katihar under the provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005. Those complaints were registered as Complaint Cases No. 886 anct 887 of 2008 respectively. They complained that the property in question was joint family property and they were wrongly deprived of their right by the petitioner. The two that is Geeta Bhattacharjee, wife of Pranab Bhattacharjee is respondent No. 2 in Cr. WJC No. 664 of 2008 and Shyamali Bhattacharjee, wife of late Deepak Kumar Bhattacharjee is respondent No. 2 in Cr. WJC No. 713 of 2008. The said complaints having been filed alleging “domestic violence”, as such, application for interim relief as provided under Section 23 of the said Act were filed for grant of ad interim maintenance. Petitioner appeared in both the cases and submitted that a Testamentary Case Suit was pending. As per the testament (Will), petitioner was paying Rs. 6,000/- to Pranab Bhattacharjee and Rs. 8,000/- to Shyamali Bhattacharjee respectively. The learned Sub-Divisional Judicial Magistrate, this Court wonders, on what consideration assumed jurisdiction in the matter and treating it to be virtually like a case of maintenance, ordered for payment of Rs. 10,000/- to each per month and that too retrospectively from 2006, the date of enforcement of the said Act which was 26.10.2006 even though the complaint itself was filed in 2008 and an application for interim relief filed subsequently. Petitioner has challenged such an order, inter alia, on the ground that the power to grant interim relief as envisaged under Section 23 of the said Act does not contemplate of such a maintenance order.
2. Shri N.K Agrawal, learned Senior Counsel appears for the private respondents in both the cases. He does not dispute the fact that.
3. Testamentary Case/Suit is pending in which parties have appeared. He does not dispute that as per the testament which is subject matter of the Testamentary Case/Suit, petitioner is the sole executor and the private respondents have beneficial interests limited to Rs. 6,000/- and Rs. 8,000/- per month respectively. He points out that in the first case, the beneficial interest is in favour of her husband who is incapacitated and it is because of that she is pursuing this matter on his behalf. Shri Agrawal submits that once a Court has power to entertain a complaint and law envisages interim orders then the Court has all powers to pass any interim order in the matter. In my view, the proposition is too broadly stated to be accepted. In my view, prima facie there are great doubts whether such a complaint, which is nothing but virtually a Partition Suit, would at all constitute domestic violence within the meaning of Act.
4. Further, on reading of Section 23 of the Act, it is clear that the interim power has been given for an interim protection from domestic violence. It is not an order for interim maintenance that is contemplated therein. All appears to be an ingenuous drafting and jugglery of words virtually resulting in a Partition Suit being decided in a domestic violation case which, on the face of it, would be arbitrary and on strength thereof conferring power to decide maintenance aspect in this jurisdiction would clearly be beyond jurisdiction. It is simpliciter a money claim being settled and interim order being passed in that regard. That surely cannot be permitted. That would be clearly an abuse of process of Court.
5. In such a situation, I am left with no option but to set aside the impugned orders passed by the learned Sub-Divisional Judicial Magistrate and affirmed in appeal by the Sessions Judge by which maintenance, as an interim measure, has been directed to be paid more so as learned counsel for the petitioner undertakes that to the extent beneficial interest is carved out in the testament (Will) in favour of the husband of respondent No. 2 in the first writ application and in favour of respondent No. 2 in the second writ application which he would continue to honour as per the terms of the Will and subject to any order that may be passed in Testamentary Case/Suit as between the parties. The orders impugned of the Sub-Divisional Judicial Magistrate and the Sessions Judge are set aside.
6. It would be open to the petitioner to move the learned Sub-Divisional Judicial Magistrate, if he is so advised, for discharging the case as such which would be considered on its own merit and in accordance with law.
7. The writ applications are, accordingly, allowed.