The High Court at Calcutta, in a revisional application filed by a husband challenging an ex-parte ad-interim order passed under the Protection of Women from Domestic Violence Act, 2005 (hereinafter, “the P.W.D.V. Act”), set aside the direction of the Learned Judicial Magistrate, Bangaon, awarding ₹12,000/- per month as personal maintenance to the wife, while simultaneously upholding the award of ₹8,000/- per month toward the maintenance of the minor daughter. The judgment was delivered by Justice Uday Kumar on May 5, 2026.
The parties were married on March 19, 2014 under the Special Marriage Act, 1954. The Petitioner-Husband is a Mains Engineer employed with the Calcutta Electric Supply Corporation (CESC), while the Opposite Party No. 2-Wife is a specialist in Critical Care Medicine holding MBBS and DNB qualifications and having served as a Senior Registrar in premier multi-specialty hospitals including Woodlands and R.N. Tagore. A daughter, Devanshi, was born to them on February 26, 2020. Marital differences led to the wife’s departure from the matrimonial home at Bansdroni to her paternal residence at Bangaon in March 2021, following which three distinct sets of proceedings were initiated by the wife — a criminal complaint under Sections 498A/406/506/341/34 IPC and the Dowry Prohibition Act, a maintenance application under Section 125 of the Code of Criminal Procedure, and the present application under the P.W.D.V. Act alleging domestic violence.
The impugned order dated June 1, 2022 was passed by the Learned Judicial Magistrate, Bangaon, purportedly under Section 23 of the P.W.D.V. Act, directing the Petitioner to pay ₹12,000/- per month to the wife and ₹8,000/- per month for the minor daughter. The core grievance of the Petitioner was that this order was passed on the very day the Domestic Incident Report (DIR) was placed on record, without affording him any opportunity to file his Affidavit of Assets and Liabilities, thereby bypassing the mandatory procedural framework established by the Supreme Court in Rajnesh v. Neha [(2021) 2 SCC 324]. It was further contended that the wife, while projecting herself as “unemployed and destitute” and dependent upon her ailing father, had suppressed her professional identity as a highly specialized medical practitioner with significant earning capacity, while simultaneously estimating the Petitioner’s salary at ₹2,10,000/- per month against his actual net take-home pay of approximately ₹70,000/-.
On the question of maintainability of the revisional application under Section 482 of the Code of Criminal Procedure in the face of the statutory remedy of appeal under Section 29 of the P.W.D.V. Act, the Court held that the rule of alternative remedy is a rule of judicial discipline and not an absolute ouster of jurisdiction. The Court held that “the inherent power of the High Court is a ‘safety valve’ intended to be used to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.” Placing reliance on Prabhu Chawla v. State of Rajasthan [(2016) 16 SCC 30], the Court observed that the availability of a statutory appeal does not bar the High Court from exercising its jurisdiction under Section 482 Cr.P.C. where patent illegality or miscarriage of justice is demonstrated. The Court held that where the challenge is to the validity of the procedure itself and not merely to the quantum awarded, and where a subordinate court has bypassed a mandate of the Supreme Court issued under Article 141 of the Constitution, relegating a party to a time-consuming appeal would amount to perpetuating a procedural illegality. The revisional application was accordingly held to be maintainable.
On the procedural propriety of the ad-interim order, the Court found that the Learned Magistrate had committed a jurisdictional error by quantifying the maintenance on the very day the DIR was placed on record, without directing either party to file their respective Affidavits of Assets and Liabilities as mandated by the Supreme Court in Rajnesh v. Neha. The Court noted that in Rajnesh v. Neha, the Supreme Court had issued a mandatory direction under Article 141 of the Constitution requiring the filing of Affidavits of Disclosure of Assets and Liabilities by both parties in all maintenance proceedings throughout the country. The Court held that “while the Magistrate had the power to grant ad-interim relief, the quantification of that relief without following the Rajnesh v. Neha timeline renders the order procedurally fragile and unsustainable in law. The ’emergency’ power under Section 23 cannot be used to circumvent the ‘due process’ of financial transparency.” Reliance was also placed on Aditi alias Mithi v. Jitesh Sharma [2023 SCC OnLine SC 1451], wherein the Supreme Court reiterated that the guidelines in Rajnesh v. Neha are mandatory instructions to be followed by all Courts.
On the question of whether a spouse possessing specialized professional qualifications can be categorized as “unable to maintain herself,” the Court held that the phrase “unable to maintain herself” must be strictly scrutinized against the latent earning potential of highly qualified professionals. The Court held that “a spouse possessing specialized, high-income professional qualifications cannot be categorized as ‘unable to maintain herself’ merely by asserting current unemployment.” Placing reliance on Mamta Mamgain v. Pawan Kumar [2023 SCC OnLine Del 6013] and Shailja & Anr. v. Khobbanna [(2018) 12 SCC 351], the Court observed that the law does not expect a highly qualified person to remain a financial burden on the other spouse when there is no physical or mental disability preventing them from working. The Court found that the wife, having served as a Senior Registrar in Critical Care Medicine at premier hospitals, possessed an inherent financial autonomy fundamentally at odds with the concept of being “unable to maintain herself,” and that by identifying herself simply as a “Doctor” without disclosing her specialized rank and previous emoluments, she had engaged in what the Court termed “strategic suppression.”
On the mandatory consideration of earning capacity even at the ad-interim stage, the Court held that the “Earning Capacity” of a specialized professional is a mandatory material consideration and not a factor to be deferred to the final trial. The Court relied upon Rajnesh v. Neha, which specifically enumerates earning capacity as a criterion and requires the Court to consider the educational and professional qualifications of the parties, whether the applicant is educated and professionally qualified, whether she was a stay-at-home mother or has been working, and whether she is capable of working and earning a salary. The Court further placed reliance on Rupali Gupta v. Rajat Gupta [2016 SCC OnLine Del 4118], observing that a well-qualified spouse cannot be permitted to remain a financial burden on the other when she has the capacity to sustain herself. The Court held that “the P.W.D.V. Act is a protectionist measure for the vulnerable, not a mechanism for a professional to withdraw from their social and financial responsibilities to become a ‘pensioner’ of the other spouse.”
On the validity of the quantum, the Court found that the award of ₹20,000/- per month suffered from what it termed a “double-ended failure” — the Magistrate had failed to account for the obligatory deductions and pre-existing liabilities from the husband’s income, and had simultaneously failed to set off the imputed income of a Specialist Doctor against her claim. Placing reliance on Kalyan Dey Chowdhury v. Rita Dey Chowdhury [(2017) 14 SCC 200], the Court held that the “rationality” of guesswork is tested by the transparency of the calculation and that the impugned order provided no reasoning for the figures awarded. The Court held that by proceeding on the flawed premise that the wife was a “destitute dependent” rather than an “empowered professional,” the Magistrate’s assessment had become arbitrary and unsustainable.
On the question of maintenance for the minor daughter, the Court firmly held that the child’s right to maintenance is an absolute and non-delegable obligation of the father, wholly independent of the mother’s professional standing or the procedural infirmities of the primary claim. Placing reliance on Jagdish Jugtawat v. Manjulata [(2002) 5 SCC 422] as reiterated in Rajnesh v. Neha, the Court held that the child is entitled to a standard of living commensurate with the socio-economic status of both parents — in the present case, a Mains Engineer and a Specialist Doctor. The Court emphasized that “a child should not be made a ‘litigational casualty’ in the professional crossfire between a husband and a wife” and that the duty to maintain the child is joint and several, but the primary burden on the father remains steadfast. The Court upheld the award of ₹8,000/- per month for the minor daughter as just, reasonable and commensurate with the socio-economic profile of the parties.
Disposing of the revisional application, the Court set aside the direction awarding ₹12,000/- per month to the wife and remanded the matter to the Learned Judicial Magistrate, Bangaon, for fresh consideration after both parties file their respective Affidavits of Assets and Liabilities in the format prescribed in Rajnesh v. Neha within two weeks of communication of the order. The Magistrate was directed to specifically adjudicate upon the wife’s earning capacity as a Specialist in Critical Care Medicine and to determine whether her current unemployment is an involuntary consequence of matrimonial cruelty or a strategic withdrawal from the workforce. The award of ₹8,000/- per month for the minor daughter was upheld and affirmed, with arrears directed to be cleared in four equal monthly installments commencing June 2026. Any amount already paid by the Petitioner toward the wife’s personal maintenance was directed to be kept in abeyance subject to adjustment against the final quantum to be determined upon remand. There was no order as to costs.
Jyotirmoy Biswas v. State of West Bengal & Anr. | CRR 3578 of 2022 | High Court at Calcutta | Justice Uday Kumar | Decided on May 5, 2026
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