The Calcutta High Court has set aside an ad-interim maintenance order directing a husband to pay ₹12,000 per month to his wife, a specialist in Critical Care Medicine. Justice Uday Kumar, while exercising jurisdiction under Section 482 of the Code of Criminal Procedure (Cr.P.C.), observed that the “earning capacity” of a highly qualified professional must be scrutinized to prevent the misuse of social justice legislation for “professional parasitism.” However, the Court upheld the maintenance of ₹8,000 per month for the couple’s minor daughter, emphasizing that a child’s right to sustenance is independent of parental disputes.
Background of the Case
The petitioner, a Mains Engineer at the Calcutta Electric Supply Corporation (CESC), married the Opposite Party No. 2 (Wife) on March 19, 2014. The wife is an MBBS, DNB specialist in Critical Care Medicine and has served as a Senior Registrar at prestigious hospitals like Woodlands and R.N. Tagore. Following marital discord and their separation in March 2021, the wife initiated proceedings under the Protection of Women from Domestic Violence (P.W.D.V.) Act, 2005.
On June 1, 2022, the Learned Judicial Magistrate at Bangaon passed an ex-parte ad-interim order directing the husband to pay ₹12,000 to the wife and ₹8,000 for their minor daughter. The petitioner challenged this order, alleging procedural irregularities and material suppression of the wife’s professional standing and income potential.
Arguments of the Parties
For the Petitioner (Husband): Learned Counsel Mr. Pritam Choudhury argued that the impugned order was a “procedural nullity” as it was passed on the same day the Domestic Incident Report (DIR) was filed, bypassing the mandatory requirement of exchanging Affidavits of Assets and Liabilities as established in Rajnesh v. Neha. He further contended that the wife, being a highly specialized doctor, cannot be categorized as “unable to maintain herself.” He characterized her portrayal as “unemployed and destitute” as a calculated deception and argued that the P.W.D.V. Act should not be used as a tool for “financial leverage.”
For the Opposite Party No. 2 (Wife): Learned Counsel Mr. Shibaji Kumar Das contended that the Revision was a “jurisdictional misadventure” designed to bypass the statutory appellate remedy under Section 29 of the P.W.D.V. Act. He argued that the wife’s professional degrees do not mitigate her “actual unemployment,” asserting she was compelled to leave her practice due to torture and childcare responsibilities. He defended the Magistrate’s order as a necessary measure to provide “financial oxygen” to prevent the starvation of the mother and child.
Court’s Analysis and Observations
The Court framed several points for determination, focusing on maintainability, procedural propriety, and the “earning capacity” doctrine.
1. On Maintainability and Procedural Lapses: The Court held that the availability of a statutory appeal does not bar the High Court’s inherent powers when there is a patent procedural illegality. Citing Prabhu Chawla v. State of Rajasthan, the Court noted that the Magistrate’s failure to follow the mandatory “disclosure regime” in Rajnesh v. Neha rendered the order “procedurally fragile.”
The Court observed:
“An ad-interim maintenance order passed in manifest defiance of the mandatory disclosure regime established in Rajnesh v. Neha is not merely an error of discretion, but a jurisdictional perversity.”
2. On ‘Earning Capacity’ and Specialized Professionals: The Court scrutinized the wife’s claim of being “unable to maintain herself.” It noted that she suppressed her specialized status (DNB) and previous lucrative roles. Referring to Mamta Mamgain v. Pawan Kumar, the Court remarked:
“The law does not permit the beneficial umbrella of the P.W.D.V. Act to be utilized as a subsidy for voluntary professional inertia or to facilitate ‘professional parasitism’ by those possessing specialized, high-demand skills.”
The Court further held that “Earning Capacity” is a mandatory material consideration even at the ad-interim stage. It noted that the medical profession, especially Critical Care, does not suffer from typical market volatilities, and the wife’s total withdrawal raised doubts regarding the bona fides of her claim.
3. On the Welfare of the Minor Child: The Court drew a sharp distinction between the wife’s claim and the child’s right. Citing the principle of Parens Patriae, Justice Kumar stated that the maintenance of a child is an “absolute and non-delegable obligation of the father.” The Court found the amount of ₹8,000 per month for the two-year-old child to be “just, reasonable, and commensurate” with the status of an Engineer-Doctor couple.
The Decision
The High Court disposed of the Revisional Application with the following directions:
- The order awarding ₹12,000 per month to the wife was set aside and the matter was remanded to the Trial Court for de novo consideration.
- The Magistrate was directed to ensure both parties file Affidavits of Assets and Liabilities as per Rajnesh v. Neha.
- The Magistrate must specifically adjudicate whether the wife’s unemployment is an “involuntary consequence of matrimonial cruelty or a strategic withdrawal… to maximize maintenance claims.”
- The award of ₹8,000 per month for the minor daughter was upheld, and the petitioner was directed to liquidate any arrears in four installments starting June 2026.
- Any amount already paid toward the wife’s maintenance will be subject to adjustment against the final determination.
Case Details:
- Case Title: Jyotirmoy Biswas vs. State of West Bengal & Anr.
- Case No.: CRR 3578 OF 2022
- Bench: Justice Uday Kumar
- Date: May 5, 2026
