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2008 DIGILAW 1549 (PNJ)

Suresh v. Jaibir

2008-09-09

MOHINDER PAL

body2008
JUDGMENT Mohinder Pal, J.:- The marriage of petitionr Smt. Suresh with respondent Jaibir was solemnized on 18.6.1991. Earlier to her marriage with Jaibir, the petitioner was married to Sukhbir, who was real uncle of Jaibir and expired on 17.6.1991. Four issues were born out of the wedlock of the petitioner with the respondent. However, the marriage between the parties was not successful. The petitioner filed a petition under Section 13 of the Hindu Marriage Act, 1955 seeking divorce from the respondent. The respondent filed reply in that petition and levelled allegations against the character of his wife. He doubted the parentage of the child delivered by the petitioner at her parent's house after her ouster from the matrimonial house. Ultimately, the divorce petition was dismissed. When the respondent refused to keep and maintain the petitioner with him, she moved an application under Sections 12, 18, 19 and 20 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’). In support of her application, the petitioner filed an affidavit. 2. In the reply filed by the respondent, he admitted the factum of his marriage with the petitioner and the birth of three children from their wedlock. However, he denied the parentage of the fourth child delivered by the petitioner. He further pleaded that two children, aged about 13 years and 11 years, were residing with him and he was bearing their expenses of education and maintenance. He further pleaded that his marriage with the petitioner was under the social pressure and that she was a lady of bad character. 3. During the pendency of the above application filed under the Act by the petitioner, the trial Magistrate fixed interim monthly maintenance of Rs.1500/- of the petitioner to be paid by the respondent from the date of application till its disposal vide order dated 28.4.2007. 4. The respondent went in appeal against the order dated 28.4.2007, which was accepted by the learned Sessions Judge, Jhajjar vide order dated 28.3.2008 and the order granting interim maintenance @ Rs.1500/- per month to the petitioner was withdrawn. 5. I have heard the learned counsel for the parties and have perused the records. 6. 4. The respondent went in appeal against the order dated 28.4.2007, which was accepted by the learned Sessions Judge, Jhajjar vide order dated 28.3.2008 and the order granting interim maintenance @ Rs.1500/- per month to the petitioner was withdrawn. 5. I have heard the learned counsel for the parties and have perused the records. 6. Learned counsel for the petitioner has placed reliance on the provisions of Section 20 (1) (d) of the Act, which provides in no uncertain terms that while disposing of an application under sub-section (1) of Section 12 of the Act, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and loses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to the maintenance for the aggrieved person as well as her children, if any including an order under or in addition to an order to maintenance under Section 125 of the Code of Criminal Procedure or any other law for the time being in force. Section 23 (1) of the Act further empowers the trial Magistrate to pass such interim order as he deems just and proper. Section 23 (2) of the Act further provides that if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20 and 21 or, as the case may be, Section 22 against the respondent. 7. A perusal of the aforesaid provisions of Sections 20 (1) (d) combined with provisions as contained in Section 23 (1) and 23 (2) of the Act makes it abundantly clear that the Magistrate is not only empowered to grant monetarily relief while finally disposing of an application under sub-section (1) of Section 12 of the Act, but empowered to grant maintenance to the aggrieved person as an interim arrangement during the pendency of the application by way of passing an interim order. As such, the learned Sessions Judge, while setting aside the order passed by the learned trial Magistrate, did not properly appreciate the provisions of Sections 20 and 23 of the Act, as discussed above. For the aforesaid reasons, this revision petition is allowed, the order passed by the learned Sessions Judge is set aside and that of the learned trial Magistrate is restored. ----------------