Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1910 (RAJ)

Kishore Chugh v. State of Rajasthan

2012-09-07

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT : Prashant Kumar Agarwal, J. Heard learned counsel for the parties. 2. These two criminal revision petitions have been preferred against the common order dated 30.05.2012 passed by the Appellate Court and therefore with the consent of learned counsel for the parties they were heard together and are being disposed of by this common order. 3. The revision petition No.809/2012 has been preferred by the husband whereas the another revision petition No.712/2012 has been filed by the wife. 4. The brief relevant facts for the disposal of these revision petitions are that wife Smt. Renu filed an application/complaint under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as "the Act") claiming various reliefs under the provisions of the Act, which was registered as Complaint Case No.3/2011 by the trial Court and notice was issued to the husband by way of registered post and ex-parte proceedings were initiated against him on 10.3.2011 on the premise that he has failed to appear despite due service of notice upon him. In support of her case, the wife produced oral as well as documentary evidence and vide order dated 09.08.2011, the Magistrate awarded Rs. 5,000/- per month as maintenance to her from the date of the order. Dissatisfied with the amount of maintenance awarded by the Magistrate, the wife filed Appeal No.142/2011 whereas the husband filed Appeal No.32/2012 challenging the order dated 19.08.2011 before the Appellate Court under Section 29 of the Act. The learned Appellate Court partly allowed the appeal filed by the wife and enhanced the maintenance amount to the extent of Rs. 10,000/- per month whereas the appeal filed by the husband was dismissed by finding it time barred. Still dissatisfied, both the parties are before this Court by way of these revision petitions whereas the prayer of the husband is that opportunity of hearing may be afforded to him to disprove the claim made by the wife. The wife has prayed that the amount of maintenance may further be enhanced to the extent of Rs. 15,000/- per month. 5. The wife has prayed that the amount of maintenance may further be enhanced to the extent of Rs. 15,000/- per month. 5. It is pertinent to note that alongwith the appeal the husband filed application under Section 5 of the Limitation Act for condoning the delay with the averment that on 10.12.2011 for the first time it came into his knowledge that his wife has obtained an ex-parte order in her favour and she has also filed appeal and he has already appeared in the appeal filed by the wife on 13.12.2011, but thereafter he fell ill and could not file his appeal before 17.03.2012. The Appellate Court found that even if for the sake of arguments it is admitted that the order passed by the Magistrate came into the knowledge of husband for the first time on 10.12.2011 even than no sufficient cause has been shown by him why the appeal could not be filed within a period of one month from the date of knowledge. It was also observed by the Appellate Court that day to day delay has to be explained but in the present case the husband has failed to do so. So far as the appeal filed by the wife is concerned, it was found by the Appellate Court that in the facts and circumstances of the case and more particularly looking to the fact that the daughter of the parties is also residing with her mother and she is looking after her the amount awarded by the Magistrate cannot be said to be sufficient more particularly in absence of evidence that the wife has independent income of herself. 6. On consideration of submissions made on behalf of the respective parties and the orders impugned before me and the relevant legal provisions, I am of the considered view that in the facts and circumstances of the opportunity of hearing is required to be granted to the husband to contest the claim made by the wife, but at the same time some conditions are to be imposed upon him with regard to payment/deposit of arrears of maintenance as well as month to month maintenance and the costs. It is an admitted position that the husband was not personally served and presumption of service was raised by the Court on the premise that the notice sent to him by way of registered post has not been received back. During the course of appeal as well as this petition, the husband has claimed that he has not been duly served and no notice was received by him. Although, despite knowledge of order passed by the Magistrate being come to his knowledge on 10.12.2011 and appearance being made by him in the appeal filed by the wife on 13.12.2011, no immediate steps were taken by the husband to file appeal challenging the order passed by the Magistrate, but at the same time it cannot be said that undue delay was made by him to file appeal on his behalf. I am of the view that when appeal filed by the wife was considered on merit by the Appellate Court and husband was also heard, the Appellate Court instead of dismissing the appeal filed by him as time barred should have considered it on merit. Otherwise also, the husband was entitled to submit in the appeal filed by the wife that no amount can be awarded to her as maintenance. 7. Consequently, the revision petition No. 809/2012 filed by the petitioner-husband is allowed and the order dated 30.05.2012 passed by the Additional District & Sessions Judge (Fast Track) No.4, Jaipur Metropolitan, Jaipur and the order dated 09.08.2011 passed by Additional Civil Judge (Junior Division) & Metropolitan Magistrate No.1, Jaipur Metropolitan, Jaipur are set aside whereas the revision petition No. 712/2012 is dismissed at this stage of the proceedings with the condition that an amount Rs. 50,000/- will be deposited by the petitioner-husband in the trial Court as security on or before the date to be fixed by this Court for the appearance of the parties before the trial Court and an amount of Rs. 10,000/- will also be paid by the petitioner as costs to wife Renu Kathuria within a period of seven days from today. It is further ordered that during the period in which the matter remains pending before the trial Court the petitioner will deposit Rs. 5,000/- per month upto 10th of each succeeding month in the trial Court. 10,000/- will also be paid by the petitioner as costs to wife Renu Kathuria within a period of seven days from today. It is further ordered that during the period in which the matter remains pending before the trial Court the petitioner will deposit Rs. 5,000/- per month upto 10th of each succeeding month in the trial Court. The Court is directed to restore the complaint filed by the wife to its original number and to proceed further from the stage of appearance of the petitioner-husband before it and to decide the same afresh in accordance with law without being influenced in any manner by its previous order as well as the orders passed by the Appellate Court. It is made clear that if the petitioner-husband fails to comply the order of deposit/payment of the aforesaid amounts within the period granted by this Court, this order will stand automatically cancelled and the revision petition filed by the petitioner-husband shall stand dismissed whereas the revision petition filed by the wife will stand automatically readmitted to its original number and the same will be considered on merit. It is also made clear that the amount so deposited by the petitioner-husband in the trial Court in compliance of this order will not be paid/disbursed to any party during the pendency of the complaint and payment/disbursement/set off of the same will be made by the trial Court in accordance with the order passed on the complaint. Parties are directed to appear before the trial Court on 10.10.2012. Copy of the order may be sent immediately.