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2012 DIGILAW 2293 (RAJ)

Rakesh v. State of Rajasthan

2012-12-12

NISHA GUPTA

body2012
JUDGMENT 1. - These two revision petitions have been filed by the petitioners, one is Rakesh husband and other is Smt. Usha-wife against the order of maintenance passed under Section 23 of the Protection of Women From Domestic Violence Act, 2005( for short "the Act of 2005") and an amount of Rs. 2500/- per month has been allowed as maintenance to the wife. 2. The contention of the husband-petitioner is that the order of the court below and the revisional court are perverse. There is no evidence as to committing of domestic violence by the present petitioner. The present petitioner is ready to keep his wife and an application under Section 9 of the Hindu Marriage Act has also been submitted by the present petitioner. The present petitioner-husband is unemployed and unable to pay monthly maintenance, whereas his wife Smt. Usha is M.A. In English Literature and also having degree of Ph.D. In Human Rights. She can maintain herself. Hence the order of the revisional court should be quashed. 3. Per contra, the contention of the wife petitioner is that a meagre amount has been awarded as maintenance and the court below has not considered that the cost of living is reaching sky height and some documents showing the income of the husband has also been placed on record before this Court. 4. Heard learned counsel for the parties and perused the material available on record. 5. The contention of the husband-petitioner is that there is no evidence that he has committed any domestic violence. Admittedly, the maintenance allowance has been granted under the provisions of Section 23 of the Act of 2005 which clearly suggests that if the Magistrate is satisfied that an application prima facie discloses that an act of domestic violence has been committed, on the basis of affidavit order under Section 23 of the Act of 2005 can be passed. In the case in hand, the wife has clearly disclosed that domestic violence has been committed and the application supported by affidavit has been filed to this effect. In the case in hand, the wife has clearly disclosed that domestic violence has been committed and the application supported by affidavit has been filed to this effect. The contention of the present petitioner-husband is that his written submission has not been taken into consideration but the provisions of Section 23 of the Act of 2005 are clear and unambiguous that only after considering the application and the affidavit of the aggrieved persons, an order could be passed under Section 23 of the Act of 2005 and when the application of the wife-petitioner discloses the commission of the domestic violence supported by an affidavit, the court below has rightly entertained the application under Section 23 of the Act of 2005 and further the contention of the petitioner-wife is that FIR has been lodged against the husband for the offences under Section 498A and 406 IPC and he has been charge-sheeted, which is a further evidence that the wife has been aggrieved with the commission of the domestic violence. Hence the contention of the husband that no domestic violence has been committed is unsustainable. 6. Further more, it ha been asserted by the husband that he is unemployed and unable to pay maintenance. Per contra, the contention of the wife is that he is in the employment of newspaper Dainik Bhaskar and also the owner of Marludhar Construction Company and looking to the status of the wife, appropriate maintenance should be allowed.The learned revisional court has considered the facts that the status of the wife is above middle class and taking note of the provisions of Section 20(2) of the Act of 2005, looking to the standard of living of the wife, the maintenance allowance has been awarded. The wife has also drawn the attention of the court towards the reply by the husband to the petition under Section 125, Cr.P.C. in which he has admitted the fact that he is correspondents in Dainik Bhaskar news-paper and he has asserted that he owns the Marudhar Construction Company but at present the company is not working. Hence taking note of the rival contentions, the revisional court has rightly awarded the maintenance allowance.The other contention of the wife is that meagre amount has been awarded but the revisional court has considered the economic status of the parties and a fair and reasonable compensation has been awarded. Hence taking note of the rival contentions, the revisional court has rightly awarded the maintenance allowance.The other contention of the wife is that meagre amount has been awarded but the revisional court has considered the economic status of the parties and a fair and reasonable compensation has been awarded. Some documents stating the income of the husband have been placed before this Court which were, admittedly, were not before the courts below. Since the application under Section 12 of the Act of 2005 is pending before the court below and the present petitioner-wife can agitate the fact regarding the income of the husband before the court below. The petitioner-wife has also relied upon Sukrit Verma and anr. v. The State of Rajasthan and anr. ( 2011 (2) WLN 624 (Raj.) where the facts of the case were quite different. 7. The revisional court has passed a reasoned order taking note of the rival contentions of the parties and the income of the husband as well as the status of the wife and there is no infirmity or perversity in the impugned order, hence both the revision petitions are liable to be dismissed. 8. In view of the above, both the revision petition are hereby dismissed. The stay petition also stands dismissed accordingly.Revision dismissed. *******