Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 574 (RAJ)

Mohan Lal v. Smt. Nauratan Devi @ Naurati Devi

2013-03-18

NARENDRA KUMAR JAIN II

body2013
JUDGMENT 1. - Heard learned counsel for the petitioner, learned counsel for respondent Nos. 1, 2 and 4 as well as learned Public Prosecutor appearing on behalf of respondent No. 3-State. 2. This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the judgment and order dated 9.6.2009 passed by Additional Sessions judge (Fast Track) No. 3, Ajmer Camp Kishangarh (hereinafter referred to as 'the appellate Court') in Criminal Appeals No. 33/2009 (66/2008) and 34/2009 (67/2008), whereby the appellate Court has dismissed Appeal No. 34/2009 (67/2008) filed by the petitioner-husband and partly allowed Appeal No. 33/2009 (66/2008) filed by respondents No. 1-wife and 2-daughter, modifying the order dated 10.11.2008 passed by Additional Chief Judicial Magistrate, Kishangarh (hereinafter referred to as 'the trial Court) in Criminal Misc. Case No. 104/2008, granting interim maintenance of Rs. 2,500/- per month to Respondent No. 1-wife and Rs. 1,000/- per month to respondent No. 2-daughter by the trial Court and the appellate Court has directed the petitioner to pay interim maintenance of Rs. 5,000/- per month to respondent No. 1-wife; Rs. 3,000/- per month to respondent No. 2-daughter Manisha and Rs. 2,000/- per month to respondent No. 4-son Sushil. 3. The concise facts of the case are that respondents No. 1 and 2 filed a complaint under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act of 2005) against the petitioner and five others. It was averred in the complaint that the petitioner is husband of respondent No. 1 and father of respondent No. 2 and there are four children of the petitioner and respondent No. 1. It was mainly averred in the complaint that the petitioner along with five others used to cause domestic violence and they are not paying anything for the maintenance of respondents No. 1 and 2, the petitioner is working in Railways at Delhi and the respondent No. 1 is living at Kishangarh with her children; the petitioner is not providing any amount on account of maintenance to them due to which, they are facing grave difficulties. Respondents No. 1 and 2 prayed in the complaint along with other relieves that the petitioner may be directed to pay some amount towards maintenance to respondents No. 1 and 2. 4. Respondents No. 1 and 2 prayed in the complaint along with other relieves that the petitioner may be directed to pay some amount towards maintenance to respondents No. 1 and 2. 4. The petitioner filed reply to the complaint before the trial Court denying the averments made by respondents No. 1 and 2 in the complaint. It was averred in the reply that respondent No. 1-wife had not discharged her duties as wife and she used to quarrel and disrespect the elders; the house in which respondent No. 1 is living is not of her father, but the same belongs to the petitioner himself. It was contended that the petitioner is a low paid employ and earning Rs. 5,000/- to Rs. 8,000/- per month and he spent this amount on himself, his old aged father and his elder son Mukesh and his wife. It was also contended in the reply by the petitioner that he is ready to keep respondents No. 1 and 2 with him, but they are not ready to live with the petitioner In these circumstances, the petitioner prayed that the complaint filed by respondents No. 1 and 2 may be dismissed. 5. Learned trial Court after hearing arguments of the parties, vide order dated 19.11.2008 allowed the prayer for interim maintenance and directed the petitioner to pay the interim maintenance as mentioned herein-above. Being aggrieved with the order passed by the learned trial Court, the petitioner as well as respondents No. 1 and 2 preferred appeals under Section 29 of the Act before the learned appellate Court. Learned appellate Court after considering the arguments of the parties, vide judgment and order dated 9.6.2009, dismissed the appeal filed by the petitioner and partly allowed the appeal filed by respondents No. 1 and 2 and modified the order dated 19.11.2008 passed by the learned trial Court in terms as indicated herein-above. Feeling aggrieved with the judgment and order dated 9.6.2009 passed by the learned appellate Court and the order dated 19.11.2008 passed by the learned trial Court, the petitioner has preferred instant revision petition. 6. Learned counsel for the petitioner submitted that the learned trial Court has passed the impugned order dated 19.11.2008 without taking into consideration the reply filed by the petitioner before it. Learned appellate Court has also not considered the reply filed by the petitioner before the learned trial Court. 6. Learned counsel for the petitioner submitted that the learned trial Court has passed the impugned order dated 19.11.2008 without taking into consideration the reply filed by the petitioner before it. Learned appellate Court has also not considered the reply filed by the petitioner before the learned trial Court. It is further submitted that both the Courts below erred in not taking into consideration the actual pay of the petitioner which he was getting from the railways and passed the impugned orders, which are liable to be quashed and set aside. Learned counsel for the petitioner further submitted that learned appellate Court has modified the order passed by the trial Court without any cogent reason and material on record. The trial Court had passed the impugned order dated 19.11.2008 on the basis of the material and the evidence available on record, but the learned appellate Court has modified the said order without any basis. 7. Learned counsel for the petitioner further submitted that the learned appellate Court has not taken into consideration the fact that the petitioner's son namely Sushil is a major person, who himself earns his livelihood and wrongly directed to pay Rs. 2,000/- per month to him. Sushil was not a party in the complaint as well as in the appeals and learned appellate Court has exercised the appellate jurisdiction against the provisions of law, therefore, the orders passed by both the Courts below are liable to quashed and set aside. It is further contended that maintenance which has been awarded by the learned appellate Court is excessive, because the petitioner is not getting much amount of salary. Learned appellate Court has passed impugned order dated 9.6.2009 without ascertaining actual salary of the petitioner. Learned counsel for the petitioner argued that the learned appellate Court, by modifying the order passed by the trial Court, has exceeded its jurisdiction. Learned counsel for the petitioner, therefore, prayed that the judgment and orders passed by both the Courts below are liable to quashed and set aside by this Court. 8. Per contra, learned Public Prosecutor appearing on behalf of respondent No. 3-State and learned counsel appearing on behalf of respondents No. 1, 2 and 4 have supported the impugned orders passed by both the Courts below. 8. Per contra, learned Public Prosecutor appearing on behalf of respondent No. 3-State and learned counsel appearing on behalf of respondents No. 1, 2 and 4 have supported the impugned orders passed by both the Courts below. Learned counsel for respondents No. 1, 2 and 4 submitted that so far as grant of interim maintenance to son of the petitioner namely Suresh is concerned, the respondents are ready to fore go the amount of maintenance awarded to Sushil by the learned appellate Court. He further submitted that learned appellate Court has rightly exercised its jurisdiction by modifying the order passed by the learned trial Court and the orders passed by both the Courts below are legal, valid and proper. 9. Having considered the submissions advanced by learned counsel for the parties and perused the material placed on record, I am of the considered opinion that the learned trial Court was absolutely right in passing the order dated 19.11.2008 and the learned appellate Court should not have interfered in that order by modifying the same, as it was only an interlocutory/interim order, which will merge into the final order. Respondent No. 4, Sushil was not a party before the learned trial Court as well as before learned appellate Court, despite that, the learned appellate Court has awarded maintenance in his favour, which cannot be allowed to be sustained and the judgment and order dated 9.6.2009 passed by learned appellate Court deserves to be set aside. 10. Resultantly, the revision petition is disposed of. Judgment and order dated 9.6.2009 passed by Additional Sessions Judge (Fast Track) No. 3, Ajmer Camp Kishangarh is quashed and set aside and the order dated 19.11.2008 passed by Additional Chief Judicial Magistrate, Kishangarh is affirmed. 11. Stay application also stands disposed of.Revision disposed of. *******