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2013 DIGILAW 716 (HP)

MOHINDER v. RUCHI

2013-08-06

A.M.KHANWILKAR

body2013
JUDGEMENT A.M.KHANWILKAR, J. - 1. HEARD counsel for the parties. 2. THIS petition takes exception to the concurrent view taken by two Courts below. The respondent had filed application before the Chief Judicial Magistrate, Kullu, under Section 12 of the Protection of Women from Domestic Violence Act. The trial Court allowed the said application and passed the following final order: "14. In view of my findings and reasons given while deciding points No.1 and 2 above, the present petition is allowed and the respondents are restrained from committing domestic violence against the aggrieved person. The respondent No.1 is also directed to pay monthly maintenance at the rate of Rs.2,500/- (' Two thousand and five hundred only) to the aggrieved person per month and Rs. 1,500/- (one thousand and five hundred only) to the minor daughter per month from the date of filing of the application. A copy of this order be supplied to the complainant and the respondents free of costs. A copy of this order be also sent to the SHOs. PS, Bilaspur, Kullu and the Protection Officer. File, after due completion, be consigned to the Record Room." . Against this decision, the petitioner carried the matter in appeal before the Sessions Judge, Kullu, who, in turn, confirmed the decision of the trial Court and dismissed the appeal preferred by the petitioner. Both the Courts below have concurrently found, after appreciation of evidence on record, that the petitioner had caused cruelty and violence to the respondent-wife. She had to stay away from the petitioner under compelling circumstances since 2010, in less than three years time from the date of marriage. It is not open to this Court to re-appreciate the evidence to take a view different than the one taken by the two Courts below. 3. THE argument of the petitioner is that the petitioner was not given sufficient opportunity and, in fact, his evidence was not recorded, though he was present in Court. This argument deserves to be stated to be rejected, inasmuch as the order-sheet dated 30th August, 2011, records that the petitioner did not remain present in Court, despite three opportunities given to him. As a result, the Court had no other option but to close his evidence and proceed with the arguments. There is no reason to doubt the correctness of the said factual position stated in the order-sheet. As a result, the Court had no other option but to close his evidence and proceed with the arguments. There is no reason to doubt the correctness of the said factual position stated in the order-sheet. In other words, it is not possible to countenance the grievance of the petitioner that he was not given sufficient opportunity. It is unfathomable that if the petitioner was present in the Court, he would permit the Court to record the fact that he was not present, as is noted in the order, dated 30th August, 2011. Thus understood, the argument of the petitioner that the Court ignored the presence of the petitioner while he was in Court and proceeded to close the evidence cannot be countenanced. . 4. THE next argument of the petitioner is that the income of the petitioner, as stated in his reply filed to oppose the application of the respondent, was only around Rs.3,500/- per month and for that reason, the maintenance amount ordered to be paid is excessive and unreasonable. Even this grievance of the petitioner has been examined by the two Courts below. Both the Courts below have analyzed the evidence on record and have held that the petitioner is an able bodied person and owns a car. He has admitted that he is employed in a factory and his income is Rs.3,500/- per month. The respondent-wife, however, has proved on record that the petitioner was running a Dhaba and was engaged in the business of finance. Considering all aspects of the matter, the two Courts below have determined the maintenance amount to be paid by the petitioner to the respondent-wife at the rate of Rs.2,500/- per month and Rs.1,500/- per month for the minor daughter. No interference is warranted with the said discretionary order, which is founded on tangible material and evidence on record. 5. THE argument of the petitioner that except the bare words of the respondent that the petitioner owns a car, there is no other substantive evidence in that behalf, also deserves to be rejected because the petitioner did not avail of the opportunity given to him to enter the witness box to counter the case made out by the respondent. The petitioner, obviously, avoided to enter the witness box for the reasons best known to him. 6. The petitioner, obviously, avoided to enter the witness box for the reasons best known to him. 6. TAKING overall view of the matter, the petition is dismissed with costs quantified at Rs.5,000/-, to be paid to the respondent within two weeks from today. Pending applications, if any, also stand dismissed.