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2014 DIGILAW 44 (HP)

Indu Rani v. Raj Kumar

2014-01-07

RAJIV SHARMA

body2014
Judgment : Per Rajiv Sharma, Judge This petition under Section 482 of the Criminal Procedure Code read with Section 227 of the Constitution of India has been filed seeking modification of the judgment dated 8.3.2013 rendered by learned Additional Sessions Judge-I, Kangra at Dharamshala in Criminal Appeal No.34-B/2007 and the order dated 3.10.2007 rendered by the learned Judicial Magistrate, 1st Class, Baijnath, District Kangra in Criminal Complaint No.35-III/2007. 2. “Key facts” necessary for the adjudication of this petition are that Indu Rani, petitioner, (hereinafter referred to as the “petitioner” for the sake of convenience) filed a complaint against Raj Kumar, respondent (hereinafter referred to as the “respondent”) under Sections 12, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “Act” in short) before the learned Judicial Magistrate, 1st Class, Baijnath, District Kangra. According to the averments contained in the complaint, the marriage between the parties was solemnized on 27.4.1990. Out of the wedlock, two children, namely, Deepika and Vijay were born. The petitioner was forced to move out of matrimonial house by the respondent in the year 2002. According to her, son is residing with her and daughter is residing with the respondent. The amount of maintenance, i.e. Rs.1000/- provided to her son is not sufficient. Her son is not keeping good health. She has to incur huge expenditure on his treatment. It is alleged in the complaint that earlier she used to run a shop at Ustehar. She out of her own earnings had constructed two rooms by the side of the road. However, she has been ousted from the rooms by the respondent. The shop was only source of livelihood to the petitioner. According to the petitioner, the respondent has kept another lady namely Rekha Bhardwaj. 3. The complaint was resisted by the respondent. The factum of marriage between the parties is admitted. According to the respondent, they lived together as husband and wife till 28.12.2001. The petitioner eloped with one Sarwan Kumar and started living with him in Delhi. On 31.12.2004 she was found in compromising position with Sarwan Kumar in tea garden. According to the respondent, the petitioner was living in adultery with Sarwan Kumar. He has denied the allegation that he has kept a lady with him. He was providing maintenance of Rs.1000/- per month each to the petitioner and her son. 4. On 31.12.2004 she was found in compromising position with Sarwan Kumar in tea garden. According to the respondent, the petitioner was living in adultery with Sarwan Kumar. He has denied the allegation that he has kept a lady with him. He was providing maintenance of Rs.1000/- per month each to the petitioner and her son. 4. Along with reply, the respondent also filed an application under Section 19(F) of the Act. According to the averments contained in this application, he had already given a house consisting of four rooms along with requisite articles to the petitioner in the presence of the Pradhan and Up-Pradhan of the area. Hence, the petitioner was not entitled for the house, as alleged. 5. The petitioner also filed reply to the application under Section 19 (F) of the Act. She admitted that the respondent had given four rooms to her in his ancestral house, but according to her, the same were old and unfit for human habitation. The property was under litigation. 6. Learned Judicial Magistrate, 1st Class directed the respondent to pay a sum of Rs.10,000/-as medical expenditure incurred by the petitioner and to provide some suitable rented accommodation, rent whereof shall be paid entirely by the respondent within one month from the date of the order, i.e. 3.10.2007. 7. The respondent feeling aggrieved by the order dated 3.10.2007 preferred an appeal under Section 29 of the Act before the learned Additional Sessions Judge-I, Kangra at Dharamshala. He dismissed the same on 8.3.2013. 8. Ms. Anjali Soni Verma, learned Advocate, has vehemently argued that both the courts below have erred in law by not permitting her client to stay in shared accommodation at Ustehar. She then contended that two rooms were constructed by her client from on her own income by running a shop at Ustehar. 9. Mr. Ajay Kumar, learned Senior Advocate, has argued that his client had already given possession of four rooms to the petitioner. He then contended that his client was ready and willing to provide suitable rented accommodation to the petitioner, as directed by both the courts below. 10. I have heard learned counsel for the parties and gone through the impugned orders and pleadings carefully. 11. The petitioner has not challenged the order dated 3.10.2007, whereby the respondent has been ordered to provide suitable rented accommodation to her. 10. I have heard learned counsel for the parties and gone through the impugned orders and pleadings carefully. 11. The petitioner has not challenged the order dated 3.10.2007, whereby the respondent has been ordered to provide suitable rented accommodation to her. It was the respondent who had filed the appeal before the learned Additional Sessions Judge-I, Kangra against the order dated 3.10.2007. In case the petitioner was aggrieved by the order dated 3.10.2007, she ought to have filed appropriate appeal before the learned Sessions Court. The appeal preferred by the respondent against the order dated 3.10.2007 has been dismissed by the learned Additional Sessions Judge-I on 8.3.2013. 12. The petitioner has not led any tangible evidence to establish on record that she was running a shop at Ustehar and from her own earnings, she had constructed two rooms. The respondent had already provided four rooms to the petitioner from his ancestral property. There is no evidence led by the petitioner that the rooms given to her were unfit for human habitation. There are only two rooms constructed at Ustehar. The respondent is living with her mother, brother and his daughter. He cannot be forced to part with this accommodation in favour of the petitioner. The petitioner is presently living with her parents. One Bhawani Prasad appeared during the proceedings. He has denied that Smt. Kamla Devi is not allowing the petitioner to live in the house. The only dispute is with regard to the correction of entries. The petitioner has also not led any evidence to show that she was running a shop at Ustehar. 13. There is merit in the contention of Mr. Ajay Kumar, learned Senior Advocate, that in case his client is forced to permit the petitioner to live in the shared accommodation, it will vitiate atmosphere of the house, taking into consideration the litigation going on between the parties. It has come on record that the respondent has also filed divorce petition against the petitioner. Petitioner has also made a complaint at Police Station Baijnath and Women’s Commission at Shimla. There is allegation of adulterous life being lived by the petitioner. The petitioner has left the matrimonial house in the year 2001 and the complaint under the Act has been filed on 12.9.2007. She has never complained about the accommodation already given to her by the respondent for six long years. There is allegation of adulterous life being lived by the petitioner. The petitioner has left the matrimonial house in the year 2001 and the complaint under the Act has been filed on 12.9.2007. She has never complained about the accommodation already given to her by the respondent for six long years. It is in these circumstances that the learned trial court has ordered the respondent to provide some suitable rented accommodation to the petitioner at Ustehar or in the vicinity. There is no perversity or any illegality in the impugned order dated 3.10.2007 rendered by the learned Judicial Magistrate, 1st Class, Baijnath, District Kangra in Criminal Complaint No.35-III/2007 and upheld by the learned Additional Sessions Judge-I, Kangra at Dharamshala in Criminal Appeal No.34-B/2007 vide judgment dated 8.3.2013. 14. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. The pending application(s), if any, also stands dismissed. No costs.