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2016 DIGILAW 256 (HP)

Vinod Kumar v. Shakuntala

2016-03-15

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J Respondent No.1 is the legally wedded wife of the petitioner. Respondent No.2 is the male child begotten out of the wedlock inter se the petitioner and respondent No.1. Respondent No.1 instituted a petition under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred in short as ?the Act of 2005?) before the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, Himachal Pradesh. The Court aforesaid on considering the evidence adduced before it held both respondent No.1 and 2 herein to stand entitled for the affording of monetary reliefs to them by the petitioner herein. Accordingly, maintenance in a sum of Rs.2000/- per mensem stood adjudged for its being defrayed by the petitioner to respondent No.1 herein besides a sum of Rs.1000/- per mensem stood assessed as maintenance for its being defrayed by the petitioner to respondent No.2 herein. 2. Earlier to the institution of the petition before the Court aforesaid under the aforesaid provisions of law, a petition constituted under Section 125 of the Code of Criminal Procedure (hereinafter referred in short as ?Cr.P.C.?) was laid before the learned Chief Judicial Magistrate, Kullu, Himachal Pradesh. Adjudication thereon stood rendered subsequent to the rendition of an adjudication on a petition under Section 12 of the Act of 2005. The learned Chief Judicial Magistrate, Kullu in pronouncing adjudication on a petition under Section 125 of the Cr.P.C., as stood laid before him discounted the factum of an earlier adjudication standing rendered by the Court of learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu, H.P. on a petition instituted under Section 12 of the Act of 2005, whereby the Court aforesaid awarded maintenance at the rate of Rs.1000/- per month to respondent No.1 besides awarded a sum of Rs.500/- per month as maintenance to respondent No.2 herein till his attaining majority. The liability to defray the sums aforesaid stood fastened upon the petitioner herein. A revision stood preferred therefrom by the petitioner before the learned Sessions Judge, Kullu, who rendered an adjudication in affirmation to the verdict of the learned Chief Judicial Magistrate, Kullu. 3. The liability to defray the sums aforesaid stood fastened upon the petitioner herein. A revision stood preferred therefrom by the petitioner before the learned Sessions Judge, Kullu, who rendered an adjudication in affirmation to the verdict of the learned Chief Judicial Magistrate, Kullu. 3. The petitioner herein stands aggrieved by the factum of the latter verdict rendered on an application preferred before him under Section 125 of the Cr.P.C., by the learned Chief Judicial Magistrate, Kullu, H.P., verdict whereof stood affirmation by the Court of learned Sessions Judge, Kullu, inasmuch as its wanting in jurisdictional force arising from the factum of an earlier pronouncement rendered by the learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu in a petition constituted before him under Section 12 of the Act of 2005 whereby maintenance in the quantums contained therein stood awarded in favour of the respondents herein, liability whereof for defraying the amounts of maintenance adjudged therein stood fastened upon the petitioner herein, enjoining reverence thereto by both the learned Chief Judicial Magistrate, Kullu and the learned Sessions Judge, Kullu whereas each Court discounting the factum of assessment of maintenance in favour of the respondents in a previous adjudication by the Court of the learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu on a petition laid before him under Section 12 of the Act of 2005 rather has sequelled a legally interdicted adjudication by two Courts upon a similar besides an analogous issue encompassed in two proceedings launched in two parallel Courts each enjoying jurisdictional competence to award the reliefs as claimed by the aggrieved from each. 4. The aforesaid contention addressed before this Court by the learned counsel appearing for the petitioner garners considerable force from a judgement of the Hon'ble Apex Court reported in a case titled as Sudeep Chaudhary versus Radha Chaudhary, AIR 1999 SC 536 , the relevant paragraph whereof stands extracted hereinafter:- “6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law.? 5. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law.? 5. The inference which stands evinced therefrom is of the monetary relief as stood afforded to the respondents herein by the Court of the learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu in a petition constituted before him under Section 12 of the Act of 2005 adjudication whereon was rendered prior to an adjudication by the learned Chief Judicial Magistrate, Kullu, on a petition constituted under Section 125 of the Cr.P.C. which latter adjudication stood affirmation by the learned Sessions Judge, Kullu, barred subsequent adjudications upon a petition under Section 125 of the Cr.P.C., also such adjudications by both Courts in affirmation to the relief ventilated therein by the respondents herein stood stripped off their jurisdictional vigour, especially for reiteration spurring from the factum of both the learned Chief Judicial Magistrate, Kullu besides the learned Sessions Judge, Kullu standing subsequently legally interdicted to award an analogous relief of maintenance to the respondents herein. Accentuatedly, significantly with the respondents herein standing afforded a similar relief in a previous adjudication by the learned Chief Judicial Magistrate, Lahual & Spiti at Kullu in a petition constituted before him under Section 12 of the Act of 2005 any relief similar to the one previously claimed by the aggrieved and afforded to them as stood claimed by the respondents herein in a separate petition launched under apposite provisions of a different statute empowering them to claim from the petitioner herein a relief vis-a-vis similar to the one ventilated in the previously adjudicated petition constituted under Section 12 of the Act of 2005, yet any empowerment vested in the respondents herein to claim any relief similar to the one previously claimed by the aggrieved and afforded to them under a right vested in them under a statute distinct from the one whereon a previous adjudication stood rendered, is not an indefeasible right vested in the respondents herein. Concomitantly, exercise of such a right would not per se nor ipso facto either vest in them any right for its affirmative redressal in concurrent affirmation under subsequent adjudications by Courts of competent jurisdiction nor vest jurisdiction in each of the two Courts wherein the respondents herein instituted a petition for similar reliefs under two statutes nor validate any subsequent exercise of jurisdiction in concurrent affirmation of the reliefs ventilated by the respondents by parallel Courts of competent jurisdiction especially when a previous adjudication in affirmation to the claim ventilated by the respondents herein stood pronounced by a Court of competent jurisdiction. Contrarily, only one of the two Courts wherein petitions for reliefs analogous to the one constituted in a petition laid before Courts enjoying parallel jurisdiction under distinct statutes to afford them, would stand vested with the jurisdiction to award monetary reliefs or reliefs of maintenance in favour of the respondents/aggrieved. Inferentially , any previous adjudication upon a petition for reliefs analogous to the one constituted in subsequently adjudicated petition by a criminal Court enjoying jurisdictional empowerment would oust the jurisdictional vigour of a parallel Court to subsequently award similar relief to the respondents herein especially when it stood previously awarded to them by a criminal Court of competent jurisdiction. In sequel with the respondents standing afforded monetary relief per mensem defrayable by the petitioner herein to them by the Court of learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu in exercise of jurisdiction in a petition under Section 12 of the Act of 2015 barred the subsequent exercise of jurisdiction by the Court of learned Chief Judicial Magistrate, Kullu in a petition laid before him under Section 125 of the Cr.P.C. besides barred the learned Sessions Judge, Kullu to render an adjudication in affirmation to the verdict of the former Court. In aftermath, the order rendered on 22.01.2013 by the learned Chief Judicial Magistrate, Kullu in a petition laid before him under Section 125 of the Cr.P.C., as also the order rendered on 7.6.2013 in affirmation to the verdict of the former Court by the learned Sessions Judge, Kullu in Criminal revision No.2 of 2013 preferred by the petitioner herein against the order of 22.1.2013 rendered by the learned Chief Judicial Magistrate, Kullu are quashed and set aside. 6. 6. The instant petition has also been preferred before this Court by the petitioner herein for quashing and setting aside the order of 11.11.2011 rendered by the learned Chief Judicial Magistrate, Lahual & Spiti in a petition bearing No. D.V. Act No. 47- 1/2011 constituted under Section 12 of the Act of 2005. However, the prayer for its being quashed and set aside cannot warrantedly stand afforded in favour of the petitioner herein for the reason that the invocation by the petitioner of the jurisdiction of this Court is grossly time barred hence rendering the petition not maintainable. 7. The learned Counsel appearing for the respondents herein has contended with force while relying upon a verdict of the Hon'ble Apex Cout reported in a case titled as Juveria Abdul Majid Patni versus Atif Iqbal Mansoori and another, (2014) 10 SCC 736 , the relevant paragraph whereof stands extracted hereinafter to marshal an inference from this Court of the awarding of reliefs by the Court of the learned Chief Judicial Magistrate, Kullu in a petition laid before him under Section 125, Cr.P.C. pronouncement whereof stood affirmation by the learned Sessions Judge, Kullu standing clothed with a protective cover encompassed under Section 26 of the Act of 2005. Relevant Paragraph 25 of the judgment referred above reads as under:- ?25. It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under the Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a civil court and Family Court, apart from the criminal court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the Domestic Violence Act. This apparent from Section 26 of the Domestic Violence Act, 2005 as quoted hereunder: ?26. Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Relief in other suits and legal proceedings.- (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.?? However, the aforesaid submission is legally frail as any reliance upon Section 26 of the Act of 2005 by the learned counsel for the respondents herein to claim validation of the orders of the learned Chief Judicial Magistrate, Kullu pronounced in a petition instituted before him under Section 125 of the Cr.P.C. by the respondents which verdict stood affirmation by the learned Sessions Judge, Kullu, arousable from the factum of Section 26 of the Act of 2005 empowering the Court of competent jurisdiction to proceed to grant reliefs comprised in Section 18, 19, 20, 21 and 22 of the Act of 2005 even in the face of similar or analogous relief thereto previously standing afforded in favour of the aggrieved, by Criminal Courts as were the courts which rather subsequently awarded maintenance per mensem in favour of the respondents herein, on an invocation by them of the provisions engrafted in Section 125 of the Cr.P.C., especially in the face of the import of the provisions aforesaid, is of theirs carrying weight only in the event of the petition constituted under Section 12 of the Act of 2005 standing subsequently adjudicated upon by the Court wherebefore it was laid. Whereas given the imminent fact of the petition under Section 12 of the Act of 2005 constituted before the competent Court of jurisdiction by the respondents herein standing adjudicated upon prior to an adjudication on a petition under Section 125 of the Cr.P.C. by the Criminal Courts of competent jurisdiction, renders the strength of the submission of the learned counsel for the respondents to stand dwindled and denuded of its vgour and accordingly, it stands rejected. 8. For the foregoing reasons, the instant petition is partly allowed and partly dismissed. Consequently, the order of 22.01.2013 rendered by the learned Chief Judicial Magistrate, Kullu in a petition bearing Cr.M.A. No. 48-IV of 2011 constituted under Section 125 of the Cr.P.C., as also, the order of 7.6.2013 rendered by learned Sessions Judge Kullu in Cr. Revision No. 2 of 2013 in affirmation to the verdict of the trial Court are quashed and set aside. However, the order of 11.11.2011 rendered by the learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu, H.P. in a petition bearing No. D.V. Act No.47-1/2011 constituted under Section 12 of the Act of 2005 stands affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.