Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1019 (HP)

Ashwani Kumar v. Sunita Kumari

2017-09-04

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present petition under Section 482 of the Code of Criminal Procedure (for short ‘Code’) has been preferred by the petitioner for quashing and setting aside the impugned orders dated 10.6.2015/15.7.2015, passed by the learned Additional District Judge-II, Solan, District Solan, (H.P) in Case No.14-ADJ-II/3 of 2015, as well as order dated 7.10.2016, passed by the learned Judicial Magistrate 1st Class, Court No.4, Shimla, District Shimla, in Case No.450-3 of 2015. 2. Brief facts giving rise to the present petition are that petitioner and the respondent herein, are husband and wife. The marriage between the petitioner and respondent was solemnized on 7.10.2003, in accordance with the Hindu rites and local customs at Ram Mandir, Shimla. As per the petitioner, after the marriage, both the parties resided together and cohabited at village Bhag, Post Office Summer Hill, Boileauganj, District Shimla, as husband and wife. Out of the said wedlock, one male child, namely, Yatish was born, who is under the care and custody of the respondent. The respondent is having always cruel nature against the petitioner. The respondent with the support of her mother, namely, Munni Devi, step-mother as well as their relatives has created problem after the child was born. On 15.4.2008, the mother and step-mother of the respondent came to the house of the petitioner and resided there. The mother of the respondent has also advised the respondent to live with the respondent happily by stating that it is your house. The petitioner is not able to enjoy his life with the respondent due to her cruel nature, she quarrel and misbehave and started abusing the petitioner in the presence of friends and relatives. The respondent has never joined the company of the petitioner and the petitioner is providing maintenance to the respondent and his son, namely, Yatish, who is studying in Dayanand Public School near Kali Bari Temple, Shimla. All the expenses on account of caring of the child and also maintaining the respondent is paid by the petitioner and he is paying approximately Rs.10,000/- to Rs.15,000/- per month. The respondent is living with her mother, namely, Munni Devi at village Khalogra, Post Office Kumarhatti, Tehsil and District Solan and enjoying her life in her parental house. The petitioner is not able to enjoy his married life since 2008 with the respondent due to the cruelty and unreasonable quarrel. The respondent is living with her mother, namely, Munni Devi at village Khalogra, Post Office Kumarhatti, Tehsil and District Solan and enjoying her life in her parental house. The petitioner is not able to enjoy his married life since 2008 with the respondent due to the cruelty and unreasonable quarrel. Due to ill-behaviour of the respondent, the petitioner is not able to adjust with the respondent, since the respondent has deserted the petitioner and also subjected him to cruelty and adultery, therefore, compelled with the circumstances created by the respondent, the petitioner has left with no other option, but to file an application under Section 13 (a) (i-a) (i-b) of the Hindu Marriage Act, for dissolution of marriage. The said application was listed before the learned Additional District Judge-II, Solan and vide order, dated 10.6.2015/15.7.2015, directed the petitioner to pay maintenance amount of Rs.15,000/- per month in favour of the respondent. After the impugned order passed by the learned Court, the respondent in order to unnecessary harass the petitioner filed an application under the Domestic Violence Act, against the petitioner. The said application was listed before the learned Court below and granted maintenance amount of Rs.5000/- per month in favour of the respondent from the date of filing of the application. Hence, the petition against the order of learned Court below under the provisions of Domestic Violence Act. 3. Learned counsel appearing on behalf of the petitioner has argued that the maintenance amount awarded by the learned Court below is too much on the higher side, as the learned Court below has not taken into consideration the fact that the earlier maintenance amount of Rs.15,000/- is being paid, as per the orders of learned Additional District Judge-II, Solan, in the petition for dissolution of marriage, as maintenance pendente lite and Rs.25,000/- as litigation expenses. 4. On the other hand, Mr. Ramakant Sharma, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that the present petition under Section 482 of the Code of Criminal Procedure, is not maintainable, as the petitioner has a remedy to maintain the revision petition before the learned lower Appellate Court, if he is aggrieved by the order of learned Court below. Ramakant Sharma, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that the present petition under Section 482 of the Code of Criminal Procedure, is not maintainable, as the petitioner has a remedy to maintain the revision petition before the learned lower Appellate Court, if he is aggrieved by the order of learned Court below. He has further argued that in case, tomorrow, the petitioner withdraws his petition under Hindu Marriage Act, then the maintenance pendente lite awarded by way of mutual consent of the petitioner-husband will go. He has further argued that the maintenance amount of Rs.5000/- awarded by the learned Magistrate under the Domestic Violence Act, is otherwise cannot be said to be excessive. 5. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that the powers of this Court under Section 482 of the Code of Criminal Procedure, is extra ordinary powers and grievance of the petitioner can be redressed and the amount of maintenance, as awarded by the learned Magistrate below may be reduced. 6. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 7. From the perusal of record, it is clear that the parties are married and the respondent, who was petitioner in the learned Court below, was legally wedded wife of the petitioner-husband herein. The marriage inter se is admitted. It has come in the evidence before the learned lower Appellate Court that the parties were married in the year 2003. It has also come on record that the parties are now not living together, but the respondent is living in the house of petitioner’s mother at Shimla and the petitioner-husband is living at Solan. It has also come on record that the petitioner is a Contractor and having good business and the respondent-wife is totally dependent upon him and she is residing at Shimla, looking after her son also born after the marriage from the petitioner, who is studying in Dayanand Public School, near Kali Bari Temple, Shimla, which is a good Public School in Shimla. 8. 8. After taking into consideration the status of the parties and the manner in which they are living, this Court finds that the interim maintenance awarded by the learned Court below is not excessive at all and the same is reasonable, as the respondent has to maintain herself and her son and so, the maintenance awarded is just and reasoned. Further, the maintenance awarded by the learned Additional District Judge-II, Solan, in the petition under the Hindu Marriage Act, on the consent of the parties, thus, the order needs no interference. Accordingly, the present petition is not maintainable, as when the revision petition is maintainable, the extra ordinary powers under Section 482 of the Code of Criminal Procedure, is not required to be exercised in favour of the petitioner in the facts and circumstances of the present case. 9. In view of what has been discussed hereinabove, the present petition, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.