Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1350 (HP)

Yadav Patti v. Sunita Kumari

2017-12-06

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. Both the petitions are arising out of the same judgment and similar facts are involved in both the petitions, hence, both these petitions were taken up together for hearing and are being disposed of by this common judgment. 2. The present petitions, under Section 482 of the Code of Criminal Procedure, have been maintained by the petitioner, who was the respondent before the learned trial Court (hereinafter to be called as “the respondent”), against the judgment, dated 01.09.2016, passed by learned Additional Sessions Judge (II) Mandi, District Mandi, H.P., in Cr. Appeal No. 17/15/2013, whereby order, dated 31.05.2013, passed by the learned Judicial Magistrate 1st Class, Chachiot at Gohar, District Mandi, H.P., in complaint No. 108-I/2012/35-III/2012, was upheld, except maintenance allowance, which was increased from Rs. 2,000/- to Rs. 5,000/- per month from the date of filing of the petition. 3. Briefly the facts of the case are that the respondent, who was the petitioner before the learned trial Court (hereinafter to be called as “the petitioner”) has filed a complaint against the respondent, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be called as “the Act”), wherein she alleged that she is legally wedded wife of the respondent and her marriage with the respondent was solemnized on 24.09.2007, by execution of the affidavits and thereafter they resided together as husband and wife. It has been further alleged that in the year, 2008, when she got pregnant, the child got aborted. Thereafter, she also conceived in the year 2009, but the child met with the same fate. However, on 24.07.2012, she gave birth to a male child. As per the petitioner, earlier the behavior of the respondent towards her was very cordial, however thereafter the same had changed gradually and he stopped caring for the petitioner and even started denying their relationship of husband and wife. Thereafter, the petitioner moved an application before the concerned Panchayat for entering of her name as the wife of the respondent, but the respondent objected to the same. As per the petitioner, the respondent is working as JBT Teacher at Government Primary School Brokhari and earning Rs. 25,824/- per month. To the contrary, she has no independent source of income. 4. As per the petitioner, the respondent is working as JBT Teacher at Government Primary School Brokhari and earning Rs. 25,824/- per month. To the contrary, she has no independent source of income. 4. By filing reply, the respondent alleged that the petitioner is not his wife and she is married to one Sh. Mehar Chand, resident of Village Majothi and their marriage got solemnized in the year, 1995. It has been further alleged that the present complaint/petition has been filed on false and frivolous grounds and, therefore, the petitioner is not entitled to any relief. Lastly, the respondent prayed for dismissal of the complaint. 5. I have heard the learned counsel for the parties and gone the record carefully. 6. Mr. H.S. Rangra, Advocate, for the petitioner/husband has argued that the findings recorded by the learned Courts below are without appreciation of the evidence, which has come on record. He has further argued that the evidence on record suggests that the respondent, Sunita Kumari was already married to another person, namely Mehar Chand, thus the petitioner is not liable to pay maintenance to her, as ordered by the learned Courts below. On the other hand, Mr. Vir Bahadur Verma, Advocate, for the respondent/wife has argued that the present respondent is wife of the petitioner and they were living together for last nine years and out of their wedlock a child was born and the story putforth by the present petitioner is baseless and unsubstantiated, so the findings recorded by the learned Courts below, which are after appreciating the facts to their true perspective, needs no interference. In rebuttal, Mr. H.S. Rangra, has argued that the findings recorded by the learned Courts below are perverse and the same are required to be set aside. 7. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 8. Section 2(f) of the Protection of Women from Domestic Violence Act, provides the definition of the term “domestic relationship” as a relationship between two persons, who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Section 2(s) of the Act provides the definition of “shared household” as a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. 9. As far as the statement of the petitioner is concerned, while appearing in the witness box as CW-7, she has stated on oath that she is living with the respondent since 2007. Further while cross-examination of CW-5, Sh. Dhyan Dass and CW-6, Sh. Narsingh Dutt, not even a single suggestion has been put that the parties did not reside together as husband and wife. 10. The affidavits, Ext. CW-1/A and Ext. CW-1/B have been proved on record. Further the parties were living as husband and wife for more than nine years and the petitioner gave birth to a child on 24.07.2012 at Sundernagar, though the respondent shown his ignorance about this fact, however he did not deny that the child not belongs to him. In these circumstances, the only inference is that the parties are living as husband and wife, which is sufficient to held the responsibility of the respondent under the Act. 11. Now coming to the allegation of the respondent that the petitioner was married to one Mehar Chand. Though, RW-2 and RW-3 have supported this fact, however there is no documentary evidence on record to prove the marriage of the petitioner with Mehar Chand. Furthermore the statements of these witnesses cannot be relied upon, as they are interested witnesses, being related to the respondent. 12. All the evidence on record clearly shows that it is the respondent, who has married the petitioner and they were living together as husband and wife and a child was born to them, is clearly a relationship in the nature of marriage. 12. All the evidence on record clearly shows that it is the respondent, who has married the petitioner and they were living together as husband and wife and a child was born to them, is clearly a relationship in the nature of marriage. In these circumstance, even after re-appreciating the evidence, which has come on record, this Court finds that the learned Courts below have rightly bounden the respondent to maintain the petitioner, as there is no material on record to show that the petitioner has any independent source of income. Whereas, as per the salary certificate, Ext. CW-4/A, of the respondent, it appears that he is drawing handsome salary. Therefore, the learned Courts below have not committed any infirmity by increasing maintenance from Rs. 2,000/- to Rs. 5,000/- per month. 13. The net result of the above discussion is that the present petitions are without any merit, deserve dismissal and are accordingly dismissed. 14. Pending miscellaneous application(s), if any, also stand(s) disposed of.