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2017 DIGILAW 1403 (HP)

Amit Mithrani v. Shobhna Mithrani

2017-12-16

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Both the aforementioned petitions are being disposed of by an common order, given, common question of fact and law being involved in both petitions. 2. Both Criminal Revision Petition No. 145 of 2016 and Criminal Revision Petition No. 398 of 2016, stand respectively directed by Amit Thrani and others and by Shobhana Mithrani, against the common verdict recorded by the learned Additional Sessions Judge (2), Shimla in Cr. Appeal No. 55-S/10 of 2015 and Cr. Appeal No. 57-S/10 of 2015, whereby, he modified the quantification, of, interim per mensem maintenance amount adjudicated, by the learned trial Court, from, Rs. 16,000/- per mensem to Rs. 15,000/- per mensem. The aforesaid quantum of ad interim per mensem maintenance, was, respectively apportioned in a sum of Rs. 9,000/- per mensem vis-a-vis the wife, of, one Amit Mithrani and in a sum of Rs. 6000/- per mensem vis-a-vis the child, of, one Amit Mithrani. The visitorial rights of one Amit Mitharni vis-a-vis his child, born out of his wedlock with one Shobhna Mithrani were, however, preserved. 3. Apparently, the aforesaid apposite order was pronounced by both the learned Courts below, upon, theirs exercising jurisdiction vested in them under Section 23, of, the of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter: "23. Power to grant interim and ex parte orders.- (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent." Apparently also the orders recorded by both the learned Courts below, adjudging ad interim per mensem maintenance vis the aggrieved, were pronounced, during the pendency of a complaint, before the learned trial Magistrate, complaint whereof is constituted under Section 12 of the Act. A perusal of the relevant records, indicates that the afore referred complaint, is, awaiting adduction of evidence, upon, the apposite issues, by the litigants concerned. Reiteratedly, the order assailed before this Court, is, an ad interim order, whereby, per mensem interim maintenance, in the sums aforesaid, was, assessed by the learned Appellate Court vis-a-vis the aggrieved. 4. The learned counsel appearing for the petitioner Amit Mithani, contends, (i) that the anvil of the learned trial Court, making, orders qua ad interim per mensem maintenance allowance vis-a-vis the aggrieved, being rested, upon, statutory powers conferred, upon him, under Section 23 of the Act, provisions whereof stand extracted here-in-above. She further contends (ii) that a reading of the aforesaid provisions borne in Section 23 of the Act, make, a visible display, of, the Magistrate concerned, holding statutory jurisdiction, to, make an ex-parte interim order in respect, of, statutorily contemplated reliefs borne in Sections 18, 19, 20, 21 and 22 of the Act. She contends, (iii) of, the scope and the amplitude, of, the jurisdiction vested in the trial Magistrate, under, Section 23 of the Act being plenary, imperatively given it fastening, jurisdiction in him, to, without awaiting for service being effected upon the apposite party or even without his awaiting for any response, thereto, (iv) his being foisted with leverage, to, on the basis of affidavits tendered by the aggrieved, hence draw, satisfaction qua the necessity, of, his making an ex-parte order, (i) even with respect to the assessment of ad interim per mensem maintenance vis-a-vis the aggrieved or with respect to orders vis-a-vis rights of residence or renditions vis-a-vis protection orders, besides renditions vis-a-vis compensation orders, (ii) hence, she contends that necessarily, the jurisdictional fulcrum, for validating, any interim orders vis-a-vis all the reliefs contemplated in Sections 18, 19, 20, 21 and 22 of the Act, is, of (a) theirs being recorded ex-parte AND(b) satisfaction being drawn by the Magistrate concerned, upon affidavits or tangible best material, making, displays, of, the opposite party, committing, or having committed any act of domestic violone or (c) their being a likelihood of the opposite party committing an act of domestic violence. Contrarily, in case the opposite party is served or has submitted his response to the applications, seeking pronouncements, of, interim ex-parte orders, within, the ambit of Section 23 of the Act, the Magistrate concerned has, no, jurisdiction to make any ex-parte order vis-a-vis any interim relief qua any of the statutory reliefs contemplated, in Sections 18, 19, 20, 21 and 22 of the Act. She contends that with the evident participation, of, the opposite party in the lis, renders the aforesaid statutory ingredients, to, beget infraction, hence, seeks quashing, of the, impugned order. 5. However, the aforesaid submission addressed by the learned counsel appearing for Amit Mithrani and others, is, frail, given (a) a close and circumspect reading of Section 23 of the Act, making, a visibly clear display, of the Magistrate concerned, being empowered, to grant interim reliefs AND to render ex-parte orders qua reliefs, contemplated, in Sections 18, 19, 20, 21 and 22, of, the Act. Tritely, the import besides the innate nuance, carried by the title, of, Section 23 of the Act, title whereof, is, nomenclatured "Power to grant interim and ex-parte orders", is, of utmost significance for validating or invalidating, the submission of the learned counsel appearing for the petitioner Amit Mithrani. The disjunctive AND separating Power to grant interim order, from, ex-parte order, garners an inference, of, two distinct genre, of, orders being statutorily contemplated therein, (i) interim orders AND; (ii) ex-parte orders. Furthermore, sub-section (1), empowers, (a) the Magistrate concerned, to pass interim orders, as he, deems fit and proper. Apparently the scope and amplitude thereof, is plenary AND foists leverage in the Magistrate concerned, to, vis-a-vis the provisions borne in Sections 18, 19,20, 21 and 22, of, the Act, hence render interim reliefs. (b) Moreover, the statutory power, vested in him, for rendition of ex-parte orders, occur in sub-section (2) of Section 23 of the Act. (c) Specific egraftment therein, for, rendition of ex-parte orders, does not, hence restrict the play, of, the preceding therewith sub-section (1) of Section 23 of the Act, within domain whereof, the Magistrate concerned, may even, with evident participation before him of all the contestants concerned, is yet empowered, to render interim orders, of any, genre. (c) Specific egraftment therein, for, rendition of ex-parte orders, does not, hence restrict the play, of, the preceding therewith sub-section (1) of Section 23 of the Act, within domain whereof, the Magistrate concerned, may even, with evident participation before him of all the contestants concerned, is yet empowered, to render interim orders, of any, genre. (d) With both sub-section (1) and sub section (2) of Section 23 of the Act, holding clout and command, independent of each other, (e) thereupon, the renditions, of, interim orders, impugned hereat, even if, are not, appertaining vis-a-vis the genre, of, ex-parte orders, they are yet construable, to fall, within the domain, of sub-section (1) of Section 23 of the Act, thereupon, even, if they are rendered, not, ex-parte, they are not denuded of their legal vigour. 6. Now coming to the facet of validity, of, quantum of ad interim per mensem maintenance allowance, adjudged, by the learned Additional Sessions Judge concerned, vis-a-vis Smt. Shobhna Mithrani AND vis-a-vis the child born out of her wedlock with Mr. Amit Mithrani, (I) this Court does not deem it fit and proper to interfere with the order impugned hereat, significantly when it is based, upon, evidence germane therewith. Smt. Shobhana prays, that, Mr. Amit Mithrani be directed to defray her ad interim per mensem maintenance, comprised, in a sum of Rs. 80,000/-, given, her husband Amit Mitharni, earning more than a crore of rupees. On the other hand, the respondent denies the factum, of, his owning any property, vehicle and other assets. He submits, of, his having taken a loan from Easy Mobile. It is apt to mention here, that, earlier Mr. Amit Mithrani in his reply furnished, before the learned trial Court, to the apposite complaint, he had, pleaded of his working with Easy Mobile company, in company whereof, as depicted by the memorandum of association and articles of association, of, Easy Mobile India Pvt. Ltd. Company, his brother Rakesh Mithrani, holds, 5000 equity shares thereof. However, before the learned Additional Sessions Judges, Shimla, he has placed on record a communication, wherein, an articulation occurs, qua, his being posted as Marketing Manager in Prakriti Clonal Agrotech. However, before the learned Additional Sessions Judges, Shimla, he has placed on record a communication, wherein, an articulation occurs, qua, his being posted as Marketing Manager in Prakriti Clonal Agrotech. The aforesaid fact which was brought on record before the learned Additional Sessions Judge concerned, is contradictory vis-a-vis the fact earlier pleaded by him in his reply furnished before the learned trial Court, to the apposite complaint, therefrom it appears, of, Mr. Amit Mitharni is concerting to beguile this Court qua his real income, for precluding, it from making an apt adjudication upon the relevant fact. In aftermath, reiteratedly the adjudication made by the learned Appellate Court qua the quantum of interim per mensem maintenance, appears to be both just and reasonable. Moreover, there is no document placed on record, by the opposite party in display of Ms. Shobhna being gainfully employed. Consequently, reiteratedly bearing in mind that Ms. Shobhna holding no independent income sufficient to support herself as also her child, besides for enabling her to bear her personal expenditures as also of her child, also given her status, the ad interim per mensem maintenance, as awarded, by the learned Sessions Judge for her and for her child, is deemed just, fit and appropriate at this stage. 7. For the foregoing reasons, both the petitions are dismissed and the order impugned hereat is affirmed and maintained. The parties are directed to appear before the learned trial Court on 12.01.2018. No costs. All pending applications also stand disposed of. Records be sent back forthwith.