Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 765 (RAJ)

Alka Balig v. Sunder Lal

2017-03-21

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. Petitioner has preferred this Misc. Petition aggrieved by order dated 19.04.2014 passed by the Additional Sessions Judge No.2, Bundi in Criminal Appeal No.59/2011 by which the appeal filed by the respondent was allowed and the order dated 03.08.2011 passed by the Judicial Magistrate No.3, Bundi granting interim maintenance of Rs.1000/- to the petitioner was set aside. 2. It is contended by the counsel for the petitioner that the Court below has erred in allowing the appeal of the respondent only on the ground that there was no report of the Protection Officer as contemplated under the Act. 3. It is contended that the appellate Court has further erred in allowing the appeal on the ground that the petitioner is living separately from her husband without any reason. It is contended that the reason for living separately was specifically mentioned in the application filed under Section 12 of the Protection of women from Domestic Violence Act, 2005. It is contended that the report of Protection Officer is not mandatory for deciding the application for interim maintenance. 4. Counsel for the petitioner has placed reliance on 2011 (2) CrLR (Raj) 1352, Bhavesh Gangwar v. State of Rajasthan & Anr. and 2011 (1) CrLR (Raj.), 377, Mohd. Atik & Ors. v. State of Rajasthan & Anr. 5. No one has appeared on behalf of the respondent inspite of service. 6. I have perused the order passed by the Court below as well as the order passed by the appellate Court. 7. It is important to note that the order of interim maintenance has been passed under Section 23 of the Protection of Women from Domestic Violence Act, 2005. There is no mandatory requirement of obtaining a report from the Protection Officer before deciding the application under Section 23, however, such report is required before passing an order on an application filed under Section 12 of the Act. 8. Court below has erred in allowing the appeal on the ground that there was no report of the Protection Officer as the Court was competent to pass the order sans report by the Protection Officer. 9. The other ground on which the Court below has allowed the appeal is that the petitioner is living separately without any cause. 10. The above observation is also beyond the pleadings of the parties. 9. The other ground on which the Court below has allowed the appeal is that the petitioner is living separately without any cause. 10. The above observation is also beyond the pleadings of the parties. The petitioner has specifically pleaded that the respondent has solemnized second marriage and for that reason it is not possible for the petitioner to reside with the respondent. 11. As the appellate Court has allowed the appeal on the above two grounds which infact were not available for allowing the appeal. The order vide which the interim maintenance of Rs.1000/- has been awarded to the petitioner deserves to be upheld and the order passed by the appellate Court deserves to be set aside. 12. The Misc. petition is, accordingly, allowed.