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2018 DIGILAW 1674 (HP)

Krishan Dutt v. Sunita

2018-09-14

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. - Present petition has been filed against impugned order, dated 19th May, 2018, passed in Criminal Revision No. 12Cr.R./10 of 2018, titled Krishan Dutt versus Sunita, by learned Sessions Judge, Sirmaur District at Nahan, whereby revision petition filed by the petitioner has been partly allowed directing release of the petitioner from civil imprisonment subject to deposit of the amount as per undertaking given by him before the learned Sessions Judge in the said revision petition, failing which the trial Court has been granted liberty to proceed against the petitioner in accordance with law. 2. It is apt to record herein that the petitioner had preferred aforesaid revision petition against order, dated 28th April, 2018, passed by the learned Chief Judicial Magistrate, Sirmaur at Nahan, whereby, on expressing his inability to make payment of maintenance allowance in Execution Petition/Case No. 182/4 of 2013 filed for recovering the maintenance awarded in favour of the respondent in proceedings under Section 125 of the Code of Criminal Procedure (hereinafter referred to as ''CrPC''), the trial Court had ordered to commit the petitioner to civil imprisonment for one month for default of payment of maintenance allowance to the month of August, 2010. 3. It appears from the order passed by the trial Court (Annexure P1) as well as impugned order, dated 19th May, 2018 (Annexure P3) that the petitioner is not paying maintenance allowance to the respondent at least since 2010. 4. It is contended on behalf of the petitioner that he is a jobless person having no earning and, thus, is not capable to pay maintenance allowance to the respondent in compliance of the order passed by he trial Court and for his inability to pay the maintenance allowance, he had offered to transfer the land owned by him in favour of the respondent from the very beginning and had also made statement to that effect in the trial Court and despite that the petitioner has been ordered to be committed to civil imprisonment without considering the entire facts and circumstances as well as the aforesaid offer of the petitioner. 5. Statements, dated 8th March, 2017 and 23rd July, 2016 have been placed on record as Annexure P2 (colly). 5. Statements, dated 8th March, 2017 and 23rd July, 2016 have been placed on record as Annexure P2 (colly). In these statements, the petitioner has nowhere proposed to transfer the land in favour of the respondent, rather, he has made the statement to the effect that he has no objection to make payment of maintenance to the respondent after selling his property by the Court. Petitioner has also placed on record copy of warrant of attachment of movable property, dated 1st August, 2016, in the execution filed by the respondent. 6. During pendency of present petition, parties were directed to remain present in person in the Court to undertake the effort for reconciliation/amicable settlement between the parties. During that exercise also, the petitioner had offered transfer/sale of his land in favour of the respondent or for making payment of maintenance amount. However, it was transpired that the land owned and possessed by the petitioner is not free from encumbrances as the petitioner has already obtained loan from bank/financial institution against the said land. Therefore, plea of the petitioner that he is ready and willing to transfer the land to the respondent or to sale out his property for making the payment of maintenance allowance to respondent is a farce. 7. On the previous date, adjournment was sought on the ground that the petitioner is intending to settle the matter in the divorce petition filed by the respondent in the Court of learned District Judge, Sirmaur at Nahan, however, it is contended by the learned counsel for the respondent that no such effort has been made in the proceedings of divorce petition, rather, the petitioner, who is respondent therein, has sought more than one month''s time to file reply to the said petition whereupon the trial Court has fixed the next date of hearing as 31st October, 2018. 8. It is also pleaded on behalf of the petitioner that the petitioner is ready to keep the respondent with him, but, she has left the company of the petitioner without any satisfactory reason and, thus, as per provisions of Section 125 (4) CrPC, she is not entitled for maintenance. 9. 8. It is also pleaded on behalf of the petitioner that the petitioner is ready to keep the respondent with him, but, she has left the company of the petitioner without any satisfactory reason and, thus, as per provisions of Section 125 (4) CrPC, she is not entitled for maintenance. 9. This plea of the petitioner is not sustainable as there is nothing on record to establish the contention so raised by the petitioner disentitling the respondent from receiving maintenance under Section 125 (4) CrPC, rather, it is apparent from the record that the order awarding maintenance in favour of the respondent under Section 125 CrPC was passed in the year 2010 and since then, no maintenance amount has been paid by the petitioner. 10. From the warrant of attachment placed on record, it is also evident that the said warrant of attachment was issued in 2016 in Case No. 5/1 of 2010. Meaning thereby, the execution petition for recovery of maintenance is pending since 2010, but, the petitioner is not making any payment in respect thereof. 11. Learned Sessions Judge had directed the petitioner to appear before the trial Court on 26th May, 2018 with further liberty to the trial Court to proceed against the petitioner, in accordance with law, in case of failure in deposit of the amount, as undertaken by him. 12. In the aforesaid background, legality of the impugned order is to be assessed. Vide order, dated 24th April, 2018, the trial Court had ordered one month''s civil imprisonment to the petitioner and it appears, from perusal of the impugned order, that petitioner was lodged in the jail and thereafter, he had preferred the revision petition wherein he had undertaken to deposit the balance amount in Execution Petition No. 182/4 of 2013, titled Sunita Devi versus Krishan Dutt and on the basis of his undertaking, he was ordered to be released. 13. Considering entire facts and circumstances as well as submissions of parties, I find no illegality, irregularity or perversity in the impugned order as no ground for interference in impugned order is made out. 14. 13. Considering entire facts and circumstances as well as submissions of parties, I find no illegality, irregularity or perversity in the impugned order as no ground for interference in impugned order is made out. 14. At this stage, it is contended on behalf of the respondent that by filing the present petition and calling the respondent to Shimla after expressing desire to settle the dispute, the petitioner has caused unnecessary expenditure to be incurred by the respondent and also causing harassment to her and, thus, she has prayed for levying heaving costs upon the petitioner payable to the respondent in addition to the cost of litigation. 15. Respondent has been provided legal aid, in the present case, therefore, I do not find any reason to order payment of litigation charges, however, respondent had to travel to Shimla to attend this Court for expression of willingness on the part of the petitioner to settle the dispute and for that purpose, she has incurred the expenses for which the petitioner is liable to pay Rs. 1,000/- to compensate her and the said amount shall be paid by the petitioner before the trial Court on 3rd October, 2018. 16. In view of above discussion, present petition is dismissed in aforesaid terms. The interim order also stands vacated and parties are directed to appear before the trial Court, i.e. learned Chief Judicial Magistrate, Sirmaur at Nahan, on 3rd October, 2018, who shall proceed further in accordance with law.