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2018 DIGILAW 1713 (HP)

Rahul Sood v. Urvashi Sood

2018-09-20

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. - These petitions arising out of common judgment dated 04.03.2017, passed by learned Additional Sessions Judge, Kullu, H.P. in Criminal Appeals No. 34 and 35 of 2016, are being decided by this judgment together, as the common question of law and facts based on the identical evidence on record, is involved therein. 2. Brief facts of the case are that petitioner and respondent No. 1 were married on 08th July, 2007, whereafter they were blessed with a female baby on 26th November, 2009. However, prior to the birth of the baby, as claimed by respondent No. 1, she was ousted from the matrimonial house during her pregnancy in the midnight hours and after birth of female child, she was not allowed to cohabit in her matrimonial house. Though, the matter was tried to be settled through Himachal Pradesh Mahila Kalyan Mandal, however, petitioner had shown reluctance to attend the counseling and on 3rd June, 2010, filed a petition for judicial separation before learned District Judge, Kullu. 3. Respondent No. 1 had also preferred complaint No. 208-i/2010, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ''the Act'') on 11.06.2010 before learned Chief Judicial Magistrate, Kullu, alleging therein the maltreatment and harassment to her including demand for dowry and neglecting her (respondent No. 1) and daughter (respondent No. 2) by not providing sufficient means, money and support to maintain them and also making remarks that for giving birth to a female child, her chances to reside in matrimonial house were nil. The respondent-petitioner herein had contested the application refuting all allegations and alleging that respondent No. 1 alongwith her daughter had herself left the matrimonial house without any just cause and that complaint had been filed only to harass petitioner. After adjudicating the dispute on the basis of evidence on record, learned Chief Judicial Magistrate vide order dated 22.12.2010 had awarded maintenance allowance at the rate of Rs. 2,000/- per month to respondent No. 1 and Rs. 1,000/- per month to the minor daughter-respondent No 2 from the date of filing of the petition. This order was never assailed by the petitioner. 4. 2,000/- per month to respondent No. 1 and Rs. 1,000/- per month to the minor daughter-respondent No 2 from the date of filing of the petition. This order was never assailed by the petitioner. 4. In the year 2013, respondent No. 1 for herself and her daughter respondent No. 2, had filed an application bearing Cr.M.A. No. 119-iv/2013, under Section 25(2) of the Act for modification of order dated 22.12.2010, passed by the learned Chief Judicial Magistrate with prayer of enhancement of the maintenance allowance at the rate of Rs. 10,000/- each per month for the respondents. After adjudicating upon the application for enhancement, learned Chief Judicial Magistrate vide order dated 14.07.2016 had modified the previous order dated 22.12.2010 and enhanced the maintenance allowance of respondent No. 1 from Rs. 2,000/- to Rs. 3,000/- per month and that of respondent No. 2 from Rs. 1,000/- to Rs. 4,000/- per month. Besides enhancing the amount of maintenance allowance, learned Chief Judicial Magistrate had also allowed the petitioner to meet his daughter-respondent No. 2 at least once in a week on a holiday with the direction to respondent No. 1 to allow the petitioner to meet his daughter accordingly. 5. The aforesaid order dated 14.07.2016 was assailed by both the parties before the learned Additional Sessions Judge, Kullu. Petitioner had preferred Criminal Appeal No. 34 of 2016, assailing the enhancement of maintenance allowance, whereas respondents had assailed the aforesaid order by filing Criminal Appeal No. 35 of 2016, for further enhancement of the maintenance allowance. Learned Additional Sessions Judge, vide judgment dated 04.03.2017, has disposed of both the appeal by allowing the appeal filed by the respondents enhancing the amount of maintenance allowance of respondent No. 1 from Rs. 3,000/- to Rs. 4,000/- per month from the date of filing of the petition and dismissing the appeal preferred by the petitioner. Rest of the order dated 14.07.2016, passed by learned Chief Judicial Magistrate, was affirmed. 6. Present two petitions being decided by this common judgment, have been preferred by petitioner separately against impugned common judgment for the reason that the impugned judgment was passed in two appeals, i.e. Criminal Appeals No. 34 and 35 of 2016, whereby one appeal preferred by petitioner against enhancement was dismissed and second appeal preferred by respondents for enhancement was partly allowed. Identical prayers for quashing and setting aside the impugned judgment and order dated 14.07.2016 passed by the learned Chief Judicial Magistrate, have been made in these petitions. 7. It has come on record that petitioner is the owner of an orchard. It has also come in the statement of AW-3 Dinesh Kapoor, Clerk, Municipal Council, Kullu that as per record, two houses, consisting of three shops, three godowns and 18 rooms in one house and two rooms and one godown in another house, are in the name of the petitioner at Sr. No. 489 and 523 as per assessment year 1997-1998. These houses are situated in Inner Akhara Bazaar connected with a road. He has further deposed that house No. 96 is owned by the petitioner and his brother Ritesh Sood and House No. 139 is owned by petitioner-Rahul Sood and one Aruna Devi. Petitioner was also having share in the land in two places. However, in his evidence, petitioner by placing copies of Jamabandis Ext. PW. 4/B and Ext. PW/4/C, on record, has claimed that he has transferred his share in joint land to his brother. However, he has not produced any document in order to prove the said fact. It is also an admitted fact that petitioner is running a shop of kitchen appliances at Ritu Raj Complex, Dhalpur. Though, it is claimed by the petitioner that he has closed his business and is not earning anything, but there is nothing on record to substantiate the same, rather, in addition, he has admitted that he owns a parking with claim that he earns only Rs. 3,000/- per month from the same and Rs. 4,000/- per month from the rent of his building and there is no income from the orchard for want of maintenance thereof. However, again no evidence has been pointed out to have been placed on record to substantiate his claim. From the material on record, it is evident that the petitioner has sufficient means so as to pay the maintenance allowance to the respondents, as awarded by the learned Courts below. 8. There is nothing on record to establish that learned Courts below have ignored the material evidence or have considered irrelevant and immaterial evidence on record. 9. Enhancement in the maintenance allowance from Rs. 2,000/- to Rs. 3,000/- per month with respect to respondent No. 1 and from Rs. 1,000/- to Rs. 8. There is nothing on record to establish that learned Courts below have ignored the material evidence or have considered irrelevant and immaterial evidence on record. 9. Enhancement in the maintenance allowance from Rs. 2,000/- to Rs. 3,000/- per month with respect to respondent No. 1 and from Rs. 1,000/- to Rs. 4,000/- per month with respect to respondent No. 2 was ordered by learned Chief Judicial Magistrate on 14.07.2016. At the time of passing the initial order dated 22.12.2010, respondent No. 2 was one year of age, whereas in the year 2016, she was seven years old and was definitely studying in a school and expenses with regard to her studies were to be borne by her parents including the petitioner. As respondent No. 1 herself is dependent upon maintenance allowance provided by the petitioner, it was also duty of the petitioner to bear the enhanced expenses for pursuing studies of respondent No. 2. Therefore, enhancement of the maintenance allowance from Rs. 1,000/- to Rs. 4,000/- per month in favour of respondent No. 2 is not an excessive amount and, therefore, it was rightly awarded by the learned Chief Judicial Magistrate and affirmed by the learned Additional Sessions Judge. 10. Maintenance at the rate of Rs. 2,000/- per month was awarded in favour of respondent No. 1 in the year 2010. Keeping in view status and evidence of means owned and possessed by petitioner and income therefrom and also increase in price index as well as responsibility towards respondent No. 2 as the amount of Rs. 4,000/- per month awarded in her favour may not be sufficient amount to maintain the growing daughter. In my opinion, enhancement of maintenance allowance at the rate of Rs. 4,000/- per month in favour of respondent No. 1 is also not excessive. Being a wife, respondent No. 1 is otherwise entitled for respectable amount for her maintenance according to the status and means of her husband. 11. No illegality, irregularity or perversity in impugned judgment is apparent. Therefore, I find no ground for interference with the impugned award and petitions are liable to be dismissed by upholding the impugned judgment. 12. Being a wife, respondent No. 1 is otherwise entitled for respectable amount for her maintenance according to the status and means of her husband. 11. No illegality, irregularity or perversity in impugned judgment is apparent. Therefore, I find no ground for interference with the impugned award and petitions are liable to be dismissed by upholding the impugned judgment. 12. At this stage, learned Counsel for the petitioner submits that though visiting rights have been granted to petitioner by learned Chief Judicial Magistrate as well as the learned Additional Sessions Judge to meet his daughterrespondent No. 2 on a holiday once a week, but no time and particular date has been mentioned resulting into the said direction redundant, as the petitioner is not able to visit his daughter in absence of the mention of specific date and time. 13. Learned Counsel for the respondents has contested the plea raised on behalf of the petitioner stating that petitioner has never approached respondent No. 1 to meet respondent No. 2 and further, that petitioner is at liberty to approach respondent No. 1 on any holiday, preferably on any Sunday, at any time between 10.00 a.m. to 5.00 p.m., with prior information to meet respondent No. 2 and in such eventuality, respondent No. 1 will definitely permit the petitioner to meet his daughter respondent No. 2 and in case respondent No. 2 feels comfortable, even to take her with him for a short period as per willingness of respondent No. 2 and if child feels comfort and happiness, she may allow petitioner to take her for staying with him for a night on any Saturday, if desired by the petitioner, but such situation has not assured yet. 14. In view of the submissions made by the learned Counsel for the parties, it is clarified that the petitioner may, with prior information on previous day, approach respondent No. 1 to meet respondent No. 2 on any Sunday or any other holiday, at any time between 10.00 a.m. to 5.00 p.m. and in future, on developing mutual trust, respondent No. 1 may permit petitioner to take respondent No. 2 for staying with him but definitely, with willingness of respondent No. 2 on any Saturday or day proceeding a holiday. But in such event, it will be the duty and responsibility of petitioner to take the child-respondent No. 2 and leave her back at the residence of respondent No. 1 well in time so as not to disturb study of respondent No. 2. It is also clarified that the petitioner will not keep respondent No. 2 with him on a working day, on which date, she is supposed to attend the school and will ensure to leave her with respondent No. 1 on the day preceding the working day. 15. Both the petitions disposed of with aforesaid observations, alongwith the pending applications, if any.