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Himachal Pradesh High Court · body

2018 DIGILAW 2182 (HP)

Naresh Kumar v. Reena Kumari

2018-12-10

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with the order dated 4.9.2018 passed by the learned Judicial Magistrate 1st Class, Court No. III, Hamirpur, District Hamirpur, Himachal Pradesh in Cr.M.A. No. 196-IV/2017 in D.V. Act-3-I/11 titled Reena Kumari vs. Naresh Kumar, whereby an application under Section 362 CrPC, having been filed by the present petitioner respondent (hereinafter, “petitioner”) for rectifying the error occurred in the order dated 5.9.2012 in DV Act Petition No. 13-I-2011, came to be dismissed, petitioner has approached this court in the instant proceedings filed under S.482 CrPC, praying therein to quash and set aside the order dated 4.9.2018, consequently allowing the application for correction of error. 2. In nutshell, case as has been projected in the petition and as argued by Mr. Balwant Kukreja, learned counsel representing the petitioner, is that the respondent, who happens to be the wife of the petitioner, filed a petition under the Protection of Women from Domestic Violence Act against the petitioner in the court of learned Judicial Magistrate 1st Class, Court No. III, Hamirpur, which was disposed of on the basis of amicable settlement inter se parties with the intervention of the respectable members of the family. Mr. Balwant Kukreja, learned counsel representing the petitioner, while referring to Annexure P-1 i.e. statement of the respondent recorded at the time of passing of order dated 5.9.2012, contended that the respondent, while compromising matter with the petitioner, claimed before the court below that she is ready and willing to live in the company of her husband (petitioner), subject to the condition that she would be provided a separate accommodation. As per compromise, respondent prayed that maintenance be provided to her and her children and petitioner be directed to deposit a sum of Rs.15,000/- in the name of their children, within a period of one month, as such, learned Court below, while passing order dated 15.9.2012, wrongly ordered that petitioner shall pay a sum of Rs. 15,000/- per month to the respondent and her children as maintenance. Mr. 15,000/- per month to the respondent and her children as maintenance. Mr. Kukreja, further contended that since factum with regard to deposit of Rs.15,000/- per month in favour of the respondent and her children was not in terms of the compromise arrived inter se parties, petitioner moved an application for correction of error under S.362 CrPC, but the same was dismissed, without there being any cogent and convincing reason, as such, present petition deserves to be accepted. 3. However, having heard the learned counsel representing the parties and perused the material available on record, this court is not persuaded to agree with the contention of Mr. Kukreja, because a careful perusal of the order dated 5.9.2012 clearly suggests that the learned Court below, having taken note of the compromise arrived inter se parties, specifically ordered that the petitioner would pay a sum of Rs.15,000/- per month to the respondent and her children. Learned Court below, further directed the petitioner to deposit a sum of Rs.15,000/- in the name of petitioner and her children, within a period of one month from the date of order. 4. No doubt, perusal of statement of respondent made at the time of passing of order dated 5.9.2012 suggests that she had prayed that the petitioner be directed to deposit a sum of Rs.15,000/- on account of maintenance to her and her children, in the Bank, but in the same statement, she also stated that as per agreed terms, monthly expenditure of her and her children would also be borne by the petitioner. Accordingly, the learned Court below, vide order dated 5.9.2012, directed the petitioner to pay Rs.15,000/- per month to the respondent and her children, as maintenance. 5. Leaving everything aside, order dated 5.9.2012 was very much in the knowledge of the petitioner but he never laid challenge, if any, to the same for almost six years, where after, he moved an application for correction of error on the ground that the petitioner at no point of time agreed before the learned Court below to pay a sum of Rs.15,000/- per month to the respondent and her children, as maintenance, however, this court, having carefully perused the material available on record vis-à-vis impugned order passed by the learned Court below, is not inclined to accept the aforesaid explanation rendered on record on behalf of the petitioner. Rather, this court, is convinced and satisfied that the learned Court below, cautiously passed order dated 5.9.2012, having taken note of the fact that the respondent and her children are fully dependent upon the petitioner, thereby directing the petitioner to pay a sum of Rs.15,000/- per month to the respondent and her children, as maintenance. 6. Consequently, in view of the discussion made herein above, petition is devoid of merit and is dismissed accordingly, along with all pending applications.