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2018 DIGILAW 2183 (HP)

Dharam Singh v. Pawna Devi

2018-12-10

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with the order dated 16.3.2018 passed by the learned Sessions Judge, Hamirpur, District Hamirpur, Himachal Pradesh in Cr. Revision No. 24 of 2014, modifying order dated 27.9.2014, passed by the learned Additional Chief Judicial Magistrate, Hamirpur, Himachal Pradesh in Cr.M.A. No. 138-IV-2012 in Crl. Petition No. 12/2012, whereby the court below, while allowing the application filed under S.125(1)(d)CrPC for grant of interim maintenance, held respondents-complainants (hereinafter, “complainants”) entitled to maintenance to the tune of `1000/- each per month from the date of filing of the petition till final disposal of the main petition, petitioner has approached this court, in the instant proceedings, filed under S.482 CrPC, praying therein to set aside the order passed by the learned Court below. 2. Facts, as emerges from the record are that the complainants filed a petition under S.125 CrPC, along with another application under S.125 (1)(d) CrPC, praying therein to grant interim maintenance allowance at the rate of `2500/- per month to each of the complainants and `25,000/- as litigation expenses. Complainants averred in the application that the petitioner-respondent (hereinafter, ‘Petitioner’) is a driver by profession and failed to maintain them, as such, they are entitled to maintenance under S.125(1)(d) CrPC during the pendency of the main petition under S.125 CrPC. 3. Complainants claimed that after marriage, petitioner started maltreating, beating and insulting them under the influence of liquor. On the other hand, petitioner, while refuting aforesaid claim put forth by the complainants, alleged that the marriage inter se him and complainant No.1 was dissolved on 20.12.2012 by a decree of divorces in a petition filed by the complainant No. 1 in the court of learned District Judge, Hamirpur, wherein complainant No.1 had categorically stated/admitted that she will not claim any maintenance for herself and on behalf of other complainants. Petitioner also claimed before the court below that the complainant No.1 has solemnized second marriage and at present she is residing with her second husband, as such, is not entitled for any compensation/maintenance under S.125 CrPC. Petitioner also claimed that his monthly income is `2500/- and as such, he can not pay maintenance as awarded by the learned Court below. Petitioner also claimed before the court below that the complainant No.1 has solemnized second marriage and at present she is residing with her second husband, as such, is not entitled for any compensation/maintenance under S.125 CrPC. Petitioner also claimed that his monthly income is `2500/- and as such, he can not pay maintenance as awarded by the learned Court below. Learned trial Court, on the basis of material adduced on record by the parties, held complainants entitled to a sum of Rs.750/- per month each, as maintenance from the date of petition till final disposal of the same 4. Being aggrieved and dissatisfied with the aforesaid order passed by the learned Additional Chief Judicial Magistrate, Hamirpur, complainants preferred a criminal revision petition under S.397 CrPC, in the court of learned Sessions Judge, Hamirpur, which came to be allowed vide order dated 16.3.2018, whereby the learned Sessions Judge enhanced the amount of maintenance from Rs.750/- to Rs.1000/- per month each, from the date of application. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein to set aside the impugned order passed by the learned Court below. 5. Having heard the parties and perused the material available on record, this court is persuaded to agree with the contention of Mr. Sanjay K. Sharma, learned counsel representing the petitioner that though the factum with regard to dissolution of marriage inter se petitioner and complainant No.1 remained unrebutted, but even if, for the sake of arguments, it is presumed that the petitioner was unable to place on record any document to prove dissolution of marriage, even in that situation, learned Court below, while taking cognizance of the income certificate produced on record by petitioner, could not have awarded a sum of `1000/- per month as compensation in favour of the complainants. Careful perusal of the material available on record vis-à-vis reasoning assigned by the court below, compels this court to conclude that both the learned Courts below were swayed by emotion, while passing impugned orders, because, it is a matter of record that the petitioner, while contesting the claim put forth by the complainants, categorically stated in his reply that his monthly income is `2500/- and in this regard, he also placed on record, certificate issued to the petitioner, which never came to be rebutted by the complainants. However, learned Court below, imported its own knowledge and returned a finding, that,” by no stretch of imagination, it can be believed that the petitioner was earning `2500/- per month.” In such like proceedings, courts below ought not have applied their own knowledge/information, rather, ought to have decided the matter on the basis of material adduced on record by the respective parties. In the case at hand, income certificate adduced on record by the petitioner remained unrebutted, as such, court below erred in awarding a sum of `1000/- per month, to each of the complainants. This court also can not lose sight of the fact that the petitioner, whose monthly income is `2500/-, can not be compelled to pay a maintenance of `1000/- per month to each of the complainants, which comes to `4000/- per month. However, there is yet another aspect of the matter that complainant No.2 namely Ms. Santosh has been married off and as such, is not entitled to any maintenance in terms of S.125 CrPC. 6. Consequently, in view of the discussion made herein above, present petition is allowed. Order dated 16.3.2018 passed by the learned Sessions Judge, Hamirpur, H.P. in Cr. Revision No. 24 of 2014 is set aside. Order dated 27.9.2014 passed by Additional Chief Judicial Magistrate, Hamirpur, Himachal Pradesh, is restored. However, it is clarified that the observations made herein above, shall remain confined to the disposal of the present petition and shall have no bearing on the merit of the main petition pending before the learned Court below. Needless to say, if there are arrears on account of maintenance as awarded by the learned Additional Chief Judicial Magistrate, same shall be paid within a period of two months from today. Pending applications, if any, stand disposed of. Interim direction, if any, is vacated.