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2018 DIGILAW 279 (HP)

Avneet Diwedi v. Apeksha Diwedi

2018-03-08

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this petition, the petitioner has prayed for the following relief:- "It is, therefore, most respectfully prayed that the present petition may very kindly be allowed and impugned annexure P-4 order dated 9.9.2016 passed by the learned Addl. Sessions Judge-I, Una in Criminal Revision No. 26 of 2016 may kindly be quashed and set aside. The record of the case may also be called for, in the interest of law and justice." 2. It is not in dispute that in proceedings, which stood initiated under Section 24 of Hindu Marriage Act, the Court of learned District Judge, Ropar vide order dated 11.12.2015 had directed the present petitioner to grant maintenance pendentelite at the rate of Rs. 4,000/- per month to the present respondents No.1 and 2 w.e.f. 3.11.2015, as also Rs. 5,000/- as litigation expenses. It is also not in dispute that said respondents are receiving this amount from the petitioner, as has been ordered by the learned District Judge, Ropar. 3. In proceedings initiated under Sections 18, 19 and 20 of Protection of Women from Domestic Violence Act, 2005 by the present respondents No.1 and 2, an application was filed for grant of interim maintenance and the Court of Learned Judicial Magistrate 1st Class, Court No.1, Una, H.P. vide order dated 6.5.2016 appended with the petition as Annexure P-3 ordered the appellant to pay interim maintenance at the rate of Rs. 2500/- per month as maintenance to respondent No.1 (wife) and Rs. 2000/- as maintenance in favour of respondent No.2 (daughter) i.e. total Rs. 4500/- per month with further direction that school expenses of respondent No.2 shall also be paid by the present petitioner. 4. Against this order, separate appeals were preferred by both the present petitioner as well as respondents No.1 and 2/claimants. Vide order dated 9.9.2016, learned appellate court while upholding the order passed by the Court of Learned Judicial Magistrate 1st Class, Court No.1, Una, dismissed both these appeals. 5. Feeling aggrieved, petitioner-husband has filed the present petition, wherein he has assailed both the orders passed by Learned Judicial Magistrate 1st Class, Court No.1, Una, as well as the learned appellate court. 6. I have heard learned counsel for the petitioner as also learned Legal Aid Counsel for respondents No.1 and 2. 7. 5. Feeling aggrieved, petitioner-husband has filed the present petition, wherein he has assailed both the orders passed by Learned Judicial Magistrate 1st Class, Court No.1, Una, as well as the learned appellate court. 6. I have heard learned counsel for the petitioner as also learned Legal Aid Counsel for respondents No.1 and 2. 7. A Perusal of the order passed by Learned Judicial Magistrate 1st Class, Court No.1, Una, demonstrates that while ordering the grant of maintenance to the tune of Rs. 2,500/- per month in favour of respondent No.1 (wife) and Rs. 2,000/- per month in favour of respondent No.2 (daughter) , it did not take into consideration the factum of Rs. 4,000/- already being received by respondents No.1 and 2 as per the directions passed by learned District Judge, Ropar in proceedings so initiated under Section 24 of Hindu Marriage Act. In fact in para 6 of the judgment passed by learned trial court, it has held that though it was argued on behalf of the respondents therein i.e. the present petitioner, that present respondents No.1 and 2 had been awarded Rs. 5,000/- as maintenance in a matrimonial dispute but as there was neither any pleadings nor any other documents to corroborate this fact, therefore, the Court concluded that in such circumstances the husband could easily spare Rs. 2,500/- per month as maintenance in favour of respondent No.1 (wife) and Rs. 2,000/- per month in favour of respondent No.2 (daughter) . In my considered view, it appears that the factum of Rs. 4,000/- per month having been awarded in favour of present respondents No.1 and 2 was not disclosed by respondents No.1 and 2 before the learned trial court. This is apparent from the fact that it has been clearly observed by the learned court below that there was no material on record to corroborate that the wife and the daughter were received maintenance in any matrimonial dispute. In my considered view, had this information been made available to the learned trial court by the wife and the daughter, then may be some other view would have been taken by the learned trial court. In my considered view, had this information been made available to the learned trial court by the wife and the daughter, then may be some other view would have been taken by the learned trial court. Therefore, in these circumstances without making any further reference on the merits of the case, in my considered view, it will be in the interest of justice that the impugned orders are set aside and the matter is remanded back to the Court of Learned Judicial Magistrate 1st Class, Court No.1, Una, with a direction to adjudicate the application so filed before it by the wife and the daughter afresh after taking into consideration all aspects of the matter. Ordered accordingly. Parties through their respective counsel are directed to appear before the learned trial court on 19.3.2018. All endeavour shall be made by the learned trial court to decide the application as expeditiously as possible and not later than 31st May, 2018. As agreed upon, till the application is decided by the learned trial court, in addition to the maintenance which the petitioner is paying to the respondents No.1 and 2, as per the order passed by the learned District Judge, he shall pay to his daughter an amount of Rs. 2,000/- per month from January, 2018, onwards, which shall subsequently be adjusted in accordance and in consonance with the order which shall be passed by the learned court below. This amount shall positively be paid on or before the date on which the parties appear before the learned trial court. This Court has been informed that pursuant to the impugned orders, no amount was ever paid to respondents No.1 and 2 by the petitioner. In these circumstances, it goes without saying that whatever amount is determined by the learned trial court, the same shall be payable by the petitioner to respondents No.1 and 2 from the date of filing of the petition before the learned trial court, as was earlier ordered by the learned trial court. Petition stands disposed of in the above terms, so also pending miscellaneous applications, if any.