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Madhya Pradesh High Court · body

2018 DIGILAW 428 (MP)

VINOD PATEL v. KOMAL

2018-04-26

S.K.AWASTHI

body2018
JUDGMENT : 1. The petitioners are challenging the order dated 3-7-2017 passed in Criminal Appeal No. 232/2017 by the First Additional Sessions Judge, Indore wherby the appellate Court affirmed the order dated 3-3-2017 passed by the Judicial Magistrate First Class, Sanwer, District Indore and the petitioner No. 1 has been directed to pay the maintenance amount of Rs. 12,000/- per month to the respondent Nos. 1 to 3. 2. The facts which have lead to filing of this present revision petition are that the marriage was solemnized between the petitioner No. 1 and the respondent No. 1 on 9-2-2000, as per Hindu rituals and customs. The respondent Nos. 2 and 3 are the daughters born out of the wedlock of the petitioner No. 1 and the respondent No. 1. The respondent No. 1 has filed the case under section 12 of Protection of Women from Domestic Violence Act, 2005 (in short the D.V. Act), alleging that the petitioners were making demand of dowry from the respondent No. 1 and were mentally and physically torturing her. Therefore, she compelled to live separately with her daughters. The respondent No. 1 has pleaded that she has no source of income to arrange her maintenance as well as to take care of her daughters Respondent Nos. 2 and 3; where as the petitioner No. 1 is working as a Government Teacher and he is getting some amount as salary and she filed an application under section 23 of the D.V. Act, by which she prayed for a sum of Rs. 25,000/- as interim maintenance from the petitioner No. 1. 3. The petitioners denied all the averments of the respondent Nos. 1 to 3 and stated that they have never demanded dowry from the respondent No. 1 nor they have ill treated her. According to the petitioners, after five years of the marriage, the nature of the respondent No. 1 was changed and she started misbehaving with them and always threatened them that she will commit suicide. She is living separately with her own will and is able to maintain herself as well as the respondent Nos. 2 and 3. 4. The application filed by the respondent Nos. 1 to 3 was allowed by the Judicial Magistrate First Class Sanwer, District Indore vide order dated 3-3-2017 and the petitioner No. 1 was directed to pay Rs. She is living separately with her own will and is able to maintain herself as well as the respondent Nos. 2 and 3. 4. The application filed by the respondent Nos. 1 to 3 was allowed by the Judicial Magistrate First Class Sanwer, District Indore vide order dated 3-3-2017 and the petitioner No. 1 was directed to pay Rs. 6,000/- per month to the respondent No. 1 and Rs. 3,000/- each to the respondent Nos. 2 and 3 as maintenance. Being aggrieved b the aforesaid order, the petitioners have preferred an appeal before the Sessions Court, Indore and same was dismissed by the First Additional Sessions Judge,Indore on 3-7-2017, which is the subject matter to challenge before this Court. 5. Learned counsel for the petitioners submitted that the respondent No. 1 is living separately on her own will. However, the trial Court has directed in order to provide a place to the respondents to live in the shared household and in compliance of the aforesaid order, the petitioner No. 1 has provided a place to the respondents and they are living in the shared household. Therefore, more litigation started between the parties. The trial Court as well as the appellate Court has failed to assess the actual income of the petitioner No. 1 and committed error in directing him to pay a sum of Rs. 12,000/- per month as maintenance to the respondent No. 1 to 3. 6. Learned counsel for the respondents has supported the impugned order and submitted that this revision petition has not maintainable before this Court in the light of the judgment passed by Hon’ble Supreme Court in the case of Shalu Ojha vs Prashant Ojha, reported in 2014 Cri.L.R. (SC) 1001. Under these circumstances, he prayed for dismissal of the present revision petition. 7. I have heared the learned counsel for the parties and perused the record. 8. After considering the arguments advanced by the learned counsel for the parties, this Court is of the opinion that at the stage of the fixation of interim maintenance, the Court cannot take all the submissions put up before this Court. Moreover, it is an admitted fact that the petitioner No. 1 is working as a Government Teacher and he is getting salary of Rs. 29,000/- per month. Moreover, it is an admitted fact that the petitioner No. 1 is working as a Government Teacher and he is getting salary of Rs. 29,000/- per month. At this stage, it cannot be examined by oral submissions that the respondent No. 1 is living separately out of her own will. Other contentions of establishing the income of the petitioner No. 1 before the Courts below are premature because the application filed under section 12 of the D.V. Act is under adjudication before the Trial Court and any observation of this Court will prejudice the pending proceedings. Looking to the fact that two children are born out of the wedlock of the petitioner No. 1 and respondent No. 1 and both are residing with the respondent No. 1, this Court is of the opinion that the trial Court as well as the appellate Court has not committed any error in fixation of maintenance amount to tune of Rs. 12,000/- per month. There is no illegality or perversity visible in the impugned order passed by the Courts below. 9. So far as the question of maintainability of this revision petition is concerned, in the case of Shalu Ojha (supra) whereby the Apex Court has held thus : 26. One important factor to be noticed in the context of the present case is that while section 23 expressly confers power on the Magistrate to grant interim orders, there is no express provision conferring such power on the Sessions Court in exercise of its appellate jurisdiction. section 23 reads as follows : “Section 23. Power to grant interim and ex parte orders. — (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.” 27. It can be seen from the DV Act that no further appeal or revision is provided to the High Court or any other Court against the order of the Sessions Court under section 29. 10. In view of the above law laid down by the Hon’ble Apex Court and the facts of the case, the present revision petition filed by the petitioners cannot accepted and it is hereby dismissed. Certified copy, as per rules.