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Rajasthan High Court · body

2020 DIGILAW 481 (RAJ)

Priti D/o Shri Rikhab Chand Jain v. Chandesh Mehta S/o Shri Parasmal

2020-03-05

PANKAJ BHANDARI

body2020
ORDER : 1. Petitioner has preferred this Criminal Misc. Petition aggrieved by order dated 02.01.2018 passed by learned Additional Sessions Judge (Women Atrocity Cases) Ajmer whereby, he dismissed the appeal filed against the order dated 31.08.2017 passed by learned Additional Chief Judicial Magistrate No.1, Ajmer whereby, the Court partly awarded Rs.3,000/- per month as maintenance to the petitioner. 2. It is contended by counsel for the petitioner that petitioner filed an application under Section 23 of the Domestic Violence Act. Court has awarded Rs.3,000/- per month as maintenance to the petitioner but has refused the prayer for grant of maintenance to children on the ground that children of petitioner were residing at Jodhpur whereas, petitioner was residing at Ajmer. It is contended that in Appeal Court has affirmed the order only on the ground that present petitioner is residing at Ajmer and children are residing at Jodhpur. It is also contended that even if the Court comes to the conclusion that children are not residing with petitioner that does not mean that petitioner is not entitled to claim maintenance for looking after the children. 3. It is contended that it is the admitted position that respondent is not maintaining his children. Petitioner is looking after her two children and is dependent on her parents and aunt, who are bearing the expenses of her children. It is also contended that respondent in his reply has annexed a salary certificate, which shows his salary to be Rs.5,800/- per month. It is contended that the person who has issued the certificate, is mother of respondent who is shown as Proprietor/Manager of M/s Bhuwal Agro Industries. 4. It is argued that in-fact petitioner herself is looking after her two children and the salary certificate is filed just to deprive the children from maintenance. 5. Counsel for the respondent has opposed the misc. petition. It is contended that respondent wants to maintain his children and is willing to keep his children. It is also contended that petitioner left on her own free will and the matter is only at interim stage. Court would be free to pass orders after recording of evidence of parties. It is also contended that petitioner has no means to pay more than the amount awarded by the Court below. 6. I have considered the contentions. 7. It is also contended that petitioner left on her own free will and the matter is only at interim stage. Court would be free to pass orders after recording of evidence of parties. It is also contended that petitioner has no means to pay more than the amount awarded by the Court below. 6. I have considered the contentions. 7. The reason assigned by both the Courts below for rejecting the prayer for grant of maintenance for children is wholly unjustified and cannot be sustained. Admittedly, children are not residing with their father, even if they are residing at Jodhpur, petitioner is entitled to receive maintenance to look after her children. Even if it is assumed that relatives of petitioner are looking after her children and are bearing the expenses, still relatives cannot be burdened to look after her children and father is responsible to pay for their maintenance. The impugned orders passed by the Courts below are erroneous and the reason assigned for rejecting the prayer is not at all justifiable, hence, the orders passed by the Courts below to the extent that they have deprived the petitioner from maintenance of her children is quashed and set aside. 8. Accordingly, the Criminal Misc. Petition is allowed. Stay application stands disposed of. 9. The matter is remanded back to the Court below to determine the interim maintenance to be paid to the children. 10. Trial Court is further directed to decide the main application at the earliest.