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2020 DIGILAW 56 (MP)

Ravi v. Sarita

2020-01-09

S.K.AWASTHI

body2020
ORDER 1. The applicants have preferred this petition under section 397 R/w section 401 of CrPC against the order dated 29.1.2018 passed by Second Additional Sessions Judge, Dewas in Criminal Appeal No.120/2017 whereby the appeal filed by the applicants against the order dated 29.5.2017 passed by Judicial Magistrate First Class, Dewas in Criminal Case No.258/2016 has been affirmed by which the applicants are directed to pay Rs. 10,000/- per month as interim maintenance to the respondent. 2. Brief facts of the case are that the respondent has filed an application under section 12 of Protection of Women From Domestic Violence Act ( in short " DV Act") before the Court of Judicial Magistrate First Class, Dewas alleging that she got married with Praveen s/o applicant No.2 by Hindu Rites and Rituals in the year 2003. After the marriage respondent gave birth to two children namely Tanish, aged about 14 years and Anushka, aged about 9 years, however, her husband died in road accident on 30.5.2013. Her father-in-law also died before the 5 years of the death of her husband Praveen. Her father in law was purchased 8 Bighas agricultural land at Village Bijalpur as well as Hathonouri, Tehsil and District Indore in the name of her husband and her brother-in-law. During the life time of her husband, he and his brother were jointly cultivating the agricultural land and earned money. After 6 months of death of her husband, the behavior of the applicants has changed and they started ill-treating and pressurized her to give up her rights on the above agricultural land. They also denied depositing the schools fees of her children. On 18.6.2016, the applicants quarreled with her, then she called her father and left her matrimonial house. She started living with her father's house. The respondent also pleaded that she has no source of income to maintain herself and her children whereas the applicants are earning Rs. 4,50,000/- per annum from the agricultural land, therefore, a prayer was made for direction to applicants to pay Rs. 2,25,000/- per annum as maintenance for herself and her children. 3. The applicants denied all the averments of the application and stated that in their reply that during the life of in husband, respondent along with her husband started living separately. Thereafter she herself left the company of the applicant and started residing with her father alongwith her children at Dewas. 3. The applicants denied all the averments of the application and stated that in their reply that during the life of in husband, respondent along with her husband started living separately. Thereafter she herself left the company of the applicant and started residing with her father alongwith her children at Dewas. It is further pleaded that the respondent earned money from the agricultural land which she got in partition, from June 2014 to June 2016. Though Shankarlal, the father-in-law of the respondent purchased agricultural land in the name of her husband and brother-in-law but after the death of Shankarlal, all legal representatives of were having equal rights in the agricultural land but the respondent did not want to give the land to other legal representatives of her father-in-law and she filed this application on the false ground. Hence, they prays for rejection of the application. 4. Learned Judicial Magistrate First Class, Dewas by order dated 29.5.2017 directed the applicants to pay Rs. 4,000/- as interim maintenance to the respondent and Rs. 3,000/- each to her minor son and daughter. Being aggrieved by the aforesaid order, the applicants have preferred criminal appeal before the Sessions Court and the learned Second Additional Session Judge, Dewas vide order dated 29.1.2018 rejected the said appeal by affirming the order of trial Court. This order is subject matter of challenge in the present revision application. 5. Learned counsel for the applicant has submitted that dispute arose between the applicants and nonapplicant regarding the agricultural land. The respondent did not want to give share of the agricultural land which was purchased by her father-in-law late Shankarlal. The applicant No. 2 filed a Civil Suit No. 750-A/2017 before the II Civil Judge Class-II, Indore. In this case she filed an application under Order 39 rule 1 and 2 read with section 151 of CPC In the reply of the aforesaid application, the respondent has stated that the suit land was owned by them from the date of purchase of the land and they are having possession of the suit land. They are cultivating the agricultural land and earns money from it. She is maintaining herself and her children from the income of the said agricultural land. They are cultivating the agricultural land and earns money from it. She is maintaining herself and her children from the income of the said agricultural land. But in the present case, the Courts below have not considered this documentary evidence regarding income of the non-applicant from the agricultural land and wrongly granted interim maintenance amount in favour of the non-applicant and her children. It is further submitted that during the pendency of this revision application, final order has been passed by the JMFC on 4.9.2019 and the application filed by the respondent has been dismissed. The trial Court has given findings in the aforesaid order that the respondent has filed the Domestic Violence case due to the fact that they did not get a share in the land and the nature of dispute between the parties is civil and no domestic violence has been inflicted upon the applicants, resultantly no maintenance has been awarded to the respondent as they were not found to be eligible for it. Therefore, in the light of the aforesaid findings of the learned trial Court, it can be very well said that the respondents are not entitled for any sort of interim maintenance as well. 6. None has present on behalf of respondent to oppose the petition. 7. I have heard, learned counsel for the applicant and perused the record. 8. The learned Judicial Magistrate First Class, Dewas directed the applicants to pay Rs. 10,000/- as interim maintenance to the respondent and her children till the disposal of the case filed by the respondent under section 23 of DV Act. However, during the pendency of this revision petition, the final order has been passed by the trial Court and the application filed by the respondent under section 23 of DV has been rejected holding that applicant failed to establish that any domestic violence inflicted upon her and dispute arose between the parties is civil in nature, in this regard a civil suit is pending before the Court, therefore, the respondent is not entitled for grant of any relief as provided under section 12 read with sections 17,18,19,20,21 and 22 of DV Act. It is also pertinent to note that in the reply of injunction application, the respondent stated that she has possessed the agricultural land purchased by her father-in-law in the name of her husband and her brother-in-law and she also earned money from it. It is also pertinent to note that in the reply of injunction application, the respondent stated that she has possessed the agricultural land purchased by her father-in-law in the name of her husband and her brother-in-law and she also earned money from it. Under these circumstances, this Court is of the view that the respondent is not entitled any interim relief under section 23 of DV Act. Thus, the Court below has committed error in directing the applicants to pay Rs. 10,000/- per month as interim maintenance to the respondent and her children. Accordingly, this revision petition is allowed and the order dated 29.5.2017 passed by Judicial Magistrate First Class, Dewas and order dated 29.1.2018 passed by Second Additional Sessions Judge, Dewas are hereby set aside. Let a copy of order be sent to the concerned trial Court along with record for information and necessary compliance.