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2021 DIGILAW 634 (HP)

Pratap Singh, S/o. Sh. Piyare Lal v. Sheela Devi, W/o. Sh. Pratap Singh

2021-09-02

SANDEEP SHARMA

body2021
ORDER : Instant Criminal Revision Petition filed under Section 397 read with Section 401 of Cr.P.C, lays challenge to judgment dated 23.10.2018, passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, H.P., in Criminal Appeal No.0000038 of 2014, titled as Sh. Pratap Singh and others versus Smt. Sheela Devi, modifying the judgment dated 10.9.2014, passed by learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. in case No.26-3 of 2013, titled as Sheela Devi versus Pratap Singh and others, whereby learned court below while allowing the petition under Section 12 of Protection of Woman from Domestic Violence Act ( for short ‘Act,) having been filed by respondent herein, directed petitioner No.1 herein to pay Rs.3000/- per month to the respondent, as maintenance allowance from the date of filing of the application. Besides above, learned Court below while directing petitioner No.1 to provide one room and kitchen alongwith toilet in the matrimonial house, also restrained the petitioner, his mother and sisters from committing any act of physical violence against the respondent herein. 2. Precisely, the facts as emerge from the record are that marriage interse petitioner No.1 and respondent was solemnized in the year, 2005 and out of their wedlock, a male child namely, Rajat was born. Allegedly, after 2-3 months of marriage petitioner No.1 started subjecting respondent to maltreatment and he also gave beatings to respondent. Though, respondent tolerated aforesaid uncalled for behaviour of petitioner No.1 for 3-4 years, but once he failed to mend his ways, she was constrained to leave her matrimonial home. To maintain herself and her son, respondent started tailoring work at village Nogli and also started living there in a rented accommodation. Since, during her stay in rented accommodation petitioner failed to provide financial support to respondent as well as minor child, she filed maintenance petition against him in the court. However, in those proceedings, petitioner No.1 undertook not to subject her to any type of maltreatment and as such, matter was compromised and respondent agreed to join the company of her husband in the matrimonial home. Since, after some time petitioner No.1 as well as other petitioners started harassing the respondent on one pretext or other, she was compelled to leave her matrimonial house. Since, after some time petitioner No.1 as well as other petitioners started harassing the respondent on one pretext or other, she was compelled to leave her matrimonial house. As per the respondent, petitioner No.1 and other family members wanted to throw her out from the matrimonial house, so that they could solemnize another marriage of her husband. On 27.6.2013, petitioners No.2 to 5 gave severe beatings to the respondent, as a consequence of which, she suffered multiple injuries. Matter was reported to the police at police Station, Rampur Bushahr, who subsequently got the respondent medically examined from the Medical Officer and thereafter matter came to be referred to Protection Officer for initiating proceedings against the petitioners under the provisions of Protection of Women from Domestic Violence Act. The Protection Officer conducted the necessary inquiry and thereafter forwarded the matter to the lower court of initiating proceedings against the petitioners. 3. While refuting aforesaid claim put forth by the respondent, petitioners filed detailed reply and specifically denied allegations of beatings as well as mental harassment. Petitioners claimed that at no point of time respondent was compelled to leave her matrimonial house, rather she of her own volition and without there being any plausible reason left her matrimonial house and as such, is not entitled to any kind of maintenance. While specifically denying factum with regard to monthly income to the tune of Rs.20,000/-, as claimed by the respondent, petitioner claimed that he earns sum of Rs.4000/- per month on account of his being driver. Petitioners also refuted the claim of the respondent that petitioner No.1 earns sum of Rs.20,000/- per month by working as a Driver and sum of Rs. 2 lac from the apple orchard of his father. 4. Learned trial court on the basis of evidence led on record by the respective parties, held respondent entitled for maintenance to the tune of Rs.3000/- per month. Besides above, court also directed petitioner to provide one room and kitchen alongwith toilet in the matrimonial house to the respondent. 5. Being aggrieved and dissatisfied with the aforesaid order passed by learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., petitioners herein preferred an appeal in the court of learned Sessions Judge, Rampur Bushahr, who vide order dated 23.10.2018, modified the order granting maintenance passed by learned Additional Chief Judicial Magistrate. 5. Being aggrieved and dissatisfied with the aforesaid order passed by learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., petitioners herein preferred an appeal in the court of learned Sessions Judge, Rampur Bushahr, who vide order dated 23.10.2018, modified the order granting maintenance passed by learned Additional Chief Judicial Magistrate. Learned Sessions Judge, Kinnaur set aside the relief of residence order passed by trial Court and directed the petitioner to pay rent in the sum of Rs.1000/- per month to the respondent with effect from 01.11.2018 in lieu of residential accommodation. In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein to quash and set-aside the impugned order and judgment passed by learned Courts below. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that there is no dispute interse parties that marriage interse petitioner No.1 and respondent was solemnized in the year, 2005 and out of their wedlock one child was born. It is also not in dispute that prior to lodging of complaint respondent had filed petition under Section 125 Cr.P.C., seeking therein maintenance. However, before such proceedings could be taken to its logical end parties entered into the compromise, whereby petitioner No.1 undertook before the court that he as well as other family members would not subject respondent to mental harassment as well as maltreatment. It is also not in dispute that on 27.6.2013, matter came to be reported to the police at the behest of respondent that petitioners No.2 to 5 gave her beatings, as a consequence of which, she suffered multiple injuries. Factum with regard to injuries suffered by respondent stands duly established with the opinion rendered on record by Medical Officer, who had an occasion to medically examine the respondent after alleged beatings given to her by petitioners No.4 and 5. Similarly, record reveals that respondent though claimed before the learned Court below that petitioner earns Rs.20,000/- per month by working as a driver and sum of Rs. Similarly, record reveals that respondent though claimed before the learned Court below that petitioner earns Rs.20,000/- per month by working as a driver and sum of Rs. 2 lac from the apple orchard of his father, but such plea of her never came to be proved in accordance with law and as such, learned Court below taking note of admission made by petitioner himself that he is earning Rs.4000/- per month, proceeded to award sum of Rs.3000/- as maintenance in favour of respondent as well as her minor son. However, record reveals that during the pendency of appeal before learned Sessions Judge, Kinnaur respondent filed an application under Section 311 Cr.P.C. with a view to demonstrate that after passing of impugned judgment and order by trial Court petitioner No.1 had got the job of a Diver in M/s Goyal Motors Company at Nogli and he is earning Rs.25000/- per month as salary. Though, petitioners denied the aforesaid contention of the respondent, but by not leading any cogent and convincing evidence. In the cases of present nature onus is always shifted upon a person from whom compensation is claimed to prove that he is not earning the income as is being claimed by the claimant. In the present case, respondent by stating that petitioner earns Rs.20,000/- as salary while rendering his services as driver in M/s Goyal Motors Company shifted the onus upon the petitioner to disprove the aforesaid fact which, he miserably failed to do. Moreover, it is none of the case of petitioner that he is not working as a driver, only dispute is with regard to quantum of salary received by him on account of his being driver in a private company. Record reveals that petitioner during mediation proceedings categorically admitted that factum with regard to his being driver in private company. 7. Though, in the case at hand, trial court ignoring admission made on behalf of the respondent that she does tailoring work, proceeded to grant maintenance to the tune of Rs.3000/,- but learned Sessions Judge, though accepted aforesaid plea made on behalf petitioner, but yet having taken note of the fact that respondent besides sustaining herself requires money to maintain her minor son, proceeded to uphold the order granting maintenance to the tune of Rs.3000/- passed by court below. This court finds no illegality and infirmity in the aforesaid order passed by learned Sessions Judge because it is difficult to accept that in sum of Rs.3000/- requirement of minor child can be fulfilled by mother. Now a day’s prices of essential commodities are so high and it is hard to believe that one can sustain himself/herself in the meager amount of Rs. 3000/-. Since respondent failed to prove that her husband i.e. petitioner possesses immovable property and house in his name, learned Sessions Judge rightly modified the order passed by trial court directing the petitioner to provide one room accommodation in his house. Since petitioner failed to prove that respondent is not compelled to live in rented accommodation, learned Sessions Judge rightly directed him to pay Rs.1000/- as a rent. Since, there is no dispute that respondent is legally wedded wife of petitioner, who has one minor child to maintain it is otherwise obligation cast upon the petitioner being husband and father to provide adequate maintenance to her wife as well as child. Since petitioner is able bodied person, it cannot be accepted that he is unable to provide sum of Rs.4000/- to his wife and minor son on account of maintenance and rent. Sum of Rs.4000/-(Rs.3000+1000) awarded by court below by no stretch of imagination can be said to be on higher side and as such, no interference, if any, qua the same is called for. 8. Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned judgments passed by Courts below and as such, same are upheld. Accordingly, the present petition is dismissed being devoid of any merit alongwith pending applications, if any. 9. Arrears on account of maintenance awarded by the court below, if not already paid, be paid forthwith by the petitioner failing which, he would render himself liable for penal consequence as well as contempt of the Court. Pending application(s), if any, also stands disposed of. Interim directions, if any, stands vacated.