Dismissed

Smt. Anusuiya Bai v. Prem Prakash Bhuarya

Chhattisgarh HC7 Nov 2022CRR/415/2022

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh, Bilaspur dismissed a revision filed by a wife against an order of the Sessions Judge that adjusted her maintenance award under the Domestic Violence Act with her earlier maintenance under Section 125 Cr.P.C., ruling the adjustment consistent with Raajnesh. The Court dismissed the petition.

What did the court decide?

The revision petition was dismissed, leaving the petitioner free to apply under Section 127 Cr.P.C. for alteration if circumstances change.

Smt. Anusuiya Bai Vs Prem Prakash Bhuarya — Domestic Violence | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 415 of 2022

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Smt. Anusuiya Bai W/o Shri Prem Prakash Bhuarya, Aged About 46 Years, Resident Of Village Mudkhusra, Police Station Suregaon, Tahsil Daundilohara, District Balod Chhattisgarh.

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---- Petitioner

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Versus

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Prem Prakash Bhuarya S/o Jagdish Bhuarya, Aged About 48 Years Resident Of Village Mudkhusra, Police Station Suregaon, Tahsil Daundilohara, District Balod Chhattisgarh.

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---- Respondent

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For Petitioner	Mr. Vipin Tiwari, Advocate
For Respondent	Mr. Vidya Bhushan Soni, Advocate

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

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Order On Board 7/11/2022

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Heard.

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The revision has been filed by the applicant-wife against the order dated 12.8.2021 passed by the Sessions Judge, Balod District Balod (CG) in Criminal Appeal No.17/2020

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under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short “the Act, 2005”).

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Facts of the case, in brief, is that the applicant has filed an application under Section 125 of Cr.P.C before the Additional Principal Judge, Family Court, Balod (CG) in Misc. Criminal Case No.51/2012. In the said Misc. Criminal Case, vide order dated 5.2.2013, learned Additional Principal Judge has granted monthly maintenance of Rs.5000/- to the applicant and it was also directed that the said amount shall be increased @ 10% per annum in the month of January. Thereafter, the applicant has filed an application under Section 12 of the Act, 2005 before the Judicial Magistrate First Class, Balod vide Misc. Criminal Case No.322/2014, whereby, the learned Judicial Magistrate First Class, Balod , District Balod (CG) vide order dated 26.2.2020 partly allowed the petition and directed the respondent-husband to pay monthly maintenance of Rs.3000/- to the applicant. Being aggrieved with the said order, the respondent-husband filed Criminal Appeal No.17/2020, whereby, the Appellate Court has modified the order dated 26.2.2020 passed by the Judicial Magistrate First Class, Balod to the extent that the monthly maintenance of Rs.3000/- granted to the applicant be adjusted to the maintenance amount already awarded

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to her earlier under Section 125 of Cr.P.C.

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Learned counsel for the applicant would submit that the respondent is working as Block Education OfÏcer in the Education Department and earning Rs.40,000/- per month. The appellant-wife has preferred an application under Section 125 of Cr.P.C. seeking maintenance of Rs.15,000/-. However, vide order dated 15.2.2013, the Additional Principal Judge, Family Court, Balod granted monthly maintenance of Rs.5000/- and also directed that the said amount be increased @ 10% per annum in the month of January . Thereafter, on an application filed under Section 12 of the Act, 2005 by the applicant, the Judicial Magistrate First Class, after taking into consideration all the facts pleaded by the applicant, granted her monthly maintenance of Rs.3000/-. However, the Appellate Court adversely considered such facts and passed the impugned order and therefore, it deserves to be set-aside. Further, considering the income of the respondent, he prays for suitable enhancement of the maintenance amount.

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Per contra, learned counsel for the respondent would support the impugned order passed by the Appellate Authority. He submits that the wife is residing in the same building where the husband resides. The husband is

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regularly paying the monthly maintenance to the wife. He submits that the learned Judicial Magistrate First Class did not pass any specific order with regard to the payment of the maintenance amount in addition to the amount already awarded earlier. As such, a specific order was required to be passed in view of the judgment of the Supreme Court rendered in the matter of Rajnesh Vs. Neha and another, (2021) 2 SCC 324 . He would further submit that the out of the wedlock of the applicant and the respondent, a daughter is born, who is residing with the respondent, and at present pursuing her studies in college and has attained the age of marriage. Hence, considering the obligations of the respondent, no enhancement is justified. He prays for dismissal of the revision.

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Heard learned counsel for the parties and perused the record.

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In Rajnesh (supra), it has been settled that if in a previous proceeding, an amount is awarded towards maintenance, in the subsequent proceeding f i led, the payment awarded in the earlier proceeding must be taken note of and such amount is adjustable in the maintenance amount awarded under the dif f erent enactments. Learned Judicial Magistrate First Class though vide order dated 26.2.2020

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has mentioned in para 13 that a separate maintenance amount has been granted to the applicant to the tune of Rs.5000/- per month under Section 125 of Cr.P.C., but in the operative part of the order vide para 15, it has not been specified that the amount of Rs.3000/- awarded by him is to be paid in addition to the amount already awarded to the applicant in a previous proceeding under Section 125 of Cr.P.C. before the learned Additional Principal Judge, Balod. Further, the learned Additional Principal Judge vide order dated 5.2.2013, not only granted monthly maintenance of Rs. 5000/- per month to the applicant but also granted increment @ 10% per annum in the month of January, taking into account the future increase in the cost of living.

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Taking into account all such facts, learned Sessions Judge vide the impugned order has modified the order of the Judicial Magistrate First Class to the extent that the monthly maintenance amount @ Rs.3000/- be adjusted to the maintenance amount already awarded to the applicant in a previous proceeding under 125 of Cr.P.C. Such order is in no manner unjust or illegal, which warrants interference of this Court by invoking its revisional jurisdiction.

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For the foregoing, the revision is dismissed. However, if

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there is any change in the circumstances, the applicant would be at liberty to move an application under Section 127 of Cr.PC for alteration in maintenance allowance before the competent authority.

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10.Accordingly, the revision is dismissed.

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Sd/-

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( Deepak Kumar Tiwari)

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Judge

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Shyna

Smt. Anusuiya Bai v. Prem Prakash Bhuarya

Case brief

What is this about?

What did the court decide?

Smt. Anusuiya Bai v. Prem Prakash Bhuarya

Case brief

What is this about?

What did the court decide?

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