Dismissed

Sudhir Kumar v. Kalpna Kumari

Himachal Pradesh HC18 Sept 2017CRMMO/224/2016

Case brief

AI extract

What is this about?

In this criminal miscellaneous petition under Section 482 CrPC, the High Court upheld the order of the Court below which awarded maintenance to the respondent wife. The Court found that the husband admitted non-payment of maintenance, which constituted domestic violence, and that the awarded amount was not excessive, thus dismissing the petition.

What did the court decide?

No interference with the Court below order; each party to bear own costs.

Sudhir Kumar Vs Kalpna Kumari — Domestic Violence | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MMO No.224 of 2016

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Reserved on : 30.8.2017. Decided on: 18^th September, 2017.

Sudhir Kumar & anr.

...Petitioners.

Versus

Kalpna Kumari …Respondent.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

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Whether approved for reporting?¹ Yes.

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For the petitioners : Mr. Ashwani K. Sharma, Advocate. For the respondent : Mr. Lovneesh Kanwar, Advocate.

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Chander Bhusan Barowalia, Judge

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The present petition under Section 482 of the Code of Criminal Procedure (for short ‘Code’) has been preferred by the petitioners against the judgment, dated 2.3.2016, passed by the learned Additional Sessions Judge, Hamirpur, upholding the order dated 5.8.2014, passed by the learned Additional Chief Judicial Magistrate, Hamirpur, District Hamirpur, with a prayer to allow the present petition and set aside the impugned order passed by the learned Court below.

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Brief facts giving rise to the present petition are that petitioner No.1, herein and the respondent, are husband and wife. As per the petitioner, respondent-wife filed a complaint under

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Sections 12, 18, 19 and 20 of the Protection of Women from

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Domestic Violence Act (hereinafter referred to as ‘Domestic Violence Act’), before the learned Court below. It is averred in the petition that the marriage between petitioner No.1 and the respondent was solemnized on 17.11.2009 and after marriage, the petitioner started harassing her physically as well as mentally. The respondent has further alleged that the petitioner had started neglecting and also refused to maintain the respondent and has raised demand of dowry. Even otherwise, she was not regarded, as a wife, rather she was humiliated, tortured and maltreated. The respondent has further alleged that she has tried her best to settle in the family of the petitioner, but all in vain. The respondent has further alleged that on the intervention of parents, the matter was amicably settled on 12.9.2010, in the presence of witnesses and thereafter both had started living together. The respondent has alleged that even after amicable settlement between the parties, by interference of her parents, even thereafter the petitioners have started harassing her physically as well as mentally on account of the demand of dowry. The respondent was restrained from having any conversations with her parents. On 18.8.2011, respondent gave birth to a child, but the petitioner and his family members did not turn up to take care of their well being. The aforesaid act and conduct of the petitioners including his family members depicts that they have disowned the respondent in all respects having no source

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of income. The petitioner is working as a Lecturer in a Private Academy and earning handsome income. The respondent has left the matrimonial home at her own and the petitioner went to bring her back, respondent threatened to commit suicide and insulted him. Petitioner No.2 is an old diabetic lady suffering with blood pressure and other ailments, therefore, the allegations of domestic violence cannot sustain against her.

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Learned counsel appearing on behalf of the petitioners has argued that the salary of petitioner No.1-husband, which is proved on record, the maintenance granted to the respondent-wife is very much on the higher side. He has further argued that the respondent-wife has left the company of the petitioners on her own will. He has further argued that petitioner No.1 has to maintain his mother-petitioner No.2 and he is having small house only. In these circumstances, the orders passed by the learned Courts below may be set aside.

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On the other hand, Mr. Lovneesh Kanwar, learned counsel appearing on behalf of the respondent-wife has vehemently argued that petitioner No.1-husband is earning huge amount and he is working at Ludhiana and he has produced false certificate of his income only in order to defeat the claim of petitioners. He has further argued that there is no averment with regard to the income in reply filed by the petitioners in the learned Court below. Even,

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RW-3 has stated before the learned Court below that petitioner No.1-husband is paying `5000/- for domestic help. When he is paying this amount to the domestic help, maintenance granted to the respondent-wife cannot be said to be excessive at all.

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To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.

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The learned Court below has held that the acts of petitioners constitutes domestic violence with the respondent-wife. These findings of the learned Court below is considered viz-a-viz the evidence which has come on record. This Court finds that the petitioner-husband has admitted the fact in his affidavit Ex.RW1/A, that he used to pay maintenance to the respondent-wife by way of money order. He has also stated that respondent-wife is doing a private job and earning `12,000/- per month. In his crossexamination, he has admitted the fact that after the petition was filed, he has not paid any maintenance allowance either to his wife or to his son. He denied the fact that respondent-wife is not doing any job and she is having no source of income.

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From this evidence, it is clear that the respondent-

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wife is being neglected by the petitioners without any reasonable cause. The admission so made by petitioner-husband, in his crossexamination that after filing of the petition, he has not paid any

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maintenance allowance to the respondent-wife and her son for their survival proves the conduct of petitioner-husband that he is escaping from his responsibility to maintain his wife and son. No evidence was adduced by the petitioner-husband to prove that respondent-wife is self dependent and is having a proper source of income for her maintenance and for the maintenance of her child. Here the question is not only of the maintenance, but also of the acts of the domestic violence. The fact that petitioner-husband is not paying any maintenance allowance to the respondent-wife and her son amounts to domestic violence. It is the responsibility of petitioner-husband to maintain the respondent-wife and son and not to commit any such act which amounts to domestic violence. It is clear that the petitioner-husband is neither looking after his wife and son nor paying them any maintenance allowance. Further, the petitioners herein, have failed to prove on record before the learned Courts below that they have not withheld ‘istri dhan’ of respondentwife, this is also cruelty.

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It has come on record that respondent-wife and son are not being looked after by the petitioner-husband, when the petitioner’s house is at Hamirpur as well as petitioner-husband is a Science Graduate and having sufficient experience capable to earn.

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The averments with regard to income of petitioner-husband as made out by the respondent-wife in her application were not

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specifically denied by the petitioner-husband in the learned Courts below. This makes it clear that the petitioner-husband has concealed the facts with regard to his income. The judicial notice of this fact can be taken with regard to the income of the petitioner-husband, who is a trained Graduate Science teacher and is teaching in a School. In these circumstances, this Court finds that the maintenance allowance of `6000/-, as awarded by the learned Court below cannot be said to be excessive at all. The petitioner-husband is duty bound to provide her either appropriate accommodation in the share household or in alternative, some rented accommodation consisting of at least two rooms having facilities of toilet, bathroom, kitchen at the place where the respondent-wife is residing. The respondent-wife is residing in a village and this Court finds that the rent of the accommodation in a village will not be at all beyond the control of petitioner-husband. In these circumstances, after careful appreciation of the evidence and the material, which has come on record, this Court finds that the orders passed by the learned Courts below are just and reasoned and so, no interference is required by this Court.

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In view of what has been discussed hereinabove,

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the present petition, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and

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circumstances of the case, the parties are left to bear their own

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costs. Pending application (s), if any, shall also stands disposed of.

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18^th September, 2017 (Chander Bhusan Barowalia) (CS) Judge

Sudhir Kumar v. Kalpna Kumari

Case brief

What is this about?

What did the court decide?

Sudhir Kumar v. Kalpna Kumari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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