Petitioner sought to quash interim maintenance orders under Section 482 CrPC. Held that maintainable revision is available and no excessive award was found; petition dismissed. Costs to parties.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.53 of 2017. Reserved on : 28.8.2017. Decided on: 4th September, 2017.
Ashwani Kumar
...Petitioner.
Versus
Sunita Kumari
…Respondent.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Subhash Mohan Snehi, Advocate.
For the respondent : Mr. Ramakant Sharma, Sr. Advocate with Mr. P.S. Goverdhan, Advocate.
Chander Bhusan Barowalia, Judge
The present petition under Section 482 of the
Code of Criminal Procedure (for short ‘Code’) has been preferred by the petitioner for quashing and setting aside the impugned orders dated 10.6.2015/15.7.2015, passed by the learned Additional District Judge-II, Solan, District Solan, (H.P) in Case No.14-ADJ-II/3 of 2015, as well as order dated 7.10.2016, passed by the learned Judicial Magistrate 1st Class, Court No.4, Shimla, District Shimla, in Case No.450-3 of 2015.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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local customs at Ram Mandir, Shimla. As per the petitioner, after the marriage, both the parties resided together and cohabited at village Bhag, Post Office Summer Hill, Boileauganj, District Shimla, as husband and wife. Out of the said wedlock, one male child, namely, Yatish was born, who is under the care and custody of the respondent. The respondent is having always cruel nature against the petitioner. The respondent with the support of her mother, namely, Munni Devi, step-mother as well as their relatives has created problem after the child was born. On 15.4.2008, the mother and step-mother of the respondent came to the house of the petitioner and resided there. The mother of the respondent has also advised the respondent to live with the respondent happily by stating that it is your house. The petitioner is not able to enjoy his life with the respondent due to her cruel nature, she quarrel and misbehave and started abusing the petitioner in the presence of friends and relatives. The respondent has never joined the company of the petitioner and the petitioner is providing maintenance to the respondent and his son, namely, Yatish, who is studying in Dayanand Public School near Kali Bari Temple, Shimla. All the expenses on account of caring of the child and also maintaining the respondent is paid by the petitioner and he is paying approximately 10,000/- to 15,000/- per month. The respondent is living with her mother, namely, Munni Devi at village
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Khalogra, Post Office Kumarhatti, Tehsil and District Solan and enjoying her life in her parental house. The petitioner is not able to enjoy his married life since 2008 with the respondent due to the cruelty and unreasonable quarrel. Due to ill-behaviour of the respondent, the petitioner is not able to adjust with the respondent, since the respondent has deserted the petitioner and also subjected him to cruelty and adultery, therefore, compelled with the circumstances created by the respondent, the petitioner has left with no other option, but to file an application under Section 13 (a) (i-a) (i-b) of the Hindu Marriage Act, for dissolution of marriage. The said application was listed before the learned Additional District Judge-II, Solan and vide order, dated 10.6.2015/15.7.2015, directed the petitioner to pay maintenance amount of 15,000/- per month in favour of the respondent. After the impugned order passed by the learned Court, the respondent in order to unnecessary harass the petitioner filed an application under the Domestic Violence Act, against the petitioner. The said application was listed before the learned Court below and granted maintenance amount of 5000/- per month in favour of the respondent from the date of filing of the application. Hence, the petition against the order of learned Court below under the provisions of Domestic Violence Act.
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Court below has not taken into consideration the fact that the earlier maintenance amount of 15,000/- is being paid, as per the orders of learned Additional District Judge-II, Solan, in the petition for dissolution of marriage, as maintenance pendente lite and 25,000/- as litigation expenses.
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Section 482 of the Code of Criminal Procedure, is extra ordinary powers and grievance of the petitioner can be redressed and the amount of maintenance, as awarded by the learned Magistrate below may be reduced.
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parties and the manner in which they are living, this Court finds that the interim maintenance awarded by the learned Court below
is not excessive at all and the same is reasonable, as the respondent has to maintain herself and her son and so, the maintenance awarded is just and reasoned. Further, the maintenance awarded by the learned Additional District Judge-II, Solan, in the petition under the Hindu Marriage Act, on the consent of the parties, thus, the order needs no interference. Accordingly,
the present petition is not maintainable, as when the revision petition is maintainable, the extra ordinary powers under Section 482 of the Code of Criminal Procedure, is not required to be exercised in favour of the petitioner in the facts and circumstances of the present case.
the present petition, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.
4th September, 2017 (Chander Bhusan Barowalia) (CS) Judge
3 issues framed by the court
Whether the High Court can under Section 482 CrPC quash an interim maintenance order under the Domestic Violence Act when a revision is maintainable.
Whether the maintenance amount awarded is excessive given the petitioner's income and the respondent's status.
Under what circumstances the extraordinary powers under Section 482 CrPC are invoked instead of a revision petition.
Ashwani Kumar
Sunita Kumari
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
