Ashwani Kumar vs Sunita Kumari on 4 September, 2017

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.
r 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.

2. Brief facts giving rise to the present petition are

that petitioner and the respondent herein, are husband and wife.

The marriage between the petitioner and respondent was

solemnized on 7.10.2003, in accordance with the Hindu rites and

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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3. Learned counsel appearing on behalf of the

petitioner has argued that the maintenance amount awarded by the

learned Court below is too much on the higher side, as the learned

.

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.

4. On the other hand, Mr. Ramakant Sharma, learned

Senior Counsel appearing on behalf of the respondent has

strenuously argued that the present petition under Section 482 of

the Code of Criminal Procedure, is not maintainable, as the

petitioner has a remedy to maintain the revision petition before the

learned lower Appellate Court, if he is aggrieved by the order of

learned Court below. He has further argued that in case,

tomorrow, the petitioner withdraws his petition under Hindu

Marriage Act, then the maintenance pendente lite awarded by way

of mutual consent of the petitioner-husband will go. He has further

argued that the maintenance amount of `5000/- awarded by the

learned Magistrate under the Domestic Violence Act, is otherwise

cannot be said to be excessive.

5. In rebuttal, learned counsel appearing on behalf of

the petitioner has argued that the powers of this Court under

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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.

6. To appreciate the arguments of learned counsel

appearing on behalf of the parties, I have gone through the entire

record in detail.

7. From the perusal of record, it is clear that the

parties are married and the respondent, who was petitioner in the

learned Court below, was legally wedded wife of the petitioner-

husband herein. The marriage inter se is admitted. It has come in

the evidence before the learned lower Appellate Court that the

parties were married in the year 2003. It has also come on record

that the parties are now not living together, but the respondent is

living in the house of petitioner’s mother at Shimla and the

petitioner-husband is living at Solan. It has also come on record

that the petitioner is a Contractor and having good business and

the respondent-wife is totally dependent upon him and she is

residing at Shimla, looking after her son also born after the

marriage from the petitioner, who is studying in Dayanand Public

School, near Kali Bari Temple, Shimla, which is a good Public School

in Shimla.

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8. After taking into consideration the status of the

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.

9. In view of what has been discussed hereinabove,

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

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