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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