IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CrMMO No. 264 of 2018
Decided on: 14.09.2018
Krishan Dutt …Petitioner
Versus
Sunita
Coram
r to …Respondent
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the petitioner: Ms. Anubhuti Sharma, Advocate.
For the respondent: Ms. Seema Sood, Advocate.
Vivek Singh Thakur, Judge. (Oral)
Present petition has been filed against impugned
order, dated 19th May, 2018, passed in Criminal Revision No.
12Cr.R./10 of 2018, titled Krishan Dutt versus Sunita, by
learned Sessions Judge, Sirmaur District at Nahan,
whereby revision petition filed by the petitioner has been
partly allowed directing release of the petitioner from civil
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imprisonment subject to deposit of the amount as per
undertaking given by him before the learned Sessions Judge
.
in the said revision petition, failing which the trial Court
has been granted liberty to proceed against the petitioner in
accordance with law.
2. It is apt to record herein that the petitioner had
preferred aforesaid revision petition against order, dated
28th April, 2018, passed by the learned Chief Judicial
Magistrate, Sirmaur at Nahan, whereby, on expressing his
inability to make payment of maintenance allowance in
Execution Petition/Case No. 182/4 of 2013 filed for
recovering the maintenance awarded in favour of the
respondent in proceedings under Section 125 of the Code of
Criminal Procedure (hereinafter referred to as ‘CrPC’), the
trial Court had ordered to commit the petitioner to civil
imprisonment for one month for default of payment of
maintenance allowance to the month of August, 2010.
3. It appears from the order passed by the trial
Court (Annexure P1) as well as impugned order, dated 19th
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May, 2018 (Annexure P3) that the petitioner is not paying
maintenance allowance to the respondent at least since
.
2010.
4. It is contended on behalf of the petitioner that he
is a jobless person having no earning and, thus, is not
capable to pay maintenance allowance to the respondent in
compliance of the order passed by he trial Court and for his
inability to pay the maintenance allowance, he had offered
to transfer the land owned by him in favour of the
respondent from the very beginning and had also made
statement to that effect in the trial Court and despite that
the petitioner has been ordered to be committed to civil
imprisonment without considering the entire facts and
circumstances as well as the aforesaid offer of the petitioner.
5. Statements, dated 8th March, 2017 and 23rd July,
2016 have been placed on record as Annexure P2 (colly). In
these statements, the petitioner has nowhere proposed to
transfer the land in favour of the respondent, rather, he has
made the statement to the effect that he has no objection to
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make payment of maintenance to the respondent after
selling his property by the Court. Petitioner has also placed
.
on record copy of warrant of attachment of movable
property, dated 1st August, 2016, in the execution filed by
the respondent.
6. During pendency of present petition, parties
were directed to remain present in person in the Court to
undertake the effort for reconciliation/amicable settlement
between the parties. During that exercise also, the
petitioner had offered transfer/sale of his land in favour of
the respondent or for making payment of maintenance
amount. However, it was transpired that the land owned
and possessed by the petitioner is not free from
encumbrances as the petitioner has already obtained loan
from bank/financial institution against the said land.
Therefore, plea of the petitioner that he is ready and willing
to transfer the land to the respondent or to sale out his
property for making the payment of maintenance allowance
to respondent is a farce.
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7. On the previous date, adjournment was sought
on the ground that the petitioner is intending to settle the
.
matter in the divorce petition filed by the respondent in the
Court of learned District Judge, Sirmaur at Nahan,
however, it is contended by the learned counsel for the
respondent that no such effort has been made in the
proceedings of divorce petition, rather, the petitioner, who is
respondent therein, has sought more than one month’s time
to file reply to the said petition whereupon the trial Court
has fixed the next date of hearing as 31st October, 2018.
8. It is also pleaded on behalf of the petitioner that
the petitioner is ready to keep the respondent with him, but,
she has left the company of the petitioner without any
satisfactory reason and, thus, as per provisions of Section
125 (4) CrPC, she is not entitled for maintenance.
9. This plea of the petitioner is not sustainable as
there is nothing on record to establish the contention so
raised by the petitioner disentitling the respondent from
receiving maintenance under Section 125 (4) CrPC, rather,
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it is apparent from the record that the order awarding
maintenance in favour of the respondent under Section 125
.
CrPC was passed in the year 2010 and since then, no
maintenance amount has been paid by the petitioner.
10. From the warrant of attachment placed on
record, it is also evident that the said warrant of attachment
was issued in 2016 in Case No. 5/1 of 2010. Meaning
thereby, the execution petition for recovery of maintenance
is pending since 2010, but, the petitioner is not making any
payment in respect thereof.
11. Learned Sessions Judge had directed the
petitioner to appear before the trial Court on 26th May, 2018
with further liberty to the trial Court to proceed against the
petitioner, in accordance with law, in case of failure in
deposit of the amount, as undertaken by him.
12. In the aforesaid background, legality of the
impugned order is to be assessed. Vide order, dated 24 th
April, 2018, the trial Court had ordered one month’s civil
imprisonment to the petitioner and it appears, from perusal
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of the impugned order, that petitioner was lodged in the jail
and thereafter, he had preferred the revision petition
.
wherein he had undertaken to deposit the balance amount
in Execution Petition No. 182/4 of 2013, titled Sunita Devi
versus Krishan Dutt and on the basis of his undertaking, he
was ordered to be released.
13.
Considering entire facts and circumstances as
well as submissions of parties, I find no illegality,
irregularity or perversity in the impugned order as no
ground for interference in impugned order is made out.
14. At this stage, it is contended on behalf of the
respondent that by filing the present petition and calling the
respondent to Shimla after expressing desire to settle the
dispute, the petitioner has caused unnecessary expenditure
to be incurred by the respondent and also causing
harassment to her and, thus, she has prayed for levying
heaving costs upon the petitioner payable to the respondent
in addition to the cost of litigation.
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15. Respondent has been provided legal aid, in the
present case, therefore, I do not find any reason to order
.
payment of litigation charges, however, respondent had to
travel to Shimla to attend this Court for expression of
willingness on the part of the petitioner to settle the dispute
and for that purpose, she has incurred the expenses for
which the petitioner is liable to pay ₹ 1,000/ to compensate
her and the said amount shall be paid by the petitioner
before the trial Court on 3rd October, 2018.
16. In view of above discussion, present petition is
dismissed in aforesaid terms. The interim order also stands
vacated and parties are directed to appear before the trial
Court, i.e. learned Chief Judicial Magistrate, Sirmaur at
Nahan, on 3rd October, 2018, who shall proceed further in
accordance with law.
(Vivek Singh Thakur)
Judge
September 14, 2018
( rajni )
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