Himachal Pradesh High Court
Rup Lal vs Rattani Devi on 4 August, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No.97 of 2018
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Date of Decision: 4.08.2021
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Rup Lal .........Petitioner
Versus
Rattani Devi ....Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
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For the Petitioner : Mr. Malay Kaushal, Advocate.
For the Respondent : Mr. Aman Parth Sharma, Advocate.
Through video-conferencing
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Sandeep Sharma, J. (Oral)
Instant petition filed under Section 482 Cr.P.C., lays challenge to order 6.12.2017, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Criminal Revision No.21-10 of 2016, titled as Rup Lal versus Rattani Devi, affirming the order dated 15.6.2016, passed by learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh in Cr.M.A. No. 5/4 of 2014 ( Main Appeal No.9/4 of 2014) titled as Rattani Devi versus Rup Lal, whereby an application for grant of interim maintenance filed by the 1Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 31/01/2022 22:48:57 :::CIS 2applicant/respondent (hereinafter referred to as the respondent) under Section 125 Cr.P.C, came to be allowed.
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2. Precisely, the facts of the case as emerge from the record are that the respondent preferred an application under Section 125 Cr.P.C, against the petitioner in the Court of learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, H.P., praying therein for grant of maintenance. Respondent averred in the application that her marriage with the petitioner was solemnized in the year1965 and out of their wedlock two sons and three daughters were born. She further averred in the application that the petitioner was working as a contractor with PWD and Forest Department of the State and during subsistence of her marriage with the petitioner, petitioner developed illicit relationship with one Champa Devi and thereafter started harassing her physically and mentally. She also alleged that petitioner pressurized her to give a written consent for second marriage of the petitioner and later also filed divorce petition, which was also dismissed. She alleged in the petition under Section 125 Cr.P.C, that the petitioner is residing with said Champa Devi and has also purchased cultivable land in village Chhaparan, over which vegetables etc. were being grown and a residential house had also been constructed. Respondent claimed that the petitioner earns sum of Rs. 1,00,000/- per month from all ::: Downloaded on - 31/01/2022 22:48:57 :::CIS 3 sources, whereas she has no source of income to maintain herself and as such, she may be awarded maintenance to the tune of Rs.
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15,000/- per month. During the pendency of aforesaid proceedings, respondent also filed an application for interim maintenance to the tune of Rs. 15,000/- per month alongwith litigation charges of Rs.10,000/- from the petitioner.
3. Learned trial Court on the basis of the material available on record proceeded to award sum of Rs.2000/-per month as interim maintenance in favour of the respondent vide order dated 15.6.2016.
4. Being aggrieved and dissatisfied with the aforesaid order passed by learned trial Court, petitioner preferred criminal revision petition under Section 397 Cr.P.C., in the court of learned Additional Sessions Judge, Ghumarwin, which also came to be dismissed vide judgment dated 6.12.2017 and as such, petitioner has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid judgment/order passed by the courts below awarding interim maintenance to the tune of Rs.
2000/- in favour of the respondent.
5. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis findings recorded in the impugned judgment and order passed by courts ::: Downloaded on - 31/01/2022 22:48:57 :::CIS 4 below, this court finds no force in the submissions of learned counsel for the petitioner that courts below while awarding interim .
maintenance in favour of the respondent have failed to appreciate the material evidence available on record in its right perspective.
Since order passed by trial Court granting interim maintenance was interlocutory order, criminal revision filed by the petitioner was though not maintainable, but yet learned Additional Sessions Judge with a view to ascertain the correctness of the order passed by trial court granting interim maintenance, proceeded to scan entire evidence. Record reveals that challenge to order granting interim maintenance by trial court was primarily laid on two grounds:-
i). Petitioner is old aged person unable to
maintain himself.
ii). Charge has been created on his property and as such, is unable to pay any kind of maintenance.
6. Material available on record clearly reveals that factum with regard to marriage interse petitioner and respondent is not denied. Similarly, it is not denied by the petitioner that respondent is residing separately despite her being legally wedded wife of petitioner. Though, learned counsel representing the petitioner vehemently argued that at no point of time respondent was ousted from her matrimonial house, but there is specific pleading available ::: Downloaded on - 31/01/2022 22:48:57 :::CIS 5 on record suggestive of the fact that petitioner during subsistence of his marriage, solemnized second marriage with Champa Devi and .
also filed divorce petition and as such, it can be safely presumed that there was no occasion for the respondent to live with the petitioner. No doubt, petitioner is old aged person, but since he has specifically admitted his marriage with the respondent, he is otherwise duty bound to maintain his wife until their marriage is not annulled by the competent court of law. There is sufficient material that petitioner is owner of moveable and immovable property and as such, it cannot be accepted that he is incapable of maintaining his legally wedded wife. Charge, if any, created on the property is with regard to maintenance, but that does not mean that petitioner does not earn any amount from the property in question.
7. Leaving everything aside, sum of Rs.2000/- awarded by the court below on account of interim maintenance to be paid by the petitioner till the disposal of the main petition, which otherwise shall be disposed of by the court below in totality of evidence to be collected on record by the respective parties in support of their respective claim. Sum of Rs. 2000/-, as has been granted by the court below by no stretch of imagination can be termed to be excessive. This Court cannot lose sight of the fact that now a day's one LPG cylinder costs sum of Rs.1050/- and in case respondent ::: Downloaded on - 31/01/2022 22:48:57 :::CIS 6 is left to maintain herself in meager amount of Rs.2000/-, as has been granted by Court below as interim maintenance, she would not .
be able survive. Though, this court would have proceeded to enhance the amount awarded by the court below, but since no prayer with regard to the same has been made by the respondent, this court has purposely restrained itself from doing so.
8. Consequently, in view of the above, the present petition is dismissed being devoid of any merit alongwith pending applications, if any. Interim orders, if any, are vacated. However, having taken note of the fact that petition under Section 125 Cr.P.C filed by the respondent is hanging fire since long, this Court hopes and trust that court below would make all out efforts to conclude the proceedings expeditiously, preferably within a period of three months.
9. Registry is directed to apprise the learned Court below with regard to passing of the instant order, enabling it to do the needful within stipulated time. Pending applications, if any, also stand disposed of.
4th August, 2021 (Sandeep Sharma),
(shankar) Judge
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