Himachal Pradesh High Court
Subhash Chand vs Taripta Devi & Ors on 22 March, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 354 of 2022
Reserved on 17.03.2023
Decided on 22nd March, 2023
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Subhash Chand ...Applicant
Versus
Taripta Devi & Ors. ...Respondents
Coarm
Hon'ble Mr. Justice Virender Singh, Judge
1Whether approved for reporting?
For the petitioner: Mr. Ajay Sharma, Senior
Advocate, with Ms. Kavita Kajal,
r Advocate.
For the respondents: Mr. Munish Datwalia, Advocate.
Virender Singh, Judge (Oral)
Petitioner Subhash Chand has filed the present Criminal Revision Petition, under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C'), against order dated 01.04.2022, passed in Criminal Miscellaneous Application No.70/2017 RBT 09/2022, passed by learned Additional Principal Judge, Family Court, Hamirpur, H.P. (Circuit Court Barsar), (hereinafter referred to as 'the trial Court'), whereby, in an application under Section 125(1) Cr.P.C, the learned trial Court has, allowed the interim maintenance @ Rs. 2,000/- per month, to ::: Downloaded on - 23/03/2023 20:33:06 :::CIS 2 respondent No.1 and Rs. 1500/- each, to respondents No. 2 and 3 per month, from the date of filing of the application and further the litigation expenses, amounting to Rs. 5,000/-.
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2. As per the stand taken by the petitioner, in the Revision Petition, the respondents have filed two petitions (a) under Section 23 of the Protection of Women from Domestic Violence Act (hereinafter referred to as 'the D.V. Act') and (b) under Section 125 of the Cr.P.C. Both these petitions were filed in the year, 2017.
The petition, which was filed under Section 23 of the D.V. Act, registered as Criminal Miscellaneous Petition No.1-IV-17, was decided by the Court of learned Judicial Magistrate, Ist Class, Barsar, District Hamirpur, H.P., (hereinafter referred to as 'the JMFC') vide order dated 21.06.2017. The learned JMFC Barsar, has allowed the application, for grant of interim maintenance, by directing the present petitioner Subhash Chand to pay a sum of Rs.
1500/- per month, as interim maintenance, to respondent Taripta Devi, from the date of order, till final disposal of the petition.
3. This order was assailed by respondent No.1 Taripta Devi, by filing the Revision Petition, before the Court of learned Additional Sessions Judge, Hamirpur, H.P. (Circuit Court Barsar).
The said revision petition was dismissed by the Court of learned Additional Sessions Judge, Hamirpur, H.P. ::: Downloaded on - 23/03/2023 20:33:06 :::CIS 3
4. Thereafter, the respondents preferred the petition, under Section 125 of Cr.P.C., before the learned trial Court.
5. Alongwith the application, under Section 125 of Cr.P.C., .
the application for interim maintenance, under Section 125(1) of Cr.P.C., has also been moved, which was decided by the learned trial Court vide order dated 01.04.2022 and present petitioner has been directed to pay a sum of Rs. 2,000/- per month to respondent No.1 and a sum of Rs. 1500/- per month each to respondents No.2 and 3, as interim maintenance from the date of filing of the petition, till final decision of the main case. Apart from this, litigation expenses amounting to Rs. 5,000/- have also been ordered to be paid by the present petitioner.
6. Aggrieved by the said order, passed by the learned trial Court, the present petition has been preferred by the petitioner, before this Court.
7. The main ground, upon which, the order has been assailed, is that the learned trial Court, has not considered the order dated 21.06.2017, passed by the learned JMFC, vide which, the petitioner has been directed to pay a sum of Rs. 1500/-, as interim maintenance, to respondent No.1 Taripta Devi, under the provisions of Section 23 of the D.V. Act.
8. In nutshell, the order has been assailed on the ground that the learned trial Court has not considered the above material ::: Downloaded on - 23/03/2023 20:33:06 :::CIS 4 facts, while deciding the application, under Section 125(1) of the Cr.P.C.
9. Alongwith the Revision Petition, the petitioner has also .
annexed the photocopy of the petition, filed under Section 125 of Cr.P.C., by the respondents, before the learned trial Court, as well as, reply to the said petition, filed by the present petitioner.
10. On the basis of the above facts, as well as, the documents, so annexed with the petition, a prayer has been made to allow the petition by setting aside the impugned order.
11. When put on notice, the reply has been filed, supporting the impugned order and controverting the stand taken by the petitioner.
12. From the stand taken by the parties in the present lis, one thing is crystal clear that the factum of marriage has not been disputed and compelled by the circumstances, now, the parties to the marriage, i.e. petitioner Subhash Chand and respondent No.1 Taripta Devi, who have been blessed with one son and one daughter, are in loggerheads, by way of the litigation, as detailed above.
13. Perusal of the petition under Section 125 of Cr.P.C., filed by the respondents before the learned trial Court shows that the material fact, with regard to the filing of the petition by respondent No.1 under the provisions of Section 23 of D.V. Act has not been mentioned, in the application. Similarly, this fact has also not been ::: Downloaded on - 23/03/2023 20:33:06 :::CIS 5 mentioned in the application under Section 125(1) of Cr.P.C.
14. However, petitioner Subhash Chand, who has been arrayed as respondent in the said proceedings, specifically took .
preliminary objection No.2, by pleading that respondent No.1 has already been allowed maintenance, under the provisions of the D.V. Act by JMFC Barsar.
15. Interestingly, the learned trial Court neither directed the petitioner Subhash Chand to produce the documents to demonstrate the facts, as mentioned in preliminary objection No.2, nor considered this plea, in the impugned order.
16. The order passed by the learned trial Court also does not demonstrate whether the statutory affidavits, as per the directions issued by the Hon'ble Apex Court in case titled as Rajnesh vs. Neha & Anr. (2021) 2 Supreme Court Cases 324, have been filed or not. The relevant para 129 of the judgment is reproduced as under:-
"129. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrates Court concerned, as the case may be, throughout the country."
17. As per the directions of the Hon'ble Apex Court, the judgment passed in Rajnesh's case (supra) was circulated to all the District Judges, including District & Sessions Judges, Family Court ::: Downloaded on - 23/03/2023 20:33:06 :::CIS 6 and Forest(s) in Himachal Pradesh, with a further direction to circulate the said judgment to all the Judicial Officers, firstly on 12.11.2020 and thereafter, on 04.01.2023.
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18. The matter, which has been decided by the learned trial Court, without directing the parties to file the affidavit(s) does not sustained in the judicial scrutiny.
19. In such situation, this Court has left with no other option, but to set aside the order, impugned herein. Accordingly, the matter is ordered to be remanded back with a direction to decide with the matter afresh, after complying with the directions, as contained in Rajneesh's case supra. Parties, through their respective counsel, are directed to appear before the learned trial Court, on 13.04.2023.
(Virender Singh) Judge March 22nd 2023 (Vinod) ::: Downloaded on - 23/03/2023 20:33:06 :::CIS