Telangana High Court
Shonti Shiva Kumar vs Shonti Prameela Alias Jhansi on 6 June, 2022
Author: K.Lakshman
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
CRIMINAL REVISION CASE No.522 OF 2021
ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 of Code of Civil Procedure (for short 'C.P.C.'), to set aside the orders passed in Crl.A.No.84 of 2017 in D.V.C. No.31 of 2014 dated 04.02.2019 on the file of the Judge, Family Court-cum-VI Additional District and Sessions Judge, Nalgonda.
2. Heard Sri M.A.Mujeeb, learned counsel for the petitioner, party in person/1st respondent and also learned Public Prosecutor for the State. Perused the record.
3. Perusal of record would reveal that the marriage of petitioner with the 1st respondent was performed on 16.12.2000. They were blessed with a child on 08.09.2002. Thereafter matrimonial disputes arose between them.
4. The 1st respondent herein had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ' the DVC Act') vide D.V.C.No.31 of 2014 against the petitioner herein seeking certain KL,J CRL.R.C._522_2021 :2: reliefs. Learned Judicial Magistrate of First Class (Special Mobile Court), Nalgonda vide order dated 31.01.2017 allowed the said application in part and granted protection to the 1st respondent herein and directed the petitioner herein to pay an amount of Rs.3,000/- per month to the 1st respondent herein towards rent for her alternative accommodation from the month of February, 2017, payable on or before 10th of every month, directly to the aggrieved person, or into her bank account to be furnished by her or into the Court. The learned Magistrate has further directed the petitioner herein to pay Rs.3,00,000/- towards compensation to the 1st respondent herein within a period of three months.
5. Feeling aggrieved by the same and dissatisfied with the said order to the extent of denying certain reliefs, the 1st respondent herein had preferred an appeal vide Crl.A.No.84 of 2017. Vide judgment dated 04.02.2019, the learned Judge, Family Court-cum-VI Additional District and Sessions Judge, Nalgonda has allowed the said appeal in part. The order of the learned Magistrate, with regard to the granting of rent for alternative accommodation @ Rs.3,000/- per month w.e.f. February, 2017 onwards and compensation of Rs.3,00,000/- in KL,J CRL.R.C._522_2021 :3: favour of the 1st respondent are confirmed. The order of learned Magistrate in refusing to grant maintenance is set aside. As per the said judgment, the 1st respondent herein is entitled for an amount of Rs.5,000/- per month and her son is entitled for Rs.2,000/- per month from the date of impugned order in DVC No.31 of 2019. The appellate Court further directed the petitioner herein to deposit the arrears of maintenance from the date of order in DVC No.31 of 2019 till the date of order in appeal within three months and he shall continue to pay the said maintenance as awarded on or before 10th of every month. Feeling aggrieved by the same, the petitioner herein has filed the present Criminal Revision Case.
6. Sri M.A.Mujeeb, learned counsel for the petitioner would submit that the 1st respondent herein and her son have already filed a petition under Section 125 of Cr.P.C. seeking maintenance against the petitioner herein and the learned Magistrate has awarded Rs.6,000/- per month towards maintenance. The petitioner herein had already paid Rs.3,000/- towards compensation. He has been paying the said amount of Rs.3,000/- awarded by the learned Magistrate in compliance of KL,J CRL.R.C._522_2021 :4: the order dated 31.07.2017 in DVC No.31 of 2014. The petitioner herein, after obtaining divorce from the 1st respondent herein, got second marriage and he has three children out of the second marriage. He has to maintain himself, his wife and three children. The 1st respondent is not entitled for the said amount of Rs.5,000/- per month and her son for Rs.2,000/- per month since the petitioner herein has been paying the above said amount of Rs6,000/- per month to them in compliance of the order passed by learned Magistrate in a petition filed under Section 125 of Cr.P.C.. He would further submit that the 1st respondent has already completed her Law graduation and got enrolled as an advocate. At present she is practicing as an advocate and therefore, she can sustain herself. According to him, the said facts were not considered by the appellate Court. Therefore, on the said grounds, he sought to set aside the impugned order passed in Criminal Appeal No.84 of 2017 in D.V.C. No.31 of 2014 dated 04.02.2019 on the file of the Judge, Family Court-cum-VI Additional District and Sessions Judge, Nalgonda.
KL,J CRL.R.C._522_2021 :5:
7. On the other hand, learned party in person would submit that the said amount of Rs.6,000/-, awarded by the learned Magistrate in a petition filed under Section 125 of Cr.P.C. is different from the amount awarded by the appellate Court in Crl.A.No.84 of 2017 dated 04.02.2019. Both the proceedings under Section 125 of Cr.P.C. and Section 12 of the DVC Act are different. She is having a minor son and it is difficult to her to maintain her son and survive with the said amount of Rs.6,000/- per month, awarded by the learned Magistrate under Section 125 of Cr.P.C. She would fairly submit that though she has completed Law graduation, she is not getting any amount from the said profession. Therefore, according to the 1st respondent, there is no error in the impugned order.
8. Learned Public Prosecutor has also adopted the said argument of party in person / the 1st respondent.
9. Thus, the undisputed facts are that the marriage of the petitioner with the 1st respondent was performed on 16.12.2000 and they were blessed with a son on 08.09.2002. She has filed an application under Section 125 of Cr.P.C. vide M.C.No.39 of 2004 and the Court below has awarded an amount KL,J CRL.R.C._522_2021 :6: of Rs.4,000/- per month to her and Rs.2,000/- per month to her son towards monthly maintenance. The petitioner herein has been paying the said amount. However, it is also relevant to note that the petitioner herein has filed a Criminal Petition under Section 482 of Cr.P.C. challenging the order passed by the learned Magistrate in a petition filed under Section 125(3) of Cr.P.c. and the same was disposed of by this Court recording the submissions made by both the petitioner and the 1st respondent that the petitioner has not complied with the said order passed in MC No.39 of 2004. Thus, there is no dispute that the petitioner has been complying with the order passed by learned Magistrate in M.C.No.39 of 2004. It is also not in dispute that the petitioner herein has paid the amount of Rs.3,00,000/- awarded towards compensation by the learned Magistrate as per order dated 31.01.2017 in DVC No.31 of 2004. It is also not in dispute that the petitioner herein has been paying an amount of Rs.3,000/- every month to the 1st respondent towards alternative accommodation. It is relevant to note that the petitioner herein had not filed any appeal challenging the order dated 31.01.2017 passed by the learned Magistrate. He has now aggrieved by the order passed by the appellate Court in so far as it relates to KL,J CRL.R.C._522_2021 :7: directing the petitioner herein to pay an amount of Rs.5,000/- to the 1st respondent and Rs.2,000/- to her son per month.
10. Learned Magistrate has considered the fact of payment of maintenance in an application filed under Section 125 of Cr.P.C., awarded in M.C.No.39 of 2004 and payment in DVC proceedings. Learned Magistrate has also relied upon the principle laid in the decision reported in Mathi Venkata Raju Vs. State of Andhra Pradesh1 wherein it was held that the maintenance awarded in a DVC case need not be separately paid in addition to the maintenance awarded in the maintenance case. If really there is any change in the circumstances, the aggrieved person is entitled for seeking enhancement of maintenance by way of approaching appropriate Court by filing appropriate application. Relying on the said principle, the learned Magistrate has denied maintenance to the 1st respondent and her son. Whereas, the appellate Court in the impugned judgment gave finding that the proceedings under Section 125 of Cr.P.C. are nothing to do with the claim of maintenance made by wife and children under the provisions of DVC Act. Both are independent 1 2012(3) ALT (Crl.) 208 A.P. KL,J CRL.R.C._522_2021 :8: proceedings. The Grant of maintenance in a petition filed under Section 125 of Cr.P.C. is not a bar to grant maintenance to the aggrieved person and her son under the provisions of DVC Act. Therefore, with the said findings, the appellate Court has awarded an amount of Rs.5,000/- per month to the 1st respondent herein and Rs.2,000/- per month to her son towards maintenance.
11. In a petition filed under Section 125 of Cr.P.C. and a petition filed under Section 12 of DVC Act, while granting maintenance, the Court below has to consider two important aspects i.e. (1) Paying capacity of the parties and (2) Sustainability of the parties.
12. The petitioner herein is working as Assistant Registrar in the office of the District Co-operative Officer. According to him, he is getting Rs.25,000/- per month. The marriage between the petitioner and the 1st respondent is a second marriage and he has a daughter with the first wife. He has performed his daughter's marriage recently. He is having one more daughter with his first wife. Considering the said facts and also the evidence on record, both oral and documentary, the learned Magistrate in his order dated 31.01.2017 in DVC No.31 of 2014 has awarded an amount KL,J CRL.R.C._522_2021 :9: of Rs.3,000/- per month to the 1st respondent herein towards alternative accommodation and an amount of Rs.3,00,000/- towards compensation. Learned Magistrate has denied the maintenance to the 1st respondent and her son. Whereas, learned appellate Court, without considering the same, awarded an amount of Rs.5,000/- to the 1st respondent and Rs.2,000/- to her son towards maintenance. The appellate Court has not given any reasoning while awarding the said amount. There is no dispute that the petitioner herein has been paying Rs.6,000/- per month awarded in MC No.39 of 2004 and Rs.3,000/- per month awarded by learned Magistrate in DVC No.31 of 2004. He has also paid the compensation amount of Rs.3,00,000/- awarded by the learned Magistrate towards compensation.
13. There is no dispute with regard to the marital relationship between the petitioner and the 1st respondent. Despite making serious allegations against each other, they have not obtained any divorce proceedings. Admittedly, they were blessed with a son. The petitioner herein has to survive himself and take care of his daughter (first wife's daughter). 1st respondent has to survive herself and take care of her son.
KL,J CRL.R.C._522_2021 : 10 : Therefore, the learned appellate Court erred in awarding an amount of Rs.5,000/- (Rupees five thousand only) to the 1st respondent and Rs.2,000/- (Rupees two thousand only) to her son per month towards maintenance in the impugned order. Therefore, it is not a reasoned order and it is not made by consideration of entire factual aspects. Therefore, the impugned order passed in Criminal Appeal No.84 of 2017 in D.V.C. No.31 of 2014 dated 04.02.2019 on the file of the Judge, Family Court- cum-VI Additional District and Sessions Judge, Nalgonda awarding an amount of Rs.5,000/- per month to the 1st respondent herein and Rs.2,000/- per month to her son towards maintenance is liable to be set aside.
14. In the result, this Criminal Revision Case is allowed in part, setting aside the impugned order dated 04.02.2019 passed by the Judge, Family Court-cum-VI Additional District and Sessions Judge, Nalgonda in Crl.A.No.84 of 2017 preferred against the order dated 31.01.2017 in DVC No.31 of 2014 passed by the learned Judicial Magistrate of First Class (Special Mobile Court) At Nalgonda, to the following extent:-
KL,J CRL.R.C._522_2021 : 11 :
i) The protection order granted by the learned Magistrate in DVC No.31 of 2014 is to be maintained,
ii) The petitioner herein is prohibited from committing any act of domestic violence against the aggrieved person.
iii) The petitioner herein shall pay an amount of Rs.3,000/-
(Rupees three thousand only) per month to the 1st respondent towards rent for her alternative accommodation as awarded by the learned Magistrate in the said order.
iv) The petitioner herein shall pay an amount of Rs.6,000/-
(rupees six thousand only) per month to the respondent No.1 in compliance of the order in M.C.No.39 of 2004.
v) The impugned order of the appellate Court granting an amount of Rs.5,000/- (Rupees five thousand only) per month to the 1st respondent and Rs.2,000/-(Rupees two thousand only ) per month to her son is set aside. As a sequel, miscellaneous petitions, if any pending, shall stand closed.
___________________ K. LAKSHMAN, J Date: 06.06.2022.
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