Himachal Pradesh High Court
Between vs Una on 16 August, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 16th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION(MAIN) U/S 482 CRPC No. 68 of 2021
Between:
CHETAN KUMAR SON OF SH. KRISHAN
DEV, R/O HOUSE NO. 240, GEETA
COLONY, THAKUR NIWAS, MEHATPUR,
DISTRICT UNA, H.P.
....PETITIONER
(BY SH. ANUP RATTAN, ADVOCATE )
AND
1. CHANDER REKHA W/O SHRI CHETAN KUMAR,
D/O SHRI SURINDER SINGH, R/O VILLAGE
JANKAUR, TEHSIL AND DISTRICT UNA, H.P.
2. GARIMA D/O CHETAN KUMAR
3. IDHIKA D/O CHETAN KUMAR
(BOTH MINOR) THROUGH THEIR
MOTHER SMT. CHANDER REKHA,
W/O SHRI CHATEN KUMAR, D/O
SHRI SURINDER SINGH, R/O VILLAGE
JANKAUR, TEHSIL AND DISTRICT UNA,
H.P.
4. STATE OF H.P.
....RESPONDENTS
(BY SH.ATUL JHINGAN, ADVOCATE
FOR R-1 TO 3)
(BY. DESH RAJ Thakur, ADDITIONAL
ADVOCAE GENERAL FOR R-4)
This petition coming on for orders this day, the Court passed the following:
ORDER
Being aggrieved and dissatisfied with the judgment dated
5.10.2020, passed by learned Additional Principal Judge-II, Family
Court, Una, Himachal Pradesh, in Criminal Revision No.72 of 2019,
affirming the order dated 17.9.2019, passed by learned Senior Civil
.
Judge, Court No.1, Una, District Una, H.P., in CMA No. 538 of 2019,
titled as Chander Rekha and others versus Chetan Kumar, whereby
learned Additional Chief Judicial Magistrate, Court No.1, Una, District
Una, H.P., directed the petitioner herein to pay sum of Rs.5000/- each
to respondents No.2 and 3, who happen to be daughters of the
petitioner herein.
2. Precisely, the fact of the case as emerge from the record are
that respondents No.1 to 3, being wife and daughters of petitioner
herein, filed proceedings under Section 125 Cr.P.C., in the Court of
learned Senior Civil Judge, Court No.1, Una, District Una, H.P.,
praying therein for maintenance. In the aforesaid proceedings,
respondents No.1 to 3 filed an application under Section 125 Cr.P.C,
for grant of interim maintenance, alleging therein that marriage interse
petitioner and respondent No.1 was solemnized on 31.5.2010 as per
Hindu Rites and Ceremonies and out of their wedlock two daughter
were born i.e. respondents No.2 and 3. Respondent No.1 alleged that
after few days of marriage, petitioner herein started quarrelling and
maltreating her physically and mentally. She alleged that the petitioner
and his family members always maltreated her with cruelty and as
such, she was compelled to reside at her parental house. She alleged
that she is a JBT Teacher and at present pulling her life on the mercy
of her mother because no financial support is provided by the
petitioner herein to maintain her as well as her daughters. She alleged
that since her work place is at a distance of 30 KM from her parental
.
house, most of the money received by her from salary is spent in bus
fair. She alleged that the petitioner herein is drawing salary of
Rs.60,000-65,000/- per month, besides having free accommodation,
lodging, boarding, medical facilities, canteen facility etc. and he has no
liability except her and two minor daughters to whom he has failed to
maintain willfully and intentionally despite having sufficient means.
She alleged that petitioner despite having sufficient means to earn
sufficient amount refused to maintain her as well as her daughter and
as such, they may be provided adequate compensation, in accordance
with law.
3. Petitioner herein refuted the aforesaid claim of the
respondents and claimed before the Court below that at no point of
time he maltreated respondent No.1, rather respondent No.1 refused to
live in her matrimonial house and as such, he was compelled to reside
with respondent No.1 in her parental house. Petitioner specifically
denied the allegation of cruelty, maltreatment and harassment levelled
by respondent No.1 and claimed that at no point of time, he and his
family members compelled respondent No.1 to reside at her parental
house, rather she of her own volition and without there being any
plausible reasons started living at her parental house. He stated that
application is false, frivolous, devoid of merit and has been filed with a
view to harass him.
4. Learned court below on the basis of the pleadings adduced
on record by the respective parties, allowed the interim application and
.
directed the petitioner herein to pay sum of Rs.5000/- each to
respondents No.2 and 3. i.e. daughters of the petitioner, whereas court
below rejected the prayer of respondent No.1 for grant of maintenance
on the ground that she is having sufficient means of income by way of
rendering service as JBT Teacher in Government school.
5. Being aggrieved and dissatisfied with the aforesaid order
passed by learned court below both petitioner and respondent No.1
filed Criminal Revision Nos. 72 of 2019 and 78 of 2019 in the Court of
learned Additional Principal Judge-II, Family Court, Una, H.P, whereby
petitioner herein prayed before the learned Additional Principal Judge-
II, Family Court, Una, H.P, to set-aside the impugned order granting
interim maintenance in favour of respondents No.2 and 3, whereas
respondent No.1 approached Court below with a prayer to direct the
petitioner to pay interim maintenance to her also in addition to
respondents No. 2 and 3, as awarded by the learned court below.
learned Additional Principal Judge-II, Family Court, Una, H.P, vide
common award dated 5.10.2020, dismissed the Revision Petition
having been filed by the petitioner and respondent No.1 and affirmed
order of learned trial court granting maintenance to the tune of
Rs.5000/- each to respondents No.2 and 3. In the aforesaid
background, petitioner has approached this Court in the instant
proceedings, praying therein to set-aside the aforesaid judgment and
order passed by courts below granting interim maintenance in favour of
respondents No.2 and 3.
.
6. Having heard learned counsel representing the parties and
perused the material available on record, this Court finds that there is
no dispute interse parties that respondent No.1 is legally wedded wife of
the petitioner and respondents No.2 and 3 are children of petitioner
and respondent No.1. Petitioner has claimed that at no point of time
respondent No.1 was compelled to live her matrimonial house, but
record reveals that after some time of marriage, respondent No.1
started residing in her parental house and as such, petitioner also
joined her company and since then he was also living with respondent
No.1 at her parental house. It is also not in dispute that petitioner is in
employment of Army and at present serving Army in the capacity of
Commando. Though, respondent No.1 claimed before the Court below
that petitioner is in receipt of sum of Rs.60,000-65,000/ per month-
besides having free accommodation, lodging, boarding, medical
facilities, canteen facility etc., but no documentary evidence, if any,
ever came to be led on record in this regard. However, courts below
having taken note of the fact that the petitioner is serving in Indian
Army, proceeded to award maintenance to the tune of Rs. 5000/- each
in favour of respondents No.2 and 3 and rejected the claim of
respondent No.1. Since, respondent No.1 is serving as a JBT Teacher
and she receives salary which is sufficient for her to maintain herself,
court below rightly rejected her prayer for interim maintenance.
7. Mr. Anup Rattan, learned counsel representing the
petitioner, vehemently argued that when it stands established on
.
record that respondent No.1 of her own volition and without there
being any plausible reason refused to stay in her matrimonial house,
there was no occasion, if any, for the courts below to award
maintenance in favour of respondents No.2 and 3, but aforesaid plea of
learned counsel representing the petitioner, appears to be contrary to
the facts of the case, wherein admittedly, petitioner admitted before
this Court that he had been living with respondent No.1 in her parental
house meaning thereby, there is a presumption that respondent No.1
was not allowed to stay at her maternal house after her marriage with
the petitioner. Though, aforesaid factum with regard to forcible ouster
of respondent No.1 from her matrimonial house shall be decided by the
court below in main proceedings on the basis of the evidence led on
record by the respective parties, but mere fact that at present
respondent No.1 is compelled to reside at her parental house alongwith
her two minor daughter is/was sufficient to award interim
maintenance to respondents No.2 and 3, so that during the pendency
of the dispute interse petitioner and respondent No.1 respondents No.2
and 3 do not suffer.
8. Learned counsel representing the petitioner also argued
that at no point of time documentary evidence, if any, with regard to
salary to the tune of Rs. 60,000-65,000/- ,if any, received by petitioner
came to be led on record and as such, court below could not have
awarded any amount of compensation in favour of respondents No.2
and 3.
.
9. True, it is that no salary slip, if any, ever came to be placed
on record by respondent No.1 to prove the salary of petitioner, but
since petitioner has specifically admitted the factum with regard to his
employment in Army, Court below rightly took monthly income of
petitioner to be Rs.65,000/-. This court can take judicial note of the
fact that at present commando's receive handsome salary in Army,
besides having r free accommodation, lodging, boarding, medical
facilities, canteen facility etc., and as such amount awarded by court
below to respondents No.2 and 3 as interim maintenance cannot be
said to be on the higher side and as such, no interference is called for.
10. Consequently, in view of the detailed discussion made
herein above, this Court finds no reasons to interfere with the
impugned order and judgments passed by learned Courts below, which
are otherwise based upon proper appreciation of the evidence as well as
material available on record and as such, same are upheld. Pending
applications, if any, also stand disposed of.
16th August, 2021 (Sandeep Sharma),
(shankar) Judge
