Kiar vs Chand"
2021 Latest Caselaw 4041 HP

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           IN    THE    HIGH     COURT OF      HIMACHAL         PRADESH, SHIMLA

                           ON THE 23rd DAY OF AUGUST, 2021

                                     BEFORE




                                                                     .
                       HON'BLE MR. JUSTICE SANDEEP SHARMA





          CRIMINAL MISC.PETITION(MAIN) U/S 482 Cr.P.C No. 256 of 2020





        Between:

        KRISHAN CHAND SON OF SH.
        AMAR SINGH, R/O VILLAGE
        KEETH, POST OFFICE, RAWALA





        KIAR,    TEHSIL   KOTKHAI,
        DISTRICT SHIMLA, H.P.
                                                                  ...... PETITIONER

        BY SH. DALIP K.SHARMA, ADVOCATE)


        AND

        SANGEETA    WIFE   OF   SH.
        KRISHAN CHAND, R/O VILLAGE
        KEETH, POST OFFICE RAWALA


        KIAR,   TEHSIL    KOTKHAI,
        DISTRICT SHIMLA, PRESNETLY
        RESIDING AT PUSHPA NIWAS
        PEARL    PLACE,   SANJAULI,




        SHIMLA.
                                                                 ......RESPONDENT





        (BY MS. MONIKA SINGH ADVOCATE)

       This petition coming on for orders this day, the Court passed the following:





                           ORDER

Instant petition filed under Section 482 Cr.P.C., lays challenge to

common judgment dated 7.12.2019, passed by learned Additional Sessions

Judge (1) Shimla, District Shimla, H.P., in criminal Appeal RBT No.31-

S/10 of 2019 and criminal Appeal RBT No.32-S/10 of 2019, affirming the

order dated 28.9.2018, passed by learned Judicial Magistrate 1st Class,

Court No.3, Shimla, H.P., in case titled "Smt. Sangeeta vs. Sh. Krishan

Chand", whereby petition under Section 12 of the Protection of Women

from Domestic Violence Act, having been filed by the respondent came to

.

be allowed with the direction to the petitioner herein to pay sum of

Rs.16,000/- per month to the respondent as maintenance. Criminal

appeal No.31-S/10 of 2019 came to be filed by respondent Sangeeta, who

claimed that the compensation awarded by court below is inadequate,

whereas criminal appeal No. 32-S/10 of 2019 came to be filed by petitioner

herein Krishan Chand, who claimed that since he hails from BPL family,

maintenance awarded by the court below is excessive and on the higher

side. Learned Additional Sessions Judge(1) dismissed both the appeals vide

impugned judgment dated 7.12.2019. In the aforesaid background,

petitioner herein has approached this Court in the instant proceedings,

praying therein to quash and set-aside the aforesaid impugned judgment

rejecting his appeal No. 32-S/10 of 2019.

2. Precisely, the facts as emerge from the record are that

respondent Smt. Sangeeta claiming herself to be wife of petitioner Krishan

Chand, filed a complaint under Section 12 of Protection of Women from

Domestic Violence Act, in the court of learned Judicial Magistrate 1st

Class, Court No.3, Shimla, alleging therein that her marriage with

petitioner was solemnized on 23rd March, 1999 at Sub-Division, Nichar,

District, Kinnaur, H.P., and out of their wedlock two daughters namely,

Pooja and Poonam were born in the years 1999 and 2000, respectively.

Complainant also claimed that Ms. Preeti is the daughter from the earlier

marriage of petitioner, who is also brought up by her. She alleged that the

petitioner is a contractor and does welding work. She claimed that apart

from above, he is in possession of two vehicles i.e. Mahindra Bolero

.

Camper and Maruti 800 and both the vehicles are though registered in her

name, but yet same are being used and plied by the petitioner as good

carriage. Complainant alleged that petitioner earns good income from

aforesaid vehicles and his approximately income from all sources is Rs. 6

to 7 lac. She alleged that on 16th November, 2009, she met with an

accident, as a consequence of which, she became 100% disabled. She

alleged that on account of grievous injuries suffered by her in the accident,

she received compensation to the tune of Rs. 27, 00,000/- in a case lodged

at her behest in the Motor Accident Claims Tribunal. She alleged that soon

after the accident behavior of the petitioner changed towards her and he

stopped taking care of her. She alleged that instead of giving her love, care,

affection and moral support in her most crucial phase of live, petitioner

started torturing her mentally, emotionally and financially. She alleged that

petitioner started ignoring his responsibility towards her and daughters

and kept on extracting money from her on one pretext or other. She alleged

that on account of the accident, she became completely bed ridden and

100% disabled due to paraplegia and as such, was in constant need of

attendant. She alleged that firstly petitioner engaged person namely, Anu

to take care of her, but thereafter one lady namely, Reena was engaged but

later on he solemnized second marriage with her and totally neglected her.

She claimed before the court below that she required medicines, a wheel

chair, special kind of bed to prevent bed sores and many other things,

which were only available in Chandigarh. Petitioner used to purchase it but

she recently came to know that petitioner took double the amount for each

.

item whatever he purchased. She alleged that petitioner emotionally

blackmailed her for purchasing two vehicles out of the compensation she

received on account of the injuries suffered by her in the accident. She

alleged that petitioner and lady namely, Reena during their stay in the

share household tortured her emotionally, mentally and economically and

extracted money from her. She also alleged that petitioner gave her wrong

medicines, so that she could not understand the deceitful designs of the

petitioner and person namely, Reena. She claimed that since she apart

from herself requires money for up bringing of her daughters, respondent

may be directed to provide her compensation as well as residence.

3. Aforesaid claim made on behalf of the respondent came to be

resisted on behalf of the petitioner, who in reply though admitted marriage

with respondent No.2, but specifically denied factum with regard to

maltreatment, harassment, if any, caused by him. He specifically denied

that he is a contractor and is in possession of two vehicles. He also denied

that his income is more than 5-7 lacs, rather he claimed that he belongs to

very poor family and falls under the category of BPL. He admitted that

complainant met with an accident on 16th November, 2009 and thereafter

was taken to IGMC, Shimla. He claimed that he took good care of the

complainant in the hospital. He also admitted that he had engaged one

Anu for looking after the complainant. He stated that after the marriage of

Anu, he engaged person namely, Reena for taking care of complainant, but

after receiving the compensation to the tune of Rs. 27,00,000/-,

respondent started compelling him to live at Sanjauli, where respondent

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used to live separately in rented accommodation. He claimed that his

father provided sufficient accommodation alongwith land for their

livelihood, but yet respondent was not interested to live in the village and

as such, he was compelled to live with her at separate accommodation at

Sanjauli. He specifically denied the allegations that he neglected petitioner

and never provided expenditure to maintain his wife as well as his

daughters. No reply, if any, ever came to be filed on behalf of respondent

No.2, Reena and she was ordered to be proceeded against ex-parte.

4. Respondent with a view to prove her case besides examining

herself also examined her daughter. She tendered her affidavit Ex. CW-1/A

in her examination-in-chief, wherein she almost reiterated the case

submitted by her before the court below in the shape of complaint under

Section 12 of the Domestic Violence Act.

5. Respondent while deposing as CW-1 successfully proved on

record 100% disability certificate Ex.CW1/B, prescription slip of her

treatment dated 15.05.2016 Ex.CW1/C, photocopy of medical bill Mark-A,

Mark-B-1 to B-17. Cross-examination conducted upon this witness

nowhere suggests that petitioner was able to extract something contrary

what she stated in her examination-in-chief. In her cross-examination, she

admitted that at present two vehicles are in her possession, however, she

denied that entire expenses on medicines were met by the petitioner. She

voluntarily stated that amount out of her FDR was utilized by the

petitioner for her treatment. Though, she denied that her husband belongs

to BPL family, but admitted in her cross-examination that her husband is

.

having BPL certificate. She also denied that all the expenses of marriage as

well as educational qualification of the daughters have been met by the

petitioner. She denied that she is able to maintain herself. She voluntarily

stated that entire amount has been taken by the petitioner, but she did not

file any document to show that any amount has been transferred by her to

her husband's account. Aforesaid version put forth by the respondent

came to be corroborated by CW-2, Preeti, who while deposing before the

court below tendered her evidence through affidavit Ex. CW2/A.

6. Since petitioner-husband never turned up for recording his

evidence, his evidence was closed and was proceeded against ex-parte.

7. Though, learned trial court on the basis of pleadings as well as

documents and evidence led on record by respondent-wife, arrived at a

conclusion that two vehicles are in possession of the respondent-wife and

there is no evidence, worth credence, to the effect that sum of Rs. 27.00

lacs received by respondent-wife was utilized by the petitioner

unauthorizedly, but yet proceeded to award maintenance to the tune of

Rs.16,000/- in favour of the respondent-wife on the ground that that it is

admitted case of the petitioner-husband that he of his own spent money for

treatment of his wife as well as education of children. Learned court below

in order granting maintenance observed that though petitioner-husband

has claimed himself to be belonging to BPL category, but if it is so, it is

not understood from what sources he spent money for treatment of his

wife, education and marriage of his children.

.

8. Being aggrieved and dissatisfied with the quantum of

maintenance awarded by court below, petitioner preferred an appeal in the

court of learned Additional Sessions Judge(1), Shimla, which was

dismissed vide judgment dated 7.12.2019. Precise grouse of the petitioner,

as has been raised in the instant petition is that finding returned by

learned Additional Sessions Judge, Shimla in para-14 of the judgment in

the instant proceedings "that there is sufficient evidence on record that all

money received by her as accident claim compensation has been used and

consumed by the petitioner on one pretext or other" is contrary to the

record and same could not be made basis to reject her appeal.

9. Having carefully scanned the material available on record,

especially evidence led on record by the respondent, this court finds force

in the submission made by learned counsel for the petitioner that aforesaid

findings returned by learned Additional Sessions Judge, Shimla is contrary

to the evidence available on record. Learned trial court on the basis of

evidence returned categorical findings that there is no material on record

suggestive of the fact that petitioner used the amount of compensation

unauthorizedly by taking undue advantage of illness of his wife i.e.

respondent. Similarly, it is an admitted fact that vehicle allegedly

purchased by petitioner out of the compensation amount awarded by

learned Motor Accident Claims Tribunal below are with respondent-wife.

Though, in the case at hand respondent-wife has claimed that two vehicles

were purchased by her husband i.e. petitioner out of the funds received by

her in Motor Accident Claims case, but such claim of her is totally contrary

.

to the record because admittedly amount of compensation came to be

awarded in favour of the respondent on 28.9.2011, but was released after

disposal of appeal bearing FAO No.418 of 2011, having been filed by the

HRTC on 22.3.2013. Since, as per own claim of the respondent and

material available on record two vehicles in question were purchased in the

year 2009 and 2011, respectively, claim of the respondent that vehicles

were purchased by petitioner out of the compensation awarded in Motor

Accident Claims case deserves outright rejection being totally contrary to

the record. However, leaving everything aside, once there is no dispute

interse parties that respondent No.1 is legally wedded wife of petitioner and

out of their wedlock two children were born, petitioner otherwise being

legally wedded husband is under obligation to take care of his wife, who is

admittedly 100% bed ridden on account of paraplegia. Though, in the case

at hand, petitioner has claimed that he cannot pay sum of Rs.16,000/-, as

he belongs to BPL category, but as has been rightly held by trial court that

once petitioner has claimed that he made all expenses toward medical

treatment of the respondent, education and marriage of his daughters, it

cannot be accepted that he being member of BPL cannot provide

maintenance to his wife. However, having taken note of the fact that it

stands duly admitted by respondent that his husband possesses BPL

certificate and there is no dispute that BPL certificate has been not issued

by the competent authority, amount of maintenance awarded by court

below appears to be on higher side. Moreover, vehicles, which were alleged

to be in possession of petitioner, are already in possession of the

.

respondent. Though, in the case at hand respondent-wife claimed that

petitioner earns sum of Rs. 5 to 6 lacs from his profession i.e. contractor-

ship, but since she has been not able to substantiate aforesaid claim of

her by leading cogent and convincing evidence, aforesaid assertion made

by her definitely cannot be made basis to assess the income of petitioner

that too for granting maintenance under Domestic Violence Act.

10. Consequently, r in view of the detailed discussion made

hereinabove, though this Court finds no illegality and infirmity in the

impugned judgment and order granting maintenance passed by learned

courts below and as such, same are upheld, but amount of maintenance

awarded by Court below requires to be modified to the extent that

respondent-wife would be entitled to maintenance to the tune of

Rs.12000/- instead of Rs. 16,000/- awarded by court blow. Ordered

accordingly. Pending applications, if any, also stand disposed of

23rd August, 2021 (Sandeep Sharma), (shankar) Judge