Tek Chand vs Violence Act (Hereinafter
2021 Latest Caselaw 4268 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

             ON THE 2ND DAY OF SEPTEMBER 2021

                           BEFORE




                                                          .
            HON'BLE MR. JUSTICE SANDEEP SHARMA





              CRIMINAL REVISION NO. 109 OF 2017





BETWEEN:-

1.    TEK CHAND
      S/O SH. RAMKU RAM,




      R/O VILLAGE BHARARIA DURBHOG,
      TEHSIL AND DISTRICT SHIMLA, H.P.

2.    SMT. KANTA DEVI

      MOTHER OF SH. TEK CHAND,

      R/O VILLAGE BHARARIA DURBHOG,
      TEHSIL AND DISTRICT, SHIMLA,
      H.P.
      NAME OF PETITIONER NO.2 DELETED



                                                        ... PETITIONERS
(BY MR. M.A. KHAN, SENIOR ADVOCATE




WITH MS. HEM KANTA KAUSHAL, ADVOCATE)





AND





SMT. SUNITA DEVI,
WIFE OF SH. TEK CHAND,
R/O VILLAGE BHARARIA DURBHOG,
TEHSIL AND DISTRICT, SHIMLA, H.P.
PRESENTLY RESIDING AT
C/O SHRI VIRENDER SHARMA,
VILLAGE DHAROG, P.O. NEHRA,
TEHSIL AND DISTRICT, SHIMLA,
H.P.




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                                      2


                                                              .. RESPONDENT

(BY MR. VIKRANT THAKUR,
LEGAL AID COUNSEL)




                                                                .

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

                                ORDER

Being aggrieved and dissatisfied with judgment dated

28.3.2017 passed by learned Additional Sessions Judge-I Shimla in Cr.

Appeal No. 40-S/10 of 2016, affirming order dated 29.6.2016 passed by

Additional Chief Judicial Magistrate-I Shimla in case No. 13-3 of 2013 titled

Sunita vs. Tek Chand and another, whereby learned court below, while

allowing application under S.12 of the Protection of Women from Domestic

Violence Act (hereinafter, 'Act'), directed the petitioners herein to pay sum

of Rs.2,000/- per month to the respondent as maintenance from the date of

filing of the petition. Besides above, learned court below, while restraining

the petitioner from committing the acts of domestic violence upon

respondent and their children, also directed him to pay Rs1000/- per

month, as rent of accommodation. Apart from above, learned court below

also awarded Rs.2,000/- as compensation to the respondent, for the acts

of domestic violence committed by him upon the respondent.

2. Precisely, the facts of the case, as emerge from the record, are

that marriage inter se petitioner No.1 and respondent was solemnized in

the year 1990 and out of their wedlock, two children were born. Since after

some time, certain differences cropped inter se petitioner No.1 and

respondent, and petitioner started giving beatings to respondent under

influence of alcohol, as such, she was compelled to live separately.

.

Petitioner No.2, who happens to be mother of petitioner No.1, also started

harassing the respondent and one day, petitioner No.1 under the influence

of alcohol, turned the respondent out of her matrimonial house and since

then she was compelled to live alongwith her children in a rented

accommodation. Since the respondent had no source of income, she

approached learned Additional Chief Judicial Magistrate, Shimla by way of

application under S.12 of the Act, praying therein for maintenance,

protection order as well as compensation. Respondent averred in the

application that she was compelled to leave her matrimonial house on

account of cruelty meted to her by her husband (petitioner No.1) and other

family members. She stated that since she has no source of income,

petitioner No.1, who earns Rs.4,500/- per month on account of his being a

labourer, be directed to provide adequate maintenance apart from the rent

being paid by her qua the rented accommodation.

3. Aforesaid claim put forth by respondent, came to be resisted by

the petitioners, who in their reply specifically denied the allegations of

beating and mental torture caused to the respondent. Petitioner No.1

pleaded that he never consumed liquor and at no point of time, under the

influence of liquor he gave beatings to the respondent. He alleged that the

respondent, without there being any reason, left her matrimonial house

and started living separately. He disclosed before learned court below that

the matter was reported to Gram Panchayat and same was compromised

.

with the intervention of Gram Panchayat. Petitioner further pleaded that his

mother, petitioner No.2, lives separately at Junga and he is ready and

willing to take respondent and her children back to his house. Lastly,

petitioner averred that since his health is not good as such, he is not a

position to provide the maintenance to the respondent.

4.

Learned court below on the basis of the evidence as well as

pleadings adduced on record by respective parties, while directing the

petitioners herein to pay sum of Rs.2,000/- per month as maintenance to

the respondent from the date of filing of petition, also restrained the

petitioners from committing any act of domestic violence upon the

respondent. Learned Court below also directed them to pay sum of

Rs.1,000/- per month, as rent of accommodation and Rs.2,000/- as

compensation qua the acts of domestic violence, committed by them upon

the respondent.

5. Being aggrieved and dissatisfied with aforesaid order passed by

learned Additional Chief Judicial Magistrate-I, petitioner preferred an

appeal under S.29 of the act before Additional Sessions Judge-I, Shimla,

Himachal Pradesh, which came to be dismissed vide judgment dated

28.3.2017. In the aforesaid background, petitioner has approached this

court in the instant proceedings, praying therein to set aside impugned

judgment and order, passed by learned courts below, granting

maintenance in favour of the respondent.

.

6. Having heard learned counsel for the parties and perused

material available on record, this court finds that there is no dispute inter

se parties that respondent is the legally wedded wife of petitioner No.1. It is

also not in dispute that out of wedlock inert se petitioner No.1 And

respondent, two children were born. Though, in the case at hand,

petitioner No.1 has claimed that the respondent, without there being any

reason, left her matrimonial house, but the factum with regard to strained

relationship inter se him and respondent stands duly established through

the compromise arrived inter se them, before Gram Panchayat. Petitioner

No.1 in his reply to the claim petition having been filed by the respondent

categorically stated that with the intervention of the Gram Panchayat,

matter was compromised inter se parties, meaning thereby there were

strained relations inter se parties, as such, it cannot be said the that

respondent, for no reason, left her matrimonial house. Though, the

petitioner No. 1 specially denied factum with regard to maltreatment, if any,

caused by him to the respondent under the influence of liquor, but once

factum with regard to dispute inter se petitioner No. 1 and respondent

stands established, on account of compromise arrived inter se them before

Gram Panchayat, allegations as leveled by respondent in complaint under

S.12 otherwise are presumed to be correct.

7. Though the petitioner claimed before learned court below that he

.

is ready and willing to take back respondent and his children back, but

since relations inter them are not very cordial, there was no occasion for

the learned courts below to accept prayer made on behalf of the petitioner.

8. Pleadings and evidence led on record reveal that the petitioner

made an endeavour to set up a case that the respondent intentionally

started residing in rented house, without any rhyme and reason but it is

difficult to believe that a lady, having two children aged 20 years, would

start living separately from her husband, that too after so many years of

marriage, for no plausible reasons. Since the petitioner No.1, himself has

admitted the factum with regard to his strained relations with the

respondent, this court finds it difficult to accept the contention raised by Mr.

M.A. Khan, learned Senior Advocate, representing the petitioner that the

respondent for no reason, started living separately. Though the petitioner

No.1 has claimed that on account of his ill health he is not in a position to

pay maintenance to the respondent, as granted by learned court below,

but once he accepted himself to be the husband of respondent, he is

otherwise duty bound to provide maintenance to his wife, enabling her to

meet her day to day expenses. Moreover, this court finds that no evidence

ever came to be led on record qua ailment, if any, being suffered by the

petitioner No.1, rather, material available on record clearly reveals that the

petitioner No.1 is having landed property of 3 Bigha and as such, he being

an able bodied person can easily earn minimum wages by working under

.

MGNREGA and other works. Though the respondent has not been able to

prove that the petitioner No.1, has been earning Rs.4,000/- per month but

since he is hale and hearty, he is otherwise under obligation to maintain

his family by doing any kind of work.

9. In the case at hand, petitioner No.1 has not been able to prove

that the respondent has independent source of income as such, learned

court below righty awarded Rs.2,000/- per month, as maintenance and

Rs.1,000/- per month, as rent. This court cannot lose sight of the fact that

now a days, prices of essential commodities are very high and it is very

difficult for a person to sustain on a meager amount of Rs.2,000/- per

month. Since the respondent is compelled to live in rented

accommodation, this court finds no fault in the judgment/order passed by

learned courts below granting Rs.1,000 per month as rent of

accommodation. Respondent, having no source of income, was compelled

to approach appropriate court of law seeking maintenance and as such,

sum of Rs. 2,000/- awarded as compensation in favour of the respondent,

cannot be said to be on higher side.

10. Consequently in view of detailed discussion made herein-above,

this court finds no illegality or infirmity in the impugned judgment/order

passed by learned courts below and same are upheld, in result whereof,

present petition fails and is dismissed. Accordingly.

All pending applications also stand disposed of. Interim

.

directions, if any, stand vacated.

                                                     (Sandeep Sharma),
                                                           Judge





 September 2, 2021
      (vikrant)




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