Himachal Pradesh High Court
Pushpinder Kumar vs Geeta And Others on 30 December, 2022
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 1112 of 2022
Reserved on: 23.12.2022
.
Decided on: 30th December, 2022
Pushpinder Kumar .......Petitioner.
Versus
Geeta and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. Javed Khan, Advocate.
For the respondents: Mr. Vaibhav Tanwar, Advocate.
Virender Singh, Judge
Petitioner Pushpinder Kumar has filed the present
petition under Section 482 Cr.P.C., for quashing and setting
aside order dated 14.10.2022 passed by the learned Principal
Judge, Family Court, Shimla (hereinafter referred to as the
'learned trial Court') in a petition under Section 125(2) Cr.P.C
titled as Geeta and others vs. Pushpinder Kumar.
2. By virtue of the order dated 14.10.2022, the learned
trial Court has directed the petitioner to pay monthly
maintenance of Rs.10,000/- to the respondents. The amount of
maintenance has been bifurcated by the learned trial Court
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
as Rs. 4000/- to respondent No.1 and Rs. 3000/- each to
respondents No. 2 and 3.
.
3. For the sake of convenience, parties to the lis are
hereinafter, referred to, in the same manner, in which, they
were referred to by the learned trial Court.
4. The petitioners have filed petition under Section
125 Cr.P.C against the respondent on the ground that
petitioner No.1 was married with the respondent at Shimla on
31.03.2010 according to Hindu rites and rituals and they have
been blessed with two sons i.e. petitioners No. 2 and 3. Both
petitioners No. 2 and 3 are stated to be studying in S.S. N. High
School, Totu, Shimla and residing with petitioner No.1.
5. It is the case of the petitioners that after few
months of the marriage, the behavior of respondent turned
hostile against petitioner No.1. The respondent as well as his
family members have allegedly taunted petitioner No.1 for not
bringing the dowry, as per their expectations. Apart from this,
it is the case of the petitioners that the allegations have also
been leveled against petitioner No.1. The hostile attitude, as
per petition, of the respondent as well as his family members
had compelled petitioner No.1 to take shelter, in her parental
house along-with petitioners No. 2 and 3.
.
6. The respondent is stated to be an able bodied
person and Transporter by profession. Elaborating this stand, it
has been pleaded that he is having a vehicle, which has been
attached with HPSEB, Sub Station, Jutogh, on a monthly rent of
Rs. 30,000/-.
7. On all these submissions, a prayer has been made
to award a sum of Rs. 20,000/- per month to the petitioners as
maintenance.
8. Along-with the petition, an application for interim
maintenance has also been filed, seeking the maintenance
during the pendency of the petition.
9. The main petition as well as the interim application
for maintenance has also been contested by the respondent.
10. In the reply to the petition under Section 125
Cr.P.C, the respondent has taken the preliminary objections
that the petition is not maintainable, petitioner No.1 has herself
left the company of the respondent without any rhyme or
reason, petitioner No.1 is having the sufficient income to meet
out her expenses and petitioner No.1 has not approached the
Court with clean hands.
.
11. On merits, the factum of marriage has not been
disputed, however, it was pleaded that the marriage of
petitioner No.1 with respondent was a love marriage and she
had solemnized the same without the consent of her parents.
The parents of petitioner also got lodged a case under Section
363 IPC against the respondent.
12. According to the respondent, petitioner No.1
along-with petitioner Nos. 2 and 3, has voluntarily left the
company of the respondent as petitioner No.1 is stated to be
lady of short tamper and used to quarrel with respondent on
trivial matters. He has also mentioned an incident that on
29.04.2018, petitioner No.1 had slapped the respondent in the
presence of family members. The said fact was also recorded
by the videographer.
13. Denying the other allegations, a plea has been
taken that he has purchased the vehicle after getting the
same financed from AU Small Finance Bank and as such,
paying a sum of Rs. 13,652/- per month as installment.
According to him, the vehicle, which was earlier attached with
the HPSEB, Jutogh, has now been detached w.e.f 06.12.2021.
He has also denied his capacity to pay sum of Rs. 15,000/- per
.
month to the petitioners.
14. On all these submissions, a prayer has been made
to dismiss the petition.
15. On the similar lines, the application for interim
maintenance has also been contested. The learned trial
Court, after considering the stand of the parties as well as the
affidavits of assets and liability of petitioner No.1and
respondent has decided the petition, vide the order, which
has been assailed before this Court, under Section 482 Cr.P.C.
16. The order has been assailed on the ground that the
learned trial Court has not considered the factual position, as
pleaded, in this case, and passed the order, ignoring the
financial position of the respondent.
17. The impugned order passed by the learned trial
Court has been assailed almost on the same grounds, upon
which, the application under Section 125 Cr.P.C as well as
application for interim maintenance, has been contested.
18. On the basis of above facts, Mr. Javed Khan,
learned counsel appearing for the respondent-husband has
prayed that the petition under Section 482 Cr.P.C. may kindly
be accepted by setting the order passed by the learned trial
.
Court in petition under Section 125(2) Cr.P.C.
19. Per contra, Mr. Vaibhav Tanwar, learned counsel
appearing for the respondent has supported the impugned
order.
20. From the stand taken by the parties before the
learned trial Court, it is clear that the factum of marriage has
not been disputed. No doubt, the marriage between
petitioner No.1 and the respondent was a love marriage but,
now compelled by the circumstances, petitioner No.1
alongwith petitioners No. 2 and 3 is not residing in her
matrimonial home, rather, she is residing with her parents.
21. Petitioner No.1 has filed the petitioner under
Section 125 Cr.P.C., claiming the maintenance for herself as
well as her for her minor sons, who are residing with her and
are school going. It is yet to be proved, during the course of
trial of the case, as which party was responsible for the
severance of relations between the parties to the marriage.
22. As per affidavits filed by the parties regarding their
assets and liabilities, petitioner No.1 Smt. Geeta has not
mentioned anything under the column 'G' which is pertaining
to the income of the deponent. In the column of assets and
.
income from other sources, the word 'NA' has been
mentioned. Meaning thereby, she is not having any income,
whereas, the respondent-husband has mentioned his monthly
income as Rs.8,000/- and has mentioned his expenditure as
Rs.20,302/-.
23. Interestingly, in part-2, under column No. 28 of the
affidavit filed by the respondent-husband, he has mentioned
the earning of the spouse in the following words "Yes", she is
running a cosmetic shop in Totu bazaar independently and
her mother assists her in business". However, he has not
mentioned her income.
24. At the time of deciding the interim maintenance,
the Court has to consider the stand of the parties in their
pleadings as well as in the statutory affidavits. The learned trial
Court has awarded the interim maintenance of Rs.4,000/- per
month to petitioner No.1 and Rs. 3,000/- per month each to
petitioners No. 2 and 3 from the date of application till final
disposal of the petition. The petition was filed before the
learned trial Court on 12.08.2021 and the same was decided
on 14.10.2022. The respondent has put in appearance, in this
application, on 30.11.2021 and filed his reply on 04.05.2022, as
.
such, the petitioners cannot be said to be responsible for the
delay in disposal of the application. Hence, it can be said that
the petitioners are entitled for the maintenance from the date
of application.
25. The next question, which arises for determination
before this Court is about the quantum of maintenance
awarded by the learned trial Court. According to the stand
taken by the respondent, in his reply, as well as in the affidavit,
the respondent-husband is proved to be an able bodied
person, who could earn Rs.400/- per day, even by working as
a labourer. Thus, his monthly income should not be less than
Rs.12,000/- per month. Applying the unit system, it would be
just and appropriate for this Court to modify the award of
maintenance amount by holding that petitioner No.1 is
entitled for a sum of Rs. 3,000/-, whereas, petitioners No. 2 and
3 are entitled for Rs 3,000/- per month each from the date of
application.
26. Accordingly, the petition is partly allowed and the
impugned order is modified to the extent that petitioner No.1 is
entitled for a sum of Rs. 3,000/-, whereas, petitioners No. 2 and
3 are entitled for Rs 3,000/- per month each from the date of
.
application. Pending applications, if any, also stand disposed
of.
Records be sent back.
December 30, 2022 ( Virender Singh )
(naveen) Judge
