Himachal Pradesh High Court

_____________________________________________________________________ vs Kanika Dogra And Anr on 16 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                      Cr.R No167 of 2021
                                            Date of Decision: 16.10.2024
_____________________________________________________________________
Manoj Dogra
                                                               .........Petitioner
                                     Versus
Kanika Dogra and Anr.
                                                             .......Respondents

Coram

Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?

For the Petitioner:       Mr. Anu Tuli Azta, Advocate.

For the Respondents: Mr. Sumit Sood, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)

Instant Criminal Revision Petition filed under Section 397 of

CrPC, lays challenge to order dated 7.4.2021, passed by the learned

Sessions Judge, Family Court, Shimla, Himachal Pradesh in case No.

905392/2016, whereby court below while allowing application under

Section 125 CrPC, having been filed by the respondents for grant of

maintenance, directed the petitioner to pay maintenance to the tune of Rs.

5,000/- each, per month in favour of the respondents.

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

respondent-wife and minor son of the petitioner instituted a petition under

Section 125 CrPC in the court of learned Sessions Judge, Family Court,

Shimla, seeking therein maintenance on the ground that they have no

independent source of income. It came to be averred in the application that

marriage inter-se petitioner and respondent No.1 was solemnized on

9.5.2007 at Bhawarna as per Hindu Rites and Customs and out of their

wedlock, respondent No.2 was born on 25.1.2008. On account of

matrimonial discord, respondent No.1 along with her minor son was

compelled to live separately w.e.f. 9.4.2015. Though effort was made to

settle the matter inter-se parties and in that regard, compromise was also

drawn on 27.5.2012, but fact remains that after the afore date, parties

never cohabited and lived together. Since respondent No.1 had no source of

income and respondent No.2 was studying in 4th standard, they filed an

application under Section 125 CrPC stating therein that they are being

continuously neglected by the petitioner, who is otherwise under obligation

being husband and father to maintain them and as such, order of

maintenance is required to be passed in their favour. It specifically came to

be averred in the petition that petitioner is serving in BSF and is drawing

monthly salary of Rs. 35,000/- per month. Interestingly, in the case at

hand, despite sufficient opportunity, petitioner herein failed to lead

evidence.

3. To the contrary, respondents by leading cogent and convincing

evidence on record successfully proved on record factum of marriage inter-

se petitioner and respondent No.1 as well as employment of petitioner with

BSF and his having drawn salary of Rs. 35,000/- per month.

4. Learned trial court having taken note of the evidence adduced

on record by the respective parties, proceeded to award maintenance to the

tune of Rs. 5,000/- each in favour of respondents No. 1 and 2. In the

aforesaid background, petitioner has approached this Court in the instant

proceedings, praying therein to set aside aforesaid order on the ground that

no adequate opportunity was provided to him for leading evidence.

5. Ms. Anu Tuli, learned counsel for the petitioner while making

this Court peruse zimini orders placed on record attempted to argue that

sufficient opportunity of adducing evidence on record was never afforded to

the petitioner. She further submitted that on account of COVID-19,

petitioner herein, who at the relevant time, was serving in the border area,

was unable to contact his counsel, enabling him to produce the evidence

and as such, court below ought not have passed the order granting

maintenance in favour of the respondents merely on the basis of

submissions made by the respondents that petitioner is in receipt of salary

to the tune of Rs. 35,000/- per month. Learned counsel for the petitioner

further argued that learned trial court while granting maintenance failed to

take note of the fact that respondent No.1 had been running a beauty

parlour/boutique and as such, there was otherwise no occasion, if any, to

grant maintenance in her favour, rather maintenance, if any, could only be

awarded in favour of respondent No.2, who is admittedly minor son of the

petitioner.

6. Having heard learned counsel for the parties and perused the

material available on record vis-à-vis reasoning assigned in the judgment

impugned in the instant proceedings, this Court finds no illegality or

infirmity in the same and as such, no interference is called for.

7. Precisely, the grouse of the petitioner, as has been highlighted

in the petition and further canvassed by learned counsel for the petitioner

is that no adequate opportunity of leading evidence was ever granted to the

petitioner, but careful perusal of zimni orders placed on record itself

suggest that adequate opportunity was provided to the petitioner to lead

evidence. Zimni orders clearly reveal that petitioner was duly represented

on each and every date by some counsel and as such, it cannot be said that

factum with regard to passing of order with regard to production of

evidence was not in the knowledge of the petitioner.

8. Similarly, this Court is not satisfied with the explanation

rendered on record that on account of COVID-19, petitioner herein was

unable to contact his counsel. Careful perusal of zimni orders placed on

record clearly reveals that on instructions of the petitioner, his counsel was

continuously appearing before the court and at no point of time, prayer

ever came to be made to adjourn the proceedings on the pretext of absence

of the petitioner on account of his deployment in the border area.

9. Leaving everything aside, this court finds that order thereby

closing evidence of the petitioner was passed on 23.3.2021 and thereafter

no appropriate proceedings, if any, were ever filed by the petitioner in the

appropriate court of law, laying therein challenge to the afore order, rather

petitioner kept on waiting till passing of the final order, whereby

maintenance to the tune of Rs. 5,000/- each came to be awarded in favour

of the respondents.

10. Similarly, this Court finds that there is no dispute that

respondent No.1 is legally wedded wife of the petitioner and respondent

No.2 is their son. It clearly emerges from the pleadings as well as evidence

adduced on record by the respective parties that on account of matrimonial

discord, respondent No.1 was compelled to leave her matrimonial house.

Though an attempt came to be made by the petitioner to demonstrate that

respondent No.1 is not dependent upon the income of the petitioner, rather

she has some independent source of income, but such fact never came to

be proved in accordance with law. To the contrary, respondents, by leading

cogent and convincing evidence successfully proved on record that they do

not have any independent source of income and as such, no illegality or

infirmity can be said to have been committed by the court below while

directing the petitioner, who is otherwise under obligation to maintain his

wife and minor son, to pay maintenance to the tune of Rs. 5000/- each.

11. Consequently, in view of the detailed discussion made herein

above, this court finds no illegality or infirmity in the impugned order and

as such, same is upheld. Present petition fails and dismissed accordingly.

October 16, 2024                                                     (Sandeep Sharma),
      (manjit)                                                         Judge



                                        DN: C=IN, O=HIGH COURT OF HIMACHAL


                 VIKRANT
                                        PRADESH, OU=JUDICIARY, Phone=

5d2f851af76d452c04fe80af0eb04901baccf523a962 b5b328d35fb9075dbbb0, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= b9ba41101dabcec1188a4f694ff769b34ac01c5f3677

CHANDEL 265199bb13a3810dec17, CN=VIKRANT CHANDEL Reason: I am approving this document Location: