Kapila Agarwal vs Jethmal Agarwal
2021 Latest Caselaw 17802 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 482/2019

Kapila Agarwal W/o Jethmal Agarwal, D/o Bhanwar Lal Suhalkha, Aged About 59 Years, R/o 38, A-B, Srinagar Colony, Gayariyawas, Udaipur.

----Appellant Versus

1. Jethmal Agarwal S/o Late Ramswaroop Agarwal, Aged About 65 Years, R/o 6-K-3 , Housingh Board Colony , Jyoti Nagar, Jaipur

2. State of Rajasthan, Through PP

----Respondents

For Appellant(s) : Dr. Rakesh Sinha on behalf of Mr. Rajat Dave For Respondent(s) : Mr. Laxman Solanki, P.P

HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 26/11/2021

The appellant has preferred this criminal revision petition

under Section 397 read with Section 401 Cr.PC being aggrieved

with the order dated 02.01.2019 passed by learned Additional

Sessions Judge No.5, Udaipur, whereby appeal filed by appellant

against the order dated 09.09.2016 passed by learned Judicial

Magistrate North No.2, Udaipur in Criminal Case No. 345/2007 has

been rejected while affirming the said order.

Heard Dr. Rakesh Sinha, learned counsel appearing on behalf

of Mr. Rajat Dave, learned counsel for the appellant as well as

learned Public Prosecutor.

Petitioner is aggrieved with the order passed by the appellate

court affirming the order of dismissal of application filed under

Section 12 of the Domestic Violence Act, 2005 passed by learned

(2 of 3) [CRLR-482/2019]

Judicial Magistrate North No.2, Udaipur in Criminal Case No.

345/2007.

The petitioner filed an application under Section 12 for the

Domestic Violence Act, 2005 on 25.09.2007 which was dismissed

in default on account of non appearance of the petitioner on

09.09.2016. On 09.09.2016, Counsel for the non-petitioner made

a statement that on 25.06.2015 Family Court No.1, Jaipur has

passed a divorce decree for dissolution of marriage between the

parties. Hence, petitioner is not wife of the non-petitioner. Taking

into consideration the fact of non appearance of the petitioner, the

application under Section 12 of the Domestic Violence Act, 2005

was dismissed.

From perusal of the judgment, it is evident that learned

Magistrate has passed the order on merit without even hearing the

petitioner on the point of maintainability of the application under

Section 12 of the Domestic Violence Act, 2005 on the ground of

further development of passing of the divorce decree between the

parties.

Learned counsel for the petitioner submits that appeal is

pending against the divorce decree before the Rajasthan High

Court, Bench at Jaipur.

A perusal of proviso of Section 256 Cr.P.C makes it clear that

it is not obligatory on the part of Magistrate to dismiss the

application, if the Magistrate is of the opinion that the personal

attendance of the complainant is not necessary, his appearance

may dispensed with and proceed in the case.

In the considered opinion of this Court, looking to the nature

of litigation pending before the learned trial court, the Magistrate

(3 of 3) [CRLR-482/2019]

was not justified in dismissing the application on account of non

appearance of the petitioner.

At the time of filing the application under Section 12 of the

Domestic Violence Act, 2005 petitioner was wife of the non-

petitioner and she claimed maintenance amount from him.

In the facts and circumstances of the case, the revision

petition is allowed. The order dated 09.09.2016 passed by the

Judicial Magistrate No.2, Udaipur dismissing the application under

Section 12 of the Domestic Violence Act, 2005 so also the order

dated 02.01.2019 passed by the appellate court affirming the

order of the trial court are quashed and set aside.

Learned trial court is directed to restore the application of

the petitioner on its original number and learned counsel for the

parties are directed to appear before the trial court on 05.01.2022

(RAMESHWAR VYAS),J

31-rahul arya/-

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