CRMMO/1112/2022 on 30 December 2022

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