AI Structured Summary
Not yet generated for this judgment
Judgment
S.G. Shah, J.—Rule. Service of rule is waived by Mr. Pratik Barot, learned advocate and Ms. Moxa Thakkar, learned A.P.P. for the respondent nos. 1 and 2 respectively. Judgment and order dated 28th February, 2013 in Criminal Appeal No. 29 of 2012 passed by the Court of Additional Session Judge, Ahmedabad (Rural) is challenged by applicant, who is respondent before the Trial Court. By such impugned judgment and order the 7th Additional Sessions Judge, Ahmedabad (Rural) by allowing appeal, set aside the judgment and order dated 9.4.2012 in Criminal Misc. Application No. 283 of 2011 passed by Court of Chief Judicial Magistrate, Ahmedabad. Such order dated 9.4.2012 is below exhibit 51, whereby respondent wife has claimed for right to stay in the house, where present applicant-husband is residing, with a direction regarding her protection u/s 18 of the Domestic Violence Act. However, such application was rejected by the Chief Judicial Magistrate with a direction to reject the order dated 24th January, 2012 regarding visiting right mainly on the ground that if parties are allowed to stay in same property, there may be possibility of further disturbance and breach of peace, considering the status and disturbance between the parties.
By the impugned order dated 28th February, 2013, 7th Additional Sessions Judge has practically modified the order dated 24th January, 2012 read with order dated 9.4.2012 passed by the Trial Court and directed that as provided u/s 19 of the Domestic Violence Act, 2005 present applicant-husband shall provide and arrange for proper residence for the respondent wife and alternatively to provide rented house to wife and till such arrangement is made, applicant-husband shall pay Rs. 3,000/- per month from 28th February, 2011 i.e. date of the application, in addition to Rs. 12,000/- per month as maintenance. Similarly direction regarding visiting right of the applicant was restored in terms of order dated 24th January, 2012 wherein some specific directions are given for visiting right of the applicant husband to their minor children.
The applicant-husband has challenged the impugned order on several grounds and narrated history of litigation till filing such revision application. At present we are not concerned with past history of litigation. Irrespective of minor discrepancy, ultimately the welfare of children is to be seen so far as custody and visiting rights are concerned and so far as maintenance and other benefits are concerned there cannot be any second view for maintenance of children even if mother is earning to some extent. However, it is not the case of the applicant that respondent is having sufficient income, so as to maintain herself. The record shows that respondent wife has been ill-treated by her-in-laws for which she has to file complaint being II C.R. No. 3116 of 2012 on 14th August, 2012 before the University Police Station of Ahmedabad City. The Police has registered such complaint u/s 294B, 323 and 506(2) of IPC. Respondent wife has also lodged a complaint being First Information Report No. 34 of 2011 on 24th January, 2011 before the Satellite Police u/s 498A. She has categorically disclosed in her complaint that she was beaten by the applicant husband. For all such complaint, the chargesheet was also filed against the applicant being 68 of 2011 on 5th March, 2011.
3.1. Surprisingly, applicant has also lodged one complaint against his wife on very same day i.e. 14th August, 2012, which is registered as II C.R. No. 3115 of 2012 before University Police Station of Ahmedabad, City u/s 323, 294C, 506(2) and 114 of IPC. Thereby the incident between the parties is prima facie proved that there is disturbance between the husband and wife for which different complaints are filed. One another complaint on 25th January, 2011 was also filed by the applicant husband against his wife before the Satellite Police Station which is registered as First Information Report No. 3013 of 2011 i.e. on very next day of the complaint u/s 498A was filed. The records shows that previously also a complaint u/s 498A read with Sections 323, 504, 506(2) and 114 of the IPC as well as Sections 3 and 7 of the Dowry Prohibition Act was also filed against the applicant by the respondent wife for which applicant was tried by the Judicial Magistrate First Class, Khambhat in Criminal Case No. 1893 of 2005, wherein he was acquitted by judgment and order dated 28th December, 2007. Before all such litigation, the father of the respondent-wife has admitted before the society that they harassed the applicant but now they will withdraw all the cases. But such admission can be treated as an admission by father of the lady to see that her marriage life can be saved. However the complaints thereafter filed by both the sides against each other, make it clear that there is no possibility of settlement between the parties since, they are husband and wife. There is proceeding under the Domestic Violence Act also wherein a detailed report has been prepared by the Investigating Agency relying upon all relevant record. Trial Court has directed the respondent to provide other residential accommodation or Rs. 3,000/- per month towards residence and Rs. 12,000/- towards maintenance. The order of maintenance is not separately challenged in the present revision but there is only reference that Rs. 3,000/- towards residence accommodation is to be paid in addition to Rs. 12,000/- as maintenance. Therefore, I do not see any reason to interfere with the order of maintenance which is not under challenge.
3.2. Such order of maintenance is dated 11th April, 2011 in Criminal Misc. Application (D.V.) No. 283 of 2011 which is produced at Annexure-I.
On perusal of such application, it becomes clear that prayer of such application was only for maintenance to the tune of Rs. 25,000/- per month as against that the Chief Judicial Magistrate, Ahmedabad awarded Rs. 12,000/- per month with Rs. 5,000/- costs, as interim maintenance because in application itself the amount was claimed as interim maintenance. Thereby when all such orders are of interim nature, I do not see any reason or substance to interfere to any such order. It would be open for the applicant-husband to prove his income before the Trial Court so as to enable the Trial Court to arrive at specific conclusion for awarding final maintenance. However, at present there is no substance in the revision application and same is hereby dismissed. Rule is discharged.