Mukesh vs Sumitra And Ors

This criminal miscellaneous petition under Section 482 Cr.P.C. has been filed by the petitioner challenging the order dated 29.8.2019 passed by the learned ACJM Newai. The case was registered under Domestic Violence Act, 2005 by the respondent no.1 (estranged wife of the petitioner). The petitioner moved an application under Section 91 Cr.P.C. seeking calling of documents from Mahatama Gandhi Hospital to show that the respondent-wife is working and the same was rejected by the learned ACJM vide order impugned. Aggrieved thereof, this misc. petition has been filed.

Learned counsel for the petitioner submits that in order to prove that the respondent is in capacity to maintain herself, documents were called for and the application therefore could not have been rejected. Learned counsel for the petitioner further submits that under Section 91 Cr.P.C., the trial court is empowered to issue summons calling for any document or other things which is necessary or desirable for the purpose of investigation. As the case set up by the respondents relates to claim for maintenance under Domestic Violence Act, 2005, application ought to have been allowed. Learned counsel has relied on the judgment of the Apex Court in the case of Vinny Paramvir Parmar Versus Paramvir Parmar AIR 2011 SC 2748 to support his submission that the court must look into the status of parties before determining maintenance or permanent alimony.

Per contra, learned counsel for the respondent-wife submits that neither Mahatama Gandhi Hospital is a party to the petition nor the petitioner filed appeal against the RTI application. Learned counsel submits that respondent-wife is unemployed and has a child to maintain and no maintenance has been granted. It has also been informed that earlier interim maintenance was granted by the competent court which was challenged by the petitioner before the appellate court and appellate court had remanded the matter back where-after the petitioner moved application under Section 91 Cr.P.C. which has been rejected.

After considering the submissions, this court finds that vide order dated 29.8.2019 impugned in the present petition, no directions have been passed demanding maintenance or permanent alimony. Thus, the judgment cited by the learned counsel, would have no application at this stage. As regards application moved under Section 91 Cr.P.C., this court finds that the learned ACJM has examined the said aspect that firstly the trial court would have to reach to the conclusion with regard to domestic violence and thereafter the issue with regard to maintenance would be taken up. Further this court is of firm view that the court process cannot be used for the purpose of collecting evidence by either side in cases where claim for maintenance has been raised. If the petitioner has any evidence available with it, to prove that the respondent no.1 is serving elsewhere and earning, it is for the petitioner himself to collect evidence and prove before the court. The provisions of Section 91 Cr.P.C. cannot come in the way for such purposes.

In view thereof, the criminal miscellaneous petition filed by the petitioner is wholly frivolous and without merit. The same is accordingly dismissed. All pending applications shall also stand dismissed.

It is made clear that the learned ACJM shall be free to pass an interim order for maintenance, if required.

In view of the judgment passed in S.B. Criminal Misc. Petition No.6484/2019, the S.B. Criminal Misc. Petition No.6557/2019 filed by the petitioner is also dismissed.