Sanjay Kumar vs Sudha Devi And Ors

Sandeep Sharma, J

Instant criminal revision petition lays challenge to judgment dated 20.5.2019, passed by the learned Sessions Judge, Kangra at Dharamshala, District Kangra, H.P., in Criminal Appeal No. 25-K/X/2017, affirming order dated 20.1.2015, passed by the learned Additional Chief Judicial Magistrate, Kangra, District Kangra, H.P., in 118-IV/2011, whereby the learned trial Court while allowing the petition having been filed by the respondent under Section 12 read with Sections 18 to 22 of the Protection of Women from Domestic Violence Act (in short “the Act”), held the petitioner-respondent (In short “the petitioner”) alongwith his parents liable to pay maintenance @ 2500/- pm, to respondent-petitioner (in short “the respondent”) from the date of filing of the petition. Apart from above, court below held the respondent entitled to compensation to the tune of Rs. 30,000/- payable by the petitioner alongwith his parents.

Precisely, the facts of the case, as emerge from the record are that respondents instituted petition under Section 12 read with Sections 18 to 22 of the Act, against the petitioner as well as her in laws, alleging therein domestic violence against her as well as children. Learned trial court on the basis of evidence led on record held the petitioner alongwith his parents liable to pay maintenance as has been detailed herein above.

Being aggrieved and dissatisfied with aforesaid order dated 20.1.2015, passed by the learned Additional Chief Judicial Magistrate Kangra, petitioner as well as his parents filed an appeal under Section 29 of the Act. Though learned appellate court below upheld the order of maintenance awarded by the court below, but modified the same to the extent that liability to pay entire amount of maintenance was fasten upon the petitioner. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to set aside the judgment dated 20.5.2019 and 20.1.2015, passed by the courts below.

Precisely, the ground as has been raised in the instant petition for quashing judgment/order as detailed herein above is that since at the time of passing of order granting maintenance by the learned Additional Chief Judicial Magistrate Kangra, petitioner was not party to the proceedings and his name stood deleted from the array of the parties, there was no occasion, if any, for the learned trial court to saddle the petitioner with liability to pay maintenance to the respondent. To substantiate, aforesaid plea of the petitioner, Mr. R.K. Gautam, learned Senior counsel for the petitioner invited attention of this court to the order dated 12.9.2011, passed by the learned ACJM, Kangra, perusal whereof clearly reveals that petition filed by the respondent-Sudha Devi was withdrawn pursuant to statement made by her that she does not wish to prosecute the case against her husband petitioner herein. He also invited attention of this court to the statement made by respondent Sudha Devi on oath before the court below, wherein she categorically stated that since her husband resides abroad, she wants to withdraw her case against him at this stage.

Since case against the petitioner stood withdrawn as has been recorded herein above and learned trial court proceeded to saddle the petitioner herein with liability to pay maintenance alongwith his parents, he though filed an appeal in the court of learned Sessions Judge Kangra, at Dharamshala, but aforesaid ground raised by the petitioner in the appeal was not taken up for consideration by the learned appellate court, rather learned Sessions Judge while passing order of maintenance awarded by the court below modified the order and held the petitioner herein only liable to pay the maintenance

Having carefully perused order dated 12.9.2011, coupled with the statement given by the respondent Sudha Devi that she does not wish to prosecute the case against the petitioner at this stage, this Court finds merit in the contention of the learned Senior counsel that there was no occasion, if any, for the learned trial court as well as court of learned Sessions Judge to award maintenance.

Though at this stage, Mr. Neeraj Gupta, learned senior counsel appearing for the respondent vehemently argued that once no order with regard to deletion of name of the petitioner was ever passed, no illegality can be said to have been committed by the court while passing order of maintenance, but this court is not persuaded to accept the aforesaid contention of Mr. Neeraj Gupta, learned Senior counsel, for the reason that once learned trial court itself recorded that claim petition against the petitioner herein stands withdrawn, there was no occasion for it to hold the petitioner liable to pay maintenance, if any. Similarly, this court finds that once specific ground was raised in the appeal filed by the petitioner to learned Sessions Judge, it was bounden duty of the court to peruse the record to ascertain the veracity and correctness of the submissions or ground raised in the appeal. However, interestingly, learned Sessions Judge without bothering to look into the aforesaid ground proceeded to uphold the order of maintenance. Since at the time of passing of order of maintenance, case against the petitioner stood withdrawn, no order granting maintenance could be passed against him and as such, order of learned trial court being nullity is not sustainable in the eye of law.

Consequently, in view of the above, this Court finds merit in the present petition and accordingly, same is allowed and judgment and order dated 20.5.2019 and 20.1.2015 passed by the learned Sessions Judge and learned Additional Chief Judicial Magistrate, are quashed and set-aside. Needless to say, respondent Sudha Devi on account of her having given statement that she does not wish to prosecute the case against her husband at that stage is always at liberty to file afresh on the basis of evidence already adduced on record, if required and desired. In the aforesaid terms, present petition is disposed of alongwith pending applications if any.