Yash Attri & Ors. vs Smt Tusharika Attri

This criminal revision has been preferred by the petitioners challenging the order dated 18.07.2025 passed by II Addl. Sessions Judge, Satna (in short ‘the II ASJ’) in Cr. Appeal no.104/2025 reversing the order dated 05.11.2022 passed by Judicial Magistrate First Class, Satna (in short 'the JMFC') in MJCR no.04/2015 whereby the JMFC dismissed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (in short ‘the D.V. Act') filed by the respondent/wife holding thereby that the respondent/wife has failed to prove any act of domestic violence, however, in criminal appeal filed by the respondent/wife, the II ASJ has reversed the order passed by the JMFC and awarded an amount of Rs.20,000/- towards mental agony and Rs.3,000/- towards house rent allowance.

Learned counsel for the petitioners submits that the marriage of the petitioner 1 and respondent was solemnized on 13.02.2011 and immediately after 3 months of the marriage, the petitioner 1 and respondent are residing separately. He submits that the respondent/wife moved an application under Section 125 of Cr.P.C. on 30.08.2014, which was allowed vide order dated 22.06.2020 by awarding an amount of Rs.4,500/- towards monthly maintenance. He submits that immediately after filing of an application under Section 125 of Cr.P.C., the respondent/wife filed an application under Section 12 of the D.V. Act on 07.10.2015, and upon due consideration of the entire material available on record and in presence of the order dated 22.06.2020 passed by Principal Judge, Family Court, it was rightly dismissed by holding specifically that the respondent/wife has failed to prove any act of domestic violence. He further submits that even in presence of availability of a house situated in Satna owned by respondent/wife's deceased father, the II ASJ has committed an illegality in awarding the house rent allowance of Rs.3,000/- p.m. to the respondent that too without taking into consideration the capacity of the petitioner 1/husband, who is suffering 90% disablement. In support of his submissions, learned counsel placed reliance on the decision of High Court of Bombay, Bench at Nagpur in the case of Koushik vs. Sau. Sangeeta Koushik Gharami and others, 2014 ALL MR (Cri) 2398. With these submissions, he prays for setting aside the impugned order and for allowing the criminal revision.

In turn, learned counsel for the respondent/wife submits that since the petitioner 1/husband has left the respondent/wife without there being any sufficient cause immediately after 3 months of the marriage, therefore, the Family Court rightly awarded an amount of Rs.4,500/- towards monthly maintenance and since the JMFC did not consider that the respondent/wife is in need of residence also, committed an illegality in dismissing the application and upon filing criminal appeal, the II ASJ has rightly allowed the application under Section 12 of the Act and awarded an amount of Rs.3000/- towards house rent allowance. She also submits that the petitioner 1 is an able-bodied person and no certificate in respect of 90% disablement has been placed on record even before this Court. As such, she prays for dismissal of the criminal revision.

Heard learned counsel for the parties and perused the record.

From perusal of the order dated 22.06.2020 passed by the Family Court, it is clear that vide paragraph 22 of this order, income of the petitioner 1/husband was found to be Rs.13,000/- per month and while passing the order dated 05.11.2022, the JMFC also considered the factum of grant of maintenance of Rs.4,500/- p.m. to the wife as well as the order passed by the Family Court and in presence of the fact/finding recorded in paragraph 14 of its order, that the respondent/wife has failed to prove any act of domestic violence, dismissed the application filed under Section 12 of the D.V. Act. However, the II ASJ, by allowing the criminal appeal, has allowed the application granting an amount of Rs.20,000/- towards mental agony and Rs.3,000/- p.m. towards house rent allowance, but perusal of the entire impugned order which runs into 19 pages (36 paragraphs) shows that the II ASJ has vide paragraph 25 of the impugned order affirmed the said finding, however in later paragraphs 29 and 33 of the order, held contrary to earlier paragraph 25 of the order that too contrary to the statement of the applicant-Smt. Tusharika Attri herself. As such the findings being self-contradictory and perverse, are not sustainable. Further, the II ASJ has also not recorded any finding about capacity of the petitioner 1/husband and has also not recorded any finding contrary to the order dated 22.06.2020 passed by Principal Judge, Family Court, Satna in respect of income/financial status of the petitioner/husband, which is necessary while passing any order in favour of woman affecting the income of the husband.

In the case of Sangita Saha v. Abhijit Saha, (2019) 18 SCC 81, the Hon’ble Supreme held that if wife has failed to establish any incident of torture, demand of money, or physical violence, then she is not entitled to any order in her favour. In the case of Kamlesh Devi v. Jaipal & Ors., 2019 Supreme (SC) 2190 the Hon’ble Supreme Court found absence of ingredients of domestic violence and affirmed the order of dismissal of complaint filed under the provisions of the D.V. Act.

As has been held by Hon’ble Supreme Court in the aforesaid cases, before passing any order in favour of a woman under the provisions of the D.V. Act, the concerned Court is required to record a reasoned finding in respect of any act of domestic violence and in absence of such finding, no relief can be granted in favour of a woman. However, irrespective of dismissal of her application under the provisions of the D.V. Act, she can pray for requisite relief under the provisions of other laws.

Although the factum of availability of a house owned by the father of respondent/wife, who has died in the year 2016, is not available on record, but has been admitted by learned counsel for the respondent/wife, to the effect that there is a single storied house situated in Satna constructed on a plot admeasuring about 1200 sq.ft., in which no first class heir of the respondent's father is residing because the only sister of respondent, is residing in Bhopal and along with her, the mother of the respondent is also residing.

In such circumstances, in my considered opinion, before passing any order in respect of house rent allowance, the availability of house of the ownership of the respondent (after death of her father) was required to be considered.

In the present case original application under Section 12 of the D.V. Act was filed on 07.10.2015 and was decided/dismissed on 05.11.2022, against which criminal appeal was filed on 15.12.2022, which has been allowed on 18.07.2025. In such circumstances and apparently the compliance of the direction issued by Hon’ble Supreme Court about filing of affidavits/supplementary affidavits by the parties, is lacking, which was made mandatory by High Court of Madhya Pradesh by issuing following circular no. B/1641/Jabalpur, dated 3/03/2023 :-

Resultantly, impugned order being unsustainable deserves to be and is hereby set aside and matter is remanded to the II ASJ with the direction to restore the criminal appeal to its original number and to decide the same afresh, taking into consideration the availability of the house of the ownership of respondent/wife in the township of Satna and after recording necessary findings in respect of income/financial status of both the parties that too after giving due opportunity of hearing to the parties and after getting affidavits/supplementary affidavits filed of both the parties as per decision of Hon’ble Supreme Court in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324.

Parties are directed to remain present before the II ASJ on 29.06.2026.

It is made clear that if the parties to the proceedings do not appear before the II ASJ, it shall issue fresh notice/summons with a view to secure their presence before the Court.

It is made clear that this Court has not expressed any opinion on merits and demerits of the case.

Pending application(s), if any, shall stand disposed of.