Amit Mandal vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The revisionist before this Court, admittedly, is a husband of respondent No. 2, wherein, he has questioned the veracity of the part of the Appellate Court's order as rendered by the 1st Additional Sessions Judge, Udham Singh Nagar in Criminal Appeal No. 178 of 2017, Smt. Sarswati Devi Vs. State of Uttarakhand and another, as preferred by the respondent wife by invoking the appellate provisions as contained under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as "the Act").

The brief fact, which has emerged in the instant case, is that as far as the matrimonial relationship between the revisionist and respondent No. 2 is concerned, it is a fact which stands admitted by both the parties before the Courts below. It is submitted by the applicant to the application under Sections 23 and 19 of the Act that she would be entitled for the grant of maintenance under the Act, which contemplates the determination of monetary benefits under Section 23 of the Act after considering the implication of Section 20 of the Act for grant of maintenance. According to respondent No. 2, she has come up with a case that as far as revisionist is concerned, he is working as a doctor and has got his own clinic in District Almora and out of the said engagement, he is having an income of about Rs.50,000/- p.m.

After the receipt of the notices in the said proceedings, which was registered before the Court of Judicial Magistrate, 1st, by way of Misc. Case No. 272 of 2018, Smt. Sarswati Devi Vs. Amit Mandal, it is an admitted case that the revisionist has put in appearance and has filed his objection to the application under Section 23 of the Act on 3rd June, 2017. What is important to be considered here and which has also been argued by the learned counsel for the revisionist for assailing the Appellate Court's order is from two perspectives :-

i. That he is a class 10th failed person and is not a doctor, which has been projected by the respondent No. 2 in the proceedings before the Court below under Sections 23 and 19 of the Act.

ii. He submits that for the purposes of determination of interim maintenance under Section 23 of the Act, the amount already paid to the respondent No. 2 in a proceeding under Section 125 of the Cr.P.C., that ought to have been taken into consideration by the Courts below while considering the impact of Section 23 of the Act, which would be decided in the light of the provisions contained under Section 20 (6) of the Act, which lays down the parameters for determination of quantum of the monetary benefits, which is to be extended to the respondent/wife while determining the maintenance, which has been granted in the other proceedings for grant of maintenance contemplated under law.

What is important to be witnessed from the pleading, which has been raised by the revisionist in his objection dated 3rd June, 2017, for the purposes to denounce his qualification and engagement, in which, he is involved in para 4, he has submitted that the income as projected by respondent wife is absolutely false and concocted. But what is surprising is that in his pleadings, while giving an explanation to his engagement, there is no such plea raised by him in defence to the effect that he is not working as a Doctor. In such an eventuality, the plea which has been raised before this Court that he is class X failed cannot be accepted by this Court.

Apart from it, if the objection is scrutinized, there is no such plea raised by the revisionist to the effect that the respondent No. 2 is recipient of the maintenance in the proceedings under Section 125 of the Cr.P.C. Hence, this Court is of the considered view that in the absence of there being specific plea taken by the revisionist with regard to the maintenance being granted to respondent No. 2, under Section 125 of the Cr.P.C., the determination of maintenance under the implication of Sub-section (6) of Section 20 of the Act may not automatically flow until and unless the same is put as point of determination in the pleadings by the revisionist before the Judicial Magistrate before whom the application under Section 23 of the Act was being considered. However, the application preferred by the respondent No. 2 under Section 19 to be read with Section 23 of the Act, the same was rejected by the learned Trial Court vide its judgment/order dated 28.08.2017.

It is this order, which was put to challenge in a Criminal Appeal by respondent No. 2, which was registered as Criminal Appeal No. 178 of 2017. The Appellate Court while partially maintaining the order of the Trial Court so far it related to rejecting the application under Section 19 of the Act, has reversed the judgment and findings of the Trial Court so far it related to the grant of interim maintenance under Section 23 of the Act and, consequently, the Appellate Court by the impugned judgment dated 4th June, 2019, had allowed the application so far it related to under Section 23 of the Act and has directed the revisionist to pay a sum of Rs.3,000/- as maintenance to respondent No. 2.

The argument, which has been extended by the learned counsel for the revisionist with regard to the implication and determination made in relation to the maintenance, which is being granted under Section 125 of the Cr.P.C. is concerned, as soon as he was trying to take the benefit of an adjustment of the amount already paid under Section 125 of the Cr.P.C., it was a burden casted upon him to have raised it as a defence before the Trial Court as well as before the Appellate Court and it was his responsibility to establish that the amount thus quantified in the proceedings under Section 125 of the Cr.P.C., required an adjustment to the amount, which was to be determined under Section 23 of the Act of 2005.

Apart from the fact that this was only an oral objection taken by the revisionist before the Appellate Court because as per the finding to the said effect, which has been recorded in para 9 of the impugned judgment. The Court of 1st Additional Sessions Judge, Udham Singh Nagar while responding to the argument raised by the learned counsel for the revisionist in the light of maintenance awarded, which he claims to have been granted to respondent No. 2 under Section 125 of the Cr.P.C., the Court has recorded the reasons that a very vague assertion has been made by the revisionist and it may not be a ground to be considered by the Appellate Court, while passing an order under Section 29 of the Act until and unless the revisionist sustains his argument by producing evidence and material before the Court below with regard to the remittance of any amount under Section 125 of the Cr.P.C. or in any other collateral proceedings requiring an adjustment as per Section 20 (6) of the Act. Rather to the contrary, the finding which has been recorded by the Appellate Court to the effect that though an oral plea was raised by the revisionist but the finding, which has been returned by the Appellate Court is that there is no evidence ever adduced by the revisionist before the Court below to substantiate his argument with regard to the payment of maintenance made to the respondent No. 2 and its amount under Section 125 of the Cr.P.C. and accordingly, the said plea was declined to be accepted by the Court of 1st Additional Sessions Judge, in the absence of there being any pleading or evidence on record, which ought to have been brought by the learned counsel for the revisionist on record to avail the benefit of Section 20 (6) of the Act.

Hence, since the revisionist himself has failed to establish by bringing any evidence on record with regard to the implication of Section 125 of the Cr.P.C., the maintenance granted to the respondent No. 2 and the reasoning which has been assigned in the Appellate Court's order dated 4th June, 2019, directing the revisionist to remit a maintenance @ Rs. 3,000/- p.m. under Section 23 of the Act cannot be faulted with apart from the fact that the amount thus determined @ Rs. 3,000/- is quite reasonable. Hence, it does not call for any interference by this Court in the exercise of its revisional jurisdiction under Section 397 to be read with Section 401 of the Cr.P.C.

Lastly, it has been prayed by the learned counsel for the revisionist that the finding with regard to the implication of Section 125 of the Cr.P.C. is only tentative in nature for the purposes of considering the interim maintenance under Section 23 of the Act and any finding with regard to Section 125 of the Cr.P.C. will not create any impediment in determination of the application under Section 23 of the Act on its own merit.

Accordingly, the Revision lacks merit and same is dismissed.

However, there would be no order as to costs.