Dhan Singh Negi vs State of Uttarakhand and Another

Prafulla C. Pant

Heard. By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C), the petitioner has challenged the order dated 20.08.2011, passed by Additional Sessions Judge/Fast Track Court, Tehri Garhwal, in criminal appeal no. 19 of 2011, whereby said court has dismissed the appeal and affirmed the order dated 11.05.2011, passed by the trial court (Civil Judge (Sr Div)/Judicial Magistrate, Tehri Garhwal) in criminal case no. 18 of 2011. By said order the trial court, had directed the present petitioner to pay maintenance @ Rs. 3,000/- per month to his wife under the provisions of Protection of Women from Domestic Violence Act, 2005.

Brief facts, of the case are that petitioner got married to respondent no. 2 Sarojani about more than twenty five years back. Out of the wed-lock four children were born. The wife had filed an application under Protection of Women from Domestic Violence Act, 2005, before the Magistrate and sought maintenance. After considering the affidavits, and hearing the parties the trial court has directed the present petitioner to pay maintenance @ Rs. 3,000/- per month. Aggrieved by said order, the husband (present petitioner) filed criminal appeal no. 19 of 2011. After hearing the parties, said appeal was also dismissed.

Learned counsel for the present petitioner submitted that the respondent no. 2 is living in the house got constructed by the petitioner, and cultivating the land belonging to him. In the circumstances, it is pleaded that the direction to pay maintenance @ Rs. 3,000/- is arbitrary. On the other hand, learned counsel for the respondent no. 2 submitted that the present petitioner was a cook in a foreign county. Attention of this Court is also drawn to the fact that petitioner admittedly worked in several hotels in Mumbai and Goa. In the circumstances, it is argued that the impugned order suffers from no illegality.

Having heard learned counsel for the parties, and after going through the papers on record, this Court is of the view that jurisdiction u/s 482 Cr.P.C, is not an appellate jurisdiction. Two courts below have applied their minds to the facts of the case, and given concurrent finding of fact. The power u/s 482 Cr.P.C, is normally exercised to prevent the abuse of process of the court or otherwise to secure the ends of justice. The present case in the above facts and circumstances does not fit into either of the two. Therefore, the petition u/s 482 Cr.P.C, is dismissed. It is clarified that observation made in this order shall not prejudice to the rights of the parties in other proceedings between them. Delay condonation application no. 345 of 2012, in filing the rejoinder affidavit stands disposed of.