Dharmendra Dube and Sri S.D. Dube vs Smt. Sapna Dube

Hon''ble Prafulla C. Pant, J.—This revision is directed against the judgment order dated 15.09.2010, passed by learned Sessions Judge, Almora, in criminal appeal no. 21 of 2010, whereby said court has dismissed the appeal and affirmed the order dated 24.4.2010, passed by the Judicial Magistrate, Almora, in Miscellaneous criminal case no. 6 of 2009, under Protection of Women from Domestic Violence Act, 2005. The trial court had directed the revisionist to pay maintenance @ Rs. 10,000/- per month under the aforesaid Act which was affirmed by the appellate court. Heard learned counsel for the parties, and perused the affidavit, counter affidavit, rejoinder affidavit and impugned orders.

Brief facts of the case are that respondent Sapna Dube got married to revisionist no. 1 Dharmendra Dube. Two children were born out of the wed-lock. It appears that the relations between the husband and wife got soured whereafter an application u/s 125 Cr.P.C., was moved by the wife before the Principal Judge, Family Court, Lucknow, in which the present revisionist no. 1 Dharmendra Dube (husband) was directed to pay maintenance @ Rs. 800/- per month. It also appears that a petition u/s 13 of Hindu Marriage Act, is pending between the parties to matrimony for a decree of divorce. Respondent Sapna Dube moved an application u/s 12 read with section 18 to 20 and 22 of Protection of Women from Domestic Violence Act, 2005, before the Judicial Magistrate, Almora, and claimed interim maintenance @ Rs. 20,000/- per month. Said application was contested by the revisionists stating that the income of the revisionist no. 1 is only Rs. 4,000/-. However, the Magistrate after hearing the parties directed the present revisionist (revisionist no. 1) to pay interim maintenance @ Rs. 10,000/- per month to the respondent (with whom a minor son and daughter were also living). Aggrieved by said order dated 24.04.2010, passed in criminal Miscellaneous case no. 6 of 2009, by Judicial Magistrate, Almora, an appeal was filed before the Sessions Judge, Almora, which was registered as criminal appeal no. 21 of 2010. After hearing the parties, learned Sessions Judge, dismissed the appeal. Hence, this revision.

Learned counsel for the revisionists argued that without assessing the income of the revisionists the Magistrate and Appellate Court have arbitrarily directed the present revisionists to pay interim maintenance @ Rs. 10,000/- per month. It is also contended that even the admitted fact that the revisionist no. 1 is already paying Rs. 800/- per month maintenance u/s 125 Cr.P.C., is not considered. It is further argued that revisionist no. 1 Dharmendra Dube was a lecturer on contract basis, and his income was only Rs. 4,000/- per month.

On the other hand, on behalf of the respondent it is argued that the revisionists run two Non Governmental Organizations (NGO) and the revisionist also makes documentary films.

However, it is not disclosed on behalf of the respondent as what is the actual income of the present revisionists to justify the direction to pay interim maintenance @ Rs. 10,000/- per month. Having considered submissions of learned for the parties, and after going through both the impugned orders and the affidavit, counter affidavit and rejoinder affidavit, this revision is disposed of with the direction that the revisionist shall pay interim maintenance @ Rs. 5,000/- per month only with effect from the date Magistrate directed to pay the interim maintenance. Amount of Rs. 800/- per month if paid u/s 125 Cr.P.C., shall be deducted from the interim maintenance directed to be paid by this Court. With this modification in the impugned order this revision stands disposed of with the observation that this order shall not prejudice the rights of the parties which are yet to be finally determined after recording of evidence by the Judicial Magistrate concerned. Needless to say that the Judicial Magistrate shall proceed further expeditiously.