Ram vs State of Rajasthan and Others

Vijay Bishnoi, J—This criminal misc. petition has been filed by the petitioner against the order dt. 12.02.2015 passed by Additional Sessions Judge No. 2, Bikaner (Camp Sri Dungargarh) (hereinafter referred to as ''the appellate court'') in Criminal Appeal No. 11/2014 filed by the petitioner under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ''the Act of 2005'') whereby the appellate Court has affirmed the order dt. 4.7.2014 passed by the Judicial Magistrate, Sri Dungargarh, District Bikaner (hereinafter referred to as ''the trial court'') in Criminal Case No. 240/2013 filed by the respondent No. 2 under Sec. 12 of the Act of 2005. The trial Court has directed the petitioner to pay interim maintenance to the tune of Rs. 3,500/- to the respondent No. 2 and her four children till disposal of the application under Sec. 12 of the Act of 2005 filed by the respondent No. 2. The appellate Court has affirmed the order passed by the trial Court vide impugned order dt. 12.2.2015.

Being aggrieved with the orders passed by the Courts below, this criminal misc. petition has been filed by the petitioner.

Learned counsel for the petitioner has argued that the Courts below have grossly erred in directing the petitioner to pay interim maintenance to the tune of Rs. 3,500/- to the respondent and her four children as the respondent No. 2 has no sufficient reason to live separate from the petitioner. It is contended that the petitioner has moved an application under Sec. 9 of the Hindu Marriage Act, 1955 for the purpose of restitution of conjugal rights and has also moved an application under Sees. 7 and 10 of the Guardians and Wards Act, 1890. It is contended that the respondent No. 2 has filed the application under Sec. 12 of the Act of 2005 after having knowledge about the proceedings initiated by the petitioner under the provisions of Hindu Marriage Act as well as Guardians and Wards Act. It is further contended that the allegations levelled in the application under Sec. 12 of the Act of 2005 are false and the trial Court without taking into consideration the fact that the respondent No. 2 has no sufficient reason to live separate from the petitioner and is also having sufficient means to maintain herself and her four minor children, has passed the impugned order. Learned counsel for the petitioner has, therefore, prayed that the orders passed by the Courts below may be set aside.

Heard learned counsel for the petitioner and perused the impugned orders as well as the material available on record.

It is not in dispute that the respondent No. 2 is legally wedded wife of the petitioner and out of their wedlock, four children have born. It is also not in dispute that respondent No. 2 has filed an FIR against the petitioner for the offences punishable under Sees. 498-A, 406 and 323 I.P.C. in which the police, after thorough investigation, has filed charge sheet against the petitioner and the matter is pending trial before the concerned Court.

In view of the fact that the respondent No. 2 has initiated criminal proceedings against the petitioner for cruelty and misappropriation of amount, it cannot be said that the respondent No. 2 is living separately from the petitioner without any sufficient reason. It is also noticed that the petitioner has failed to produce any evidence or material to prove that the respondent No. 2 is having sufficient means to maintain herself and her four minor children.

Looking to the above facts and circumstances of the case, this Court is of the opinion that the Courts below have not committed any illegality in passing the impugned orders. Hence, no interference is called for. The criminal misc. petition is, therefore, dismissed. The stay petition is also dismissed.