Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 6360 of 2017 Petitioner :- Pankaj Kumar Rai Respondent :- State Of U.P. & Another Counsel for Petitioner :- Birendra Singh,Prashant Kumar Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Birendra Singh, learned counsel for the petitioner and the learned A.G.A. for the State.
This petition under Article 227 of the Constitution of India has been filed challenging the summoning order dated 21.9.2017, passed by the Additional Sessions Judge, Court No.6, Varanasi in Criminal Appeal No. 269 of 2015 (Pankaj Kumar Rai Vs. State of U.P.), whereby the aforesaid appeal which was preferred against the order dated 20.11.2015, passed by the Judicial Magistrate, Court No.1, Varanasi in Case No. 216 of 2014 (Smt. Sweta Rai Vs. Pankaj Kumar Rai and Others) under section 12 of the Protection of Women from Domestic Violence Act, 2005, has been dismissed.
A full Bench of this Court in the case of Dinesh Kumar Yadav Vs. State of U.P. and another, reported in 2016 (11) ADJ 29 has held that against the appellate order passed in an appeal under Section 29 of the Act of 2005, a criminal revision shall lie before this Court. However, considering the nature of the order which is proposed to be passed, the petition is not being dismissed on the ground of alternative remedy.
From the record, it appears that the opposite party No.2 filed Complaint Case No. 216 of 2014 (Smt Sweta Rai Vs. Pankaj Kumar Rai and Others) under Section 12 of the Act of 2005. In the aforesaid complaint case, an application under Section 23 of the Act of 2005 was filed by the wife, claiming interim maintenance. This application filed by the wife came to be allowed by means of the impugned order dated 30.11.2015, whereby it was directed that the wife shall be paid a sum of Rs. 10,000/- per month towards interim maintenance. Feeling aggrieved by the said order, the petitioner filed an appeal before District and Sessions Judge, Varanasi, which was registered as Criminal Appeal No., 269 of 2015. The said appeal came to be dismissed by means of the order dated 21.9.2017. Feeling aggrieved by the aforesaid two orders, the petitioner has now come to this Court by means of the present petition.
Learned counsel for the petitioner has challenged the veracity of the aforesaid two orders, primarily on the ground that the Court below while awarding the amount of interim maintenance, has failed to take into consideration the amount of salary received by the petitioner and the liability upon him. He, therefore, submits that looking into facts and circumstances of the case and the precarious condition of the petitioner, the amount of interim maintenance as awarded, requires to be modified by this Court.
Be that as it may, the opposite party No. 2 continues to be the legally wedded wife of the petitioner. The same submission as raised before Court below have been pleaded before this Court for modification of the amount of interim maintenance awarded. The petitionier has statutory and moral obligation to maintain his wife. The amount of compensation awarded by the Court below is interim in nature and not final. The amount of maintenance can more appropriately be dealt with by trial Court, when it finally decides the case under Section 12 of the Act of 2005.
Learned counsel for the petitioner has not been able to establish that the findings recorded by both the courts below can be said to be illegal, perverse or erroneous. Consequently, this Court does not find any jurisdictional error, in the orders impugned.
However, it is directed that the proceedings of the complaint case pending in the Court of Judicial Magistrate, Court No.1, Varanasi shall be decided within a period of two months from the date of production of certified copy of this order.
With the aforesaid direction this petition is finally disposed of.
Order Date :- 24.8.2018 Arshad