Court No. - 44
Case :- CRIMINAL REVISION No. - 1319 of 2018 Revisionist :- Shesh Kumar Sharma Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Anil Babu Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Sri Anil Babu, learned counsel for the revisionist and the learned A.G.A. for the State.
This criminal revision has been filed challenging the order dated 16.01.2018 passed by the F.T.C./Additional Sessions Judge, Court No. 41, Kanpur Nagar in Criminal Appeal No 235 of 2015 (Shesh Kumar Sharma Vs. Smt. Jyoti Sharma) as well as the summoning order dated 07.10.2015 passed by the Metropolitan Magistrate, VIIIth, Kanpur Nagar in Complaint Case No. 514 of 2013 (Smt. Jyoti Sharma Vs. Shesh Kumar Sharma and others) under Sections 12, 17, 18, 19, 20, 21, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act of 2005), Police Station-Collectorganj, District-Kanpur Nagar.
From the record, it appears that the opposite party no.2 was married with the revisionist in accordance with the Hindu Rites and Customs on 25.11.2004. Out of this wedlock, a girl child, namely, Tanu was born. Shortly after the marriage, the relationship between the revisionist and the opposite party no.2 became strained and it is alleged that the opposite party no.2 started living separately since 20.03.2005. Subsequently, the opposite party no.2 filed a complaint in terms of Sections 12, 17, 18, 19, 20, 21, 22 and 23 of Protection of Women from Domestic Violence Act, 2005, a copy whereof has been appended as Annexure 1 to the affidavit filed in support of the said application. On this complaint, an objection dated 07.06.2014 (Annexure-2) was filed by the revisionist to which, the opposite party no.2 filed her rejoinder affidavit dated 29.08.2014/11.09.2014. The opposite party no.2 clearly denied the averments made in the objection filed by the revisionist and rejoined the allegations made in the complaint. Subsequently, the opposite party no.2 filed an application dated 23.01.2015 under Section 23 (2) of the Act of 2005 claiming interim maintenance @ Rs.25,000/- per month. Vide order dated 07.10.2015, the court below upon consideration of the material on the record, allowed the application dated 23.01.2015 filed by the opposite party no.2 under Section 23 (2) of the Act of 2005 and directed the revisionist to pay interim maintenance @ Rs.5,000/- per month .
Feeling aggrieved by the aforesaid order dated 07.10.2015, two appeals were filed before the appellate court. The revisionist filed Criminal Appeal No. 235 of 2015 (Shesh Kumar Sharma Vs. State of U.P. and others) for setting aside the judgement dated 07.10.2015 whereas the opposite party no.2 and her minor daughter namely Tanu jointly filed Criminal Appeal No.56 of 2017 seeking modification of the order dated 07.10.2015 by enhancing the amount of interim maintenance awarded by the trial court. Both the appeals were dismissed by a common judgement dated 16.01.2018. Feeling aggrieved, the husband has now come up with present criminal revision.
From the perusal of the judgement of the trial court, it is apparent that the trial court has recorded a categorical finding that though it is the admitted position that the opposite party no.2, Jyoti Sharma is a legally wedded wife of the revisionist and Tanu is also his daughter but how the same are being maintained has not been stated in the objections filed by the revisionist.The trial court has recorded a further finding that the revisionist is an employed person. On the question of payment of interim maintenance, the trial court has observed that the opposite party no.2 is already receiving a sum of Rs.8,000/- per month from the revisionist towards maintenance but the said amount of maintenance is being paid under the provisions of different Acts. The said findings recorded by the trial court were confirmed in appeal. At the appellate stage, an attempt was made to dislodge the findings recorded by the trial court. On behalf of the revisionist, it was urged before the appellate court that the opposite party no.2 has remarried and a certificate to that effect was filed before the trial court. However, the veracity of the said marriage certificate was disputed by the opposite party no.2 and therefore, the appellate court held that the question with regard to the remarriage of the opposite party no.2 is a question of fact which can be decided only during the course of trial before the trial court. On the aforesaid premise, the appellate court dismissed the appeal.
Learned counsel for the revisionist has virtually urged the same ground as were urged before the court below and vehemently contended that since the revisionist is already paying maintenance under different Act, the opposite party no.2 is not at all entitled to the payment of interim maintenance under the provisions of the Act of 2005. The submissions raised is wholly misconceived as Section 20 (1) (d) read with section 36 of the Act of 2005 clearly provides that the maintenance granted under the Act of 2005 is over and above the maintenance awarded under different statutes. That apart the fact remains that the opposite party no.2 is the legally wedded wife of the revisionist and Tanu is his minor daughter. There is nothing on the record to show that a decree of divorce has been granted by a competent court thereby terminating the relationship between the revisionist and the opposite party no.2. However, from the record, the Court finds that the minor girl child, namely, Tanu who was appellant no. 1 in Criminal Appeal No. 56 of 2017 has not been implicated as a respondent in the present criminal revision. Therefore, the criminal revision is also liable to be dismissed on the ground of non joinder of necessary parties.
The present criminal revision therefore fails and is accordingly dismissed.
Order Date :- 25.4.2018 YK