The Allahabad High Court has refused to interfere in the order to pay alimony of three thousand rupees per month in the action under the Domestic Violence Act after the agreement between the husband and wife by receiving total maintenance amount in one time in the alimony case.
A Single Bench of Justice Shanker Prasad passed this order while hearing a Criminal Revision filed by Ram Kumar Mishra.
The criminal revision under Section 397/401 Cr.P.C has been filed by the revisionist with a prayer to quash the judgment and order dated 8th April, 2022 passed by the Civil Judge (Junior Division)/ F.T.C/ W.P/Judicial Magistrate, Pilibhit in Complaint Case and the order passed by the Additional Sessions Judge, Pilibhit dated 27th July, 2023 in Criminal Appeal, whereby the appeal filed by the revisionist against the order dated 8th April, 2022 has been dismissed.
Opposite Party No 2 was married to the revisionist in 2001 according to Hindu Rites and Rituals without any fulfilment of dowry. After sometime of the marriage due to misguidance of parents of Opposite Party No 2, the relationship between the husband and wife became strained and incompatible and opposite party no 2 refused to join the company of the revisionist and started matrimonial litigation.
The Opposite Party No 2 filed a case under Section 125 Cr.P.C in the Court of Judicial Magistrate, Pilibhit for maintenance which was registered as Maintenance Suit.
Thereafter the court below has recorded the statement of Mamta Devi in which she has stated that she has received total maintenance amount in one time as Rs1,50,000/- and she did not want to proceed this case against the revisionist any further.
After that the statement of Ram Kumar has been recorded in which he has stated that he has paid Rs1,50,000/- to his wife and now he had no concern with her in any manner. The Judicial Magistrate, Pilibhit after consideration of the aforesaid fact had rejected the application of the Opposite Party No 2 vide impugned judgment and order dated 28.7.2009.
Thereafter in the aforesaid case compromise has been arrived at between the both the parties on 28.7.2009 in the presence of some respected person of the society in which the opposite party no 2 has stated that she has received all the maintenance amount from the revisionist and no dues upon the revisionist was left.
Thereafter the opposite party no 2 also filed a case under Section 23 of Protection of Women From Domestic Violence Act in the year 2017 which was registered as Complaint Case. The Civil Judge (Junior Division)/F.T.C/W.P/ Judicial District-Pilibhit without considering the facts and circumstances of the case allowed the complaint case under Section 23 of D.V Act with the direction upon the revisionist to pay Rs 3,000/- per month as maintenance allowance on every 10 day of the the calendar month vide order dated 8.4.2022.
Being aggrieved by the order dated 8.4.2022 passed by Civil Judge (Jr Div)/F.T.C/W.P/ Judicial Magistrate, District-Pilibhit, revisionist filed Criminal Appeal before the court of Additional District Judge-III Pilibhit which was registered as Criminal Appeal.
The Additional District Judge- III Pilibhit without considering the proper facts and circumstances of the case rejected the appeal of the revisionist and confirmed the order dated 8.4.2022 passed by Civil Judge Jr Div)/F.T.C/W.P/ Judicial Magistrate, District-Pilibhit vide order dated 27.7.2023.
Both the orders passed by the courts below dated 8.4.2022 and 27.7.2023 are against the evidence on record. Both the courts below did not apply the judicial mind and disbelieved the objection of the revisionist and also believed the version of Opposite Party No 2.
The Court observed that,
On overall evaluation and deeper scrutiny of the records of the criminal revision, submissions made by the counsel for the parties and also the case laws referred to herein above, the Court finds substance in the submissions made by the counsel for opposite party no 2 that no provisions of law like Hindu Marriage Act or Protection of Women from Domestic Violence Act restrict any wife to file an application seeking maintenance allowance from her husband on the ground that she has already obtained permanent alimony on the basis of a compromise in a proceedings initiated by her under the provisions of Section 125 of Code of Criminal Procedure.
So far as the submission made by the counsel for the revisionist that since the opposite party no 2 is residing separately from the revisionist since 28th July, 2009 after final settlement between the parties, no offence under the provisions of D.V Act is made out against the revisionist, is concerned, this Court may refer to the provisions of Section 2 (s) of D.V Act in which definition of shared household has been given.
From the perusal of the aforesaid definition of Shared Household it is apparently clear that The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used to protect the women from denying any on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent.
The shared household is contemplated to be the household, which is a dwelling place of an aggrieved person in present time. The shared household referred to in Sec 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed or in the recent past had been excluded from the use or she is temporarily absent.
“In the case, it is an admitted position that the aggrieved person i.e opposite party no 2 lived with the revisionist earlier, therefore, offence under the provisions of DV Act will make out against the revisionist and the opposite party no 2 has every right to seek relief under the provisions of DV Act at any stage.
As such, the Court has not found any substance in the submissions made by the counsel for the revisionist that since she is living separately from the revisionist, she is not entitled to any relief under the provisions of DV Act.
Resultantly, the Court finds no illegality or infirmity in the orders passed by the Courts below so as to warrant any interference by the Court under Sections 397/401 CrPC”, the Court further observed while dismissing the petition.