c^\^^ ^ (4) IN THE HIGH COURTLQF CHHATTISGARH AT BILASPUR (C.G.) W. P. (C) No. ..1&S3L../2010 (Single Bench) PETITIONER (Husband) PUSHPAL SWARNKARL\ ^•' \^ N<^^ \^:'' /^^y' '^ RESPONDENT aged about 38 years S/o Shri Sant Ram. Swarnkar R/o Muktnagar, Padmanabhpur (Near Panchsheel Academy School) Durg Tah. & Distt. Durg (C.G.) Through - Father Santram Swarnkar VERSUS SMT. NIKITA SWARNKAR aged about 28 years W/o Shri Pushpal Swarnkar R/o 40A, Nehru Nagar (West) Bhilai Tah. & Distt. Durg (C.G.) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA w—'m 6^ HSGH COURT ^= CHHATTtSGARK AT BiLASPUR Hon'bte Shrs Justice Prashant Kumar Ktishra W.P. iC\ No. 1857 of 2010 Pyshpal Swarnkar Versus Swarnkar ORDER Postfor 0^-10-2010. Sd/- Prashant Kumar Mishra Judge ^-^-T0-^}10 . ^^:; ^/ HSGH COURT GF CHHATTISGARH AT BiLASPUR Justlce Prsishant Kusnar Nlshra PETmONER RESPONDENT W.P. tC} No. 18S71' 2@1G Pushpal Swarnkar Versus Smt. Nllota Swamkar Shri V.G. Tamaskar, counsel for the petltloner. Shri Awadh Tripathl, counset for the respondent. PETITION UNDER ARTICLE 22S OF TKE CONSTITUTION OF 1NDSA ORDER (?^.10.2010) Thss \wtt petitlon has been prefened by the ^lffionen'husbsncS to catl in question the order passeii by the famlly Court, Durg on 03-Q3-201G ayowtr^ snterim malntenance i^ndentellte @ Rs.15,000/- per month to the respondenVwife. (2) The facte of the case, In brief, are tt^at the respondent preferred an application under Section 125 of Cr.P.C. before the Court b@low on ttie submlssson frsat the marriage had taken place at Bhslal on 29-04-2007. The husband ancS his parents demanded and received Rs.8 Lacs on the date of Rlng Ceremony (Saga?) on 26-04-2(X)7 and from the very next day after ttte marriage atl of them started demandlng d(^?y and CQmmitKr^ cp^etty upon her. The father-in-Saw used to ask tiie wlfe to bring Rs.7 Lacs more as he has incurred heavy esq^endfesre on frse husband's/petifioner's educati&n in Amersca. Her moth^-'n-'aw did not aJSow her to go to honeymoon. The husband told her that if she wante to accompany him to Amerlca she shoufd bring the amount from her parents. The husband took her to Mumbai on 07-05-2007, however she was (eft alone at Mymbal and she canie back to ^^ Durg after two days. When she telked to her husband on tetephone he that tiSI she the dernand of dowry she may not go came to Amenca. (3) St was further aSSeged tn ttie apptlcatlon friat 8ie In laws' sterted committlRg epjetty upon her for demand of dowry as she stayed In her in house after her husband v^nt to America. AS the instence of ttie husband the In-Sav^ asked her to remove the ornaments whlch they kept wsth theni and she was sent back to her parentaS house. Th®husband did not attend her brQther's mamage. When her p-arente accompanied her In {eaving her at her. in-Iaws house on 04-02-2008 and thereafter on 15-<^-20QS, ihe in-laws refused to accept her on ttie grouncl tfiat ttie remasning part of the has not been paicl. A report was todged wttti the MahlSa Thana, Durg on 30-07-2(X^ for offences uncSer SectiQns 498 A^34 of S.P.C. and under Secfen 4 of the Oowrsf Prohibition Act. whlch was at Crime No. 35/'08. Tl» husband and her father-in-Saw were arrested. St was stated Itiat she has no means of 'ncorne and Is atso suffering from paln m knee joint as aiso sm ttie i^K t< backbone and Is somehow^yNfi^ on wltti her Ssfe at her parenta! house. (4) The resp&ndent^ife forther ftat tti©peljtloner is a graduate Engineer and is e-amlng 69,229 American Doltar per annum equattng to Rs.2,50,(%X)/- per mon^i tn Indsan currency. She ^ayed for maintenance of Rs.30,758/- psr monts and {tt^ation of Rs.10,OCK)^. An applicalioR for grant of maintenance pendentedte was aSso moved. (5) In his reply ttie petttioner denled Sie atlegalion of commisslon <rf cruetty and demand of dowry. it has been steted friat he Is the onty son and his father Is retsred from ttie jwst of ^Qint Nanager of Hindustan Zink Umlled and that in fact ttiey have got prepared omaments from 26 Tolas of gold. It has been alieged tn ttie reply that the respondent got removed the ornaments Y- with the heSp of her Fufa Shri Santram Mahobs and younger brottier Alok :1^' \»Sl^^t -s- Swamkar and that he could not attend the marriage of her brolher bscayse he was predisposed $n connection with hls employment. It was also steted ^at she ss M.B.A. In Tourism and Is hlghly qualHled and has been servlng In reputed travel companies. (6) The Searned FarniSy Court, after considering the facts and drc-ymstences offte ease has granted maintenance pendentelite Rs.15,OCX)?'- per montti w.e.f. 06^)1-2009 i.e. ttie date of whlch ttie petilioner^husband entered appearance m the proceedlngs. (7) Shri V.Q. Tamaskar, teamed counsel for frse petitioner would veh@ment$y argue that the petitioner's reply has not been consk^ered by ttie Family Court and that snterlm masntenance has been granted w'ith retrospective effect. Per contra, Shri Awadh Tripathi, Searned counsel appearing for ttie respondent has ai^ued that tt^e order has been m-ade effectlve from €^-01-2(KBwhen the petitioner made appearance In ttse Famlly Court and that the proceedings have reached to an advance as the stetement of wlfsfrespondent has been recorded by the FamiSy Court. He woutd turther submit friat the petittoner Is not appeanng for adducir^ evldence and ttiat the petttioner himsetf was responslble In filing his repSy beiatediy. (8) The main contention of the petitioner is about non-consideratlon of hss repty submitted before the Famity Court. St ss to be seen that In paragraph 1 1 of her appllcatton the respondent has made a categoncal stetement that the petstsoner's income is Rs.2,50,000/- per month, however in his reply (Annexure P^2) to the r^pondent's appjlcatlQn for grant of interim maintenance the petitloner has not stated anytt^jng about his monthly ineorne. Though the petlfioner states sn his rep'y tiiat the respondent ss highfy ^ ecSucated and yet no stetement or proof has been submitted to the V?V "-"^ 1 '":¥i ff ^ -^- effect ttiat she is presently emptoyed w eamlng or that she has any independent source (^ Income. (9) Except for submiWr^ copy of the appSicalJon for grant of snterim malntenancQ ffied by the respondent and hls repty ^Sed Ssefore the Famsty Court to ftie respondent's appilcation for grant of intenm inaJnteRance no oftier documents has been placed on the record of ttie wrst pefsfion, from whlch it ean be gattiered tt^atthe monthty income of ttie petitioner Is iess ttian what the respondent's ail^es or that the respondent h-as her independent source of sncome. In ^ie absence of any stetement the contention of the petitloner that his rep{y has not been considered ss not acceptebSe. Petitioner has relled on the judgment of Supreme Court sn the case of Deb Haider Vs. AnushFee Hafdsr reported in 2(^3 (11) SCC 303 and Mo^tf. fnsyat Usish Kten Vs. Smt SsSma Banit re^rted tn f985 Cr.LR. (MP) 313. The jue^ment of HoR'bSe Supreme Court was after final adjydication of the proceedlngs under Section 125 of Cr.P.C. and the judgment of MP. High Court ss aSso <iistir^uishabSe on the facte. Sn the present case, the ss at the stage of grant of tnterim maintenance and veracity or fruthftjtness of the atlegatlQns made In the appSscalion for grant of maintenance are yet to be adjudlcated. (10) (n the matter of Surya Dsv Rai Vs. ChanfSsr Rsi and reported jn 2003 (S) SCC 675 and in the matter of Csffns CosihQ Psrsirs ^Ss) and others vs. Uthas Mahabafeshwar KhQikar snd Qthws, (201Q) 1 SCG 217, the Hon'bte Supreme Court has hetd ftat interference by ttie writ Court in 1t?e orders passed by ftse subordinate Court at an interim stage shouSd be sparingty made, only sn rare case, where if Ihe writ Court faiSs to exercssejurisdlction, grave miscamage ofjustice would Qcc-aslQn, 93 -5- (11) Applyng the principtes in ttie pr^ent case, st is to be noted ttiat the Impugned order Is only for grant <^ interim maintenance. Grant Qf Interim maintenance hs^ been made effecfive from OS-Q1-2(X)9, the date on which the petitloner entered appearance in the famity Court, ttius the impugned orcier is notfrom retrospective effect. (12) in view of ttie above, fr»isCourt fsnds ttiat the jeamed famiSy Court has not committed any srror or jurisdiction nor ttie smpugned order occssions felSure of justice, ttierefore, tt»e snstant writ petition desewes to be, and $s hereby dfemiss^i. (13) No order as to coste. Sd/- Prashant Kumar Mishra Judge ^