IN THE HON'BLE HIGHCOURT OFCHHATTISGARH AT BILASPUR (C.G.l CR.n/I.P.No. *^-0| of 2011 PETITIONER Smt.Fuleshwari Rajwade, W/o Tilakram Rajwade, aged about 55 years, allegedage 60 years, Caste- Rajwade, Occupation-Navoday Vidyalaya, Parichika Village, Junapara Baikunthpur, District- Koriya (C.G.) VERSUS RES^PONDENT Tilakram Rajwade S/o Amarsai Rajwade, aged about 65 years, P.R.Na........C€.^.'F......-..A.: Occupation-Nil (Badhir and Alpa Prese^d by Sferi.J&^®'; Drishti)' Caste^Rajwade, Rfo Village- Dated........'....,,2,fl.<./.0.^".. !5er!ap^!?'^ BaikunthPLIr. District- P.R. Na, Koriya (C.G.) PETITION UNDER SECTION48SOF CRIMINAL PROCEDURE CODE HIGH COURT OF CHHATTIS<iARH : BIIASPUR S.B. : HOWBLB SHRI MANINDRA MOHAN SHRIVASTAVA.J. Cr.M.P. No.701/2011 PETITIOHER RESPONDENT Versus Sint. Fuleshwari Rajwade Tilakrani Rajwade (Petitioa u/S 482 of the Cr.P.CJ Appearance: Shri Goutam Khetrapal, counsel for fhe petitioner. ORAL- ORDER (Passed on 21.10.2011) Heard on admission. - 2. This petition under Section 482 ofthe Cr.P.C. has been filed by the petitioner a^rieved by order dated 20th July, 2011 passed by the 1st Additional Sessions Judge, Manendragarh in Criminal Appeal No.43/11 arising out of order dated 21.2.2011 passed by Judicial Magistrate First Class, Baikunthpur tn Domestic Violence Cruninal Case No.4/2010, vyhereby the appeal has been aUowed and the 'order of fhe Judicial Magistrate First CIass has been set aside. 3. The petitioner had flled an application under Section 12 of the Protection of Wonien froin Domestic Violence Act, 2005 'S''y, ""^. -2- ^ (hereinafter referred to as "the Act of 2003^ seeking monitory reliefunder Section 20 of fhe Act of 2005. After receipt of reply, the Magistrate proceeded to record fhe statements and vide order dated 21.2.2011 allowed the application granting monitoiy relief in terms of Section 23 (d) of fhe Act of 2005, passing an order ofpayment ofRs.2000/- per month in favour of the petitioner. Aggrieved by the said order, respondent preferred an appeal under Section 29 of the Act of 2005, which has been aUowed, setting aside fhe order of grant of matntenance ofRs.2000/-. 4. Leamed counsel for fhe petitioner ar^ued that the leamed lower appellate Court was not justified in settmg aside the order of grant of maintenanceonly on the ground fhat tfae petitioner was getttng Rs. 1200/- as monitory maintenance iinder the order passed by the Family Court. He submits that once a case of domestic violence is established, the petitioner was entifled to the amount of maintenance, though, grant of Rs.1200/- by the Family Court might form relevant consideration in order to find out as to how inuch amount should be awarded m proceedings under the Act of 2005. It is also argued that fhe main operative reason for setting aside the order passed by the Magistrate is that the petitioners did not disclose the fact that the petitioner was awarded monthly maintenance of Rs.1200/- by an order of the Faniily Court. In his submission, merely on that ground, the evidence regarding domestic violence could not be disbelieved and at fhe most, ^;^@^S^^E^!S^@?^^^^!Kf^"t'^^^'§!^^;'y^B^":.;;i'1:: -3- such a fact could be made a basis to adjust the amount of matntenance. 5. The leamed lower appellate Coiirt examined the evidence available on record partici.ilarly fhat of Smt. Fuleshwari (P.W. 1), the petitioner, Smt Kalawati (P.W.2) and Mohd. Ibrahim (P.W.3). In order to disbelieve the case offhe petitioner that fhe petitioner has been subjected to domestic violence, leamed lower appeUate Court has examined fhe veracity of fhe • statement in the light of circumstance fhat fhe petitioner suppressed this fact in the proceedmgs before fhe Magistrate fhat fhere was a coiapromise arrived at between fhe parties m. proceedings before the Family Court, under which, the petltioner was granted maintenance of Rs. 1200/- per month on the basis of compromise dated 26.9.2010. The leamed lower appeUate Court has also considered that the petitioner did not disclose this fact though she was examined on 14.12.2010 i.e. after comproinise arrived at between the parties in the FamUy Court. It has also taken into consideration that provision contained in Section 26 (3) of fhe Act of 2005, which conteraplates fhat order if any, wiCh regard to grant of niaintenance by any other Coiirt should be clearly stated before tfae Magistrate m the proceedtngs under the Act of 2005. The leamed lower appeUate Court has also scrutinized fhe evidence of the petitioner fhat she is residing in the house of fhe respondent at Junapara and fhe agricultural activities are looked after by her son. The Court below has also taken into •sss'ssa,., •^•'^^5^"^^ ;£ ^fS-- '^ jj- ,€" '" ...^' ;t^^t&"''jB;?'" -4- ^ consideration that respondent is-getting Rs.2500/- as inonthly pension, out of which, alreldy an amount of Rs.1200/- has been awarded, which fact was completely ignored froia consideration by the Magistrate whUe passing order dated 21.2.2011. Taking into consideration the aforesaid cu-cumstaaces and fhe evidence which has conie on record, particularly tfaat the petitioner has already been granted monfhly maintenance of Rs.1200/- under a compromise in proceedings iinder SecUon 125 of Cr.P.C. before fhe Family Court, fhe income of thc responfent and fhat he is a retired servant getttng a meager-aDiount of pension of Rs.2500/-, the order passed by fhe Magistrate has been set aside. 6. In fhe opinion of this Court, the order passed by the leamed lower appellate Court does not warrant any mterference by this Court in exercise ofpowers under Section 482 ofthe Cr.P.C. 7. The petition has no substance. The same deserves to be disinissed and is accordingly dismissed. -—-- - — Sd/- Man-.ndra Mo^nj Judge Shrivastava