dowry demand case is no ground to deny maintenance to the
wife and the child. The petitioner cannot be absolved of his
liability to maintain the wife and the child on this score. The case
in hand is required to be decided on the preponderance of
probabilities and no strict standard of proof is required to be
proved.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Misc. No.M-33576 of 2013(O&M)
Date of decision : 20.09.2016
Narender @ Kala .
v
Sunita
CORAM:- HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Through the instant petition, the husband has laid
challenge to the order dated 15.12.2012 passed by the Judicial
Magistrate Ist Class, Hansi on the application filed by the
respondent under Section 12 of the Protection of the Women
from Domestic Violence Act, 2005. He has been directed to pay a
compensation of Rs.1 lac to the respondent, out of which half of
the amount was ordered to be deposited for the benefit of the
child Rinku. He has also been directed to pay Rs.4000/- per
month as maintenance to wife and the child from the date of
filing of the application and also to provide residential
accommodation to the wife and the child. In the alternative to
pay rent for it from the date of passing of the order. The
petitioner has further questioned the legality and propriety of the
order dated 03.08.2013 passed by the Addl. Sessions Judge,
Hisar vide which his appeal against the order dated 15.12.2012
was dismissed.
The facts of the case first, the marriage of petitioner
was solemnized with the respondent on 30.06.1996. A son was
born on 14.04.1997, whose paternity has been disputed by the
petitioner. A petition under Section 12 of the Act was filed by the
wife alleging therein that she and her son were unable to
maintain themselves. She claimed compensation, a protection
order, residency order and maintenance from the husband. It was
claimed that the husband was running a furniture shop besides
his engagement in agricultural pursuits.
The claim was resisted by the husband on the ground
that the wife had willfully deserted him and that she was a lady
of easy virtue. He even denied the birth of a son from his loins
and claimed that the marriage was never consummated. It was
averred that in other litigation., the wife was not granted any
relief by the court. He denied the responsibility of the wife and
the child. It was claimed that the wife was working in Anganwari
and getting Rs.3000/- as salary, besides getting Rs.750/- as
pension from the Government.
At the trial, Sunita stepped into the witness box as
PW1 besides examining her father Satbir as PW2.
Narender himself appeared as RW1 and examined
Shamsher Singh and Veerbhan, the co-villagers as RW2 and 3
respectively. Shamsher Singh Assistant was also examined as
RW4.
On appraisal of evidence on record, learned Magistrate
disposed of the application. The Appellate Court though dismissed
the appeal of the husband, but clarified that the amount of
Rs.1200/- which was ordered to be paid to the wife in
proceedings under Section 125 Cr.P.C. shall be adjusted in the
amount of Rs.4000/- which was granted as maintenance to the
wife.
Dis-satisfied with the same, the instant petition has
been preferred by the husband.
I have heard learned counsel for the parties and have
gone through the file carefully.
As per certificate, Annexure P-4, the date of birth of
Rinku was 14.04.1997 and by the time he has attained majority
and is not legally entitled to claim any maintenance after he
attains majority.
The petitioner has denied the claim of the respondent
primarily on two grounds, firstly, the wife herself had left his
company and secondly that she was not a woman of integrity. He
denied the paternity of the child.
The petitioner had adverted on the chastity of the
respondent. But no evidence was produced to substantiate his
plea. RW2 Shamsher and RW3 Veerbhan, his co-villagers were
examined by the husband who deposed that Rinku was not born
from the loins of Narender. But the oral statements of both these
witnesses are of little value. PW3 Veerbhan stated that he do not
know Sunita and thus, his version was only hearsay. The
petitioner did not make any attempt to get his DNA examination.
The petitioner did not file a divorce petition on the plea of
adultery. It is a matter of prudence that with such a baseless and
unproved allegation on her chastity, it was impossible for the wife
to live with the husband. It appears from the record that in the
year 2004 the wife withdrew the maintenance petition as well as
criminal complaint in a bid to restore her married life. It has
come in her statement that she was again turned out of the
house and since then she was residing with her aged father. The
Court below was justified in granting compensation. The
respondent is living separately since 2004. The petitioner had
levelled allegations on the character of the wife, which he had
failed to prove. It does not appeal to prudence that a woman
had been living separately from her husband without any
reasonable cause. Thus, there is no reason to interfere with the
direction of the Courts below to provide residential
accommodation to the wife or to pay rent thereof.
Acquittal of the petitioner and his family members in
dowry demand case is no ground to deny maintenance to the
wife and the child. The petitioner cannot be absolved of his
liability to maintain the wife and the child on this score. The case
in hand is required to be decided on the preponderance of
probabilities and no strict standard of proof is required to be
proved.
Coming to the income aspect, it is apparent that no
proof regarding income of the petitioner was brought on record
by the wife. Merely the oral assertion that the husband is
running a furniture shop besides carrying out agricultural
pursuits, no evidence was produced on record by the wife. In
absence of any cogent and convincing evidence led by the parties
on the income aspect, it can only be determined on hypothesis.
The petitioner had admitted that he owned four acres of land and
earning Rs.20,000/- per annum therefrom and he is maintaining
his aged and ailing mother. There is no dispute that he is
carpenter by profession and must be earning from his profession.
The petitioner-husband had brought on record the information
provided under the Right to Information Act, Annexure R-8 to
show that the wife is getting pension from the Department of
Social Justice and Empowerment, Haryana to the tune of
Rs.750/- per month. As per Annexure P-5 attached with this
petition, the amount of pension has been enhanced to Rs.1400/-
per month. Sunita while appearing in the witness-box admitted
that she is working as Cook with Anganwari Department and
getting Rs.500/- per month.
In the circumstances, the amount of Rs.4000/- per
month from the date of application awarded as maintenance to
the wife and child seems to be just and reasonable.
As noticed above, the child had attained majority and
his date of birth is 14.04.1997. He is not entitled to any
maintenance from the petitioner from May 2015 onwards. The
amount of Rs.1200/- was ordered to be paid to the wife and the
child in 125 Cr.P.C. petition vide order dated 10.08.2009 and the
appellate Court vide impugned order 03.08.2013 ordered for
adjustment of that amount of maintenance awarded to the wife
and the child in the instant proceedings. The adjustment shall be
of the amount of maintenance payable from the date of filing of
application under the D.V. Act. Therefore, after deducting half
share of the child in the maintenance amount, the share of
maintenance of the respondent individually comes to Rs.1400/-
per month (Rs.2000/- being half share awarded in instant
proceedings minus Rs.600/- i.e. half share of maintenance in 125
proceedings).
Vide order dated 21.10.2013, compensation amount
to the tune of Rs.50,000/- was stayed. Amount of maintenance,
if any paid in excess to the child or the wife, shall be adjusted
from the amount of compensation and the remaining shall be
deposited within three months.
With the aforesaid observations, the instant petition
stands dismissed.
September 20,2016 (ANITA CHAUDHRY)
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