Kanhaiyalal v. Priti & Ors.

The proceeding is filed under Article 227 of Constitution of India to challenge the order made by Judicial Magistrate, First Class, Aurangabad in Criminal Mis. Application No. 305/2009 which was filed under the provisions of Domestic Violence Act, 2005. This order is confirmed by the Sessions Court in Criminal Appeal No. 207/2009. Both the sides are heard.

The petitioner is the husband of respondent No. 1 and father of respondent Nos. 2 and 3. Respondent Nos. 1 to 3 had filed proceeding under section 12 of the Domestic Violence Act, 2 Cri. W.P. No. 673/11 2005 for claiming reliefs under sections 17 to 20 and 42 of the Act. In the proceedings, allegations were made that after 2 to 3 years of the marriage, the petitioner had given illtreatment to respondent No. 1 and due to the illtreatment a complaint was given for offence under section 498-A of the Indian Penal Code against him. After registration of the crime, respondent No. 1 had returned to the matrimonial house and she had resumed cohabitation. Allegations were made in the proceeding filed by respondent No. 1 that the petitioner was asking her to bring Rs. five lacs from her parents and to force this demand, illtreatment was given to her. She has contended that she was ultimately driven out of the matrimonial house on 10.6.2004. It is the case of respondent No. 1 that she has no source of income and she is unable to maintain herself and respondent Nos. 2 and 3.

Respondent No. 1 had claimed the relief like protection order, a direction for giving maintenance and direction to give some amount for obtaining residential place on rent basis. J.M.F.C. had directed the present petitioner to pay Rs. 3000/- per month for taking residential place on rent basis. The maintenance is granted to the respondents and some amount is granted for educational expenses. The husband is expected to pay total amount of Rs. 5400/- per month for maintenance of respondent 3 Cri. W.P. No. 673/11 Nos. 1 to 3. Before J.M.F.C. parties had examined themselves. Separate residence of respondents is admitted by the petitioner. He has contended that they left his company on their own. Some admissions are given by the petitioner about the source of income and on that basis, the quantum of maintenance is fixed by J.M.F.C. The defence taken by the petitioner that his father is the owner of immovable property and the father has not given anything to the petitioner, is not accepted by J.M.F.C.

It was submitted for the petitioner that he is not in a position to give such amount as he is working as a waiter in one hotel. It was also submitted that respondent No. 1 is making income by running boutique and so she does not need any amount for the maintenance.

The present petitioner tried to defend by saying that he is working as a waiter in one hotel and he is not getting any income from the property of his father. He did not lead the evidence of the employer. He gave vital admissions like he gets income from rent of at least 25 rooms. He has admitted that in the past, he was working as a Government Contractor. The J.M.F.C. has considered the circumstances that the petitioner is having at least 7 rooms and 3 shops and he has given at least 25 rooms on 4 Cri. W.P. No. 673/11 lease basis. The evidence shows that policies of insurance are purchased in the name of petitioner and the premiums are being regularly paid by his father. On the basis of this circumstance, the J.M.F.C. has held that the petitioner is living with his father and he is getting sufficient income.