Pankaj Vijayvargiya & Ors. v. Smt. Reena Rani @ Renu

Mr. Ashok Sharma for the petitioners ****** Heard learned counsel for the petitioners, and gone through the orders passed by the Courts below. Petitioner husband and others have challenged the order dated 7.12.2009 passed by the learned Additional District Judge (FT) No.3, Jaipur City, Jaipur, whereby the appeals filed by the respondent wife and the petitioner husband and others were partly allowed. Initially, the learned Additional Civil Judge (Sr. Division) No.3, Jaipur City, Jaipur while deciding the application of the respondent wife filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 directed the husband to pay to his wife and son a sum of Rs.800/- p.m. each for maintenance etc. and Rs.400/- p.m. for residential purposes. On appeal by the petitioner husband and others, the appellate Court has set aside the order of the learned Addl. Civil Judge only to the extent of payment of Rs.400/- for residential purposes, on the premises that respondent wife is residing with her parents and, therefore, she would not be entitled to the amount of Rs.400/- on this count. However, the appellate Court enhanced the amount of maintenance etc. from Rs.800/- per month to Rs.1000/- per month each. Thus, a total sum of Rs.2000/- was required to be paid by the petitioner husband to his wife and son. Learned counsel for the petitioners has argued that the Courts below have failed to appreciate the total monthly income of the petitioner husband while directing payment of Rs.2000/- per month to be paid to the respondent. Learned counsel submitted that monthly income of the petitioner husband is Rs.3000/- and there is no other source of income, therefore, it is not feasible and possible for him to pay Rs.2000/- i.e. 2/3rd to the respondent wife out of his total monthly earning of Rs.3000/- and then to maintain himself with remaining 1/3rd amount. Learned counsel submitted that the Courts below have failed to appreciate this aspect of the matter and mechanically gone into the technicalities of law while interpreting the provisions of Protection of Women from Domestic Violence Act,

2005. Learned counsel further submitted that the petitioner husband is still ready and prepared to keep the wife with him and for that purpose he has already filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights but the respondent wife has been adopting rigid attitude and not coming to him and is therefore staying away from the petitioner husband without any justifiable cause. Upon hearing learned counsel for the petitioner and on going through the orders impugned in this revision petition, I find that in the present case the respondent wife has refused to stay with the petitioner husband on the premise that she has been subjected to physical and mental torture by the petitioner husband and his family members in connection with demand of dowry. These facts persuaded the Courts below to hold that the respondent wife was subjected to domestic violence and that she was justified in not going to the petitioner husband and on that basis, directed payment of maintenance. In law it is for the husband to maintain his wife and children and what has to be seen is whether he is capable of maintaining. So far as income of the husband is concerned, it is a question of fact and the Courts below after considering the facts and circumstances of the case has awarded a sum of Rs.2000/- per month for wife and son, which cannot be said to be either unjust or excessive. I do not find any infirmity in the orders passed by the Courts below, warranting interference in this revision petition. Consequently, the revision petition fails and is hereby dismissed. (MOHAMMAD RAFIQ), J. Thanvi