Saturday, 11 June 2016

Whether wife will be debarred from claiming maintenance U/S 125 of CRPC if her application U/S 12 of DV Act is dismissed?

I have heard learned counsel for the petitioner and I am of the
opinion that mere dismissal of the application under Section 12 of the Act
will not debar the proceedings under Section 125 Cr.P.C. as Section 26 (2)
of the Act provides that any relief available under the provisions of the Act
may be sought for by an aggrieved person in addition to or alongwith any
other relief that the aggrieved person may seek in any legal proceedings
before the civil or criminal Court. Dismissal of application under Section 12
of the Act will not, in any manner, prejudice the rights of the respondent
wife to seek relief under Section 125 Cr.P.C.
 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
 CRR (F) 327 of 2015 (O&M)
Date of Decision: December 4, 2015
Satpal

 Vs.
Sheela and another

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.
Citation: 2016 ALLMR(CRI)JOURNAL 239:2016 CRLH(NOC) P&H

The petitioner is aggrieved by an order passed by the Family
Court, Rohtak in favour of the respondents, wife and minor son of the
petitioner granting total maintenance at the rate of Rs.5500/- per month
which includes Rs.3500/- per month for the wife and Rs.2000/- per month
for the minor son.
Learned counsel for the petitioner has vehemently contended
that after the birth of the son on October 17, 2002, the petitioner suffered
from Hepatitis B virus as such his wife had abandoned him on account of his
disease being incurable. He has argued that as the wife has been staying

away voluntarily from the petitioner she would not be entitled to any
maintenance. Counsel for the petitioner has strongly relied upon the
circumstance that an application filed under Section 12 of the Protection of
Women from Domestic Violence Act, 2005, for short ‘the Act’ filed by the
respondent wife has already been dismissed. Counsel, relying upon the
observations in the order passed by the Court under the Act, has contended
that the application under Section 125 Cr.P.C. should also have been
dismissed on the same grounds as the respondent wife is voluntarily staying
away from the petitioner.
I have heard learned counsel for the petitioner and I am of the
opinion that mere dismissal of the application under Section 12 of the Act
will not debar the proceedings under Section 125 Cr.P.C. as Section 26 (2)
of the Act provides that any relief available under the provisions of the Act
may be sought for by an aggrieved person in addition to or alongwith any
other relief that the aggrieved person may seek in any legal proceedings
before the civil or criminal Court. Dismissal of application under Section 12
of the Act will not, in any manner, prejudice the rights of the respondent
wife to seek relief under Section 125 Cr.P.C.
So far as the medical condition of the petitioner is concerned,
the said fact had been brought to the notice of the Family Court. It is only
after taking into consideration the said circumstance the meager amount of
Rs.3500/- per month to the wife and Rs.2000/- per month to the minor son
has been granted. A perusal of the order passed by the Family Court

indicates that the respondent wife has been earning sum of Rs.6000/- to
Rs.7000/- per month by providing domestic help in 4 houses. With the said
amount she has been maintaining herself as well as her son. Her son is
getting education. She has got the responsibility of looking after the son and
maintaining him.
In view of the said circumstances, no ground is made out for
interference in the order passed by the Family Court.
So far as the ailment of the petitioner is concerned, the
petitioner has not made any attempt to establish his illness by any treatment
record. The document annexure P-4 is of any Geetanjali Hospital which
indicates that the petitioner had been operated for renal stone 6 years back.
He is reported to be HBSAG reactive. The status of SGPT is 68.1 against
49-50 being normal. The petitioner has not established by any document the
money spent by him on his illness or his incapability to earn any money or to
perform day to-day functions. No ground is made out for interference.
The petition is dismissed without prejudice to the rights of the
petitioner to seek mediation or amicable settlement before the appropriate
forum.
As the main petition is dismissed, the application for
condonation of delay is also dismissed.
December 4, 2015 (M.M.S.BEDI)

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