SUNIL ALIAS SONU Vs. SARITA CHAWLA

JUDGEMENT

(1.) Being aggrieved by the judgment dated 18.4.2009 passed by Xth Additional Sessions Judge, Indore, in Cr. A.No. 162/2009, whereby the order dated 12/3/2009 passed by JMFC, Indore, in Criminal Case No. 1911/2009, whereby the application filed by the petitioners regarding maintainability of the proceedings was dismissed, was maintained, the present revision petition has been filed.

(2.) Short facts of the case are that the respondent filed a complaint under section 12 of the Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005) (which shall be referred hereinafter as 'Act'), wherein it was alleged that petitioners are father and son. It was alleged that marriage of respondent took place with one Shankar Chawla. Out of the wedlock respondent delivered three children and two years before Shankar Chawla died. Thereafter respondent fell in love with petitioner No. 1. It was alleged that thereafter the respondent was married to petitioner No. 1 in a temple as per Hindu rituals at Ujjain. It was alleged that thereafter respondent was living with petitioner No.1 at Raviratan Apartment, Prem Nagar Indore. It was alleged that before the marriage petitioner No. 1 assured that petitioner No. 1 shall take care of the three children of the respondents. It was alleged after the marriage petitioner No. 1 took the respondent and also her children to Ajmer, where they lived together for a period of one week. Thereafter respondent and petitioner No. 1 went to Jaipur and thereafter came back to Indore. It was alleged that thereafter the petitioner No. 1 quarrelled with the respondent and committed the domestic violence. It was alleged that the respondent was pregnent and she was aborted at Sourabh Hospital Khajoori Bazar, Indore. It was alleged that the petitioner No. 1 is carrying his business of mobile and earning Rs. 25,000/- per month but is not paying any amount of maintenance to the respondent. In the complaint it was prayed that petition filed by the respondent be allowed and the petitioners be restrained from causing domestic violence. Along with the application petition was also filed under section 23 of the Act for interim relief. The said application was contested by the petitioners. After hearing the parties learned trial Court allowed the application vide order dated 22.7.2008 and directed the petitioner to pay maintenance @ Rs. 2,000/- per month, against this order the appeal was filed by the petitioners under section 29 of or the Act, which was numbered as Cri. Appeal No. 192/2009. This appeal was barred by time, therefore, prayer for condonation of delay was also made. The appeal was dismissed vide order dated 18.4.2009. Since the amount of maintenance was not paid by the petitioners in compliance of the interim order passed by the learned trial Court, therefore, a complaint was filed by the respondent under section 31 of the Act on 2.1.2009, wherein it was alleged that by not making the payment of maintenance as directed by this Court petitioners have committed offence, which is punishable under the Act. It was prayed that after taking cognizance petitioners be convicted. The application was contested by the petitioners by moving an application, whereby a preliminary objection was raised that complaint itself is not maintainable. After hearing the respondent vide order dated 13.7.2009 application filed by the petitioners for dismissal of the complaint was dismissed, against which an appeal was filed, which was also dismissed, against which the present petition has been filed.

(3.) Shri P.M. Bapna, learned counsel for the petitioners argued at length and submits that the impugned orders passed by both the Courts below are illegal and deserve to be set aside. It is submitted that the learned trial Court by the interim order passed on the application for grant of maintenance has directed the petitioner No. 1 to pay the maintenance but the application has been filed by the respondent under section 31 of the Act against petitioner No. 2 as well while there was no direction against petitioner No. 2. It is submitted that on the face of it no action could have been taken against petitioner No. 2 but this important fact has not been looked into by both the Courts below. Learned Counsel further submitted that the complaint itself is not maintainable under section 31 of the Act. It is submitted that the preceedings can be initiated under section 31 of the Act only upon the breach of protection order or interim protection order by the respondent. It is submitted that the word respondent has been defined in sub-section (q) of section 2 of the Act, which reads as under :