OM PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Aggrieved by the order dated 7.2.2009, passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, Jaipur, whereby the learned Magistrate has allowed the application of the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the Act', for short) and aggrieved by the order dated 23.10.2010, passed by the Additional District and Session Judge No. 2, Jaipur District Jaipur, whereby the learned Judge has upheld the former order, the petitioner has approached this Court.

(2.) The brief facts of the case are that the respondent-wife filed an application under Section 12 of the Act against the petitioner-husband before the trial court wherein she claimed that she got married with the petitioner 12 years back in Jaipur. But ever since her marriage, her inlaws and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since last seven years. Thus, she prayed for maintenance. The respondent-husband filed reply to the application and denied the contents thereof. After hearing both the parties, vide order dated 7.2.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.800 per month maintenance to the respondent-wife. Being aggrieved by the said order, the petitioner-husband tiled an appeal before the appellate court. However, vide order dated 23.10.2010, the learned appellate court upheld the order dated 23.10.2010, the learned appellate court upheld the order dated 7.2.2009 and dismissed the appeal. Hence, this petition before this Court.

(3.) Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently contended that according to the complainant herself, she was married with the petitioner twelve years prior to 2008. Moreover, according to her, the petitioner and the respondent are living separately ever since 2001. Therefore, ever since 2001, no act of domestic violence has been committed. Yet both the learned courts below have allowed an application under Section 12 of the Act. Since the Act came into force on October 26, 2005, the Act cannot be given a retrospective effect and cannot be made applicable to the alleged acts of domestic violence, which may have taken place prior to 2001. In order to buttress this contention, the learned counsel has relied upon the case of Hema @ Hemlata (Smt.) & Anr. v. Jitender & Anr.,2009 1 CrLR 291