SMT. ANCHI DEVI WIFE OF SHRI SHIVLAL GADARI DAUGHTER OF SHRI JODHA GADARI Vs. SHIVLAL SON OF SHRI KAJOD GADARI

JUDGEMENT

(1.) Heard learned counsel for the parties. Perused the record.

(2.) The petitioner moved an application under section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short the Act of 2005) which was registered as Case No. 42/2008 before the Judicial Magistrate, First Class, Rajsamand. The learned Judicial Magistrate rejected the application by order dated 1.3.2011 on the ground that the petitioner was indulged in illicit extra marital affairs with her own brother-in-law Ganesh against whom cognizance had been taken for the offence under Section 497 IPC.

(3.) It is an admitted position spelt out from record that Ganesh has been acquitted of the said charge. The order dated 1.3.2011 was challenged by way of an appeal which too has been rejected by the learned Additional Sessions Judge, Rajsamand by order dated 20.10.2015. Though the appellate Court took note of the fact that Ganesh had been acquitted from the offence under Section 497 IPC but despite that, the appeal was dismissed on the ground that the petitioner has already taken recourse to remedy under Section 125 Cr.P.C., 1973 and thus parallel proceedings cannot be continued for entertaining her claim of maintenance. The said finding recorded by the appellate Court is perse contrary to Section 21D of the Act of 2005 as per which, an aggrieved person can claim maintenance by taking recourse of the Act of 2005 in addition to an order of maintenance passed under Section 125 Cr.P.C., 1973 In this view of the matter, this Court is of the firm opinion that the impugned orders cannot be sustained.