SWARUP MANDAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This revision application is directed against the order dated 5.1.2010 passed by Sessions Judge, Jamtara in Criminal Appeal No. 17 of 2009, whereby with modification in quantum of maintenance allowance he dismissed the appeal filed against the order dated 9.9.2009 passed by Chief Judicial Magistrate, Jamtara in Cr. Misc. (DV) case No. 03 of 2009.

(2.) It appears that O.P.No.2 has filed an application under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter refered as "Act") for grant of maintenance as the petitioner (husband of O.P. No. 2) had committed domestic violence upon her. It further appears that Chief Judicial Magistrate had issued notice to the petitioner and thereafter, petitioner filed written statement. Then, both the parties adduced evidence in support of their case. It further appears that Chief Judicial Magistrate, Jamtara while passing order dated 9.9.2009 had come to the conclusion that petitioner committed domestic violence and accordingly directed the petitioner to pay maintenance allowance to O.P. No. 2 to the tune of Rs 4,000/- per month. He further directed that petitioner should pay L 2,000/- towards maintenance of his son. The Chief Judicial Magistrate further directed the petitioner to pay L 25,000/- to- wards medical expenses and L 30,000/- towards damages caused to the "Stridhan" of O.P. No. 2. It appears that aforesaid order of Chief Judicial Magistrate was challenged by the petitioner by filing Criminal Appeal No. 17 of 2009 in the Court of Sessions Jude, Jamtara, which was dismissed vide order dated 5.1.2010 with modification in the maintenance allowance payable to O.P. No. 2 and her son. Learned Sessions Judge directed that petitioner shall pay L 2,500/- per month to O.P. No. 2 and L 1,500/- per month to her son as maintenance allowance.

(3.) While assailing aforesaid two orders, learned Counsel for the petitioner submits that as per proviso to section 12 of the Act, it is imperative upon the Magistrate to call for a report from the Protection Officer and consider the same before passing any final order on the application filed by aggrieved person. It is submitted that in the instant case. Magistrate has not called any report from the Protection Officer and passed order without considering it. Hence, order of Chief Judicial Magistrate cannot be sustained. It is further submitted that for the same relief, O.P. No. 2 had filed a complaint case bearing P.C.R. Case No. 385/2006 under section 498-A,379 and 323 I.P.C. It is submitted that in aforesaid case petitioner was discharged from the said complaint case because no witness was produced by the complainant in that case. Accordingly, it is submitted that the present application under section 12 of the said Act is not maintainable.