CRLR/378/2022 of GAJENDRA SINGH RAWAT Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 378 of 2022

Gajendra Singh Rawat ...Revisionist

Versus

State of Uttarakhand and others ...Respondents

Present:-

Mr. Sagar Kothari, Advocate for the revisionist. Mr. Lalit Miglani, A.G.A. for the State.

Hon’ble Ravindra Maithani, J. (Oral)

An order of interim maintenance was granted in favour of the private respondents. During its recovery proceedings, it appears that an application under Section 125 (5) of the Code of Criminal Proceedings,1973 (“the Code”) was moved by the revisionist on the ground that since, the private respondents are staying separate by mutual consent, they are not entitled to interim maintenance. This application was rejected by the impugned order dated 10.06.2022, passed in Criminal Case No. 361 of 2020, Smt. Margie Madamo Mantojo Rawat and others Vs. Gajendra Singh Rawat, by the court of Principal Judge, Family Court, Dehradun (“the case”). Hence, the revision.

2. Heard learned counsel for the parties and perused the record.

3. Learned counsel for the revisionist would submit that, in fact, earlier the respondent no.2 filed an application seeking maintenance under Section 125 of the Code for herself and for her two minor children, namely, respondent no.3 Master Ansh Montojo Rawat and respondent no.4 Km. Anshita Montojo Rawat, in which, the order for interim maintenance was passed. It is argued that during that period, the respondent no.2 also filed proceedings under the provisions of the Protection of Women from Domestic Violence Act, 2005 (“the Act”). In the proceedings under the Act, it is argued that in her cross examination, the respondent no.2 has told that she stays in the first floor of the house, whereas the revisionist stays in the ground floor and “we both are staying by mutual consent”. This phrase is infer to argue that the parties are staying separate by mutual consent. Learned counsel for the revisionist would also submit that it makes ground to set aside the order of interim maintenance.

4. In the impugned order at Para 6, the court below appreciated the argument. It is held that, in fact, the words spoken by the respondent no.2 in the proceeding under the Act are being wrongly interpreted by the revisionist. The court below observed that it appears that in order to buy peace, the parties had agreed as to in which portion of the

building, they would stay. It is not staying separate by mutual consent, but staying in different portion of the same building by mutual consent and the court made distinction in between two, while rejecting the application filed by the revisionist.

5. Learned counsel for the revisionist would submit that the proceedings under Section 125 of the Code are still pending. In fact, based on the statement given by the respondent no.2, in the proceedings under the provisions of the Act, it cannot be said that the respondent no.2 is staying separate from the revisionist by mutual consent. The court below at this stage rightly interpreted the words spoken by the respondent no.2 in the proceedings under the provisions of the Act.

6. An affidavit filed in the proceedings of the Act and her applicant has also been filed by the revisionist along with the supplementary affidavit.

7. The Court wanted to know from the learned counsel for the revisionist to indicate as to where in her affidavit filed in examination-in-chief, in the proceedings under the Act, the respondent no.2 has stated that she is staying separate from the revisionist by mutual consent.

8. Learned counsel for the revisionist would submit that as such, nothing has been stated in her examination-in-chief by the respondent no.2

9 Merely because the respondent no.2 in the proceedings under the Act has stated that she is staying in the first floor of the building and the revisionist is staying in the ground floor and they are staying so by mutual consent, it cannot be stretched to infer that parties are staying separate by mutual consent.

10. In the proceedings under Section 125 of the Act, the parties would adduce evidence and perhaps this matter may be adjudicated finally thereafter.

11. Therefore, this Court is of the view that there is no error, illegality or impropriety in the impugned judgment. Accordingly, the revision deserves to be dismissed at the stage of admission itself.

12. The revision is dismissed in limine.

Jitendra

(Ravindra Maithani, J.)

05.09.2022