Kuldip Singh, J.
1. This petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India has been filed for setting aside, Whether the reporters of the local papers may be allowed to see the Judgment Yes quashing judgment dated 9.1.2012 passed by learned Sessions Judge, Kullu in Criminal Appeal No.1 of 2011, affirming order dated 15.12.2010 passed by learned Chief Judicial Magistrate, Kullu in Complaint No.309-I/2010.
2. The facts in brief are that respondent had filed a complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short Act) against petitioner claiming her to be the wife of respondent. The petitioner for the last one year had physically and mentally tortured the respondent. A complaint was made to the Gram Panchayat where a compromise was affected but petitioner was turned out from matrimonial home in January, 2010.
The petitioner filed reply, he denied marriage between the parties or parties lived as husband and wife. He denied maltreatment to respondent as claimed by respondent.
3. The learned Chief Judicial Magistrate allowed the petition. The petitioner was directed to provide suitable accommodation for the residence of respondent under Section 20 of the Act. The respondent was held entitled to â20,000/- on account of physical and mental harassment, 10,000/- for food and clothing and another â10,000/- for house hold expenses, total amounting to 40,000/-. The petitioner filed appeal which was dismissed by learned Sessions Judge on 9.1.2012.
4. It has been stated that there is no evidence regarding relationship of husband and wife or parties lived together. The respondent is not aggrieved under the Act. The respondent is not entitled to any amount as held by Courts below. The evidence has been misconstrued and misinterpreted. The domestic relationship and domestic violation have not been proved. The marriage between the parties has not been proved. The petition itself is not maintainable. The respondent was the wife of one Bhadru. The respondent has been getting pension as widow of Bhadru. The complaint has been filed for unjust enrichment. The submission has been made for setting side the impugned orders.
5. Heard and perused the record. The respondent has filed the complainant under Section 12 of the Act. In the complaint the respondent has stated that she is the wife of the petitioner and at the time of filing of the complaint she was living with her daughter in Village Seobag. The petitioner is serving as Chowkidar in HP PWD at Seobag and he has sufficient movable and immovable properties.
The petitioner has turned out the respondent from matrimonial home in January, 2010. The petitioner is neither providing shelter nor maintenance to respondent. She has been tortured physically and mentally. The respondent has prayed protection from domestic violence, residence order and monetary relief under Section 20 of the Act for physical and mental harassment of `1,00,000/-, food and cloths etc. `50,000/- , household expenses `20,000/-, medial expenses `20,000/- and other expenses `5,000/-. Total amounting to â1,95,000/- from the petitioner. The petitioner has filed reply. He has denied the allegations made in the complaint.
6. AW-1 Nokhi Devi has stated that she married to petitioner 12 years ago after the death of her previous husband Bhadru and also after the death of previous wife of petitioner. The parties after marriage lived together as husband and wife in the house of petitioner. The petitioner started giving beatings to respondent. She moved an application Ex.AW-1/A before the Panchayat and the parties had compromised the matter vide Ex.AW- 1/B. In January, 2010 the petitioner gave beatings to respondent and turned her out from the matrimonial home. The petitioner since January, 2010 has not provided any maintenance, shelter to the respondent. She has no means to support herself. She is residing with her daughter since January, 2010. The petitioner is an orchardist and employed in HP PWD. She was cross-examined at length but nothing favourable to the petitioner was extracted in crossexamination.
7. AW-2 Tule Ram has stated that Ex.AW-1/B was read over and explained to Nokhi Devi and Dhian Dass and after admitting its correctness both of them put their thumb marks and signatures, he also signed Ex.AW-1/B as a witness. The Panchayat members also signed Ex.AW-1/B He denied that there was no compromise between the parties. AW-3 Hari Dass has also stated that Ex.AW-1/B was executed between the parties and he also signed Ex.AW-1/B at point B.
8. RW-1 Dhian Dass has stated that his marriage was solemnized with Begmu Devi, who died on 24.12.1995. He denied marriage with Nokhi Devi or she lived with him. He produced a copy of family register of Nokhi Devi Ex.RW-1/A and a copy of his family register Ex.RW -1/B. He has stated that he has no enmity with Tule Ram and Hari Dass. Tule Ram was vice President of Gram Panchayat and Hari Ram was Ward Panch. He admitted his signatures on Ex.AW-1/B. He admitted that he is serving as Chowkidar in PWD. RW-2 Geeta Ram, Clerk, office of District Welfare Officer, Kullu has stated that Nokhi Devi widow of Bhadru Ram had applied for widow pension but pension has not been sanctioned in her favour.
9. The execution of compromise Ex.AW-1/B has been proved by AW-2 and AW-3. The petitioner has admitted his signatures on Ex.AW-1/B. AW-1 Nokhi Devi has stated that she solemnized her marriage with petitioner after the death of her previous husband and also after the death of previous wife of petitioner. AW-3 Hari Dass has stated that he knew the parties and Nokhi Devi is the wife of Dhian Dass. In Ex.AW-1/B, it has been stated that the parties will live together amicably. This supports the version of respondent that respondent solemnized marriage with petitioner after the death of her previous husband and also after the death of previous wife of petitioner. Some differences developed between the parties but the matter was compromised vide Ex.AW- 1/B. In case there was no relationship between the parties then there was no question of any compromise between the parties in the form of Ex.AW-1/B.
10. The learned counsel for the petitioner has submitted that the plea of respondent that she married with petitioner is falsified from the fact that she had applied for widow pension as widow of Bhadru Ram. He has relied the statement of RW -2 Geeta Ram in support of this submission. RW-2 has stated that Nokhi Devi widow of Bhadru had applied for widow pension but pension has not been sanctioned in her favour. It does not emerge from the statement of RW-2 that respondent has represented that she has not married with petitioner after the death of Bhadru Ram. There is positive evidence that after the death of Bhadru Ram, respondent married with petitioner. Thus, marriage of respondent with petitioner after deaths of their previous spouses has been established.
11. The petitioner has not taken the stand that he provided shelter, maintenance and other daily need provisions to respondent. On the contrary there is no evidence to this effect on the part of petitioner. The respondent has stated that she has no means to support herself, the petitioner has movable and immovable properties, he is an orchardist and working as Chowkidar in HP PWD. The petitioner has also children from his previous wife. On account of his marriage with respondent the petitioner has legal obligation to maintain her and to provide her shelter.
12. The Courts below have awarded `40,000/- in all under various heads to respondent but both the Courts below have not assessed the income of petitioner nor given reasons in support of the amounts awarded to respondent under different heads. Therefore, while upholding the order of the Courts below regarding protection from domestic violation and provisions for shelter to respondent, the remaining part of both the orders awarding amounts under different heads are not sustainable. The matter is required to be reconsidered by the trial Court to this effect and to record reasons while assessing the income of petitioner and amount to be awarded to respondent under different heads.
13. In view of above, the petition is allowed. The judgment dated 9.1.2012 passed by learned Sessions Judge, Kullu in Criminal Appeal No.1 of 2011, affirming order dated 15.12.2010 passed by learned Chief Judicial Magistrate, Kullu in Complaint No.309-I/2010. is set aside. The case is remitted to learned Chief Judicial Magistrate, Kullu with a direction to decide the petition afresh in the light of observations made above. The parties through their counsel are directed to appear before learned Chief Judicial Magistrate, Kullu on 17.1.2013. The record be sent back immediately so as to reach before the date fixed. Cr.MP No.266 of 2012 also disposed of in view of disposal of main petition.