MANU/PH/0221/2018

Equivalent Citation: II(2018)C C R449(P&H), III(2018)DMC 181P&H, 2018(1)RC R(C riminal)931

IN THE HIGH COURT OF PUNJAB AND HARYANA

Crl. Misc. M-No. 32351 of 2016 (O&M)
Decided On: 23.01.2018
Appellants: Eshan Joshi
Vs.
Respondent: Suman
Hon'ble Judges/Coram:
Jaishree Thakur, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Hemant Bassi and Kewal Singh, Advocates
For Respondents/Defendant: Umesh Aggarwal, Advocate
Case Note:
Criminal - Complaint case - Quashing - Sections 12, 17, 18, 19, 20 and 22
of Protection of Women from Domestic Violence Act, 2005 (DV Act) -
Present petition is filed seeking quashing of complaint case registered
against petitioner under Sections 12, 17, 18, 19, 20 and 22 of DV Act -
Whether impugned complaint case under challenge needs to be quashed -
Held, High Court has inherent power to quash criminal proceedings even in
those cases which are not compoundable - Such power is to be exercised
sparingly and with great caution - Court while exercising inherent power
must have due regard to nature and gravity of offence sought to be
compounded - Heinous and serious offences of mental depravity, murder,
rape, dacoity etc. cannot appropriately be quashed - In present case,
considerable length of time have lapse before Domestic Incident Report is
received - Domestic incident took place in a different state - Waiting in
interim before granting of relief might frustrate object of DV Act to provide
instant interim relief - Interim order passed by court below need no
interference - Petition for quashing for entire complaint case cannot be
allowed - Petition dismissed. [20]
JUDGMENT
Jaishree Thakur, J.
1 . The instant petition has been filed under Section 482 Cr.P.C. for quashing of
Criminal Complaint Case No. 281 dated 23.12.2015 titled as "Suman Joshi v. Eshan
Joshi" (Annexure P-6) under Sections 12, 17, 18, 19, 20, 22 of Protection of Women
from Domestic Violence Act, 2005 (for short 'the DV Act'), as well as all subsequent
and consequential proceedings arising therefrom including order dated 08.08.2016
(Annexure P-8), pending in the court of Judicial Magistrate 1st Class, Chandigarh.
This is a classic case of litigation being filed by the parties against each other after
their marriage turns sour and does not survive the test of time.
2 . The facts that need to be noted to understand the pale of controversy herein is

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that parties solemnized their marriage at Bangalore on 20.01.2010. For both the
parties it was their second marriage, having children from their previous respective
marriages and no children from the instant wedlock. The petitioner herein alleges
that differences arose between the parties, on account of the respondent-wife (for
short 'the respondent') demanding money and transfer of his assets in her name. In
May 2011, the petitioner purchased apartment in Shobha Classic Apartments in the
name of the respondent which was sold and a sum of ' 60 Lakhs has been taken by
her. It is further alleged that every effort was made by the respondent herein to
extort money from the petitioner, which resulted in the petitioner moving out of the
matrimonial home and with the help of the police he was able to get his belongings.
The respondent got FIR No. 1022 registered under Sections 498-A, 506, 504 of
Indian Penal Code and Sections 3/4 of Dowry Prohibition Act at police Station HSR
Bangalore, in which the petitioner applied for and has got anticipatory bail. The
respondent filed a complaint under the DV Act at Chandigarh on 23.12.2015 without
disclosing registration of FIR No. 1022 registered under Sections 498-A, 506, 504 of
Indian Penal Code and Sections 3/4 of Dowry Prohibition Act at police Station HSR
Bangalore. The petitioner filed a divorce petition at Bangalore on 19.03.2016
(Annexure P-9) on the ground of cruelty and also filed a reply to the complaint under
the DV Act, challenging the jurisdiction of the Courts at Chandigarh. In the meantime,
by the impugned order dated 08.08.2016, the Magistrate assessed interim
maintenance @ ' 75,000/- p.m. and ' 50,000/- as litigation expenses (Annexure P-8).
The petitioner herein filed a complaint at Bangalore against the respondent under
Sections 420, 384, 385, 386, 389, 506 of Indian Penal Code before the Addl. Chief
Metropolitan Magistrate, Bangalore. The respondent then filed an application under
Section 125 Cr.P.C. at Chandigarh, alleging that she is unemployed and has no
source of income and is dependent upon her sister and brother-in-law. She also filed
for execution of the impugned order dated 08.08.2016, which had allowed interim
maintenance. The respondent thereafter approached the Hon'ble Supreme Court
seeking transfer of the divorce petition from Bangalore to Chandigarh on 26.08.2016,
which petition was dismissed on 22.03.2017. Thereafter, the petitioner filed the
instant petition in the High Court on 14.09.2016. The mediation between the parties
was not successful. There are also other applications that have been filed before the
executing court seeking the maintenance as awarded by the JMIC, Chandigarh, in
which replies have been filed by her. It would also be pertinent to note that a
cancellation report of FIR No. 1022 registered under Sections 498-A, 506, 504 of
Indian Penal Code and Sections 3/4 of Dowry Prohibition Act at police Station HSR
Bangalore, lodged by the respondent at Bangalore, has been accepted.
3 . Mr. Hemant Bassi, learned counsel for the petitioner appearing along with Mr.
Kewal Singh, Advocate, argues that courts at Chandigarh do not have territorial
jurisdiction to entertain the very complaint itself and therefore, all proceedings
thereunder are illegal and non-est. It is submitted that the respondent is neither a
permanent resident of Chandigarh nor is temporarily residing here and the instant
complaint has been preferred only to harass the petitioner. It is argued that in the
complaint itself it is mentioned that her minor son (from her earlier marriage) is
studying at Bangalore, and therefore, it cannot be said that the respondent is a
resident of Chandigarh and can invoke the jurisdiction of the courts here. It is further
submitted that no cause of action arose at Chandigarh and there is no report of the
Protection Officer available on the record. It is argued that before passing of an order
on any application under the DV Act, the Magistrate has to take into consideration the
domestic incident report received from the Protection Officer or Service Provider as
envisaged under Section 12 of the DV Act. Moreover, divorce petition is also pending

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at Bangalore and the transfer petition filed by the respondent in the Hon'ble Supreme
Court has been dismissed. Learned counsel further argues that the respondent was
duty bound to disclose the material fact that she had got an FIR No. 1022 registered
under Sections 498-A, 506, 504 of Indian Penal Code and Sections 3/4 of Dowry
Prohibition Act at police Station HSR Bangalore, and non-disclosure would disentitle
her to any relief. It is also submitted that once aforesaid FIR lodged by the
respondent at Bangalore under Sections 498-A, 506, 504 of Indian Penal Code and
Sections 3/4 of Dowry Prohibition Act stood cancelled, the instant complaint filed
under the DV Act per se would not be maintainable. It is also submitted that the
respondent would be entitled to maintenance only if she can prove that she is unable
to support herself, but statement of account shows that she has been earning
substantially and has enough funds to sustain herself as she also has received a sum
of ' 60 lakhs from the sale of a flat which was bought by the petitioner in her name.
4 . Per contra, Mr. Umesh Aggarwal, learned counsel appearing on behalf of the
respondent argues that the petition itself is not maintainable, on account of the fact
that the petitioner has not availed of the remedy of filing an appeal under Section 29
of the DV Act. It is submitted that the proceedings under the DV Act have been
initiated after filing of the written statement therein and therefore, the petitioner, at
this juncture, is not entitled to seek quashing of the same. It is also argued that the
respondent can avail of the remedy available under Sections 498-A, 506, 504 of
Indian Penal Code and Sections 3/4 of Dowry Prohibition Act as well as under the DV
Act. Under the FIR, the respondent had alleged cruelty on account of demand of
dowry, whereas under the DV Act, the relief sought is for maintenance etc. It is
further argued that the maintenance as awarded is only interim maintenance based
on the financial capacity of the petitioner, which is not on the excessive side. It is
also submitted that the courts at Chandigarh would have jurisdiction to entertain the
complaint, since the petitioner is residing within the territorial jurisdiction of the
courts at Chandigarh, along with her sister and brother-in-law. Her son is now
admitted in a local school herein within the tricity of Chandigarh. It is further
submitted that dismissal of the transfer application, seeking transfer of the divorce
petition from Bangalore to Chandigarh, could not be read as a bar to the proceedings
being instituted here within the jurisdiction of the courts at Chandigarh.
5 . I have heard learned counsel for both the parties and with their assistance have
gone through the complaint and the numerous applications filed therein along with
case law relied upon.
6 . Admittedly, a marriage has been performed between the parties and out of this
wedlock, there is no issue. A perusal of the pleadings shows that there is bitter
litigation between the parties with each filing various complaints and lodging FIRs
against each other at various places.
7. This court is seized of the following questions;
i) Whether the instant petition is maintainable IN its present form?
ii) Whether the courts here at Chandigarh would have territorial jurisdiction
to entertain the instant complaint under the DV Act?
iii) Whether there has been concealment of facts regarding the pendency of
FIR No. 1022 registered under Sections 498-A, 506, 504 of Indian Penal
Code and Sections 3/4 of Dowry Prohibition Act at police Station HSR

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 Bangalore by the respondent and whether such concealment would dis-entitle
the respondent to any relief?
iv) Whether the proceedings under the DV Act could be initiated without a
report of Protection Officer?
8 . An argument has been raised by the counsel for the respondent that the present
petition is not maintainable in its present form since, the petitioner has not availed of
his remedy of appeal under Section 29 against the impugned order dated 08.08.2016.
The argument as raised, might be sustainable in case the petitioner had challenged
only the order qua maintenance, whereas the petitioner has in fact challenged the
very complaint itself along with consequential proceedings including the impugned
order, on the grounds of territorial jurisdiction of the courts at Chandigarh to
entertain the complaint, concealment of material fact and issuance of notice without
first calling for a report on domestic violence.
9 . The Hon'ble Supreme Court in Dhariwal Tobacco Products Limited and others v.
State of Maharashtra and another, MANU/SC/8465/2008 : 2009(1) R.C.R. (Criminal)
677: (2009) 2 Supreme Court Cases 370, was seized of the question whether an
application under Section 482 of Code of Criminal Procedure, 1973 (for short 'the
Code') can be dismissed on the grounds that an alternative remedy of filing a revision
petition under Section 397 of the Code is available. In the aforesaid case, company
and its Directors were summoned by the JMIC Akkalkot, Solapur under the provisions
of Prevention of Food Adulteration Act. An application was filed under Section 482 of
the Code against the said summoning order, which was dismissed by the High Court
on the ground that there was an alternative remedy of filing a revision petition under
Section 397 of the Code. That order was challenged before the Apex Court and after
taking note of settled case law, it was held that the High Court has inherent power
under Section 482 of the Code, even though there is an alternative remedy available.
Similarly in Krishnan v. Krishnaveni and another, MANU/SC/0223/1997 : 1997(1)
RCR (Criminal) 724, it has been held that a High Court under its inherent powers
under Sections 482 and 483 of the Code, is justified in interfering with an order,
which would lead to miscarriage of justice and can interfere, even though remedy of
appeal/revision has not been availed of. Since the petitioner is seeking to challenge
the very complaint, itself being without jurisdiction under Section 482 Cr.P.C., the
High court with its vast inherent powers would be able to entertain this petition to
ensure there is no abuse of the process of law. Therefore, this question is answered
against the respondent.
10. Section 27 of the DV Act reads as under:-
"Jurisdiction - (1) The Court of Judicial Magistrate of the first class or the
Metropolitan Magistrate, as the case may be, within the local limits of which
-
(a) the person aggrieved permanently or temporarily resides or
carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other
orders under this Act and to try offences under this Act.

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 (2) Any order made under this Act shall be enforceable throughout India."
Learned counsel appearing on behalf of the petitioner argues that a bare reading of
the said Section would show that only such courts are competent to entertain a
complaint where the aggrieved person/respondent permanently or temporarily resides
or carries on business or is employed, or where cause of action arises. It is argued
that merely on account of the fact that the respondent herein is temporarily residing
with her sister, the court at Chandigarh would not have jurisdiction to entertain the
complaint. In this regard, reliance has been placed upon judgment rendered by the
Apex Court in Advocate Ramesh Mohanlal Bhutada and another v. State of
Maharashtra and others, MANU/MH/0826/2011 : 2012(1) RCR (Cr.) 461, in which it
has been held that meaning of expression "resides" in Section 12 implies something
more than a causal stay and implies some concrete intention to stay at a particular
place, and not merely to pay a casual or flying visit. It is argued that the complaint
itself would reveal that the son of the respondent is studying at Bangalore, therefore,
there is no occasion for her to invoke the jurisdiction of the courts at Chandigarh.
11. Per contra, learned counsel appearing on behalf of the respondent argued that
the parties were residing at Bangalore, when a matrimonial dispute arose and at that
time the son of the respondent was studying at Bangalore and in order not to disrupt
his studies, he was allowed to continue the study at Bangalore. As of now, he is
studying within the local jurisdiction of the tricity of Chandigarh.
12. The question regarding territorial jurisdiction has been raised before several High
Courts in Hima Chugh v. Pritam Ashok Sadaphule & Ors, MANU/DE/0838/2013 :
2013(19) RCR (Criminal) 161, Sharad Kumar Pandey v. Mamta Pandey,
MANU/DE/2179/2010 : 2010(7) RCR (Criminal) 1389, Rabindra Nath Sahu and anther
v. Smt. Susila Sahu, MANU/OR/0508/2016 : 2017(1) RCR (Criminal) 312, Vikas
Rastogee v. State of U.P. and another, MANU/UP/0199/2014 : 2014(16) RCR
(Criminal) 73. In Hima Chugh and Sharad Kumar Pandey (supra), Delhi High Court
has held that temporary residence means where an aggrieved person is compelled to
take shelter or to take job or do some business, in view of domestic violence within
her matrimonial home. However, temporary residence does not include residence in a
lodge or hostel or an inn or taking up residence at a place only for filing a domestic
violence case. It must not be a fleeting residence, where a woman comes only for
contesting the case and otherwise does not reside there. In Rabindra Nath Sahu and
another (supra) Orissa High Court has held that temporary residence includes a place
where an aggrieved person was compelled to reside in view of commission of
domestic violence, where she may not have decided to reside permanently or for a
considerable length of time, but for the time being. In Vikas Rastogee (supra)
Hon'ble Allahabad High Court has held that aggrieved person can initiate proceedings
from temporary residence and that question of temporary residence is a mixed
question of law and fact and cannot be decided by Revisional Court.
13. Section 27 of the DV Act permits a Court to entertain a complaint of a person
residing temporarily within its jurisdiction. Needless to say that after being subjected
to domestic violence, it may not be possible for a woman to reside within the same
jurisdiction as where the incident of domestic violence occurred and would shift and
relocate to a place where she can reside/pick up a job or has some support, be it
with her parents of near kith and kin. In the instant case, the respondent is residing
with her sister, a close kith and kin after she left Bangalore and her matrimonial
home. The son of the respondent is now studying within the tricity of Chandigarh, as
would be evident from the school fee receipts that have been annexed. The argument

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raised that son of the respondent was studying in Bangalore and residence in
Chandigarh is fleeting, is not sustainable. The minor child was studying and stayed in
Bangalore only to complete his session and not be shifted midterm. Therefore it
cannot be said that the respondent is residing with her sister only on account of filing
of complaint under the DV Act and courts at Chandigarh would not have jurisdiction
to entertain the complaint.
14. The third question that would arise for consideration is whether concealment of
fact regarding pendency of the FIR at Bangalore would disentitle the respondent to
any relief under the proceedings initiated under the DV Act?
15. Section 498-A of Indian Penal Code was incorporated in the Indian Penal Code in
the year 1983 when there arose a need to protect women against cruelty inflicted
upon her, by her husband and member of his family, on account of bringing
inadequate dowry. Despite the protection granted to women on account of inadequate
dowry, a woman is subjected to various other abuses within the home, which
necessitated introduction of The Protection of Women from Domestic Violence Act,
2005. As per Section 3, the term 'domestic violence' is wide enough to include
physical abuse, sexual abuse, verbal abuse, emotional abuse or even economic abuse
within the matrimonial home. The scope and ambit of domestic violence is much
wider than cruelty as envisaged under Section 498-A of IPC. At this juncture, it would
be pertinent to take note of the fact that the reliefs sought for under the DV Act as
provided under Sections 12, 17, 18, 19, 20, 21, 22 of the DV Act are reliefs, which
are not available under Sections 498-A of Indian Penal Code. In the instant case, an
FIR had been instituted under Sections 498-A, 506, 504 of Indian Penal Code, which
provisions would not have provided respondent with the right to get relief of
residence, maintenance, compensation, custody etc. Therefore, this court is of the
opinion that non-mentioning of the aforesaid FIR does not amount to concealment of
material fact, which would dis-entitle the respondent to claim relief under the DV Act,
as the relief claimed is entirely different. Therefore, this question is answered against
the petitioner.
1 6 . An another argument has been raised by counsel for the petitioner that the
Magistrate at Chandigarh could not have issued notice, without taking into
consideration any domestic incident report by him from the Protection Officer or the
Service Provider. It is argued that on receipt of a complaint, the Magistrate was duty
bound to send for a report of any domestic incident before issuing notices.
17. Section 12 of the DV Act is reproduced as under;-
"12. Application to Magistrate.-
1 . An aggrieved person or a Protection Officer or any other person
on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application,
the Magistrate shall take into consideration any domestic
incident report received by him from the Protection Officer
or the service provider.
2 . The relief sought for under sub-section (1) may include a relief
for issuance of an order for payment of compensation or damages
without prejudice to the right of such person to institute a suit for

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 compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court in
favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate
under this Act shall be set off against the amount payable
under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5
of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set
off.
3. Every application under sub-section (1) shall be in such form and
contain such particulars as may be prescribed or as nearly as
possible thereto.
4. The Magistrate shall fix the first date of hearing, which shall not
ordinarily be beyond three days from the date of receipt of the
application by the court.
5 . The Magistrate shall endeavour to dispose of every application
made under sub-section (1) within a period of sixty days from the
date of its first hearing."
Chapter IV of the DV Act pertains to the procedure as to be followed by the
Magistrate to grant relief to an aggrieved person. Under Section 12 of the DV Act, an
application has to be presented by an aggrieved person, either by the person herself
or a Protection Officer or any other person on behalf of the aggrieved person to the
Magistrate, seeking relief as provided under the DV Act. A proviso has been added to
Section 12(1) of the Act, that before passing any such order on any application
received, the Magistrate shall take into consideration any domestic incident report
received by him from the Protection Officer or the Service Provider. Section 9 of the
DV Act entails the duties and functions of a Protection Officer, whose primary duty is
to assist the Magistrate in the discharge of his functions under the Act, to make a
domestic incident report to the Magistrate in the form prescribed, upon receipt of a
complaint of domestic violence, while forwarding copies of the complaint to the
Police Officer in charge of the Police Station within the local limits of whose
jurisdiction, domestic violence is alleged to have been committed, as well as to the
Service Provider. Section 9(2) of the DV Act further provides that the Protection
Officer shall be under the control and supervision of the Magistrate and shall perform
the duties imposed on him by the Magistrate and the Government. Moreover, Section
4 of the DV Act provides that any person, who has reasons to believe that an act of
domestic violence has been, or is being, or is likely to be committed, may give
information about it to the concerned Protection Officer.
18. On a conjoint reading of Sections 9 and 12 of the DV Act it is manifestly clear
that it is duty of the Protection Officer to work under the control and supervision of
the Magistrate and to perform duties imposed upon him by the Magistrate and in
case, he has received a complaint on domestic violence then, to make a domestic
incident report and submit it to the Magistrate, as well as to forward copies of the
complaint to the Police Officer in charge of the police station within local limits of

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whose jurisdiction, domestic violence is alleged to have been committed. The proviso
added to Section 12(1) of the DV Act is only to the effect that in case a domestic
incident report has been received by the Magistrate, the same shall be considered
before passing any order on an application received. Section 12 of the DV Act per se
does not hold that a Magistrate on receipt of complaint is obligated to call for a
domestic incident report, before passing any order on an application.
19. In the case of Abhiram Gogoi v. Rashmi Rekha Gogoi, MANU/GH/0388/2011 :
(2011) 4 Gau LR 276, it was held by Hon'ble Gauhati High Court that it is not
mandatory for a Magistrate to obtain a domestic incident report before the Magistrate
passes a maintenance order under Section 18 of the DV Act. A similar view was taken
by the Hon'ble Delhi High Court in the case of Shambhu Prasad Singh v. Manjari,
MANU/DE/2152/2012 : 2012(3) R.C.R. (Criminal) 493, that receipt of domestic
incident report is not a pre-requisite for issuing a notice to the respondent. Insistence
to take into consideration the domestic incident report of protection officer would not
apply at the stage of initiation of enquiry under Section 12 of the DV Act, because a
Magistrate, on the basis of an application supported by affidavit, on being satisfied
can even grant ex parte orders in favour of the aggrieved person under Sections 18,
19, 20, 21 or 22 of the DV Act. Even this High Court in the case Jag-dish Kumar
Bakhri v. Manju Bakhri, 2012 SCC Online P&H 395, observed that a bare perusal of
Section 12 of the DV Act would signify that it is not mandatory for the Court to call
for domestic incident report on each and every date of hearing, before passing any
order. If no domestic report is received in the court, then in such eventuality, there is
no bar for the court to pass an order under Section 12 of the DV Act. The judgment
relied upon by the counsel for the respondent in the case of Dharmendra and others
v. State of M.P. and another, MANU/MP/1235/2014, is contrary to the judgments
referred to by this court. On a reading of the judgment, this court is not inclined to
concur with the same. In the said case, it has been held as under;-
"On bare perusal of the aforesaid provision, it becomes clear that before
passing an order on application, the Magistrate has to take into consideration
the domestic incident report received from Protection Officer or Service
Provider. The order reveals that learned Magistrate before issuing notice to
the petitioners did not even consider the contents of the application. Section
12 of the Act clearly provides for obtaining domestic incident report. The
domestic incident report proforma is given in form 1 of the schedule 2 of
Domestic Violence Rules. This proforma is in detailed analytical form wherein
the details of each incident of domestic violence are to be entered with date,
time and place of violence and person who caused domestic violence. The
object is that all allegations made in application must be specific and the
Court should not exercise jurisdiction without considering domestic incident
report since it is necessary for the Court to know before issuing any notice to
petitioners as to who were the petitioners who caused domestic violence and
what was the nature of violence and when it was committed. The proforma
specifies different heads of physical violence, sexual violence, verbal and
emotional abuse, economic violence, dowry related harassment and other
forms of violence. The proforma also provides for filing of documents in
support of the application like medico-legal certificate, list of stridhan and
other documents. This domestic incident report has to be signed by the
aggrieved person. The application under Section 12 is required to be made in
form 2 of the Rules wherein the details of various kinds of reliefs and
expenses are to be given. Section 27 of the Act provides which judicial
Magistrate Court can have jurisdiction to entertain an application under

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 Section 12 of the Act."
As already discussed above, proviso to Section 12(1) only stipulates that the
Magistrate shall take into consideration any domestic incident report received by him
from the Protection Officer or the service provider. Section 12(1) does not directly
stipulate that a report 'shall' be called for, before any relief can be granted. The
judgment as relied upon does not interpret the proviso to Section 12(1).
20. Admittedly, in this case, no Domestic Incident Report either from the Protection
Officer or from the Service Provider was received by the learned Magistrate. In such
circumstances, when there was no report before the learned Magistrate to consider,
then there was no illegality, impropriety or irregularity in passing the said impugned
order. Moreover, courts cannot lose sight of the fact that these legislations have been
enacted as a measure of social legislation and to provide succor to an aggrieved
person. At times, considerable length of time may lapse before a report is received,
when the domestic incident took place in a different state. Waiting in the interim
before granting of relief might frustrate the object of the Act to provide instant
interim relief. Accordingly, this question is also answered against the petitioner.
21. It is also argued that the maintenance as awarded vide order dated 8.8.2016 is
on the higher side, since the petitioner is unemployed. It is also submitted that the
petitioner had purchased a flat in the name of the respondent, which was
subsequently sold and in fact respondent has already received a sum of ' 60 lakhs,
which is more than adequate to meet daily expenses. It is urged that she has also
worked as would be reflected in her statement of accounts which fact has not been
disclosed.
22. The order dated 08.08.2016 has assessed interim maintenance at ' 75,000/- per
month. No doubt, under the DV Act, the Magistrate is competent to award
maintenance to a wife as an interim measure till the final disposal of the case.
Needless to say, final maintenance is yet to be assessed, which would be dependent
on various factors. The Magistrate is duty bound to consider the financial status of
the petitioner, whether he is employed, his liabilities, as well as whether the
respondent is financially supporting herself, before any final orders are issued. These
factors will be taken into consideration based on evidence adduced by either party.
The income tax returns that have been furnished in these proceedings would reflect
that the petitioner is a person of adequate means and therefore at the present
moment this court is not inclined to interfere in the impugned order.
23. The argument raised that the respondent has received ' 60 lakhs after sale of
property and has adequate means to support herself is an argument not sustainable
at the present moment. The respondent has submitted that the amount is lying in a
bank account untouched. It still has to be considered by the courts below, as to
whether the sale of property and receipt of the sale consideration would be barred
under The Benami Transactions (Prohibition) Act, 1988? In view of the foregoing
discussion, the petition in hand is hereby dismissed, being devoid of any merits.
Before parting with this judgment, it is made clear that any observation made by this
court hereinabove is only for the purpose of deciding the instant petition and shall
have no affect on the merits of the case.
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