# Anil Kumar Singh v. State Of U.P. & Ors - **Citation:** (2016) 6 ILRA 274 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-10 - **Bench:** Rajan Roy - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-singh-v-state-of-u-p-ors-44065 - **Pages:** 6 ## Text 274 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 10.06.2016 BEFORE THE HON'BLE RAJAN ROY, J. Application U/s 482/378/407 No.- 4162 Of 2016 Anil Kumar Singh ...Applicant Versus State Of U.P. & Ors. ...Opposite Parties Counsel for Applicant: Dhirendra Pratap Singh Counsel for Opposite Parties: Govt. Advocate, Rajesh Bahadur Singh Rath Head Notes: Protection of Women from Domestic Violence Act, 2005-Sections 12, 20, 23-Interim maintenance-Power of Magistrate-Maintainability-Children's entitlement-Major child-Scope of interference under Section 482 Cr.P.C. Criminal Procedure Code, 1973-Section 482-Inherent powers-Interference with interim maintenance orders-Limited scope-No perversity or jurisdictional error. An application under Section 482 Cr.P.C. challenging orders of the Magistrate granting interim maintenance under Sections 23 read with 20 of the Protection of Women from Domestic Violence Act, 2005, as affirmed in appeal under Section 29-Applicant-husband contending that (i) there is no provision for grant of interim maintenance under the Act, (ii) children not being complainants could not be awarded maintenance, (iii) both children being major were not entitled to maintenance, and (iv) quantum of maintenance excessive in view of alleged meagre income. Held, the scheme of the Act read with Sections 12, 20 and 23 clearly empowers the Magistrate to grant interim monetary relief including maintenance-Mere incorrect mentioning of a provision does not defeat substantive relief-Children below 18 years are entitled to maintenance through the aggrieved womanHyper-technical objections deprecated. Further held, a major child is not entitled to maintenance under the Domestic Violence Act-Interim maintenance awarded to a child who had attained majority unsustainable-Order liable to be set aside to that extent only. Held further, assessment of income at interim stage based on Protection Officer's report and surrounding circumstances does not suffer from perversity-Certificates and documents relied upon by husband to dispute income are matters for final adjudication-No ground for interference under Section 482 Cr.P.C. in respect of maintenance awarded to wife and minor child. Held: Interim maintenance: Power to grant interim maintenance flows from Section 23 read with Section 20 of the Act. Children's entitlement: Minor children can claim maintenance through the aggrieved woman-Major child not entitled under the Act. 6 All. Anil Kumar Singh Vs State Of U.P. & Ors. 275 Scope of Section 482 Cr.P.C.: Interference permissible only in cases of jurisdictional error or perversityNot a substitute for appellate re-appreciation. Quantum of maintenance: Determination at interim stage based on prima facie material-Disputed facts to be decided finally by trial court. RESULT: Application partly allowed. Interim maintenance granted to major daughter Ashmita Singh set aside. Interim maintenance in favour of wife and minor daughter Anupama Singh sustained, subject to entitlement till attainment of majority. Observations confined to interim stage and shall not prejudice final adjudication. (Delivered by Hon'ble Rajan Roy, J.) 1. Heard. 2. The criminal revision No.419 of 2015 has been converted into an application under Section 482 Cr.P.C. by the order of this court dated 9.6.2016. 3. The applicant herein who is the husband has challenged the appellate order dated 15.6.2015 passed under Section 29 of the Protection of Women From Domestic Violence Act 2005 (hereinafter referred as 'Act') by the learned Addl. Sessions Judge (Court No.5) Raebareli and the original order dated 19.2.2015 passed under Section 23 read with Section 20 of the Act by the learned Chief Judicial Magistrate Raebareli granting interim maintenance. 4. Contention of learned counsel for the applicant herein is that the application for interim maintenance purported to have been moved under Section 20(4) of the Act was not maintainable as under the provisions of the said Act there was no provision for grant of interim maintenance. Further contention was that in the complaint under Section 12 it is only the wife who was the complainant and not the children, therefore, no relief could have been claimed for the children by way of interim maintenance. It is further contended that both the children were major, as was evident from parivar register and also from the age mentioned in the application for interim maintenance, as such, they were not entitled to interim maintenance, as, such maintenance, assuming it to be admissible, can only be granted to an aggrieved person or her child. Child is defined under Section 2(b) of the Act to mean 'any person below the age of eighteen years and includes any adopted, step or foster child'. In view of the facts narrated by the respondent herself before the court below no interim maintenance could have been ordered to the children. Even if it could be considering the fact as asserted by the respondent herein that they were minors, such claim could only have been entertained through the aggrieved person which was not the case herein. 5. On the quantum of maintenance awarded the applicant has relied upon various documents including the Tehsildar's certificate showing the monthly income as Rs.1916/- per month. The information provided to him under the Right to Information Act 2005 as contained in Annexure-6 to the application mentioning that the applicant did not own any property in his name 276 INDIAN LAW REPORTS ALLAHABAD SERIES in the area as alleged nor any shops which in fact were in the name of his mother. It was further contended that the respondent-wife was in fact running a beauty parlour. In this context the court was informed that an affidavit of a landlady of the building wherein the said beauty parlour was being run was filed before the court below, but, the same has not been appreciated. Attention of the court was invited to an alleged receipt of licence-fee issued by the Zila Panchayat Raebareli in respect to the beauty parlour alleged to be run by the respondent, photocopy of which is annexed as Annexure-1. 6. It was contended that the appellate court has only been persuaded by report of the Protection Officer and the fact that the applicant did not rebut his report. It is also contended that earlier a brik kiln was being run by his brother, but considering the attempt of the respondent with the aid of her brother to usurp the same which was a proprietorship concern, the same was closed and was not functioning any more. He invited attention of the court to certain documents relating to the Trade Tax Department to show that such attempt on the part of the respondent alongwith her brother to usurp the brick-kiln was turned down and their application was rejected. 7. Learned counsel for the respondents, on the other hand, contended that that the applicant had himself stated before the Protection Officer that he alongwith his brother had been running a brick-kiln. As regards the age of the children the learned counsel for the respondents candidly admits that one of the child namely Km. Ashmita Singh was above 18 years old when the impugned orders were passed. The mark-sheets of the children have been annexed which prima facie show that the other child namely Km. Anupama Singh was below 18 years at the relevant time. It is contended that the wife was ill treated by the applicant which led to initiation of the complaint proceedings under Section 12 of the Act wherein an application for interim maintenance was moved in view of Section 23 read with Section 20 of the Act. Mere mentioning of a wrong provision on the application does not disentitle the respondents to the relief claimed. Under the Act it is only the wife who is the aggrieved person, therefore, the complaint was filed only by the wife. It is contended that the children were studying in M.A. and B.A. respectively for which expenses were liable to be incurred and it was for the husband to provide the same, in addition to making provision for the maintenance of the respondent-wife. The amount awarded was reasonable and necessary for the sustenance of the wife and the child. 8. The respondent appeared in person today who was identified by her counsel and stated that earlier she was running a beauty parlour while residing with her in-laws, but at present she was not running such parlour. 9. The Act was enacted to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Under Section 12 of the Act an application may be presented to the Magistrate seeking one or more reliefs under the Act by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person. The term 'aggrieved person' is defined under Section 2(a) to mean any woman who is, or has been, in a 6 All. Anil Kumar Singh Vs State Of U.P. & Ors. 277 domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. 10. Thus, as per the provisions contained in Section 12 read with Section 2(a) an application to the Magistrate seeking one or more reliefs under the Act can be presented only by an aggrieved person who is the woman defined under Section 2(a) or a protection officer or any other person on behalf of the aggrieved person. Domestic relationship has been defined in Section 2(f) which would not only include the relationship of husband and wife, but other relationships in the nature of adoption or as family members living together as a joint family, but the use of the word 'woman' while defining the term 'aggrieved person' under Section 2(a) would exclude minor children i.e. those below 18 years, but this does not mean that no relief can be sought for these children as would be evident from the other provisions of the Act, specially Section 20(1) which deals with monetary reliefs and provides that while disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to-- (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. 11. Sub-Section (2) of Section 20 states that monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. 12. Section 23 relates to the power to grant interim and ex parte orders and sub-Section (1) states that in any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. These are words of wide amplitude and, therefore, will include the power to grant interim maintenance specially in view of the fact that such maintenance can be granted under Section 20(1)(d) not only to the aggrieved person, but to children also. Therefore, obviously the children below 18 years are to claim through the aggrieved person being in relationship of mother and child and father and child as in view of Section 12 read with 2(a) they cannot be complainants. A hypertechnical approach in this regard is not warranted. Sub-Section (2) refers to the passing of ex parte orders under Sections 18,19,20,21 and 22 subject to the conditions mentioned therein. 13. In view of the above, contention of the applicant that the original application under Section 12 having been filed only by the wife, no interim maintenance could be claimed by the children, is against the scheme of the Act and the provisions contained therein. Likewise to contend that there is no provision for grant of interim maintenance, is also misconceived, as, even if there is no such provision under Section 20(4), which obviously appears to be erroneously mentioned in the application, there is certainly a provision under Section 23 read with Section 20. Legislative intent 278 INDIAN LAW REPORTS ALLAHABAD SERIES is very clear that maintenance can be awarded as a final relief as also as interim relief. The object is also very clear which hardly requires any emphasis. 14. As far as the other point raised by the applicant that the children were major, certainly in proforma of the complaint and in the affidavit in support of the interim maintenance application age of both of them is mentioned as 18 and 20 years respectively. This plea regarding the age of the children shall be determined finally at the time of final adjudication before the court concerned, but at this stage in view of the Transfer certificate/marks-sheet filed which prima facie indicate that one of the child i.e. Km. Ashmita Singh was above 18 years while the other was less than 18 years, the plea of the applicant is partly accepted. 15. As far as the grant of maintenance to Km. Ashmita Singh is concerned, she being above 18 years could not be awarded maintenance under the Act 2005 by the courts below. This however is subject to final adjudication in the complaint which is still pending. 16. It is not a case of grant of maintenance under Section 125(c) of the Code of Criminal Procedure. 17. Now sofar as quantum of the maintenance granted is concerned and the plea that the petitioner's income is only Rs.1916/- per month, on perusal of the orders passed by the courts below this court finds that the maintenance has been granted to the wife and the children based on the inquiry by the Protection Officer and the pleas raised before him. As recorded by the Protection Officer it was stated by the applicant at the relevant stage that he alongwith his brother had been running a brick kiln earlier. 18. As far as contention of the applicant based on the certificate of Tehsildar concerned, its evidentiary value would be considered at the time of final adjudication, as, at best it is only one piece of evidence as against others. Evidentiary value of the information provided to the applicant under the Right to Information Act shall also be determined at the time of final adjudication, but, based on this document at this stage this court cannot conclude that the findings of the court below as regards the income of the applicant and his liability to maintain his wife and minor children suffers from any perversity or error in law. In para 4 of the applicant's affidavit in support of the application for interim relief it has been stated that the brother of the revisionist namely Sunil Singh had started a brick-kiln, but due to some reason it was stopped in the year 2002 and again the same was started. Before the Protection Officer it has been recorded that he alongwith his brother had been running a brick-kiln. It is not very clear as to whether the mother who is said to be the owner of twenty shops resides with the applicant or separately. The applicant has claimed that the brother is residing separately. Possibility of these pleas being raised so as to avoid payment of maintenance to the wife and children cannot be ruled out at this stage. 19. As far as the plea that the respondent is running a beauty parlour is concerned, though the applicant had filed affidavit of the alleged landlady, but she never appeared before the court, therefore, the court cannot be faulted for not relying on the said affidavit. Furthermore, as regards 6 All. Indra Pal Singh (I.P. Singh) Vs State Of U.P. & Ors. 279 the alleged receipt contained as Annexure RA-1 to the rejoinder affidavit is concerned, this was not available with the courts concerned and in these proceedings the court is not expected to entertain fresh evidence before it for the purpose of determination of interim maintenance. This issue can be sorted out finally before the court concerned, but as of now orders impugned cannot be faulted on this score. 20. Copy of the objections filed by the applicant to the interim maintenance application though not annexed with the record was placed before the court by the applicant himself. It does not contain any rebuttal by him of the Protection Officer's report, therefore, the court below cannot be faulted on this count also. 21. Having gone through the impugned orders this court does not find any such jurisdictional or legal error so as to interfere in the exercise of its inherent jurisdiction under Section 482 except to the extent that the courts below have erred in awarding maintenance to the major child Ashmita Singh, therefore, the impugned order only to this extent is set aside. Remaining part sofar as it relates to the amount of maintenance to the wife and the other child Anupama Singh is concerned, same is sustained subject to the condition that Anupama Singh shall be entitled to such maintenance under the Act only till she attains the age of 18 years. 22. This shall, however, not prejudice the adjudication of all the relevant issues involved in the complaint by the court concerned under the Act finally. The application is partly allowed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 13.06.2016 BEFORE THE HON'BLE SHRI NARAYAN SHUKLA, J. THE HON'BLE SUNEET KUMAR, J. Misc. Bench No.- 13915 Of 2016 Indra Pal Singh (I.P. Singh) ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Asok Pande, Satyendra Kumar Mishra, Tripuresh Kumar Tripathi Counsel for Respondents: Govt. Advoctae, A.S.G., Amarjeet Singh Ranhra Head Notes: Public Interest Litigation-Maintainability-Political person-Personal and political grievanceCamouflaged PIL-Abuse of process-Dismissal with costs.