1. Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.

2. The petition is filed under Articles 226 and 227 of the Constitution of India, to challenge the judgment and order of Criminal Appeal No. 35/2009, which was pending in the Court of Additional Sessions Judge, Osmanabad. The appeal challenging the order made by J.M.F.C., Bhoom in Criminal Mis. Application No. 141/2008 filed under section 12 of the Domestic Violence Act, 2005 [hereinafter referred as the "Act" for short] is allowed by the Sessions Court. The protection order and maintenance order made by J.M.F.C. in favour of the petitioner are set aside by Sessions Court.

3. It is the case of the petitioner that she is the second wife of respondent. She cohabited with respondent for 4-5 years after the marriage in his house, where he was living with first wife. It is her case that the respondent and his first wife drove her out of the matrimonial house on 1.11.2007 after giving severe ill-treatment to her. It is her case that, respondent was asking her to bring money and gold ornaments from her parents and was compelling her to do hard labour work. It is her case that she was mentally and physically harassed by the respondent and his first wife and they were demanding Rs. 50,000/-from her parents for purchasing the motorcycle.

4. It is the case of wife that she has no source of income and she is unable to maintain herself and the husband has refused and neglected to maintain her. It is her case that she is living in a rented house. She had claimed relief like protection order, allowance for making payment of rent and compensation amount. It is her case that the husband is in a position to give such allowance as he owns 20 Acres of agricultural land and as he is in service.

5. The respondent has denied the relationship. He has denied that there was cohabitation with the petitioner. He has admitted that he is in service. It is the case of respondent that due to the contention of the petitioner that she is the second wife, the proceeding under section 12 of the Act is not tenable.

6. Before J.M.F.C. the petitioner examined herself, her father, one priest of marriage and one Chagan to give evidence on the factum of marriage. She has examined one Dr. Yadav to show that the respondent had taken her to the dispensary of this lady doctor for medical check up and there was the cohabitation between her and the respondent.

7. The respondent did not examine himself to give evidence in rebuttal. No evidence at all is given in defence by the present respondent. The tenor of cross examination of the witnesses shows that the respondent has no issue from first wife. The tenor shows that the petitioner is a relative of respondent and defence is taken that the petitioner and her father were insisting the respondent to perform marriage with the petitioner as the respondent had no issue from first wife. From the evidence given, it can be said that the petitioner also did not conceive, though there was cohabitation of 4-5 years.

8. The evidence of Dr. Yadav, Gynecologist, examined by the petitioner shows that the respondent had taken the petitioner to this lady doctor for medical check up. The circumstance that the respondent is not having any issue from the first wife needs to be kept in mind while appreciating the evidence given against him. There was no reason for the lady doctor to create false record of case papers or to give false evidence in favour of the present petitioner. The proceeding under section 12 of the Act needs to be decided in summary manner and so the Court should look for the nature and extent of proof accordingly.

9. The petitioner has given evidence that her marriage with the respondent was performed on 20.11.1999. She has deposed that there was the total cohabitation of around 6 years and during last 2 years of the cohabitation, ill-treatment was given to her. She has deposed that she cohabited with the respondent in the