2017 Supreme(Raj) 1013
IN THE HIGH COURT OF RAJASTHAN
P.K. Lohra, J.
Parvati W/o Ramesh Kumar - Petitioner
Versus
State of Rajasthan and others - Respondent
S.B. Criminal Revision No. 1258 of 2015
Decided On : 20-04-2017
For the Petitioner:Mr. I.R. Choudhary, Advocate.
For the State :Mr. R.K. Bohra, Public Prosecutor., Mr. N.L. Joshi, Advocate.
Headnote:
Prevention of Women from Domestic Violence Act, 2005 - Section 12 – Criminal Procedure Code,1973 - Section 397/401 - Jurisdiction - Assailed impugned orders - Attempt to strangulate - Inadequate dowry - Appellate Court to enhance interim maintenance amount mother of three minor children and wife of respondent petitioner has preferred this revision petition - Petitioner has set up a case that she was forced to leave her matrimonial home after suffering ill-treatment and harassment for years together - A fact of great significance is also highlighted by petitioner that respondents made an attempt to strangulate her for bringing inadequate dowry - Initially petitioner assailed impugned orders by filing petition - Petitioner was married to respondent on of February as per Hindu rites and rituals at and out of wedlock three children were born - As per version of petitioner during subsistence of matrimony for more than a decade she has suffered humiliation cruel-treatment and beatings at hands of husband and her in-laws - Held, This Court in Civil Misc. Appeal decided on of March duly recognized right of a mother for interim custody of a minor child Minority & Guardianship Act - Court has also observed that paramount consideration while granting interim custody of a minor child is to see moral and ethical welfare of a child - It is also ruled by Court that factum of re-marriage of mother cannot disentitle her to claim interim custody of her minor kids - Needless to observe here that this Court has also acknowledged visitation right of a mother therefore in totality of in considered opinion both Courts below have committed a manifest error of law and fact in declining prayer of petitioner for visitation rights to meet her children - In view thereof impugned order to that extent is liable to be interfered with in exercise of revision jurisdiction - Petition allowed
P.K. Lohra, J. - Unsuccessful in getting visiting rights to meet her children before both the Courts below and refusal of appellate Court to enhance the interim maintenance amount, mother of three minor children and wife of respondent No.2-Ramesh Kumar, petitioner - Parvati, has preferred this revision petition under Section 397/401 Cr.P.C. The petitioner has set up a case that she was forced to leave her matrimonial home after suffering ill-treatment and harassment for years together. A fact of great significance is also highlighted by the petitioner that respondents made an attempt to strangulate her for bringing inadequate dowry. Initially, petitioner assailed the impugned orders by filing petition under Section 482 Cr.P.C. but later on, considering her request, the same is treated as revision petition under Section 397/401 Cr.P.C.
2. Succinctly stated, the facts of the case are that petitioner-Parvati was married to respondent No.2-Ramesh Kumar on 26th of February, 2001 as per Hindu rites and rituals at Ratangarh and out of wedlock three children were born. As per version of the petitioner, during subsistence of matrimony for more than a decade she has suffered humiliation, cruel-treatment and beatings at the hands of husband and her in-laws. On many occasions petitioner's parents were abused and false imputations were made against her chastity. Cruelty was perpetrated on her for bringing inadequate dowry and respondents' unlawful demand of property or valuable securities continued unabatedly and forced her to leave matrimonial home. Highlighting and emphasizing all the allegations, petitioner eventually knocked the doors of Courts and filed an application under Section 12 of the Prevention of Women from Domestic Violance Act, 2005 (for short, 'Act of 2005') before Additional Chief Judicial Magistrate, Ratangarh (for short, 'learned trial Court') to claim maintenance at the rate of Rs.5,000/- per month with interim relief of visiting rights to meet her children and interim maintenance.
3. The learned trial Court, by its order dated 13th of January, 2015, granted interim maintenance to the petitioner for a sum of Rs.2,500/- per month but declined her prayer for visiting rights to meet her children. Feeling aggrieved by the said order of the learned trial Court petitioner approached Additional Sessions Judge, Ratangarh (for short, 'learned appellate Court') by filing an appeal but her that effort proved abortive inasmuch as learned appellate Court neither enhanced the quantum of interim maintenance nor allowed her visiting rights to meet her children. The order dated 23rd of July, 2015, to this effect, of the learned appellate Court is impugned in the instant revision petition.
4. At the outset, learned counsel for the petitioner submits that both the Courts below have seriously erred in declining the prayer of petitioner for visiting rights inasmuch as her afflictions have not been examined in the light of provision contained under Section 21 of the Act of 2005. Learned counsel for the petitioner would contend that she being mother, her right to visit children cannot be curtailed even if she is having different place of her residence. Learned counsel during the course of his arguments has not pressed the prayer for enhancement of interim maintenance. In support of his arguments, learned counsel has placed reliance on following judgments.
1. Jyoti @ Rashmi v. State of Rajasthan & Ors. [2014 (3) Cr.L.R.(Raj.) 1325]
2. Kalyan Roy v. Priyanka Roy (Banerjee) [2016 (1) Crimes 228] (Calcutta High Court)
3. Vinay Gupta v. Saveri Nayak [2017 (1) Crimes 53 (Orissa High Court)
4. Sandeep Kumar Thakur v. Madhubala [2016 (sup) Him.L.R. 2611 (Himachal Pradesh High Court)
5. Vikas Agarwal v. Geeti Mathur [M.A.T. APP. (F.C.) 171/2016 (D.B. Delhi High Court).
5. Per contra, learned counsel for the respondents submits that in view of concurrent finding by both the Courts below, no interference in exercise of revisional jurisdiction is warrante