Hon'ble Vijay Prakash Pathak, J.
Heard learned counsel for the petitioner as well as learned AGA for the State and perused the record.
Present petition has been filed with the prayer to quash the judgment and order dated 17.09.2014 passed by Additional Sessions Judge, Court No. 7, Varanasi dismissing the criminal appeal no. 59 of 2014 filed by the petitioner against the order dated 13.03.2014 passed by Additional Chief Judicial Magistrate, Court No. 8, Varanasi in case no. 1271 of 2012, under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as “the Act”), by which the application filed by the petitioner under Section 25(2) of the Act for setting aside the earlier order dated 03.12.2011 granting interim maintenance has been rejected. It has also been prayed to quash the order dated 14.06.2013 passed in the aforesaid case rejecting the objection filed by the petitioner and directing for issuance of recovery warrants of Rs. 44,000/-.
Learned counsel for the petitioner has contended that after the order passed on 03.12.2011 by the trial court against the petitioner for interim maintenance under Section 23 of the Act, the petitioner became mentally ill and his treatment of mental disease was going on by Dr. Hemant Singh and the petitioner was not in a position to maintain even himself, hence it was prayed to set aside the order for interim maintenance, but the learned trial court has rejected the application filed by the petitioner illegally and directed to issue recovery warrants of Rs. 44,000/-. It is also submitted that thereafter an application u/s 25(2) of the Act was also filed for setting aside the order for interim maintenance, but the learned trial court without properly considering the entire materials including the medical papers issued by Dr. Hemant Singh, rejected the said application filed by the petitioner and directed to issue recovery warrants of Rs. 66,000/- and the learned lower appellate court has also not considered the matter properly and illegally dismissed the appeal filed by the petitioner.
On the other hand, learned AGA has supported the orders impugned passed by both the courts below and has contended that there was no change in the circumstances and the orders have rightly been passed by both the courts below.
I have considered the said arguments and have perused the orders impugned passed by both the courts below along with all other materials available on record.
It appears that during pendency of the complaint u/s 12 of the Act, an application u/s 23 of the Act was moved by the respondent no. 2 for interim maintenance, which was allowed vide order dated 03.12.2011 by the trial court granting interim maintenance of Rs. 4000/- per month. Thereafter, the petitioner filed an objection on the ground that he was mentally ill since June, 2011 and he was not in a position even to maintain himself, but his objection was rejected by the learned trial court vide order dated 14.06.2013 and a recovery warrants of Rs. 44,000/- was directed to be issued. Thereafter, the petitioner again moved an application u/s 25(2) of the Act for setting aside the order for interim maintenance including the recovery warrants annexing therewith the medical papers issued by Dr. Hemant Singh, but the same has also been rejected by the learned trial court vide order dated 13.03.2014 and at the same time the trial court has directed to issue recovery warrants of Rs. 66,000/-.
Aggrieved against the said order dated 13.03.2014, the petitioner filed a criminal appeal no. 59 of 2014 before the lower appellate court, which has been decided by the learned Additional Sessions Judge, Varanasi vide judgment and order impugned dated 17.09.2014 dismissing the said appeal.
Learned trial court while passing the order impugned has considered the matter in detail and has held that if the petitioner was mentally ill from before the order passed for interim maintenance, he should have made said allegations in his objection before passing order of interim maintenance, but no such objection was made which shows that the subsequent allegations regarding mental illness were made afterthought and accordingly the application filed by the petitioner to set aside the order for interim maintenance was rejected. Learned lower appellate court has also considered the matter in detail and came to the conclusion that there is no such medical certificate or medical evidence available on record to show the seriousness of the mental illness and to show that due to said illness he was unable to earn and was fully unable to maintain himself and in the absence of such evidence his application is liable to be rejected and accordingly the trial court has rightly rejected the same, hence no interference is required in the impugned order passed by the learned trial court and accordingly the order passed by the learned trial court has been affirmed after dismissing the appeal filed by the petitioner.
I find no infirmity, illegality, irregularity or jurisdictional error in the orders impugned passed by both the courts below and this petition has no force and is hereby dismissed.