IN THE HON'BLE HIGH COURT OF UTTARAKHAND AT

NAINITAL

INDEX
IN
CRIMINAL MISC. APPLICATION No. -------55----------- OF
2018
(Under Section 482 Cr.P. C.)
DISTRICT:DEHRADUN

Smt. Shivani Devi aged about 70 years W/o Sri BihariLalBikshu,

Resident of Village and Post office Shamshergarh Distract Dehradun
-------------Applicant
Versus
State of Uttarakhand through its Secretary Home, Govt. of
Uttarakhand, Dehradun and another
…..Opposite Parties

Seri Particulars Page

al Nos.
No.
1. Index
2. Criminal Misc. Application
3. Affidavit
4. Annexure-1 A true copy of the complaint filed by
the applicant U/s 17, 18, 19, 20 & 22
of Protection of Women from Domestic
Violence Act
5. Annexure-2 A true copy of the objection/application
and affidavit
6. Annexure-3 A true copy of the order dated 9.9.2016
7. Annexure-4 A true copy of the memo of appeal
8. Annexure-5 A true copy of the order dated
6.10.2016
9. Annexure-6 A true copy of the application dated
7.3.2017
10. Particulars of counsels of party in court below
11. Vakalatnama

Date- 1/2018 Shivam mehta

Advocate
Counsels for the Applicant
 IN THE HON'BLE HIGH COURT OF UTTARAKHAND AT

NAINITAL

CRIMINAL MISC. APPLICATION No. --------55---------- OF

2018
(Under Section 482 Cr.P. C.)
DISTRICT : DEHRADUN

Smt. Shivani Devi aged about 70 years W/o Sri BihariLalBikshu

Resident of Village and Post office Shamshergarh Distract Dehradun
-------------Applicant
Versus
1. State of Uttarakhand through its Secretary Home, Govt. of
Uttarakhand, Dehradun

2. Sri BihariLalBikshu S/o Late Sri Dilwan Singh, Resident of

Village and Post office Shamshergarh Distract Dehradun

…..Opposite Parties

Arises from Criminal Case No. 1408

of 2015Smt.ShivaniDevi Vs. Sri
BihariLalBhikshu U/s 17, 18, 19, 20
& 22 of Protection of Women from
Domestic Violance Act pending
before III Additional j
Judge(J.D.)/Judicial Magistrate
Dehradun
To,
The Hon'ble the Chief Justice and his other companion Judges
of the aforesaid Hon'ble High Court.
The humble petition of the above named applicant most
respectfully showeth as under:-

1. That in view of the facts and circumstances of the present case,

mentioned in the accompanying affidavit which forms part of the
present application, it is expedient in the interest of justice that the
impugned part of order dated 6.10.2016 passed Sessions Judge
Dehradun in Criminal Appeal No. 141 of 2016 BihariLal Versus Smt.
ShivaniDevi, reducing the interim maintenance from Rs. 5,000/- per
month granted by the learned III, Additional Civil Judge(J.D.)/Judicial
Magistrate Dehradun vide order dated 9.9.2016 U/s 23(2) of
Protection of Women from Domestic Violence Act to Rs. 2,500/- per
months,may beset aside and quashed and/or pass such other and
further order which this Hon’ble court may deem fit and proper under
the circumstances of the case, otherwise the applicant shall suffer
irreparable loss and injury.

PRAYER
It is, therefore, Most respectfully prayed that this Hon’ble court
may be pleased to allow this application and the impugned part of
order dated 6.10.2016 passed Sessions Judge Dehradun in Criminal
Appeal No. 141 of 2016 BihariLal Versus Smt. ShivaniDevi, reducing
the interim maintenance from Rs. 5,000/- per month granted by the
learned III, Additional Civil Judge(J.D.)/Judicial Magistrate Dehradun
vide order dated 9.9.2016 U/s 23(2) of Protection of Women from
Domestic Violence Act to Rs. 2,500/- per months, may be set aside
and quashed and/or pass such other and further order which this
Hon’ble court may deem fit and proper under the circumstances of the
case.
It is further prayed that operation and effect of the impugned
part of order dated 6.10.2016 passed Sessions Judge Dehradun in
Criminal Appeal No. 141 of 2016 BihariLal Versus Smt. ShivaniDevi
bestayed during the pendency of present application.

Shivam mehta
Advocate
Counsels for the Applicant
Dated: 1/2018.
 IN THE HON'BLE HIGH COURT OF UTTARAKHAND AT
NAINITAL

AFFIDAVIT
IN
CRIMINAL MISC. APPLICATION No. ----------55-------- OF
2018
(Under Section 482 Cr.P. C.)
DISTRICT : DEHRADUN

Smt. ShivaniDevi aged about 70 years W/o Sri BihariLalBikshu,

Resident of Village and Post office Shamshergarh Distract Dehradun
-------------Applicant

Versus

State of Uttarakhand through its Secretary Home, Govt. of

Uttarakhand, Dehradun and another
…..Opposite Parties

Affidavit of Smt. ShivaniDevi

aged about 70 years W/o Sri
BihariLalBikshu, Resident of
Village and Post office
Shamshergarh Distract Dehradun

(DEPONENT)

I, the deponent above named do hereby solemnly affirm and

state on oath as under:-

1. That the deponent is sole applicant in the aforesaid application

and as such she is fully acquainted with the facts and circumstances of
the case and is in a position to depose as under:-
2. That the this is the First Application Under Section 482
Cr.P.C. on behalf of the applicant for quashing the impugned part of
order dated 6.10.2016 passed Sessions Judge Dehradun in Criminal
Appeal No. 141 of 2016 BihariLal Versus Smt. ShivaniDevi, reducing
the interim maintenance from Rs. 5,000/- per month granted by the
learned III, Additional Civil Judge(J.D.)/Judicial Magistrate Dehradun
vide order dated 9.9.2016 U/s 23(2) of Protection of Women from
Domestic Violence Act to Rs. 2,500/- per months. The applicants
have not filed any other application Under Section 482 Cr.P.C. for the
same and ancillary relief.

3. That brief facts giving rise to the present case are that the
opposite party married with applicant in the year 1960 and from the
matrimonial wedlock of the opposite party no. 2 and applicant two
sons namely Devendra Kumar and Rajendra Mohan and two
daughters Smt. Pranita Devi and Smt. Saroj Devi were born. It is
submitted here that before the marriage with the applicant the opposite
party no. 2 was married with one Smt. Devi and two sons and two
daughters were born from the matrimonial wedlock of the opposite
party and Smt. Devi.

4. That after the marriage with the applicant the opposite party no.
2 purchased a land in Shamshergarh, District Dehradun and on one
part of the said land a residential house was constructed. It is
submitted here that the opposite party no. 2 was posted as Range
Officer in forest Department and during his service tenure the
opposite party no. 2 stayed with applicant only when he was posted in
Dehradun and during rest of the service tenure he remain stayed in his
posting places while the applicant resided in Dehradun. It is submitted
here that even after the marriage with the applicant and even there are
two sons and two daughter the opposite party no. 2 from the wedlock
of the applicant and opposite party no. 2, the opposite party also
married with one Smt. Sundari and again with one Smt. Jagdamba. It
is submitted here that since the year 1990 to the year 1998 the
opposite remain stayed with Smt. Jagdamba in village Sunali, Tehsil
PurolaDistrit Uttarkashi and thereafter he came to Shamshergarh
Dehradun and thereafter startedcruelties upon the applicant.

5. That the it is submitted here that in the property of

Shamshergarh one part has been given to the elder son Devendra on
which he has constructed house and his family is residing therein. It is
also submitted here that there are two rooms in the house constructed
at Shamshergarh along with other facilities in which the opposite
parties alongwith two wives i.e. applicant and Smt. Devi are residing
but the opposite party no. 2 locked the room in which the applicant
was residing with opposite party no. 2. It is further submitted here that
when the applicant was tried to reside in another room the opposite
party no. 2 assaulted her due to which the applicant sustained Head
injuries. It is further submitted here that when the daughter in law of
the applicant Smt. Suneeta Devi tried to help the applicant the
opposite parties started making false and frivolous complaints to the
authorities and court against the husband of the Smt.Suneeta.

6. That the opposite party no. 2 started cruelties upon the applicant
and harassed her physically and mentally and even the joint land in
the name of applicant and opposite party no. 2 on which the applicant
was doing agricultural work , the opposite party used to sale the
agricultural products and does not give the share of the applicant. It is
further submitted here that when the applicant demanded to part her
share in the said agricultural land the opposite party started quarrelling
with the applicant.
7. That the opposite party no.2 in order to harass the applicant and
in order to deprive the applicant from her lawful rights the opposite
party even got entered the name of younger daughter in law Smt.
Geeta as his nominee.,

8. That due to helping the applicant by her elder daughter in law

Smt. Suneeta the opposite party no. 2 started harassing the elder son
Devendra and his wife Smt. Suneeta, therefore, they stopped helping
the applicant consequently the applicant has been deprived even from
daily uses goods and expenses and she is an old lady and has no
means to livelihood due to the domestic violence committed by the
opposite party no. 2.

9. That under the aforesaid circumstances the applicant took

shelter of the court and filed a Criminal Case No. 1408 of 2015 Smt.
ShivaniDevi Vs. Sri BihariLalBhikshuclaiming relief U/s 17, 18, 19,
20 & 22 of Protection of Women from Domestic Violence Act before
Judicial Magistrate Dehradun. A true copy of the complaint filed by
the applicant U/s 17, 18, 19, 20 & 22 of Protection of Women from
Domestic Violence Act is being filed herewith and is marked as
Annexure no. 1 to this affidavit.

10. That it is further submitted here that applicant moved an

application U/s 23 of Protection of Women from Domestic Violence
Act claiming interim maintenance. It is further submitted here that the
opposite party no. 2 filed his objections to the aforesaid application
U/s 23 of Protection of Women from Domestic Violence Act. A true
copy of the objection/application and affidavit filed by the opposite
party no. 2 is being filed herewith and is marked as Annexure no.2 to
this affidavit.
11. That after hearing to the parties and after examining the material
on record the learned III Additional civil Judge( J.D.) Dehradun
passed order dated 9.9.2016 whereby the learned III Additional Civil
Judge (J.D.) was pleased granted Rs. 5000/- per month as interim
Maintenance to the applicant under section 23(2) of Domestic
Violence Act and further directed the respondent not to commit any
domestic violence upon the applicant and further not to interfere in
residing of the applicant in the house situated at Shamshergarh. A true
copy of the order dated 9.9.2016 is being filed herewith and is marked
as Annexure No. 3 to this affidavit.

12. That against the aforesaid order dated 9.9.2016 the opposite
party no. 2 filed a Criminal appeal No. 141 of 2016 BihariLalBhikshu
Versus Smt. Ram Pyari. A true copy of the memo of appeal is being
filed herewith and is marked as Annexure No. 4 to this affidavit.

13. That it is submitted here that the opposite party no. 2 also filed a
stay application numbered as Application 6Kha and the same was
disposed off on the date of admission of the appeal by the impugned
order dated 6.10.2016 whereby the learned Sessions Judge Dehradun
reduced the amount of interim maintenance from Rs. 5,000/- per
month to Rs. 2,500/- per months. A true copy of the order dated
6.10.2016 is being filed herewith and is marked as Annexure No. 5 to
this affidavit.

14. That the impugned order dated 6.10.2016 passed by the learned
Sessions Juedge Dehradun is illegal and improper and has been passed
without hearing the applicant, therefore the same is liable to be set
aside and quashed.
15. That the opposite party no. 2 after obtaining the stay order is
lingering on the disposal of the appeal and even he did not pay the
entire amount of Rs. 2500/- per month after which the applicant
moved an application before the trial court for ensuring the
compliance of the order however the same is still pending. A true
copy of the application dated 7.3.2017 is being filed herewith and is
marked as Annexure No. 6 to this affidavit.

16. That the learned lower appellate court failed to consider that the
applicant is a old lady aged about 70 years having no source of
livelihood including the regular medical need due to old age and Rs.
2500/- per months is a meager amount which is not sufficient while
the opposite party no. 2 is able to pay the same as he is pensioner from
the post of Forest Range Officer.

17. That the applicant is an old ailing women of 70 years having no

source of income and could not arrange the expenses for challenging
the order dated 6.10.,2016 earlier before this Hon'ble Court, therefore
the latches of delay in filing of the present application under Section
482 Cr.P.C. are liable to be ignored.

18. That the impugned order passed by the court below without
affording an opportunity of hearing and the same suffer by principle
of natural justice therefore the impugned order is liable to be set aside.

19. That in case the impugned order dated 6.10.2016 is allowed to

sustain it would resulted into gross miscarriage of justice and the
applicant will be deprived from her daily uses goods and medicines
and other requirement therefore the impugned order dated 6.10.20176
is liable to be set aside.
20. That under these circumstance it is expedient in the interest of
justice that the impugned part of order dated 6.10.2016 passed
Sessions Judge Dehradun in Criminal Appeal No. 141 of 2016
BihariLal Versus Smt. ShivaniDevi, reducing the interim maintenance
from Rs. 5,000/- per month granted by the learned III, Additional
Civil Judge(J.D.)/Judicial Magistrate Dehradun vide order dated
9.9.2016 U/s 23(2) of Protection of Women from Domestic Violence
Act to Rs. 2,500/- per months may kindly be quashed.

It is also further expedient in the interest of justice that the

operation and effect of the impugned part of order dated 6.10.2016
passed Sessions Judge Dehradun in Criminal Appeal No. 141 of 2016
BihariLal Versus Smt. ShivaniDevi may be stayed during the
pendency of the present application before this Hon'ble Court.

I, the deponent above named do hereby declare that contents of

paragraph Nos. -------1 to 6----------------------------of the affidavit are
true to my personal knowledge and those of the contents of para no.
----------------9 to 14----------------of the affidavit are based on perusal
of records, and those of the para no ----------------15 to 20-----------of
the affidavit are based on legal advice, which all I verify and believe
to be true that no part of this affidavit is false and nothing material has
been concealed.

SO HELP ME GOD
DEPONENT
I, J. K. Jain Advocate, District Court Dehradun, do hereby
declare that the person making this affidavit and alleging himself to be
deponent, is known to me through the perusal of records.
Advocate
 Solemnly affirm before me on this _____ day of Jan. 2018 at
about ______/am/pm by the deponent, who has been identified as
above.
I have satisfied myself by examining the deponent, who has
understood the contents of the affidavit, and which has been read over
and explained to her by me.

NOTARY PUBLIC
 IN THE HON'BLE HIGH COURT OF UTTARAKHAND AT
NAINITAL
LIST OF COUNSEL IN THE COURT BELOW
IN
CRIMINAL MISC. APPLICATION No. ----55-----OF 2018
(Under Section 482 Cr.P. C.)
DISTRICT : DEHRADUN

Smt. ShivaniDevi aged about 70 years W/o Sri BihariLalBikshu,

Resident of Village and Post office Shamshergarh Distract Dehradun
-------------Applicant
Versus
State of Uttarakhand through its Secretary Home, Govt. of
Uttarakhand, Dehradun and another

…..Opposite Parties

Counsel for the applicant Sri J.K. Jain

Advocate
District Court Compound
Dehradun
Counsel for opposite party No. 2 Sri K.N. Nautiyal
Advocate
District Court Compound
Dehradun