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Revision against interim maintenance under section 24 of HM Act.

 

“It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).”

 

THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL. M.C. 3948/2008

Date of Decision: 18.05.2012

SANTOSH MALHOTRA ….. Petitioner Through: Ms. Nandita Rao, Advocate.

versus

VED PRAKASH MALHOTRA AND OTHERS …. Respondents Through: Ms. Arati Mahajan,

Advocate.

CORAM:

HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This petition under Section 482 CrPC assails the order dated 23.8.2008 of ASJ passed in criminal revision filed by the petitioner against the order of the M.M. dated 8.3.2007.

2. The petitioner is the wife of the respondent No. 1 and the mother of the respondents No. 2 & 3. She filed a petition under Section 125 CrPC against them seeking maintenance. In the said case, the learned M.M. declined the request of the petitioner for grant of interim maintenance vide his order dated 8.3.2007. The said order was taken in revision by the petitioner in the court of Additional Sessions Judge, who vide the impugned order dated 23.8.2008 granted interim maintenance to the petitioner against her husband (respondent No. 1) at the rate of Rs. 2000/-

Crl.M.C. 3948/2008 Page 1 of 8 per month from the date of the filing of the application. The petitioner has challenged the said order of the ASJ in the present petition and seeks enhancement of compensation against her husband (respondent No.1) as also compensation against her sons i.e. respondents No. 2 & 3.

3. It is noted that all the grounds which have been taken in the present petition under Section 482 CrPC are the same which were taken by the petitioner in the revision petition before the ASJ. Practically, the present petition though, filed under Section 482 CrPC is nothing, but a second revision petition against the order of the M.M. Though, the second revision petition was not maintainable, but having regard to the fact that no findings have been recorded by the ASJ qua the respondents No. 2 & 3 i.e. the sons of the petitioner and respondent No.1, I deem it a case warranting exercise of power of this court under Section 482 CrPC.

4. Before proceeding further, it may be noted that the petitioner and the respondent No. 1 are residing in the same house. This house is three storied comprising of ground, first and second floors. It is undisputed that both the parties are cooking and eating separately. Undisputedly, the respondent No.1 is meeting all the household expenses such as water, electricity charges, maintenance of house, payment of house tax etc. It is also undisputed that respondent No.1 is a person retired from Air India and also that the petitioner owns a house at Mumbai. It is also admitted case that under Section 24 of Hindu Marriage Act, the petitioner was granted Rs. 3500/- per month maintenance from the respondent No. 1 vide order dated 25.11.2009 of ADJ. In CM (M) No. 357/2010, this court enhanced the maintenance to Rs. 4500/- per month and undisputedly, the Crl.M.C. 3948/2008 Page 2 of 8 same is being paid by the respondent No. 1 to the petitioner. It is further undisputed that both the respondents No. 2 & 3, who are the sons of the petitioner and the respondent No.1 are not residing with them in the said house. Respondent No. 2 Prem Prakash is residing at Australia, while respondent No.3 Anil is living sometimes with his sister at Mumbai and sometimes in rented premises.

5. Having noted above the undisputed and admitted facts, the petitioner’s case as set out is that the maintenance of Rs. 4500/- per month is not sufficient and need to be enhanced. She has alleged her husband to be getting Rs. 10,000/- per month as pension and Rs. 15,000/- from the banks as interest on deposits and further, a sum of Rs. 3000/- per month from insurance. With regard to her son Prem Prakash (respondent No.2), who is residing at Australia, she alleged his income to be more than Rs. 2 lakhs per month. Regarding her son Anil (respondent No.3), she alleges him to be working at Mumbai and earning Rs. 30,000/- per month.

6. On the other hand, the respondents pleaded that the petitioner has F.D. to the tune of Rs. 10 lakhs from which, she was getting fixed interest @ Rs. 15,000/- per month. It is alleged that she owns a property at Mumbai, which is lying vacant and can be let out by her. The respondent No. 1 denied that he was earning Rs. 15,000/- per month as interest from bank. It is pleaded that he was getting only Rs. 5000/- per month on the investments made by him in addition to the sum of Rs. 3000/- which he was getting from LIC.

Crl.M.C. 3948/2008 Page 3 of 8

7. I have heard learned counsel for the parties and perused the impugned judgment and also the records.

8. This is a case of really one of the unfortunate family of scattered members. All the four members are living their independent lives. The petitioner seems to be trying to abuse the benevolent provisions of Section 125 CrPC. This Section is designed to help the needy and not the greedy. It is not meant for settling the personal scores, but it is experienced that it is often being misused and the present case is an instance. Here is a lady who owns a house at Mumbai, but is neither prepared to let it out on rent nor give it to her son who is living at the mercy of his sister and sometimes, in some rented house at Mumbai. Though, the petitioner has denied to be having F.D. of Rs. 10 lakhs in the different banks, but she, in any case has admitted the F.D. of Rs. 2 lakhs. She knows that her husband is a retired and ailing person. The pleas that her husband (respondent No.1) is getting Rs. 10,000/- p.m. as pension and Rs. 15,000/- from investments is nothing but a bundle of lies. The respondent No.1 is a retired person and has placed documentary evidence on record to show that he is getting Rs. 3086/- per month as pension through Employee Contributory Scheme based on his own contribution made after his retirement. This fact has already been taken note of by this court in CM (M) No. 357/2010. In the said case, it was the petitioner’s own submission that her husband was getting interest of Rs. 5000/- per month from deposits. Now, she has alleged that he was getting Rs. 15,000/- p.m. without there being any basis for the same. In fact, in the said petition, this court had enhanced the maintenance from Rs. 3500/- Crl.M.C. 3948/2008 Page 4 of 8 per month to Rs. 4500/- per month based on the material available on record to the effect that the income of the respondent No. 1 was Rs. 8000/- per month i.e. Rs. 5000/- as interest from deposits and Rs. 3086/- from Employee Contributory Pension Scheme. Neither before the courts below nor in the CM (M) No. 357/2010 nor in the present proceedings, the petitioner has been able to show her husband’s income as alleged by her. All that she has alleged is vague and baseless.

9. Taking all these into consideration, the learned M.M. observed that she was capable of maintaining herself.

10. From the undisputed factual matrix, it comes out to be that the petitioner owns a house at Mumbai. She has some fixed deposits in the banks, which according to the respondents are worth Rs. 10 lakhs, which according to the petitioner, is only Rs. 2 lakhs. In any case, she is undisputedly getting some interests on these deposits, which has not been disclosed. No evidence has been adduced by either of the parties as regards to deposits amount or the interest therefrom. This emerges to be a triable issue. Undisputedly, she was living in a house where she was not incurring any expenses on rent or other amenities such as water, electricity, cable, house tax etc. She is continuously getting Rs. 4500/- per month from her husband. She was also entitled to the medical facilities of her husband as per his service rules.

11. With regard to the respondent No. 2, who is residing at Australia, it was submitted by the respondents that he is working in a remote area and was the only bread earner of his family and was not in a regular

Crl.M.C. 3948/2008 Page 5 of 8 permanent employment. His salary was stated to be about 800 Australian Dollars per week, which was stated to be insufficient for him and his family needs. With regard to the respondent No.3, it was stated that he is unemployed and even unable to maintain himself and is living at the mercy of his sister at Mumbai.

12. It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).

13. With regard to the claim of the petitioner from her sons (respondents No. 2 & 3), it was submitted on behalf of her son Prem Prakash that his weekly income was about 800 Australian Dollars. The details of the expenses of his family have also been submitted in writing. However, he has offered 100 Australian Dollars per month as maintenance to the petitioner, which according to me, at this stage, seems to be just and reasonable. The petitioner has claimed arrears of maintenance from him, but the same was outrightly refuted saying that this respondent was in a very bad financial condition to give any arrears. With regard to respondent No. 3 Anil also, there is nothing on record at Crl.M.C. 3948/2008 Page 6 of 8 this stage to see his income. But, since he is an able-bodied young boy, it is his moral as well as legal duty to give something to his mother. In the absence of there being any material available on record, he would be liable to pay maintenance to his mother (petitioner) @ Rs. 1500/- per month.

14. The matter does not end here. During the proceedings conducted on 26.3.2012, the respondent No. 1 had stated that he had let out the second floor of the premises to a tenant @ Rs. 10,000/- per month. He offered 50% of the rent i.e. Rs. 5000/- per month to be given to the petitioner w.e.f. 22.4.2012. The petitioner and her counsel agreed to this offer but later, she demanded the whole of the rent and also alleged the rent to be more than Rs. 10,000/- per month. In the proceedings conducted on 26.3.2012, the offer as given by her son Prem Prakash of 100 Australian Dollars per month as also of her husband of Rs. 5000/- per month out of the rent and to continue pay Rs. 4500/- per month as before, was outrightly declined by the petitioner in the subsequent proceedings. This shows the conduct of the petitioner, who seem to be not only greedy and trying to settle the scores, but was extremely aggressive also. However, irrespective of all that, I think that the offers given by the respondents No. 1 & 2 are quite just and reasonable given the facts and circumstances of the case.

15. In view of the above discussion, it comes out to be that the petitioner would be entitled to maintenance @ Rs. 4500/- per month from the date of this order from her husband (respondent No.1) under Section 125 CrPC. In addition, she would be entitled to maintenance of 100 Crl.M.C. 3948/2008 Page 7 of 8 Australian Dollars from her son Prem Prakash (respondent No.2) and Rs. 1500/- per month from her son Anil (respondent No.3). Having regard to the peculiar circumstances of the respondents No.2 and 3, they are directed to pay these amounts of maintenance to petitioner from the date of this order. The issues regarding claims of maintenance from them from the date of application, shall be determined at time of final disposal of the petition by the Trial Court. She would be also entitled to Rs. 5000/- per month w.e.f. 22.4.2012 being half of the rent of the premises of second floor let out by the respondent No. 1. It is clarified that in the event of any increase in the rent amount of the said premises at any point of time, half of the rent whatever may be, shall be continued to be paid to the petitioner by her husband (respondent No.1). Consequently, the impugned order stands modified in the manner as indicated above.

16. Petition along with miscellaneous applications stand disposed of.

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Punjab & Haryana High Court

Amarjit Kaur vs Harbhajan Singh And Anr
Equivalent citations: Bench: D Raju, H Sema  –

2003 (1) AWC 344 SC, (2003) 2 CALLT 23 SC – 23 October, 2002

Order

1. The above appeals have been filed against the order of a learned single judge of the High Court of Punjab and Haryana at Chandigarh dated 10.11.2000 in civil revision No. 5057/ 1998 and a subsequent order dated 7.12.2000 passed in a review application No. 112-C-II/2000.

2. Heard Mr. Raju Ramachandran, learned senior counsel for the appellant and Mr. K. Rajendra Choudhary, learned senior counsel for the respondent.

3. The appellant is the wife of the first respondent. The respondent – husband has filed a petition under Section 13 of the Hindu Marriage Act, 1955 before the court of learned district judge, Ludhiana seeking dissolution of the marriage by grant of a decree for divorce on the grounds of alleged adultery and cruelty. The said petition is still pending for trial and final disposal. Pending the said petition, the appellant herein filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming maintenance for a sum of Rs. 3000/- per month for herself and Rs. 1000/- each for minor children residing with her. There is no dispute over the fact that out of the lawful wedlock, the appellant has given birth to three daughters and one son, of which, one daughter is said to be with the appellant. There is yet another son who is also living with the appellant-wife, who also is claimed to be a son borne out of the lawful wedlock, though the respondent-husband would raise doubts about the details of parentage of the said child. Having regard to the fact that a limited notice has been issued in this case, confined to the question with regard to the order passed by the High Court for conducting a DNA test of the child, it is unnecessary to deal with the details with reference to the claims made by the respective parties about the details of income of either of the parties. Suffice it to state that the learned trial judge has chosen to reject the claim for interim maintenance and on a revision before the High Court, the learned single judge though was prepared to countenance the claim of the wife and as a matter of fact directed the respondent -husband to pay Rs. 2000/- by way of litigation expenses to the appellant and pay a further sum of Rs. 2000/- per month by way of maintenance from the date of her application, proceeded further and observed as follows :-

“During the course of the submissions, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. Before concluding, directions are also given to the trial court to order for conducting the DNA test of the male child who is in the custody of the petitioner and if the test goes against the petitioner, she will not be entitled to get any maintenance pendente lite for herself but she will definitely get the maintenance for the girl child whose maintenance is fixed at Rs. 1000/- per month.”

4. Aggrieved, the wife moved an application by way of review and sought to bring to the notice of the court the decision reported in Goutam Kundu v. State of West Bengal and Anr., The learned single judge, by a cryptic order, has chosen to reject the review application with costs, in a sum of Rs. 1000/- Hence, the above appeals.

5. The learned senior counsel for the appellant strenuously contended that the conduct of the parties which requires to be adjudicated in the main writ petition has no relevance, at the stage of granting interim or pendente lite maintenance and that the consideration in this regard has to be confined to the criteria specified in Section 24 of the Hindu Marriage Act, 1955. It was also pointed out that imposition of a condition which will operate as a disfeasance clause, to deprive the very maintenance order to be paid, particularly of the nature imposed in this case directing the conduct of DNA test of the male child in question is not warranted. Argued the learned counsel further that this Court in the decision in Goutam Kundu’s case (supra), declared the legal position as to the circumstances under which and the limitations to be observed in compelling anyone to give a sample of blood against his/her will for DNA analysis, keeping in view, the serious consequences flowing from the same, i.e., the branding of a child as a bastard and the mother as an unchaste woman. It was made clear therein that no adverse inference can be drawn against the person for his refusal. According to the learned counsel for the appellant, such an order could not and ought not to have been made at this stage and in the manner it has been done, by the court on its own imposing the same as a conditional direction affecting even the right to get pendent lite maintenance, without even their being any formal application from the respondent – husband and justifying any such claim, in accordance with law.

6. Per contra, the learned senior counsel appearing for the respondent, relying on the decision reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., JT 1999 (8) SC 329 contended that in the matter of grant of maintenance, there is no impediment for the court to impose a condition of the nature and in case of refusal to cooperate to conduct the DNA test, make the defaulting party suffer consequences thereof. It was also urged that no exception could be taken to the course adopted by the learned single judge in the light of the serious dispute raised with reference to the parentage of one male child living with the wife. The learned counsel also contended that the discretion exercised by the learned single judge of the High Court on the peculiar facts and circumstances of the case, is not at all a matter which needs or calls for any interference in an appeal under Article 136 of the Constitution of India.

7. We have carefully considered the submissions of learned counsel appearing on either side.

8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. Once the High Court, in this case, has come to the conclusion that the wife – appellant herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, de hors the criteria laid down in the statutory provision itself, the court could have thought of imposing an extraneous condition, with a default clause which is likely to defeat the very claim which has been sustained by the court itself. Consideration as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the party, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support, for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the court, in our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned single judge, in this case.

9. Coming now to the nature of the condition imposed, though, it has been seriously contended for the appellant that no such condition could have been imposed to compel the undergoing of a DNA test of the male child, we do not propose to express any opinion on the legality or propriety of the court undertaking consideration at the appropriate stage, by the court competent, in the main petition of any application moved in an appropriate manner according to law, but we would confine our consideration to the limited aspect as to whether the High Court could have imposed such a condition at the stage of awarding interim maintenance pendente lite and that too without an application for the purpose from the other party, at the instance of the court by way of a suggestion put to the appellant in the course of consideration of the application for interim maintenance. The law in the matter governing the consideration and passing of any order in respect of a claim for DNA test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the court on its own could have imposed a condition without any consideration whatsoever of any of the criteria laid down by this Court, by adopting a novel device of imposing it as a condition for the grant of the interim maintenance, with a default clause, which as rightly contended for the appellant, will have the inevitable consequences of predetermining the claim about the parentage with serious consequences even at the preliminary stage. The procedure, thus, adopted by the High Court does not appear to be neither just nor reasonable or in conformity with the principles of law laid down by this Court and consequently the order is liable to be set aside. The decision in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (supra) relied for the respondent, in our view, has no relevance or application to the case on hand. That was a case wherein, in dealing with a claim for maintenance invoking the summary proceedings under Section 125 of the Cr.P.C., the husband attempted to defeat the claim made by the wife by asserting non performance of essential rites at the time of marriage, the factum of which as well as the parentage of the child could not be questioned. In the process of ascertaining the genuineness of the said stand, when the suggestion made to the husband to undergo DNA test was refused by him, and the court dealing with the application by summary proceedings chose to observe that the husband was disentitled to challenge the paternity of the child in the proceedings under Section 125 Cr.P.C., this Court declined to interfere with the order of the trial court on the question of prima facie satisfaction recorded as to the proof of marriage. We see absolutely no general principle of law laid down in this case which could be said to lend any support to the plea on behalf of the respondent. We are unable to persuade ourselves to agree with the plea urged for the respondent that the case does not warrant our interference in these appeals, since, we find that a serious and flagrant violation of law has been committed by the High Court, in the matter disposing of the revision and review petition, and the same ought not to be allowed to get sanctified, with our approval, too.

10. The order passed rejecting the review application summarily despite the fact that a judgment of this Court relevant for the purpose has been brought to the notice of the court, without even expressing any view on the matter, by itself, is sufficient to set aside the order made on the review petition. It is really surprising that the court should have thought of awarding cost in a sum of Rs. 1000/- against the wife, who was before the court seeking for maintenance pendente lite.

11. The appeals are allowed. The order in so far as it relates to the offending condition relating to the DNA test is set aside. In other respects, the order in so far as it awards the litigation expenses and monthly maintenance is sustained. We make it clear that we are not expressing any opinion about the rights of the parties to seek for the relief for the DNA test or the evidentiary value of the same and the trial court shall be at liberty to consider the matter relating to such claims on their own merits, in accordance with law. No costs.

Revision against Interim order of Maintenance u/s 127 of Cr.P.C.

.” Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.”

—————————————————————————————————————————————-

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 1859/2008

RAJEEV PREENJA ….. Petitioner Through Mr. Sanjay Jain, Advocate

versus

SARIKA & ORS ….. Respondents Through Mr. Manish Kapur, Advocate

for R-1 & 2.

Mr. Sanjay Lao, APP for State.

and

CRL.M.C. 3089/2008 & Crl M A 11390/2008 (stay) RAJEEV PREENJA ….. Petitioner Through Mr. Sanjay Jain, Advocate

versus

SARIKA & ORS ….. Respondents Through Mr. Manish Kapur, Advocate

for R-1 & 2.

Mr. Sanjay Lao, APP for State.

CORAM:

HON’BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

ORDER

26.02.200 9

1. Both these petitions arise out of the same set of facts and are being disposed of by this common order.

2. Crl M C No. 1859 of 2008 is directed against the order dated 28 th November 2007 passed by the learned Additional Sessions Judge Crl M C Nos. 1859/2008 & 3089/2008 Page 1 of 16 („ASJ‟) Delhi dismissing Criminal Revision No. 47 of 2007 filed by the Petitioner husband thereby affirming an order dated 29th August 2007 passed by the learned Metropolitan Magistrate („MM‟) Delhi directed the Petitioner to pay interim maintenance @ Rs.2,000/- per month to his wife Respondent No.1 Sarika and Rs.1,500/- per month to his minor son Respondent No.2 Master Anurag from 8th February 2004 till the disposal of the petition on merits.

3. Crl M C No. 3089 of 2008 also by the petitioner husband is directed against the order dated 14th August 2008 passed by the learned MM in execution proceedings directing issuance of warrant of attachment of the moveable property of the Petitioner towards realization of the interim maintenance awarded against him.

4. On the first date of hearing of Crl M C No. 1859 of 2008 on 28th May 2008 this Court had directed that “the petitioner shall continue to pay interim maintenance as awarded by the trial court” during the pendency of this petition. However, despite two adjournments since then, the Petitioner has not complied with this direction. As a result despite, succeeding in her petition for interim maintenance before the learned MM and in the revision petition by the husband before learned ASJ, Respondents 1 and 2 date have till date not received any amount whatsoever from the Petitioner. Further, till date there has never been a stay of the order of the learned MM. The reason offered for non- Crl M C Nos. 1859/2008 & 3089/2008 Page 2 of 16 compliance is the petitioner‟s financial incapacity. This is the same ground urged before and rejected by the learned ASJ. Also, it is not as if the petitioner has made payment of a portion of the amount due to Respondents 1 and 2 and is willing to pay the balance in a reasonable time. It is a blunt refusal to make any payment whatsoever, even to the minor son. This conduct of the petitioner in making no attempt whatsoever to comply with this Court‟s direction is unacceptable and should disentitle the petitioner to relief. Nevertheless learned counsel for the Petitioner has been heard at length on the merits of the case as well.

5. The petitioner and Respondent No.1 were married on 23 rd November 2000. The child Anurag was born to them on 4 th October 2001. According to Respondent No.1 soon after the marriage she began to be harassed by the Petitioner husband and his family members for dowry. In particular they demanded that her parents should give a residential flat. Respondent No.1 was beaten several times and left at her parents‟ place. Later a compromise was effected on 15th July 2002 but this was short lived. On 11th June 2003 after being beaten up by her in-laws, Respondent No.1 along with her minor son again came to her parents‟ house. For a second time a compromise appears to have been reached before the police on 6th August 2003 with the Petitioner agreeing that he, respondent No.1 and the child would live in a separate flat within six months. On this assurance, Respondent No.1 agreed that her complaint made to the police should be treated as closed. Subsequently the Special Crl M C Nos. 1859/2008 & 3089/2008 Page 3 of 16 Executive Magistrate also closed the proceedings under Sections 107/151 CrPC by an order dated 21st September 2003. Even this apparently did not work out. Respondent No.1 was back in her parents‟ house on 8th February 2004 with the child.

6. In the meanwhile in Complaint Case No.445/3/03 was filed by Respondents 1 and 2 against the Petitioner under Section 125 CrPC seeking maintenance. Respondent No.1 stated that she was not earning and also had no source of income whereas the Petitioner was employed in a book publication house earning around Rs. 12000 per month. Accordingly Respondent No.1 claimed maintenance of Rs. 4,000 per month for herself and Rs. 3,000 per month for the child (Respondent No.2). The Petitioner filed a written statement not denying the relationship with Respondents 1 and 2 but pleading financial incapacity as he was without employment since 23rd December 2003 on account of the threats received from Respondent No.1 and her family members. His father had retired from a private job and was not earning pension. His mother was working in the MTNL.

7. During arguments before the Learned MM, Mahila Courts in the application for interim maintenance filed by Respondent No.1, the Petitioner‟s counsel submitted that Respondent No.1 had left the matrimonial home of her own accord and was therefore living separately “without any sufficient reason.” It was submitted that she was not Crl M C Nos. 1859/2008 & 3089/2008 Page 4 of 16 entitled to even interim maintenance in terms of Section 125 (4) CrPC. It was further submitted that due to the behavior of Respondent No.1, the Petitioner was under mental depression. Medical certificates dated 15th March 2005 and 25th July 2005 issued by the Psychiatrists at the Institute of Human Behaviour and Allied Sciences (IHBAS) to that effect were produced. The learned MM after perusing the certificates noticed that it had not been stated therein that the Petitioner was behaving in an abnormal way or that his situation was such that he was incapacitated from taking up any employment. While the certificates showed that he underwent treatment till 25th July 2005, they did not indicate that he required to be treated even thereafter. On the basis of the earning capacity of the Petitioner as evidenced by his recent employment, the learned MM, by the impugned order dated 29th August 2007 directed him to pay interim maintenance of Rs.2000 per month to Respondent No.1 wife and Rs. 1500 per month to the Respondent No.2 child from 8 th February 2004 (excluding the period between 15 th March to 25th July 2005 when the Petitioner was receiving treatment at IHBAS). The aforementioned order was affirmed by the learned ASJ by the dismissal of the revision petition filed against it by the Petitioner by the impugned order dated 28th November 2007.

8. It is first submitted by learned counsel for Petitioner that under Section 125 (4) CrPC no order for interim maintenance can be passed if the Court is satisfied that the wife is, “without any sufficient reason” Crl M C Nos. 1859/2008 & 3089/2008 Page 5 of 16 refusing to live with her husband. It is submitted that in the instant case, although the Petitioner has always been willing to take back Respondent No.1, it is she who has been unreasonably refusing to come back to the matrimonial home.

9. This argument is without merit. At the outset it requires to be noticed that the above argument would be relevant, if at all, only in the context of the grant of interim maintenance to Respondent No.1 wife. In fact, the Petitioner offers no justification whatsoever for not paying till date any interim maintenance to the child as directed. The learned MM while deciding the question of payment of interim maintenance to a wife is only expected to form a prima facie opinion whether such wife was staying away from the husband without any sufficient reason. If the argument of the Petitioner has to be accepted then it is only after the entire evidence is led that an order for interim maintenance can be passed. That would defeat the very purpose of providing for payment of interim maintenance in Section 125. What the learned MM is required to determine at the stage of grant of interim maintenance is to be prima facie satisfied, on the basis of the pleadings and any other material on record, that the wife has not stayed away from the husband without sufficient reason. Applying such yardstick, it cannot be said that in the instant case the respondent No.1 wife stayed away from the husband without sufficient reason. On the other hand, even on the petitioner‟s own showing, she came back to the matrimonial home after two Crl M C Nos. 1859/2008 & 3089/2008 Page 6 of 16 attempted compromises, both of which unfortunately did not last long. Without at this stage determining which of the parties was responsible for the situation in which they were unable to stay together, it is held that the pleadings do not prima facie show that the Respondent No.1 stayed away from the husband without sufficient reason. This submission of the learned counsel for the Petitioner is therefore rejected.

10. As regards the financial incapacity, and the mental unsoundness of the petitioner, this Court finds that these grounds were rejected by the learned MM for cogent reasons. The view taken by the learned MM and affirmed by the learned ASJ on this aspect cannot be said to be perverse and warranting any interference. The grant of interim maintenance to Respondent No. 1 wife and Respondent No.2 minor son as ordered by the learned MM cannot be said to be excessive or unreasonable.

11. For these reasons, the is no merit in any of the grounds raised in Crl.M.C No. 1859 of 2008 and it is accordingly dismissed with costs of Rs.10,000 which will be paid by the petitioner to Respondent No.1 within a period of four weeks from today.

12. This brings for consideration the next issue concerning the implementation of the order of the learned MM directing the payment of interim maintenance. This is the subject matter of challenge in the other petition Crl.M.C. No. 3089 of 2008. Court finds that the Petitioner by his Crl M C Nos. 1859/2008 & 3089/2008 Page 7 of 16 conduct of refusing to comply with the orders of interim maintenance passed against him, particularly when there was no stay of those orders, has driven the Respondents 1 and 2 to further despair. It would be indeed be a travesty of justice that an indigent wife who has been awarded interim maintenance on merits by the learned MM, and has thereafter succeeded before the learned ASJ with the dismissal of the husband‟s revision petition, is unable to get the order implemented for over eighteen months.

13. The facts as far as the present case is concerned are stark. The wife filed an application for interim maintenance way back in 2003 when the relationship with her the petitioner husband was already in trouble. Admittedly she has not been living with the petitioner since 8th February 2004. The burden of looking after the child has been entirely hers since then. She could get an award of interim maintenance only after three and a half years i.e. on 29th August 2007. Yet, till date she has not been able to get the said order implemented. The Respondent No.1 has therefore been compelled to go back to the court of the learned MM in 2007 itself for implementation of the order of interim maintenance passed in her favour by that court. Those proceedings were resisted by the petitioner for over a year. Ultimately by the impugned order dated 14th August 2008 the learned MM, after noting that no payment had been made by the petitioner till then, issued warrants for attachment of the moveable property of the petitioner.

Crl M C Nos. 1859/2008 & 3089/2008 Page 8 of 16

14. The petitioner questions the device of an execution petition before the learned MM as being without the authority of law and with no statutory backing of the CrPC. While it is true that the legislature has not provided for a separate execution proceedings to enable the wife in whose favour an order of interim maintenance has been passed to get the said order implemented, the provision contained in Section 125 (1) CrPC indicates that the learned MM is expected to keep the proceedings pending before that court for the purpose. In Section 125 (1) CrPC the words used are:” …a Magistrate …may, upon proof of such neglect or refusal, order such person to make a monthly allowance…at such monthly rate …as the Magistrate may from time to time direct.” A similar expression is used in the second proviso to Section 125 (1) CrPC in the context of interim maintenance. The expression “from time to time” is intended to enable the Magistrate to monitor the implementation of the orders passed by the learned MM including the orders awarding interim maintenance. That is the only way that the orders awarding interim maintenance can be expected to be implemented. Otherwise, an unscrupulous husband will be under no pressure of compliance despite suffering an adverse order. To regale such a remedy to the wife will defeat the very purpose of the provision. Therefore the objection raised by the petitioner husband on the ground of lack of jurisdiction in the learned MM to entertain an execution petition is without merit and is rejected as such.

Crl M C Nos. 1859/2008 & 3089/2008 Page 9 of 16

15. The other phenomenon that requires to be discouraged is that a mere filing of a revision petition by a husband against an order granting interim maintenance to the wife and/or child is construed as an implied stay of that order. As a result the wife has to wait for an even longer period for the implementation of the order in her favour. The method that should be deployed to overcome this hurdle is for the revisional court to insist that the husband‟s revision petition will not be entertained till such time the husband against whom the order of interim maintenance has been passed, deposits the entire arrears of interim maintenance up to date in terms of the said order of the learned MM in the court of the learned ASJ. Otherwise the husband will be able to indefinitely postpone the implementation of the orders of interim maintenance by driving the wife from one court to another without her receiving any payment whatsoever. This only compounds the agony of the wife and serves to defeat the interest of justice. This situation ought not to be allowed to continue if justice in the real sense should be done to an Indian wife who is in dire straits and unable to survive with her child for want of economic means of subsistence. Given the huge pendency of work in the courts of the learned MM, an application under Section 125 CrPC is unable to be disposed of within a year. Even an order of interim maintenance is able to be passed only after a year. Crl M C Nos. 1859/2008 & 3089/2008 Page 10 of 16

16. It is accordingly directed that when a revision petition is filed by husband in the court of the learned ASJ against an order of interim maintenance passed by a learned MM in favour of the wife, the said revision petition will not be entertained by the learned ASJ till the entire amount of interim maintenance due under the order of the learned MM up to the date of filing of the revision petition is first deposited in the court of the learned ASJ. The respondent wife and child, if any, should be permitted by the learned ASJ to withdraw the whole or part of the said sum, upon such terms and conditions as may be determined by the learned ASJ.

17. This Court has, in the decision of Gaurav Sondhi v. Diya Sondhi 120 (2005) DLT 426 in the context of an application for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 („HMA‟) issued certain guidelines. This Court finds that the said guidelines could be implemented by learned MM dealing with application under Section 125 CrPC seeking enforcement of orders awarding interim maintenance or maintenance. The relevant guidelines read as under:

“4. The matrimonial courts should follow the

following procedure while granting interim

maintenance/ maintenance:

(i)Whenever maintenance/interim maintenance

is ordered, the Court will direct that it will be paid on or before 10th day of every month

Crl M C Nos. 1859/2008 & 3089/2008 Page 11 of 16 unless the Court finds that the nature of the

employment of the husband and his manner of

income makes such monthly payments impractical. In such a situation appropriate

orders may be passed which shall take into

account the circumstances of the husband

which warrant departure from the time bound

monthly payment directions contained in this

order. ;

(ii) whenever the wife has a bank account and

indicates it, such payment may directly be

deposited in such bank account every month

before the 10th day of the month.

(iii) The payment shall be made to the

wife/child and in case of any difficulty in

receiving or tendering the payment, it should

be made through counsel. The order of deposit

in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court’s

registry. If for good reasons upon finding

difficulty in payment to a wife and her counsel the deposits in Court are made such deposits

should be in the name of the wife by a

draft/crossed cheques, which may be retained

on the court file for retrieval by the wife

without the time consuming process of deposit

in the Court account and subsequent withdrawal by the recipient;

Crl M C Nos. 1859/2008 & 3089/2008 Page 12 of 16 (iv) In case there is first default for payment of maintenance, the Court may condone it.

However, in case of second default without

justification, it will be open to the Court to impose a penalty up to 25% of the amount of

monthly maintenance awarded;

(v) In case there is third or fourth default, the penalty may go up to 50% of the monthly

amount of maintenance upon the court finding

that the default was not condonable or

contumacious in nature.

(vi) The Court must ensure that the orders of

maintenance are not a mere rhetoric and are

meaningful and effective and give real

sustenance and support to the destitute wife

and/or the child.

(vii) In case interim maintenance is being paid and adequate litigation expenses have been

awarded to the wife, it should be ensured that the written statement/reply is filed within a

reasonable time.

(viii) However, in judging the nature of default the relative affluence of the husband and the

regular nature of his occupation and income

will be taken into account. Obviously husbands having irregular employment and/or daily

wages or those having casual employment

would be entitled to have their defaults viewed more liberally.”

Crl M C Nos. 1859/2008 & 3089/2008 Page 13 of 16 The above directions are reiterated and it is expected that the learned MMs dealing with applications under Section 125 CrPC will ensue their compliance.

18. In the context of the desired time limit for disposal of application for interim maintenance,Radhika Narang & Ors. v. Karun Raj Narang & Anr (decision dated 16th January 2009 in FAO (OS) No. 139 of 2006) the Division Bench of this Court has observed as under: “14. ………….. in matrimonial disputes, the interim maintenance and custody issues deserve the most expeditious disposal. We are

further of the view that maintenance and

custody cases must take precedence over

matters of property or money claims. The

learned Single Judge in the above judgment

had rightly recorded the expectation that

period for award of interim maintenance to be

one month from the date of filing the

application. However, in view of the pressure

of work on matrimonial courts due to

proliferation of matrimonial disputes and

considerable shortage of judicial manpower, a

more realistic time frame has to be prescribed. In our view the interim maintenance applications in matrimonial disputes ought to

be disposed of with dispatch and certainly

should not take in any event more than 1 year

at the highest. The very purpose of interim

maintenance is defeated if it takes about 3

Crl M C Nos. 1859/2008 & 3089/2008 Page 14 of 16 years, as in the present case as an interim

application for maintenance filed on 23rd May, 2003 came to be disposed of only on 16th

February, 2006. We therefore direct that all the Courts in Delhi, therefore, must keep the need for urgent disposal of such applications in

mind, and ensure the disposal of the interim

maintenance applications within one year from

the date of filing of such applications in

matrimonial matters.”

19. Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.

20. Keeping in view the facts and circumstances of the case, this petition is dismissed with cost of Rs.10,000/- which will be paid by the Petitioner to Respondent No.1 within four weeks from today. The learned MM will ensure that these costs are paid and a proof of deposit of payment be furnished to the learned MM by the Petitioner. Crl M C Nos. 1859/2008 & 3089/2008 Page 15 of 16

21. Accordingly, both these petitions are dismissed with costs of Rs.10,000/- each in the manner as indicated hereinabove. The costs will be paid by the Petitioner to Respondent No.1 within four weeks from today and a proof of the same be furnished to the learned MM.

22. The directions issued in paras 16 to 19 of this judgment should be followed strictly by the courts of the learned MMs and learned ASJs. A copy of this order be sent to the learned District Judge for issuing appropriate directions and for being circulated to all the courts hearing matrimonial matters for information and compliance. S. MURALIDHAR, J.

FEBRUARY 26, 2009

—————————————————————————————————————————————-

HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No. 3009/2011

Date of Decision: 07.9.2011

SATISH MEHRA ….. Petitioner Through Mr. G.P. Thareja with Mr. Dharmish

Thanai, Advs.

versus

ANITA MEHRA ….. Respondent Through None.

CORAM :

HON’BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be

allowed to see the judgment ? No

2. To be referred to the Reporter or not ? No

3. Whether the judgment should be reported

in the Digest ? No V.K. SHALI, J.(Oral)

Crl. M.A. No. 10600/2011

1. This is an application for condonation of delay of 479 days in filing the present petition under Section 482 Cr.P.C against the order dated 12.4.2010.

2. The ground for condonation of delay as stated in the application is that, the petitioner had preferred a revision petition in the Court of Crl. M.C. 3009/2011 Page 1 of 9 Sessions against the impugned order. However, it was brought to the knowledge of the petitioner that the case from which this revision petition has arisen had been transferred to the Family Court and therefore, the revision petition against an order passed by the learned MM could not be entertained by the learned Sessions Court. Accordingly, the petitioner had sought permission to withdraw the petition with liberty to approach the High Court. This prayer of the petitioner was allowed by the learned Addl. Sessions Judge, vide order dated 04.8.2011. It is stated that because of this reason there was a delay of 479 days which was beyond the control of the petitioner and constitutes ‘sufficient cause’ under Section 5 of the Limitation Act and accordingly, the same may be condoned.

4. I have heard the learned counsel for the petitioner and perused the averments. I am of the view that for the reasons mentioned in the application, the delay of 479 days in filing the present petition under Section 482 Cr.P.C was occasioned because of the pendency of the revision petition in Sessions Court, which did not have the power to deal with the same and this constitutes ‘sufficient cause’ and accordingly, the same is condoned.

Crl. M.C. 3009/2011 Page 2 of 9

5. Application stands allowed.

Crl. M.A. No. 10599/2011

1. This is an application seeking exemption from filing the legible/certified copies.

2. Subject to the deficiency being rectified in due course, the application is allowed.

3. Application stands disposed of.

Crl. M.C. No. 309/2011 & Crl. M.A.No. 10598/2011

1. This is a petition filed by the petitioner under Section 482 Cr.P.C assailing the order, dated 12.4.2010, passed by Ms.Veena Rani, learned Metropolitan Magistrate, by virtue of which the learned Magistrate has directed the present petitioner to pay an interim maintenance to the respondent/wife and three children @ Rs.35,000/- per month w.e.f. 28.4.2009 till the time the complaint of the respondent/wife under Section 125 Cr.P.C is decided on merits.

2. Briefly stated, the facts leading to the filing of the present petition are that the petitioner got married to the respondent on 18.2.1980 in India according to Hindu Rites and ceremonies. The petitioner, at the time of marriage, was a non-resident Indian (NRI). He was settled in Crl. M.C. 3009/2011 Page 3 of 9 the US since 1975. The respondent migrated to US with the petitioner where another marriage ceremony is alleged to have taken place on 19.05.1982. The couple was blessed with three children; daughter Nikita born on 02.04.1988, daughter Riva born on 10.11.1989 and son Neal born on 10.11.1989.

3. Matrimonial relations between the present petitioner and the respondent were not very cordial. It is alleged that from 1980 till 1992, the present petitioner used to give US $ 31,200 per month to the respondent/wife for running her household affairs. However, it is alleged that the cheque of the aforesaid amount when encashed used to be taken back by the petitioner, thus, she never got the monthly allowance from the petitioner which made her life very difficult.

4. It is also alleged that the petitioner used to, physically as well as mentally, abuse the respondent as well as her children. The respondent had gone to the extent of lodging a report against the petitioner of having subjected his own daughter Nikita to physical and sexual abuse.

5. It is also alleged that there was an amount of Rs.4.58 crores in the joint account of the present petitioner and the respondent/wife, which was drained off by him. The petitioner is stated to be a man of status Crl. M.C. 3009/2011 Page 4 of 9 who has assets in India as well as in US. The value of the assets in India is stated to be approximately Rs.13 crores, while as the value of the assets of the petitioner in US is not known to the respondent. On the basis of the aforesaid facts, after migration to India respondent filed a complaint under Section 125 Cr.P.C claiming maintenance @ Rs.3,79,500/- for herself and for her children.

6. Learned Metropolitan Magistrate after discussing the case law and taking the prima facie view of the documentary evidence observed that the claim of maintenance by the respondent/wife to the tune of Rs.3,79,500/- per month was highly excessive. However, keeping in view the facts of the case and the various principles of law, the learned MM came to the conclusion vide order dated 12.4.2010 that the respondent/wife is entitled only to a maintenance @ Rs.35,000/- per month till the final disposal of the petition from the date of filing of the application, i.e. 28.4.2009.

7. Against the said order dated 12.4.2010, a revision petition was filed, which was kept pending till the order dated 04.8.2011 was passed by the learned Additional Sessions Judge wherein the petitioner had sought withdrawal of the petition with liberty to file a petition before the Crl. M.C. 3009/2011 Page 5 of 9 High Court and thereafter the present petition has been filed.

8. I have heard the learned counsel for the petitioner. He has tried to go into the merits of the impugned order by alleging that the respondent/wife was in the habit of leveling false and frivolous allegations against the present petitioner. In this regard, he has drawn the attention of the Court to a reported judgment in the case titled, Satish Mehra vs. Delhi Administration (SC), reported as 1996 (3) Recent Criminal Reports, page 410, where the Appellate Court had quashed the FIR and the proceedings under Section 354 & 376 IPC lodged by the respondent/complainant against the present petitioner for having sexually abused her three year old daughter. I have gone through the said judgment. No doubt that the Apex Court had quashed the FIR under Section 354 & 376 IPC on account of false and frivolous allegations purported to have been made by the respondent/ wife. However, that cannot be the basis for challenging an order of grant of ad interim maintenance. Section 397(3) Cr.P.C. clearly lays down that revision petition against an interlocutory order is not permissible. Admittedly, order of grant of ad interim maintenance is an interlocutory order and could not be assailed in revision. If it has to be challenged, the petitioner Crl. M.C. 3009/2011 Page 6 of 9 has to make out an overwhelming case to show that the exercise of powers under Section 482 Cr.P.C. is warranted to prevent the abuse of processes of law and to secure the ends of justice. The learned counsel for the petitioner has not been able to point out any such infirmity in the impugned order. Orders regarding grant of ad interim maintenance are passed to prevent vagrancy. In the instant case the respondent has not only to look after herself but has also to look after her three children and their education. It was specifically put to the learned counsel for the petitioner since an order of interim maintenance was passed against him on 12.4.2010, requiring him to pay maintenance to the respondent/wife @ Rs.35,000/- per month, w.e.f. 28.4.2009, he should inform the Court as to how much amount of money he has paid from 28.4.2009, to the respondent/wife, till date. The answer to this question was that not even a single penny has been paid by the present petitioner to the respondent despite the impugned order having been passed. In such a contingency, the learned counsel for the petitioner is made aware of the pronouncement of this Court in the case titled Rajeev Preenja vs. Sarika in Crl. M.C. No.1859/2008 reported as 2009(159) DLT 616, wherein the learned Single Judge of this Court had taken a view that the revision Crl. M.C. 3009/2011 Page 7 of 9 petition filed by the husband in the Court of learned Sessions Judge against the order of interim maintenance passed by the learned Magistrate in favour of the wife ought not to be entertained till the time the entire amount of interim maintenance, which was due under the order passed by the learned Magistrate is actually paid or deposited in the Court. It is pertinent to note that the respondent/wife in the said case has not only to maintain herself but her children also.

9. In my considered opinion, the petitioner, before being permitted to assail the validity of the order passed under Section 125 of the Cr.P.C, though it is an interlocutory order, ought to have shown his bona fide by paying some amount of maintenance to the respondent/wife. He was specifically given an opportunity to deposit some amount at his own discretion in order to show his bona fide, however, learned counsel for the petitioner explains his inability. If the petitioner is seeking to assail an order of interim maintenance without paying even a single penny as maintenance to the respondent/wife, I am afraid that such a petition ought not to be entertained because the whole purpose of passing an order of interim maintenance gets defeated. The petitioner has been directed to pay interim maintenance with effect from Crl. M.C. 3009/2011 Page 8 of 9 28.04.2009 and nearly two and a half years have elapsed not even a single penny has been paid. Under these circumstances, how the respondent, a lady with three children, is going to survive.

10. I have gone through the impugned order. I do not find any infirmity in the same so as to assume that there is any gross abuse of the processes of law or any order to the contrary to the one which is already passed on 12.04.2010, is required to be passed.

11. Dismissed.

V.K. SHALI, J

SEPTEMBER 07, 2011