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Revision against interim maintenance under section 24 of HM Act.

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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