NO need to prove Domestic relation or Domestic violence to get maintenance…..all you need to prove is husband’s Income
September 26, 2011
Shanker vs Meena on 20 September, 2011
Author: Suresh Kait
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.No.1814/2011
% Judgment delivered on:20th September,2011
SHANKER ….. Petitioner Through: Ms.Saahila Lamba, Adv
versus
MEENA ….. Respondent Through: Mr.Ashok Kumar &
Mr.R.M.Tatia, Advs.
Inspector Jai Kishan Gautam, SHO
police station Uttam Nagar in
person.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to see the judgment? No.
2. To be referred to Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
SURESH KAIT, J. (Oral)
1. On 16.08.2011, this Court has passed following order:-
“1. The present petition is filed against the order dated 18.03.2011 passed by ld. Addl. Sessions Judge.
2. The learned counsel for the petitioner submits that vide order dated 05.10.2007
Crl.M.C.No1814/2011 Page 1 of 15 the learned MM had directed that a sum of Rs.2,000/- each per month would be paid by the petitioner, to the respondent/ complainant for her maintenance and also for the maintenance of the minor daughter namely Bhavna, as an interim measure till the disposal of the petition.
3. Further the learned counsel for the petitioner submits that the application was filed for clarification of the said order dated 05.10.2007 that typographically it was directed that Rs.2,000/- each instead of Rs.2,000/- total in favour of the respondent for her maintenance and for the maintenance of her minor daughter. The same was dismissed on 18.12.2010 and confirmed the order dated 05.10.2007.
4. Being aggrieved the petitioner challenged the same before the Sessions Court vide order dated 18.03.2011, the learned Sessions Judge, Tis Hazari Courts, Delhi has also confirmed the order dated 05.10.2007 passed by the learned MM.
5. Learned counsel for the petitioner submits that learned ASJ has not dealt with the relevant points on the petition and has Crl.M.C.No1814/2011 Page 2 of 15 only given the opinion that learned Magistrate had no power to rectify the order passed on 05.10.2007.
6. Learned counsel for the petitioner has drawn the attention of this court to order dated 25.02.2008 passed by the learned ASJ wherein in para 5 as on page 19 it is stated as under :
“5. I have also gone through the provisions of Section 23(2) of the said Act. Under the Section learned Magistrate can grant even an exparte order on the basis of the affidavit filed by the petitioner/ aggrieved person under the said Act. In the present
case the learned Trial Court has duly considered the averments of both the parties. It is purely the interim order till the final decision of the case. The learned Trial Court shall come to the conclusion for grant of maintenance only after the evidence is lead by both the parties. The petitioner had his brothers also who could very well
maintain his parents. Even as per
minimum wages of an unskilled
labour, the wages are approximately 3,500/- per month.”
7. Learned counsel for the petitioner submits that the petitioner is earning Rs.5,000/- per month. Therefore, he cannot afford to pay Rs.4,000/- i.e. Rs.2,000/- each when he is also maintaining one daughter
Crl.M.C.No1814/2011 Page 3 of 15 aged about 6 years. The petitioner has drawn attention to order dated 18.12.2010 passed by learned trial court for the rectification of the order as under : “In support of the said contention, it is point out by Ld. Counsel for the
respondent that the respondent had
been continuously making payment of Rs.2,000/- per month to the petitioner w.e.f. 5.10.10.07 till 4.4.10 and no objection has been raised on behalf of the petitioner that the complete
payment is not being made.
It is also pointed out that even
some of the order sheets of my Ld.
Predecessor like order sheet dated
29.1.07, 30.1.08 clearly reflect that payment of Rs.2000/- towards the
month of November and December
respectively. It is thus stated that the petitioner now cannot be permitted
claim the additional maintenance @
Rs.2000/- per month and from the
conduct of the parties as pointed out hereinabove, it is very clear that the order of interim maintenance was
only for Rs.2000/- per month and not @ Rs.2000/- per month for each of the petitioners.”
8. Keeping in mind the monthly wage of the petitioner/husband @ Rs.5,000/- per month and since he is also maintaining one daughter as the respondent. It is only fair that both children are provided with the right environment for a proper upbringing.
Crl.M.C.No1814/2011 Page 4 of 15 Therefore, in equity I deem it appropriate to modify the order to the extent that the petitioner shall continue to pay Rs.3,000/- per month to the respondent as maintenance till the disposal of the application. The arrears, if any, shall also be cleared as per the rate of Rs.3,000/- per month.
9. CRL.M.C. 1814/2011 is partially allowed. Order dated 05.10.2007 passed by the learned trial Judge is modified.
10. At this stage, the petitioner, who is present in person, submits that he is ready to keep his wife with him and he will keep her happy.
11. At his request, re-notify on 23rd August, 2011.
12. The notice be served to respondent through SHO concerned and ensure the presence of the respondent on the next date of hearing in the Court.”
2. Since, the SHO concerned could not serve the
respondent on 23.08.2011, therefore, she did not appear,
hence the matter was adjourned.
Crl.M.C.No1814/2011 Page 5 of 15
3. On 24.08.2011, respondent appeared in person with
her learned counsel, and inter alia, following order was
passed:-
“….. She submits that the petitioner is a man of means; apart from shirts business, he is also in the business of property dealing. He also owns some properties in Delhi. She further submits that before the separation she was staying with her husband at 331, J. J. Colony, Raghubir Nagar along with her brother-in-law namely Arjun, who is younger to the petitioner.
2. Respondent further submits that the said brother-in-law has left his first wife and he has kept another lady without taking divorce and he has three sons from his new wife, whereas, the first wife has one girl child and living separately.
3. She further submits that the petitioner is intending to repeat the same with her also, therefore, due to this reason she is not ready to go with the petitioner.”
4. Inspector Jai Kishan Gautam, SHO police station Uttam
Nagar, New Delhi was present in person and was directed to
Crl.M.C.No1814/2011 Page 6 of 15 verify the total income earned by the petitioner and whether
or not is there any property in his name.
5. Pursuant to the order dated 24.08.2011, SHO, police
station Uttam Nagar, filed the status report and submits that
on inquiry it is found that the property No.M-331, Raghubir
Nagar, New Delhi, is registered in the name of father of
petitioner, Shri Lalu Ram, which was purchased after selling
his earlier House No.A-641 and A-646, Raghubir Nagar, New
Delhi.
6. Further it is stated that, one Jhuggi No.W-52, R-144,
near water tank, Raghbubir Nagar, Delhi was also found to
be registered in the name of the father of the petitioner,
which was purchased on 23.08.2005. One tenant Krishan
s/o Sh.Laxman is stated to be in possession of said Jhuggi at
a monthly rent of `1,200/-.
7. On inquiry it is further found that one Janta Flat No.268,
Type GRP-1, Sector B-4, Pocket – 3, Narela, Delhi was
allotted in the name of petitioner on 27.09.2007. However,
same was disposed on 10.10.2008 for a sale consideration of
` 3.5lacs; a copy of the sale deed is produced by SHO, police Crl.M.C.No1814/2011 Page 7 of 15 station Uttam Nagar, New Delhi to prove the same. The
photocopy seen and returned to the SHO concerned.
8. Learned counsel for respondent further submitted that
the said Janta Flat at Narela was purchased during the
pendency of the proceedings under the Protection of Women
from Domestic Violence Act, 2005. However, the petitioner
neither has paid the arrear nor the installments.
9. However, learned counsel for the petitioner has
clarified that the petitioner is paying ` 2,000/- per month as
understood by both the parties. Further, she submits that
the opposite party never raised any objection.
10. Learned counsel for the petitioner further submits that
an order for the maintenance was passed on 05.10.2007.
Thereafter, the petitioner continued to pay to the respondent
a maintenance amount of ` 2,000/- per month. She also
continued to accept the same without any protest, till the
filing of the execution petition on 04.04.2010. Further she
submits that under Rule 6(5) of the Protection of Women
from Domestic Violence Rules, 2005, which reads as under:-
“6.Applications to the Magistrate.–(1) Crl.M.C.No1814/2011 Page 8 of 15 Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.
(2) xx xx xx
(3) xx xx xx
(4) xx xx xx
(5) xx xx xx
(6) The application under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973.”
11. Further submitted that under Section 12(2) of the
Protection of Women from Domestic Violence Act, 2005, the
relief sought for under sub-section (1) may include a relief
for issuance of an order for payment of compensation or
damages without prejudice to the right of such person to
institute a suit for compensation or damages for the injuries
caused by the acts of domestic violence committed by the
respondent.
12. Further submitted that, the application has to be
disposed of as per the provisions under Section 125 (3) of
the Code of Criminal Procedure, 1973; wherein it is
Crl.M.C.No1814/2011 Page 9 of 15 enumerated as under:-
“125. Order for maintenance of wives, children and parents. -
(1) xx xx xx
(2) xx xx xx
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be
issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it
became due:
Provided further that if such person
Crl.M.C.No1814/2011 Page 10 of 15 offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under the section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”
13. Learned counsel for the petitioner submits that learned
Magistrate has the power to issue any order for the amount
which is due for a period of one year only from the date it
became due.
14. Further, pointed out that the amount became due on
05.10.2007 and the execution petition filed on 04.04.2010, is
barred by the provisions mentioned above.
15. It is submitted that when the respondent moved an
application for execution before learned Metropolitan
Magistrate; the petitioner simultaneously, also filed an
application for clarification.
16. Vide order dated 18.12.2010, the application for
clarification of the petitioner was dismissed whereas; the
execution application filed by respondent was allowed and Crl.M.C.No1814/2011 Page 11 of 15 directed to pay the difference amount of ` 2,000/- per month
from the date of order passed by learned Metropolitan
Magistrate.
17. Thereafter, the petitioner filed the revision petition
before the Sessions Court and the same was dismissed vide
order dated 18.03.2011 on technical ground that the
Magistrate has no powers to rectify its order, therefore,
same was dismissed.
18. Vide the instant petition, the petitioner has assailed
said order dated 18.03.2011 passed by learned Additional
Sessions Judge.
19. Though, vide order dated 16.08.2011, on equity, this
Court directed to reduce the amount from ` 4,000/- to
` 3,000/- per month, to which, petitioner had no objection.
20. Since, learned counsel for the petitioner was of the
view that there are chances of the reconciliation in the
matter, therefore, this matter was further adjourned and the
SHO concerned was directed to ensure the presence of the
respondent.
Crl.M.C.No1814/2011 Page 12 of 15
21. After hearing learned counsel for respondent, I am of
the view that the chances for reconciliation are bleak; and
just to clarify whether the petitioner is earning the same
amount as he has agitated before the Trial Court, therefore,
just for substantial justice, I directed the concerned SHO for
the purpose as mentioned above.
22. After perusing the status report and hearing both
counsels, it is emerged that the petitioner is in the vocation
of repairing and selling old shirts in Bazar. He is living with
his parents and four children. Though, the father of the
petitioner is having two Jhuggis in his name; one is occupied
by tenant at a monthly rent of ` 1,200/- and the other one
is being used as their residence.
23. Therefore, I am of the view that he is not a man of a
high means, therefore, the order passed by this Court on
16.08.2011 is maintained; whereby the petitioner was
directed to pay the arrears of maintenance @ ` 3,000/- per
month.
24. On instructions, learned counsel for the petitioner
submits that within ten days, the petitioner shall pay an Crl.M.C.No1814/2011 Page 13 of 15 amount of ` 7,000/- towards arrear and within 1½ months
thereafter he shall clear the outstanding arrears from the
date of the order till its realisation. The technical plea taken
by the learned counsel for the petitioner being time barred is
now, not to be pressed before the Trial Court.
25. If the petitioner fails to pay the said arrear amount
within the specified period i.e. maximum two months then
the respondent is entitled to simple interest @ 9% per
annum on outstanding arrears.
26. I make it clear that this order has been passed with the
consent of learned counsels for both parties. However, this
order will not come in the way of respondent for the relief
under Section 125 Code of Criminal Procedure.
27. Before parting with this order, I record my appreciation
for the counsels for both parties, who have assisted the
Court in reaching to the amicable settlement. In addition, I
also record my appreciation for Inspector Jai Kishan Gautam,
SHO police station Uttam Nagar, New Delhi who had
submitted the report on pros and cons of income and
property of the petitioner, in a very fair manner. Crl.M.C.No1814/2011 Page 14 of 15
28. In view of above, Criminal M.C.No.1814/2011 is
disposed of accordingly.
SURESH KAIT, J
September 16, 2011
