Home > DV Judgements > NO need to prove Domestic relation or Domestic violence to get maintenance…..all you need to prove is husband’s Income

NO need to prove Domestic relation or Domestic violence to get maintenance…..all you need to prove is husband’s Income

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

Mk

Crl.M.C.No1814/2011 Page 15 of 15

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