LegalManthanDivorce: 125 crpc

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Tuesday, July 8, 2014

SC- Compromise is not a bar to file further cases for maintenance

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013
[Arising out of C.C. No. 1297 of 2012]

Nagendrappa Natikar .. Petitioner
Versus
Neelamma .. Respondent
J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. Delay condoned.

2. The question that is raised for consideration in this case is whether
a compromise entered into by husband and wife under Order XXIII Rule 3 of
the Code of Civil Procedure (CPC), agreeing for a consolidated amount
towards permanent alimony, thereby giving up any future claim for
maintenance, accepted by the Court in a proceeding under Section 125 of the
Code of Criminal Procedure (CrPC), would preclude the wife from claiming
maintenance in a suit filed under Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (for short “the Act’).

3. The marriage between the petitioner (husband) and respondent (wife)
took place on 24.5.1987. Alleging that the petitioner is not maintaining
his wife, respondent filed an application under Section 125 CrPC for grant
of maintenance before the 1st Additional JMFC at Gulbarga, being Misc. Case
No. 234 of 1992. While the matter was pending, an application was
preferred by the parties under Order XXIII Rule 3 CPC on 3.9.1994 stating
that the parties had arrived at a compromise, by which the respondent had
agreed to receive an amount of Rs.8,000/- towards permanent alimony and
that she would not make any claim for maintenance in future or enhancement
of maintenance. Consent letter dated 30.3.1990, which is in Kannada, the
English translation of the same reads as follow:
“Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23 years, R/o Old
Shahabad, do hereby execute this consent letter in favour of my
husband Nagendra Natikar with free will and consent without coercion
and misrepresentation. After my marriage with Nagendra Natikar, I
could not lead marital life happy with my husband due to my ill
health as prior to my marriage I was suffering from backache,
Paralysis stroke to my left hand and left leg and was also suffering
from epilepsy (Fits disease) and therefore I have myself decided to
withdraw from marital life. I have given my consent for mutual
divorce. I have no objection if my husband would contract second
marriage with someone. Prior to my marriage I was suffering from
chronic disease. I had asked my father not to celebrate her marriage
with anyone. My father forcibly got marriage with Nagendrappa
Natikar. Henceforth I will not make any further claims and also
forfeit my rights in future and I will not claim compensation or
maintenance or alimony. I am satisfied with the payment of Rs.8000/-
and I will not make any further claims against my husband.

I have executed this consent letter in favoaur of my husband
without any force of anybody and free from misrepresentation or
coercion. My father-mother or nay other family members have no
objection for executing this consent letter.

Signature of Executant

Neelamma

(Signed in Kannada))

Signature of witnesses:

1. Tippanna (signed in Kannada)

2. Devindrappa (signed in Kannada)
3. Syed Zabiullah Sahab (signed scribe)”

The Court, on the same day, passed the following order:
“Parties both present. Both parties and advocates files compromise
petition. The contents of the compromise petition is read over and
explained to them. They admit the execution of the same before court.
Respondent paid Rs.8000/- (eight thousand) before court towards full
satisfaction of the maintenance as per compromise recorded. In view
of the compromise, petition dismissed.”

4. Respondent wife then filed a Misc. Application no. 34 of 2003 under
Section 127 Cr.P.C. before the Family Court, Gulbarga for cancellation of
the earlier order and also for awarding future maintenance, which was
resisted by the petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on 3.9.1994 and hence
the application for cancellation of the earlier order is not maintainable.
The Court accepted the plea of the husband and took the view that since
such an order was still in force and not set aside by a competent Court, it
would not be possible to entertain an application under Section 127 Cr.P.C.
The application was, therefore, dismissed on 31.7.2006.

5. We notice, while the application under Section 127 Cr.P.C. was
pending, respondent wife filed O.S. No. 10 of 2005 before the Family Court,
Gulbarga under Section 18 of the Act claiming maintenance at the rate of
Rs.2,000/- per month. The claim was resisted by the petitioner husband
contending that, in view of the compromise reached between the parties in
Misc. Case No. 234 of 1992 filed under Section 125 CrPC, respondent could
not claim any monthly maintenance and hence the suit filed under Section 18
of the Act was not maintainable. The question of maintainability was
raised as a preliminary issue. The Family Court held by its order dated
15.9.2009 that the compromise entered into between the parties in a
proceeding under Section 125 Cr.P.C. would not be bar in entertaining a
suit under Section 18 of the Act.

6. The suit was then finally heard on 30.9.2010 and the Family Court
decreed the suit holding that the respondent is entitled to monthly
maintenance of Rs.2,000/- per month from the defendant husband from the
date of the filing of the suit.

7. Aggrieved by the said order, petitioner took up the matter before the
High Court by filing an appeal, being M.F.A. No. 31979 of 2010, which was
dismissed by the High Court by its judgment dated 28.3.2011, against which
this SLP has been preferred.

8. Shri Raja Venkatappa Naik, learned counsel appearing for the
petitioner, husband, submitted that suit filed under Section 18 of the Act
is not maintainable, in view of the order dated 3.9.1994, accepting the
consent terms and ordering a consolidated amount towards maintenance under
Section 125 Cr.P.C.

9. We are in complete agreement with the reasoning of the Family Court
and confirmed by the High Court that the suit under Section 18 of the Act
is perfectly maintainable, in spite of the compromise reached between the
parties under Order XXIII Rule 3 C.P.C. and accepted by the Court in its
order dated 3.9.1994.

10. Section 125 Cr.P.C. is a piece of social legislation which provides
for a summary and speedy relief by way of maintenance to a wife who is
unable to maintain herself and her children. Section 125 is not intended
to provide for a full and final determination of the status and personal
rights of parties, which is in the nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C. and the order made under Section
125 Cr.P.C. is tentative and is subject to final determination of the
rights in a civil court.

11. Section 25 of the Contract Act provides that any agreement which is
opposed to public policy is not enforceable in a Court of Law and such an
agreement is void, since the object is unlawful. Proceeding under Section
125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to
the wife and any order passed under Section 125 Cr.P.C. by compromise or
otherwise cannot foreclose the remedy available to a wife under Section
18(2) of the Act.

12. The above being the legal position, we find no error in the view
taken by the Family Court, which has been affirmed by the High Court. The
Petition is, therefore, dismissed in limine.

…………………………………J.
(K. S. RADHAKRISHNAN)

…………………………………J.
(DIPAK MISRA)

New Delhi,
March 15, 2013

Source - http://judis.nic.in/supremecourt/imgst.aspx?filename=40159

Sunday, March 11, 2012

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011

CM(M) No.79/2011              Page 1 of 12

4
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+   CM(M) 79/2011

%                    Date of decision: 12th
September, 2011

PUNEET KAUR                              ..... Petitioner
        Through : Mr. Ashok Chhabra with
Mr. Sunjayjyoti Singh Paul,
Advs.
      versus

INDERJIT SINGH SAWHNEY               ..... Respondent
        Through : Respondent in person.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether Reporters of Local papers may     YES
be allowed to see the Judgment?

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

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

JUDGMENT (ORAL)

CM(M)No.79/2011 and CM No.1756/2011
1.   The petitioner has challenged the order dated 26th

November, 2010 whereby her application for maintenance
under Section 24 of the Hindu Marriage Act was dismissed by
the learned Trial Court.
2. The petitioner claimed maintenance and litigation
expenses from her husband on the ground that she was unable
to maintain herself and her two children aged 13 and 16 years. CM(M) No.79/2011              Page 2 of 12

The petitioner averred that she was not gainfully employed
and was receiving interest income of about `8,000/- to
`10,000/- per month from the investments whereas the
monthly expenses of the children were to the tune of `25,000/-
per month. The petitioner further averred that the respondent
was running the business of transport in the name of Bakshi
Transport Service and his income was more than `2,00,000/- to
`3,00,000/- per month.
3. The respondent contested the above application before
the learned Trial Court on the ground that the respondent was
unemployed and had no income. The respondent averred that
he was living like a pauper and had no money even for two
proper meals a day. He also stated that he had no shelter.
The respondent also alleged that the petitioner’s annual
income was `3,00,000/- per month from three sources, namely
`1,00,000/- to `2,00,000/- per month from business, `60,000/-
per month from salary and `20,000/- per month from interest.
4. The learned Trial Court believed the respondent and held
that there was no material record to show that the respondent
had any income and, therefore, the petitioner’s application was
dismissed. CM(M) No.79/2011              Page 3 of 12

5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16,
this Court laid down the following principles for fixing the
maintenance under Section 24 of the Hindu Marriage Act:-
“4. Right to maintenance is an incident of the
status from an estate of matrimony. Interim
maintenance has an element of alimony, which
expression in its strict sense means allowance
due to wife from husband on separation. It has
its basis in social conditions in United Kingdoms
under which a married woman was economically
dependent and almost in a position of tutelage to
the husband and was intended to secure justice
to her.
5. Section 24 of the Hindu Marriage Act goes a
step further inasmuch as it permits maintenance
to be claimed by the husband even against the
wife.
6. While considering a claim for interim
maintenance, the court has to keep in mind the
status of the parties, reasonable wants of the
applicant, the income and property of the
applicant. Conversely, requirements of the non
applicant, the income and property of the non
applicant and additionally the other family
members to be maintained by the non applicant
have to be taken into all. Whilst it is important to
insure that the maintenance awarded to the
applicant is sufficient to enable the applicant to
live in somewhat the same degree of comfort as
in the matrimonial home, but it should not be so
exorbitant that the non applicant is unable to
pay.
7. Maintenance awarded cannot be punitive. It
should aid the applicant to live in a similar life
style she/he enjoyed in the matrimonial home. It
should not expose the non applicant to unjust
contempt or other coercive proceedings. On the
other hand, maintenance should not be so low so
as to make the order meaningless. CM(M) No.79/2011              Page 4 of 12

8. Unfortunately, in India, parties do not
truthfully reveal their income. For self
employed persons or persons employed in
the unorganized sector, truthful income
never surfaces. Tax avoidance is the norm.
Tax compliance is the exception in this
country. Therefore, in determining interim
maintenance, there cannot be
mathematical exactitude. The court has to
take a general view. From the various
judicial precedents, the under noted 11
factors can be culled out, which are to be
taken into consideration while deciding an
application under Section 24 of the Hindu
Marriage Act. The same are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of
the claimant.
4. The number of persons, the non
applicant has to maintain.
5. The amount should aid the applicant to
live in a similar life style as he/she enjoyed
in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter,
education, medical attendance and
treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while
estimating the income of the non applicant
when all the sources or correct sources are
not disclosed.
10. The non applicant to defray the cost of
litigation.
11. The amount awarded under
Section 125 Cr.PC is adjustable against the
amount awarded under Section 24 of the
Act.”

(Emphasis Supplied)
CM(M) No.79/2011              Page 5 of 12

6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT
602, this Court laid down the factors to be taken into
consideration for ascertaining the income of the spouse. The
relevant portion of the judgment is reproduced hereunder:-
“12. It is settled position of law that a wife is
entitled to live in a similar status as was enjoyed
by her in her matrimonial home. It is the duty of
the courts to ensure that it should not be a case
that one spouse lives in a life of comfort and
luxury while the other spouse lives a life of
deprivation, poverty. During the pendency of
divorce proceedings the parties should be able to
maintain themselves and should be sufficiently
entitled to be represented in judicial
proceedings. If in case the party is unable to do
so on account of insufficient income, the other
spouse shall be liable to pay the same. (See
Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun and Ors., reported at V (1998) SLT
551, III (1997) CLT 398 (SC), II (1997) DMC 338
(SC) and (1997) 7 SCC 7).
13. A Single Judge of this Court in the case of
Bharat Hegde v. Saroj Hegde, reported at 140
(2007) DLT 16 has culled out 11 factors, which
can be taken into consideration for deciding the
application under Section 24 of Hindu Marriage
Act.
14. Further it has been noticed by the Courts
that the tendency of the spouses in proceedings
for maintenance is to not truthfully disclose their
true income. However, in such cases some guess
work on the part of Court is permissible.
15. The Supreme Court of India in the case of
Jasbir Kaur (Smt.) (supra), has also recognized
the fact that spouses in the proceedings for
maintenance do not truthfully disclose their true
income and therefore some guess work on the
part of the Court is permissible. Further the CM(M) No.79/2011              Page 6 of 12

Supreme Court has also observed that
“considering the diverse claims made by the
parties one inflating the income and the other
suppressing an element of conjecture and guess
work does enter for arriving at the income of the
husband. It cannot be done by any mathematical
precision”.
16. Although there cannot be an exhaustive list
of factors, which are to be considered in
guessing the income of the spouses, but the
order based on guess work cannot be arbitrary,
whimsical or fanciful. While guessing the income
of the spouse, when the sources of income are
either not disclosed or not correctly disclosed,
the Court can take into consideration amongst
others the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of
marriage and the manner in which
marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit cards;
(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel/ holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children
are studying when parties were residing
together;
(xix) Amount spent on fees and other
expenses incurred;
(xx) Amount spend on extra-curricular
activities of children when parties were
residing together; CM(M) No.79/2011              Page 7 of 12

(xxi) Capacity to repay loan.
17. These are some of the factors, which may be
considered by any court in guesstimating or
having a rough idea or to guess the income of a
spouse. It has repeatedly been held by the
Courts that one cannot ignore the fact that an
Indian woman has been given an equal status
under Articles 14 and 16 of the Constitution of
India and she has a right to live in dignity and
according to the status of her husband. In this
case, the stand taken by the Respondent with
respect to his earning is unbelievable.”
7. In the facts and circumstances of this case, both the
parties are directed to file their respective affidavits of assets,
income and expenditure from the date of the marriage up to
this date containing the following particulars:-
7.1 Personal Information
(i) Educational qualifications.
(ii) Professional qualifications.
(iii) Present occupation.
(iv) Particulars of past occupation.
(v) Members of the family.
(a) Dependent.
(b) Independent.

7.2 Income

(i) Salary, if in service.
(ii) Income from business/profession, if self employed.
(iii) Particulars of all earnings since marriage.
(iv) Income from other sources:-
(a) Rent.
(b) Interest on bank deposits and FDRs.
(c) Other interest i.e. on loan, deposits, NSC, IVP, KVP,
Post Office schemes, PPF etc.
(d) Dividends.
(e) Income from machinery, plant or furniture let on
hire. CM(M) No.79/2011              Page 8 of 12

(f) Gifts and Donations.
(g) Profit on sale of movable/immovable assets.
(h) Any other income not covered above .

7.3 Assets

(i) Immovable properties:-
(a) Building in the name of self and its Fair Market
Value (FMV):-
 Residential.
 Commercial.
 Mortgage.
 Given on rent.
 Others.
(b) Plot/land.
(c) Leasehold property.
(d) Intangible property e.g. patents, trademark, design,
goodwill.
(e) Properties in the name of family members/HUF and
their FMV.
(ii) Movable properties:-
(a) Furniture and fixtures.
(b) Plant and Machinery.
(c) Livestock.
(d) Vehicles i.e. car, scooter along with their brand and
registration number.
(iii) Investments:-
(a) Bank Accounts – Current or Savings.
(b) Demat Accounts.
(c) Cash.
(d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc.
(e) Stocks, shares, debentures, bonds, units and mutual
funds.
(f) LIC policy.
(g) Deposits with Government and Non-Government
entities.
(h) Loan given to friends, relatives and others.
(i) Telephone, mobile phone and their numbers.
(j) TV, Fridge, Air Conditioner, etc.
(k) Other household appliances.
(l) Computer, Laptop.
(m) Other electronic gadgets including I-pad etc.
(n) Gold, silver and diamond Jewellery.
(o) Silver Utensils.
(p) Capital in partnership firm, sole proprietorship firm. CM(M) No.79/2011              Page 9 of 12

(q) Shares in the Company in which Director.
(r) Undivided share in HUF property.
(s) Booking of any plot, flat, membership in Co-op.
Group Housing Society.
(t) Other investments not covered by above items.
(iv) Any other assets not covered above.

7.4 Liabilities

(i) OD, CC, Term Loan from bank and other institutions.
(ii) Personal/business loan
(a) Secured.
(b) Unsecured.
(iii) Home loan.
(iv) Income Tax, Wealth Tax and Property Tax.

7.5 Expenditure

(i) Rent and maintenance including electricity, water and
gas.
(ii) Lease rental, if any asset taken on hire.
(iii) Installment of any house loan, car loan, personal loan,
business loan, etc.
(iv) Interest to bank or others.
(v) Education of children including tuition fee.
(vi) Conveyance including fuel, repair and maintenance of
vehicle. Also give the average distance travelled every
day.
(vii) Premium of LIC, Medi-claim, house and vehicle policy.
(viii) Premium of ULIP, Mutual Fund.
(ix) Contribution to PPF, EPF, approved superannuation fund.
(x) Mobile/landline phone bills.
(xi) Club subscription and usage, subscription to news
papers, periodicals, magazines, etc.
(xii) Internet charges/cable charges.
(xiii) Household expenses including kitchen, clothing, etc.
(xiv) Salary of servants, gardener, watchmen, etc.
(xv) Medical/hospitalization expenses.
(xvi) Legal/litigation expenses.
(xvii) Expenditure on dependent family members.
(xviii)Expenditure on entertainment.
(xix) Expenditure on travel including outstation/foreign
travel, business as well as personal.
(xx) Expenditure on construction/renovation and
furnishing of residence/office. CM(M) No.79/2011              Page 10 of 12

(xxi) Any other expenditure not covered above.

7.6 General Information regarding Standard of Living
and Lifestyle

(i) Status of family members.
(ii) Credit/debit cards.
(iii) Expenditure on marriage including marriage of family
members.
(iv) Expenditure on family functions including birthday of the
children.
(v) Expenditure on festivals.
(vi) Expenditure on extra-curricular activities.
(vii) Destination of honeymoon.
(viii) Frequency of travel including outstation/foreign travel,
business as well as personal.
(ix) Mode of travel in city/outside city.
(x) Mode of outstation/foreign travel including type of class.
(xi) Category of hotels used for stay, official as well as
personal, including type of rooms.
(xii) Category of hospitals opted for medical treatment
including type of rooms.
(xiii) Name of school(s) where the child or children are
studying.
(xiv) Brand of vehicle, mobile and wrist watch.
(xv) Value of jewellery worn.
(xvi) Details of residential accommodation.
(xvii) Value of gifts received.
(xviii)Value of gifts given at family functions.
(xix) Value of donations given.
(xx) Particulars of credit card/debit card, its limit and usage.
(xxi) Average monthly withdrawal from bank.
(xxii)Type of restaurant visited for dining out.
(xxiii)Membership of clubs, societies and other associations.
(xxiv)Brand of alcohol, if consumed.
(xxv)Particulars of all pending as well as decided cases
including civil, criminal, labour, income tax, excise,
property tax, MACT, etc. with parties name.

8. Both the parties are also directed to file, along with
affidavit, copies of the documents relating to their assets,
income and expenditure from the date of the marriage up to CM(M) No.79/2011              Page 11 of 12

this date and more particularly the following:-
(i) Relevant documents with respect to income including
Salary certificate, Form 16A, Income Tax Returns,
certificate from the employer regarding cost to the
company, balance sheet, etc.
(ii) Audited accounts, if deponent is running business and
otherwise, non-audited accounts i.e. balance sheets,
profit and loss account and capital account.
(iii) Statement of all bank accounts.
(iv) Statement of Demat accounts.
(v) Passport.
(vi) Credit cards.
(vii) Club membership cards.
(viii) Frequent Flyer cards.
(ix) PAN card.
(x) Applications seeking job, in case of unemployed person.

9. The affidavit and documents be filed within a period of
four weeks with an advance copy to opposite parties who shall
file their response within two weeks thereafter.
10. List for hearing on 9th
November, 2011.
11. Both the parties are directed to remain present in Court
on the next date of hearing along with all original documents
relating to their assets, income and expenditure.
12. This Court appreciates the valuable assistance rendered
by Ms. Prem Lata Bansal, Senior Advocate.
13. Copy of this order be sent to the Principal District Judge
for being circulated to the concerned judges dealing with
matrimonial cases.

CM(M) No.79/2011              Page 12 of 12

14. Copy of this order be given dasti to learned counsels for
both the parties under signature of Court Master.

            J.R. MIDHA, J
SEPTEMBER 12, 2011
mk

http://lobis.nic.in/dhc/JRM/judgement/09-11-2011/JRM12092011CMM792011.pdf

http://indiankanoon.org/doc/153453675/

Monday, November 7, 2011

No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means

No alimony for women walking out of marriage, who cannot prove wilful neglect by husband despite sufficient means-Delhi district court (saket) judgment (125crpc. case)

IN THE COURT OF SHRI RAJEEV BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEWDELHI.

Criminal Revision No. 45/10 (Unique No.02403R0251242010)

1. Kulwant Kaur

W/o Sh. Maan Singh

2. Master Simran Singh

S/o Sh. Maan Singh

Through Natural Guardian

Kulwant Kaur.

Both R/o F-11/4, Malviya Nagar,

New Delhi ...........Revisionist

Sh. Maan Singh

S/o Sh. Jeet Singh,

R/o WZ/111-B, Gurunanak Nagar,

Tilak Nagar, New Delhi ..........Respondent

Date of Initial Institution :30.07.2010

Date of institution in the present court:19.10.2010

Date of Reserving Order :03.10.2011

Date of Pronouncement Order :31.10.2011

ORDER

The present revision petition has been filed against dated 26.05.2010 by which the petition filed under Section 125 Cr.P.C by the revisionist was dismissed by the Ld. Trial Court.

2. It has been stated in the petition that the revisionist No.1 Kulwant Kaur married respondent on 26.06.1992 and out of this marriage, petitioner No.2 was born on 10.11.1993. It has been alleged that the respondent committed cruelties upon the revisionist No.1 which compelled her to register an FIR with CAW Cell against him. The revisionist is stated to be living separately since 09.04.1995 and has no independent source of income whereas the respondent is stated to be earning Rs.20,000/- per month by working as Electrician and Palmist. The petition under Section 125 Cr.P.C was thus filed on 25.09.2003 by the revisionist No.1 claiming a maintenance of Rs.11,000/- per month for herself and Rs.5,000/- for revisionist No.2. It was further stated that earlier petition filed under Section 125 Cr.P.C by the revisionist was dismissed in default on 01.09.1997.

3. After consideration of the rival contentions of the parties, the Ld. Trial Court dismissed the petition under Section 125 Cr.P.C vide order dated 26.05.2010.

4. Grievance of the revisionist is that the respondent is a man of means whereas the revisionist has no independent source of income. Further, it has been stated that the respondent had voluntarily deserted both the revisionists and has not made any arrangement for their maintenance. Further, it has been stated that dismissal of previous petition filed under Section 125 Cr.P.C is not a bar for filing a fresh petition under Section 125 Cr.P.C. Thus on these grounds, the impugned order has been assailed by the revisionists.

5. On the other hand, respondent/husband has stated that the revisionist No.1 herself deserted him and hence she is not entitled to any maintenance. Apart from it, it has also been stated that the earlier application filed under Section 125 Cr.P.C was dismissed in default vide order dated 01.09.1997 and the second application for the same relief will not lie.

6. I have heard both the Ld. Counsels and have gone through the Trial Court record. The Ld. Trial Court in its impugned order dated 26.05.2010 has observed that the revisionist No.1 failed to discharge the initial burden of proving neglect by the husband. The Trial Court also observed that the circumstances in which the petitioner/wife left the matrimonial home was also not specifically dealt with by her. It is trite that in order to claim maintenance under Section 125 Cr.P.C , it is obligatory upon the claimant to establish that there was willful neglect on the part of the husband to maintain the claimant. Ld. Trial Court took into consideration the demeanour of the revisionist during the course of her deposition in the court. Court’s observation are recorded in the deposition of the petitioner according to which the witness had called her father inside the court by signaling. The court also observed that the witness was warned time and again, during herexamination, not to solicit help in her examination from her counsel or anybody else, but she did not desist from it. Ld. Trial Court rightly took exception to this conduct of the revisionist. Ld. Trial Court also observed that the revisionist failed to show the circumstances under which she left the matrimonial home. Another factor which was noted by the Ld. Trial Court was the dismissal of earlier petition filed under Section 125 Cr.P.C on 01.09.1997. However, the second petition under Section 125 Cr.P.C was decided on merits by the Ld. Trial Court and after considering the merits of the case, the same was dismissed. The argument of the petitioner that the Ld. Trial Court dismissed the second petition only on the ground that the first petition having been dismissed, is a bar against filing of a second petition, is factually incorrect. The Ld. Trial Court has not dismissed the second petition under Section 125 Cr.P.C only on the ground of dismissal of the petition under Section 125 Cr.P.C. Only an observation was made by the Ld. Trial Court that the first petition under Section 125 Cr.P.C was dismissed by the court on 01.09.1997 but nevertheless the second petition was decided on merits. In her cross-examination, petitioner stated that she does not know as to whether the respondent was doing the work of Electrician and had nominal income. She admitted that at the time of marriage, the respondent was working as an Electrician but she could not tell as to whether the respondent had his own shop or was working for somebody else. She further stated that the respondent was provided work by her brother when he could not succeed in his own work. She further admitted that the respondent was taken to Hong Kong by her brother. The deposition of the petitioner, read as a whole, does not show that the respondent had sufficient means but still he neglected or showed his inability to maintain the petitioner. It is vital that the petitioner is painfully silent about the circumstances in which she left the company of the respondent and started living separately from the husband. When the circumstances of living separately do not surface, adverse inference is to be drawn against the wife that she left the matrimonial home willfully and with her own choice. It is settled position of law that one cannot take benefit of his own wrongs. It is not that all living separate are sufficient to entitle a wife to claim maintenance from the husband. She must prove without fail that the husband refused to maintain her despite having sufficient means to do so. Wife cannot walk out of the house at her sweet will and also claim maintenance from the husband. The petitioner has failed to prove the circumstances resulting in her living separate from the respondent/husband. In this view of the matter, I do not find any infirmity in the impugned order and hence the present revision petition is dismissed.

7. TCR be returned back to the concerned court alongwith a copy of this order.

8. File be consigned to the Record Room.

Announced in the open court.

( Rajeev Bansal )

Dated:31.10.2011
ASJ-3/South District

Saket Courts, New Delhi

Tuesday, November 30, 2010

ITR NOT gospel for deciding maintenance. others factors to be considered for deciding other than ITR of husband

1                                           WP.569/2010
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.569 OF 2010
Amit Rasiklal Shah ...Petitioner
Vs.
Sonal Amit Shah ...Respondent
Ms. T. F. Irani for the Petitioner
Mr. Rakesh K. Agarwal for Respondent
CORAM : SMT. ROSHAN DALVI, J.
                     DATED : 18TH NOVEMBER, 2010
ORAL ORDER :
1. The Petitioner husband has challenged the order of the Family
Court, Mumbai dated 4th
November 2009 granting interim
maintenance of Rs.20,000/ to his wife and Rs.10,000/ each
to his sons in the Petition filed by the wife.
2. The Petitioner’s income is required to be seen to adjudicate
whether the impugned order grants a reasonable amount of
maintenance or whether the maintenance is excessive
considering the Petitioner’s station in life.2                                           WP.569/2010
3. The Respondent wife has not been shown to be having any
separate means of livelihood. The two children are aged about
12 and 10 years.
4. The Petitioner has produced income tax returns for 3 years. He
contends that net taxable income is the only numerical figure
from the income tax returns must be seen by the Court based
upon which the maintenance for the wife and children must be
granted. The contention is wholly incorrect. It would be
absurd to consider the net income of an assessee who has
various sources of income some of which may not be liable to
tax at all.
5. Consequently, the computation of taxable income of the
Petitioner’s individual returns must be seen in its entirety and
has to be read as a whole. The Petitioner is admittedly in
business. Hence the business returns of the partnership firm or
sole proprietary concern along with the trading and profit and
loss account as well as the balance sheet of the firm must be
seen to appreciate what income the firm or the individual
would have at least approximately earned and what income is
ultimately shown as the net taxable income. This is aside from
the fact that it is settled position in law that the tax returns of
a party shown by the party in Court, specially in matrimonial
proceedings, cannot be taken for the gospel.3                                           WP.569/2010
6. With that it will be interesting and appropriate to decipher the
Petitioner’s income from the individual returns shown by
himself.
7. The Petitioner was married in 1997. The parties have fallen off
in April 2006. The wife lives with her two sons in her parental
home.
8. The Petitioner’s income tax returns is for the year 20062007.
It makes interesting reading. The income from his business
and profession is only Rs.9695/. The long term capital gains
of the Petitioner are Rs.3.62 lakhs. Income from other sources
is Rs. 1 lakh and the gross total income is Rs.4.72 lakhs. After
deductions under Section 80 C of the Income Tax Act of Rs.1
lakh the total income is shown to be Rs.3.72 lakhs. The
computation of his total income shows, not profit from his
business, but as salary of Rs.1 lakh with the aforesaid capital
gains.
9. For the next assessment year 20072008 the Petitioner has
shown the share of profit from his firm of Vintex Optics as well
as Mesha International. These are petty figures of Rs.25000/
and Rs.9000/ each. The Petitioner has shown the
remuneration from Vintex Optics which exceeds his share of
profit. It is approximately Rs.57000/ less interest thereon of 4                                           WP.569/2010
Rs.27000/. The Petitioner has shown commission received
from another firm. It is stated by him in Court that he had
introduced a client from Andheri to his brother in the said firm
for which he received a commission of Rs.90000/. The
Petitioner has further shown short term as well as long term
capital gains. These are on shares of listed companies. The
dividend income from shares, which is exempt from tax is in a
sum of Rs.37,688/ as also with interest on RBI bonds and PPF
interest. The long term capital gains is to the extent of Rs.16.5
lakhs and short term profit of shares treated separately is also
shown deducted from the income of the Petitioner on certain
shares. Income of the two minor sons of the Petitioner is also
shown in his own return. The LIC premium which is deducted
is of Rs.1lakh and the Petitioner who is present in Court
concedes that the LIC policies are more than Rs.20 lakhs.
10.The returns for the year 20082009 also shows the share of
profit from Mesha International, but not from Vintex Optics. It
shows a loss from this proprietary concern. These returns also
show the dividend, PPF, Insurance etc. as in the earlier year.
The capital account of the Petitioner which is shown only in
the last year’s income tax returns shows gift of Rs.5 lakhs and
Rs.2.25 lakhs amongst others given to his father and his
brothers. The income from the partnership firm of Nisha
International is not shown. Instead the assets in the balance
sheet shows a certain flat premises in Goregaon. The 5                                           WP.569/2010
investments in shares, insurance, mutual funds recurring
deposits, PPF etc. are also shown aggregating to about Rs.55
lakhs including the investment in shares of Rs.30 lakhs. Loans
and advances are shown against all the family members except
perhaps his wife. The cash and bank balances are shown to
aggregate to approximately Rs.3 lakhs.
11.These returns themselves show the worth of the Petitioner.
They do not show a person who earns an amount of Rs.
20000/ per month as is alleged by the Petitioner. A person
who earns that income, if that be his only income, would not
be able to invest in shares of listed companies, insurance, PPF
account, government bonds, flat, shop etc. Though these
assets are not liable to distribution or division whilst
considering the interim maintenance, these are required to be
seen and appreciated by the court for considering the income
earned from such assets to appreciate his standing in society.
12.It is argued on behalf of wife that the Petitioner’s total
earnings including earnings as a partner or sole proprietor in
the aforesaid firms and as a Director in Global Parasol
Reinsurance Bonds besides having shares, bank accounts and
cash etc. It is also argued that the Petitioner owns 5 cars and
has bank accounts in IDBI Bank, Axis Bank, Indian Overseas
Bank and HDFC Bank. The Petitioner also has credit card of
Citibank. 6                                           WP.569/2010
13.The Advocate on behalf of wife drew my specific attention to
the income tax returns of the Petitioner for the assessment year
20072008 showing the current year’s income remaining after
set off of the losses of earlier years including salary, business
speculation, short term capital gain etc., to be Rs.3.65 lakhs.
The total exempted income including the long term capital
gain against security transactions is shown to be Rs.17.5 lakhs.
The learned Judge has considered the aforesaid amounts to
determine the Petitioner’s standard of living. That has been
correctly considered. Though the Petitioner may be entitled to
set off the losses and though the Petitioner may be legally
exempt from tax for the purpose of payment of income or
wealth tax, the fact that the Petitioner has earned those
amounts cannot be sidelined. It would have to be considered
reading the taxation returns as a whole. Considering these
returns itself the interim maintenance amount would be
calculated. This would leave out the immovable properties, if
any, owned by the Petitioner and the Bank accounts which are
not produced before this Court. Upon seeing these returns
maintenance of Rs.20000/ for the wife and Rs.10000/ each
for the children is not only reasonable, but in order. The order
of the learned Family Court Judge is not required to interfered
with.7                                           WP.569/2010
14.The Writ Petition is dismissed.
15.The Civil Application No.2705/2010 also stands disposed off
as infructuous.
(SMT. ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/data/judgements/2010/CWP15710.pdf

***********

SECOND JUDGMENT

                                                                           1                                        WP.4641/2010
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4641 OF 2010
Shirish H. Garg ...Petitioner
(Orig. Respondent)
Vs.
Nidhi S. Garg ...Respondent
(Orig. Applicant)
Mr. R.S. Apte i/b. Mr. V.P. Patankar, Advocate for Petitioner
Mr. A.M. Vernekar, Advocate for Respondent
CORAM : SMT. ROSHAN DALVI, J.
                     DATED : 16TH NOVEMBER, 2010
ORAL ORDER:
1. This Petition is filed by the husband challenging the order of
maintenance passed by the Family Court, Bandra, Mumbai on
1st
April 2010 for the interim maintenance under Section 24 of
the Hindu Marriage Act of his wife.
2. The husband is in business. The wife has no independent
source of income. The husband runs three family businesses.
These are shown on the Website of the husband as well as the
Company. The husband owns a car and has purchased a share
in a property which initially belonged to his joint family for his
residence. The parties have been engaged and married in a                                                                            2                                        WP.4641/2010
five star hotel. The husband’s bank account shows large
deposits and withdrawals. He pays separate electricity bills of
large amounts of his residential premises. The husband also
has Life Insurance Policy. He has several employees whose
provident fund is paid and an immovable property for which
property taxes and municipal taxes are paid. These are
reflected in the supporting documents produced by the wife
being his bank pass book, the employees provident fund book,
the LIC Policy, the property tax receipt, municipal tax receipt,
Website details etc.
3. The husband has not disputed the separate 3 or 4 businesses of
the family in which he has a share. He has also not disputed
the Website of the business concerns. He has instead sought to
show his income under the income tax returns filed by him as
also the company.
4. The determination of maintenance is dependent upon
consideration of the Petitioner’s own income and the income of
the Respondent under Section 24 of the Hindu Marriage Act
which runs thus:
“24. Maintenance pendente lite and expenses of
proceedings – Where in any proceeding under this Act 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 the wife or the husband, order the
respondent to pay to the petitioner the expenses of the                                                                             3                                        WP.4641/2010
proceeding, and monthly, during the proceeding such sum as,
having regard to the petitioner’s own income and the income
of the respondent, it may seem to the court to be reasonable”.
5. Upon considering the interim application for maintenance the
wife is given a share in the income of the husband and not his
properties. The husband, therefore, contends that only his
income, as reflected in the individual income tax returns filed
by him as also the returns of the businesses run by him, can be
seen by this Court and the Family Court.
6. The Family Court has considered the aforesaid businesses, the
expenses for purchase of movable and immovable properties
the debit and credit entries in his bank account and the
Website details of the Petitioner himself and his businesses to
ascertain the approximate income of the Petitioner.
7. The ascertainment of the income has to be done judiciously
and sensibly. It cannot be done arbitrarily or only
arithmetically. The consideration of the income contemplated
under the Section does not mean that only the numerical
figures shown in the income tax returns of a party can be taken
for the gospel. The husband contends, from his income tax
returns which are shown to Court, that he earns approximately
Rs.2 lakhs a year. This would constitute an income of
approximately Rs.16,000/ per month. In this income the
husband would not be expected to have the bank account that                                                                            4                                        WP.4641/2010
is shown to Court, the car which he owns, the share in the joint
family property that he has purchased, the exports that he has
made, the expenses for the electricity that he has paid or the
property taxes that he has incurred or the employees whom he
supports in several firms.
8. Details of four firms are provided by the wife and considered
by the learned trial Judge. The biodata of the husband as well
as Website details of the firms show the goodwill of the firm
acquired since its establishment in 1963. This is reflected in
the name of the firms and the products that they produce. The
Website of the firm boasts of its leadership in glass industries
with regard to the quality of the products and its exports. It
shows export market in various foreign countries on four
continents. It is shown to have 51 to 100 employees, 1000 to
3000 sq. mtrs. of factory size, with various production lines,
estimated annual sales below one Millon US Dollars. These are
export oriented firms manufacturing products of ISO
certification. They are shown to be pioneers in glass industry.
The firms carry businesses in separate immovable properties
shown as head office as well as branch office at Goregaon as
well as Kandivali, Mumbai.   The Website shows the husband to
be the contact person in the firms.
9. The individual Website of the husband shows his position of
responsibility in expanding the family businesses which has                                                                            5                                        WP.4641/2010
proved to be a “boon” for the four companies mentioned
therein.
10.His residential address is shown in Dawawala   Bungalow of
800 sq. yds. The husband claims that that is the joint family
property. It belongs to four brothers including the husband’s
father. The husband has purchased ¼ share of one of the other
brother of his father. That share is reflected in his income tax
returns. That share must be taken to be at least approximately
of 2000 sq. ft in area being ¼ of the total area of the bungalow.
The husband has valued it at little over Rs.3 lakhs in his
income tax returns which valuation would be impossible to
accept, given the current market rates of real estate.
11.The parties got engaged and married in Hotel Sea Princess,
Juhu besides having other related social wedding ceremonies.
This fact is reflected in the invitation cards produced by the
wife and not denied by the husband.
12.The bank account statement of the Indian Overseas Bank
shows various debit and credit entries of thousands and even
lakhs of rupees which have remained unexplained. Mr.
Vernekar on behalf of the wife drew my specific attention to
these entries which belie the net income shown to have been
earned by the husband as reflected in his income tax returns
completely. e.g., in quarter between April 2007 to June 2007                                                                            6                                        WP.4641/2010
about Rs. 8 lakhs have been deposited into his account and are
soon thereafter withdrawn. It appears essentially for travel
purpose as reflected from the debit entries in favour of the
Kuoni Travels. The credit entries are seen to be from other
saving accounts, the numbers of which are shown against those
entries. This shows that the husband has at least four other
accounts from which amounts have been transferred to the
only bank account which is on record. There is also a LIC
policy of the husband of Rs. 4 lakhs.
13.These supporting documents, therefore, falsify the tax returns
produced by the husband. Mr. Apte on behalf of the husband
went through the income tax returns. The arithmetical entries
by themselves do not show the true income of the husband and
must be rejected.
14.Mr. Vernekar on behalf of the wife rightly argued that if the
husband earns approximately Rs.16,000/per month he would
not be expected to have an LIC Policy of Rs. 4 lakhs, pay the
electricity bills of a few thousands of rupees each month,
purchase 1/4th
share of his uncle in the joint family property,
own a car and maintain the bank account showing large debit
and credit entries.
15.The learned Judge has, therefore, correctly considered how the
income sought to be shown by the Petitioner cannot be                                                                            7                                        WP.4641/2010
accepted in view of the movable and immovable properties
owned, possessed and maintained by the Petitioner. The
reasoning of the learned Judge is correct. The income of a
party before the Court has to be evaluated from the evidence
produced by the parties as a whole. It should not be a figure
which would insult the intelligence of the Court as being
wholly contrary to commonsense. Hence this must include
consideration of the properties of the husband, movable and
immovable, which would reflect his income. It may be
mentioned that the properties of the husband has to be
considered to that end though the wife is not given a share in
those properties at the interim stage.
16.The impugned order has considered the earlier order passed in
favour of the wife by the learned Magistrate’s Court granting
maintenance under the Domestic Violence Act. The impugned
order has granted further maintenance taking into account the
earlier maintenance granted.
17.The husband failed to pay the maintenance altogether until he
was directed to deposit the arrears in this Court.
18.It may be mentioned that upon strict evaluation of evidence
produced by the parties at the final hearing of the Petition
when the husband would have to stand trial that even more
evidence of his hitherto concealed income may surface. At the                                                                            8                                        WP.4641/2010
interim stage appreciation of the evidence on record can only
allow the Court to arrive at a reasonable figure of the income
which the husband is seen to be earning when the entire
income is not shown to Court and in fact sought to be
suppressed, specially in case of businessmen such as the
husband in this case. The extent of the income reasoned by
the learned Judge at the interim stage based upon the intrinsic
evidence in this case is most reasonable and proper. Mr. Apte’s
contention that it is based on conjunctures must, therefore, be
rejected.
19.Consequently, the impugned order is correct and the challenge
cannot be maintained.
20.Hence the order:
1. The Writ Petition is dismissed.
2. Wife shall be entitled to withdraw the amount of arrears
deposited by the husband in this Court.
3. The husband shall continue to pay the maintenance
pending the Petition as directed in the impugned order.
(SMT. ROSHAN DALVI, J.)

http://bombayhighcourt.nic.in/data/judgements/2010/CWP1407010.pdf

Wednesday, September 15, 2010

Del HC –s125 Crpc- dilatory tactics by wife – dismissed with costs

CRL. M.C. 1920/2010

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. M.C. 1920/2010 Decided on 15.07.2010
IN THE MATTER OF :

SUJATA AGGARWAL ..... Petitioner
Through: Mr. Hameed S. Shaikh, Advocate

versus

RAVI SHANKAR AGGARWAL ..... Respondent
Through: Mr. V.S. Pandey, Advocate

CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI

    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

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia for quashing of orders dated 23.09.2008 and 24.02.2010 passed by the learned Metropolitan Magistrate in a petition filed by the petitioner under Section 125 of the Cr.PC for maintenance.

2. Vide order dated 23.09.2008, the application filed by the petitioner in September, 2008 praying inter alia for summoning of witnesses was dismissed, while granting liberty to the petitioner to lead evidence by way of affidavit. Pertinently, till date the petitioner has not taken any step to assail the aforesaid order before a superior court. Instead, trial in the matter is stated to have been completed some months ago and as per the counsel for the respondent, it is listed for orders today.

3. By the second order dated 24.02.2010, the request of the counsel for the petitioner for staying the proceedings pending before the Metropolitan Magistrate on the ground that proceedings in the connected case filed by the daughter of the petitioner were stayed by the High Court vide order dated 22.02.2010 passed in Crl.M.C. No.1323/2009, was declined on the ground that there was no stay granted by the High Court in respect of the present proceeding and that the same was the main case.

4. Vide order dated 18.03.2008, learned Metropolitan Magistrate, while deciding the application of the petitioner seeking interim maintenance under Section 125 of the Cr.PC, had directed the respondent to pay a sum of Rs.20,000/- per month to the petitioner from the date of filing of the application till the disposal of the petition. Aggrieved by the interim maintenance fixed under the aforesaid order, the petitioner sought enhancement of the amount and preferred a revision petition, registered as Crl.M.C. 2725/2008. The said revision petition was dismissed by this Court vide order dated 21.08.2008, concurring with the order of the learned Metropolitan Magistrate. The aforesaid order was taken in appeal by the petitioner to the Supreme Court, by preferring a Petition for Special Leave to Appeal (Crl) No. 2161/2009, which was disposed of vide order dated 13.04.2009 with the following observations:

“Delay condoned.
Heard learned counsel for the parties.
The trial Court in an application filed by the wife for
maintenance under Section 125 of the Code of
Criminal Procedure, 1973, by way of interim
measure, had directed the husband to pay
Rs.20,000/- per month.
Petitioner, being dissatisfied with the said interim
order, challenged the said order before the High
Court for enhancement of maintenance. The High
Court by the impugned order has dismissed the same.
We are informed that the said maintenance petition
under Section 125 of the Code is still pending before the concerned court.
In this view of the matter, we are not inclined to
exercise our discretion under Article 136 of the
Constitution of India. The Special Leave Petition is
dismissed. However, the concerned court, before
which the petition under Section 125 of the Cr.PC, is
pending, is directed to dispose off the said petition in
accordance with law within a period of three months
from the date of receipt/production of a copy of this
order, after affording an opportunity to both the
parties to lead evidence in the matter.”

5. Counsel for the respondent submits that the petitioner is trying to adopt dilatory tactics in the present case and despite the aforesaid specific orders of the Supreme Court, directing that the petition under Section 125 Cr.PC be disposed of within a period of three months from the date of receipt of the order after affording an opportunity to both the parties to lead evidence in the matter, the petitioner has chosen to prefer the present petition and sought an adjournment on the last date of hearing before the Metropolitan Magistrate, on the ground of non-availability of her counsel. Counsel for the petitioner states today that as the Supreme Court had granted liberty to both the parties to lead evidence in the matter, the 5 petitioner is entitled to be granted the relief as sought by her in the application filed for producing additional evidence.

6. The records reflect that on the date when the order of the Supreme Court was passed, i.e., on 13.04.2009, no such application of the petitioner for adducing any additional evidence was pending. Nor did the petitioner file such an application on a later date. Hence, the question of the Metropolitan Magistrate granting such an opportunity to her does not arise. It does not lie in the mouth of the petitioner to allege today that an application for summoning of additional witnesses filed by her in September, 2008 and rejected vide order dated 23.09.2008 can be assailed in the present proceedings after a lapse of almost two years. Even otherwise, counsel for the respondent states that the stage of evidence is over, arguments have already been addressed in the matter and the same is listed for orders today.

7. As far as the order dated 24.02.2010 is concerned, admittedly, the present petition under Section 125 of the Cr.PC was preferred by the petitioner prior in time to a petition filed by her daughter for the same relief of maintenance. Counsel for the petitioner also concedes that the present case was treated as the main case. In the light of the order of the Supreme Court, the petitioner cannot be heard to state that the learned Metropolitan Magistrate ought to have waited for Crl.M.C. No. 1323/2009 to be decided first merely because the proceedings in the said petition filed by the daughter of the petitioner were stayed. The present petition is nothing but an attempt on the part of the petitioner to try and delay the pending proceedings under Section 125 Cr.PC. Knowing very well that there is an order of the Supreme Court dated 13.04.2009 calling upon the learned Metropolitan Magistrate to dispose of the pending proceedings within three months, the petitioner has intentionally not mentioned passing of the said order in the present petition. It is counsel for the respondent, who has handed over a copy of the said order in the Court. Leave alone the matter being decided in three months from 13.04.2009, even after over one year, it is stated to be pending and listed for orders today. For the aforesaid reasons, this Court is not inclined to interfere in the impugned orders dated 23.09.2008 and 24.02.2010. On merits also the impugned orders do not suffer from any irregularity, perversity or arbitrariness to deserve interference. The petition is dismissed with costs of Rs.5,000/- payable to the other side within one week.

(HIMA KOHLI)
JULY 15, 2010 JUDGE
rkb

http://lobis.nic.in/dhc/HK/judgement/20-07-2010/HK15072010CRLMM19202010.pdf

Sunday, September 12, 2010

SC- 'No alimony for woman who desert husband'

SC- No alimony for woman who desert husband

Court No.10 SECTION IIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl)... 2009 CRLMP.NO(s). 18899

(From the judgement and order dated 19/03/2009 in CRM No.24684/2008 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

POONAM Petitioner(s)

VERSUS

MAHENDER KUMAR Respondent(s)

(With appln(s) CRLMP 18899/2009 c/delay in filing SLP

Date: 16/11/2009 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE V.S. SIRPURKAR

HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s) Mr. S.N.Pandey, Adv.

Mr. Chander Shekhar Ashri,Adv.

For Respondent(s)

UPON hearing counsel the Court made the following

O R D E R

Delay condoned.

The special leave petition is dismissed.

(Shashi Sareen) (Shashi Bala Vij)

Court Master Court Master

http://courtnic.nic.in/supremecourt/temp/pr%201889909p.txt

Here is the full text of the Punjab & Haryana HC judgment upheld by SC

IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM …PETITIONER

VERSUS

MAHENDER KUMAR   …RESPONDENT

Criminal Misc. No.M-24684 of 2008 (O&M)

Present:           Mr.P.L. Goyal, Advocate, for the petitioner.

                       Mr. S.D. Bansal, Advocate, for the respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code') claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the same time,   affirming the finding    recorded    by the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only in getting maintenance allowance and taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon'ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the above,    the present petition   is dismissed being without any merit.

March 19 , 2009.

(   MOHINDER PAL )
ak    JUDGE

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SUPREME COURT OF INDIA

Case Status DISPOSED

Status of : Special Leave Petition (Criminal) 8854 Of 2009

POONAM .Vs. MAHENDER KUMAR

Pet. Adv. : MR. CHANDER SHEKHAR ASHRI

Subject Category : CRIMINAL MATTERS - MATTERS RELATING TO MAINTENANCE UNDER SECTION 125 OF CR.P.C.

Date of Disposal : 16/11/2009

Last updated on Sep 10 2010 Click Here for Latest Order

NIC

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ITEM NO.31 Court No.10 SECTION IIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl)... 2009

CRLMP.NO(s). 18899

(From the judgement and order dated 19/03/2009 in CRM No.

24684/2008 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

POONAM Petitioner(s)

VERSUS

MAHENDER KUMAR Respondent(s)

(With appln(s) CRLMP 18899/2009 c/delay in filing SLP

Date: 16/11/2009 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE V.S. SIRPURKAR

HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s) Mr. S.N.Pandey, Adv.

Mr. Chander Shekhar Ashri,Adv.

For Respondent(s)

UPON hearing counsel the Court made the following

O R D E R

Delay condoned.

The special leave petition is dismissed.

(Shashi Sareen) (Shashi Bala Vij)

Court Master Court Master

http://courtnic.nic.in/supremecourt/temp/pr%201889909p.txt

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'No alimony for woman who desert husband'

New Delhi, Nov 18 , 2010, DHNS:

In an observation with far-reaching implications, the Supreme Court has said that a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance.

Upholding a decision of the Punjab and Haryana High Court, a bench headed by Justice V S Sirpurkar said the law of the land did not allow maintenance in cases where the wife deserted her husband, children and the matrimonial home.

In the case before the Punjab and Haryana High Court, Poonam, who was married to Mahender Kumar of Jind on January 23, 1992, left her matrimonial home on March 18, 1998, alleging harassment and dowry demands. She also left her children.

Poonam later moved the family court, seeking divorce on grounds of cruelty. But Mahender Kumar filed an application before the court on February 20, 2002, praying for restoration of conjugal rights under the Hindu Marriage Act.

She did not respond to the application, and Kumar was granted ex parte decree as it was construed that Poonam would not return to her matrimonial home.

Fresh appeal

Two years later, Poonam approached the family court again, seeking divorce — on the ground that she was living separately — and demanding maintenance.

Though the court granted her divorce, her appeal for maintenance was turned down.

The Supreme Court bench said: “You left the matrimonial home on your own, and now you want maintenance. Is this the law of the country? What is the justification for your staying separately?”

No ill-treatment

When the case reached the Supreme Court, Poonam challenged the Punjab and Haryana High Court’s decision, seeking maintenance of Rs 4,000 per month from Mahender.

The high court judgment said she had failed to prove that she was ill-treated by her former husband. Additionally, the court observed: “Failure of the petitioner-wife to justify her decision to stay away from the respondent-husband and two kids shows that she had left society of the respondent on her own accord.”

http://www.deccanherald.com/content/36709/no-alimony-woman-desert-husband.html