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2008 DIGILAW 134 (PNJ)

Kuldeep Singla v. Baby Alias Kiran

2008-01-21

RAJESH BINDAL

body2008
Judgment Rajesh Bindal, J. 1. This order will dispose of two petitions bearing Criminal Miscellaneous No. 24189-M of 2007 and Criminal Miscellaneous No. 34702-M of 2007 arising out of common order dated March 20, 2007 passed by the learned Additional Sessions Judge, Panchkula. 2. Facts have been noticed from Criminal Miscellaneous No. 24189-M of 2007. Vide impugned order, the order passed by the learned Additional Chief Judicial Magistrate, Panchkula fixing the maintenance @ Rs. 900/- per month for each respondent i.e. total of Rs. 2,700/- for three persons per month from the date of application was upheld. 3. It may be mentioned here that against the order dated September 26, 2006 passed by the learned Additional Chief Judicial Magistrate, Panchkula, both the parties being aggrieved filed revision petitions and in that impugned order was upheld. Both the parties being aggrieved against the order have filed petitions before this Court. 4. Briefly facts are that the marriage between petitioner and respondent No. 1 was solemnized on May 10, 1996. Because of certain differences, litigation is pending and according to the petitioner infact he and other family members have been convicted. The dispute in the present case is regarding the proceedings initiated by the respondents for grant of maintenance under Section 125 of the Code of Criminal Procedure (for short "the Code"). Learned Magistrate by his interim order dated February 7, 2003 directed the petitioner to pay maintenance @ Rs. 400/- to respondent No. 1 and Rs. 300/- per month each to respondents No. 2 and 3, the minor children. The interim order was confirmed by learned Additional Sessions Judge. In support of the claim made by the respondents, it was submitted that respondent No. 1 was harassed by the petitioner for not bringing enough dowry and was infact shunted out of the matrimonial home. A prayer was made for grant of maintenance of Rs. 3,000/- per month for all the respondents. At the time of final disposal of the claim made by the respondents, learned Magistrate considering the material on record fixed the maintenance at the rate of Rs. 900/- per month for each of the respondents making it a total of Rs. 2,700/- per month from the date of application. 5. In revision against the order passed by the learned Magistrate, respondents submitted that they are entitled to maintenance @ Rs. 1,000/- per month as against Rs. 900/- per month for each of the respondents making it a total of Rs. 2,700/- per month from the date of application. 5. In revision against the order passed by the learned Magistrate, respondents submitted that they are entitled to maintenance @ Rs. 1,000/- per month as against Rs. 900/- granted by learned Magistrate as the petitioner was having an income of Rs. 15,000/- per month whereas petitioner submitted that infact learned Magistrate had exceeded its jurisdiction even in granting a maintenance of Rs. 900/- per month to each of the respondents for the simple reason that he was not doing any business after being entangled in the criminal cases by respondent No. 1. He is merely busy in defending the same. The entire family has been ruined. His business had to be closed and presently he was dependent merely on pension being received by his retired father. The fact that the business had been closed is evident from the evidence produced by the petitioner in the form of cancellation of his registration under the Sales Tax Act. There was no evidence brought on record by the respondents to prove that petitioner was earning anything as the sales tax return which was produced on record by the respondents was for the period 2000-01 i.e. upto March 31, 2001 whereas petition under Section 125 of the Code was filed by respondents on May 26, 2001 and the factum of cancellation of registration under the Sales Tax Act with effect from July 25, 2001 was on record. Still further the petitioner submitted that learned Court below has failed to consider the fact that respondent No. 1 was employed and was earning handsomely which according to him was evident from the copy of the bank account maintained by respondent No. 1 with State Bank of India, Sector 10, Panchkula, wherein a number of entries of cash deposit were there which have not at all been considered by the Court below while assessing maintenance payable to the respondents. 6. The contention of learned counsel for the respondents is that infact with a view to avoid payment of maintenance to the respondents, petitioner had closed his business and transferred the shop in favour of his mother. The expenses were required for her maintenance and also for education of the minor children. 6. The contention of learned counsel for the respondents is that infact with a view to avoid payment of maintenance to the respondents, petitioner had closed his business and transferred the shop in favour of his mother. The expenses were required for her maintenance and also for education of the minor children. To controvert the allegations made by respondents, learned counsel for the petitioner submitted that learned Courts below have gone wrong in relying on the fact that shop in question was transferred by the petitioner in the name of his mother on June 1, 2006 whereas the same was transferred in her name by a decree of the Court dated June 1, 1992 when even the marriage between the parties had not taken place. 7. Having heard learned counsel for the parties and firstly dealing with the petition filed by the respondents, namely, Criminal Miscellaneous No. 34702-M of 2007, I am of the view that same is meritless for the simple reason even in the application filed by respondents, a maintenance of Rs. 1,000/- per month for each of the applicant and total of Rs. 3,000/- per month was claimed as against this learned Court below has already awarded a total sum of Rs. 2,700/- per month to them. Substantial relief having been granted to the respondents, I do not find any material on record to interfere in the order passed by the learned Additional Sessions Judge in exercise of powers under Section 482 of the Code. 8. As far as the petition filed before this Court by the husband is concerned, the contention is that learned Courts below have fixed the maintenance on a higher side primarily relying upon the factum that it was during the pendency of the petition that petitioner closed the business and transferred the shop in the name of her mother whereas as per evidence on record, the shop was transferred by way of a decree of Civil Court in favour of mother of petitioner on June 1, 1992 and not in 2006 as referred to in the judgment of the Court below. Be that as it may. Pendency or conviction in other proceedings is no defence to avoid payment of maintenance to the respondents. Amount awarded by the Courts is not unreasonable keeping in view present cost of living and education etc. of two minor children. Be that as it may. Pendency or conviction in other proceedings is no defence to avoid payment of maintenance to the respondents. Amount awarded by the Courts is not unreasonable keeping in view present cost of living and education etc. of two minor children. Mere cash deposits in the bank account without there being any further evidence to show that the respondent No. 1 was carrying on any business or profession will not result in the presumption, that the respondent No. 1 is regularly earning anything. 9. Keeping in view my above discussion, I do not find even this to be a fit case for interference in exercise of extra ordinary power under Section 482 of the Code. Accordingly, even the petition filed by the husband is also dismissed.