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2012 DIGILAW 1961 (DEL)

Manoj Sharma v. Reena Sharma

2012-05-21

V.K.SHALI

body2012
JUDGMENT : V.K. Shali, J.:— (Oral) 1. These are two petitions filed u/S 482 Cr.P.C. challenging two different orders passed by two different Courts in different proceedings pertaining to the grant of maintenance. But in both the petitions, the parties are the same and so are the facts, therefore, they are dealt with together. The petitioner/husband, after initial appearance, has been proceeded ex parte in both the petitions. In the first petition, the petitioner has challenged the order dated 2.5.2011 passed by Shri Deepak Jagotra, Judge, Family Courts, Dwarka Courts, New Delhi, directing the petitioner to pay ad interim maintenance @ Rs. 10,000/- each per month to the respondent nos.1 and 2. 2. The case of the respondent no.1 is that she got married to the petitioner on 15.2.2004 according to Hindu rites and customs and from the said wedlock, a male child, Master Pratham, was born on 22.1.2006. The respondent no.1 was subjected to demand of dowry, domestic violence and mental agony, because of which the relations between them got strained and ultimately, the respondent no.1 was thrown from the matrimonial home on 29.6.2006. Since then, she is living with her parents. So far as the income of the petitioner and the grant of maintenance by the respondent no.1 is concerned, it was observed in the impugned order as under:- 6. It is further averred that respondent no.1 is a man of means and running an educational society in the name Nishant Nirala Educational and Welfare Society and his monthly income from the educational society is about Rs.35,000/- to Rs.50,000/- per month. It is further averred that respondent also imparts computer training and his income from the same is about Rs.80,000/- to Rs.1,20,000/- per month. It is further averred that respondent is also running a Motor Driving School in the name of Chacha Motor Driving Training School and earns about Rs.15,000/- to Rs.20,000/- per month and respondent is also running Nishant Computer Academy and Nishant PT College at five different places and earns about Rs.1,50,000/- to Rs.2,00,000/- per month from there. It is further averred that respondent also owns two plots of 200 sq. yds. at Rohini and Harsh Vihar having value of Rs. Sixty Five Lacs and respondent has also shares in different companies and has fixed deposits in his name and earns Rs.15,000/- to Rs.25,000/- per month from there. 3. It is further averred that respondent also owns two plots of 200 sq. yds. at Rohini and Harsh Vihar having value of Rs. Sixty Five Lacs and respondent has also shares in different companies and has fixed deposits in his name and earns Rs.15,000/- to Rs.25,000/- per month from there. 3. The petitioner was proceeded ex parte on 31.3.2011, as he did not put in appearance after initial appearance. The respondent no.1 entered into the Witness Box and testified in support of her complaint that the petitioner is not paying the maintenance despite having the resources, while as she does not have any independent source of income to maintain herself and her minor son. She had also reiterated the averments made in the application with regard to the various sources of income of the petitioner. 4. The Court, after hearing the learned counsel for the respondent no.1, held prima facie that the income of the petitioner would be around Rs.40,000/- per month from all sources. The Court below did not believe the statement of the respondent no.1 on all counts so far as the income of the petitioner is concerned. Accordingly, taking the income of the petitioner as Rs.40,000/-, she was granted maintenance of Rs.10,000/- each for self and minor son. So far as the wife is concerned, she was given maintenance for life or till the time she remarries. As regards the minor son, he was given the maintenance till he attains the age of majority. 5. It is this ex parte order which has been assailed by the petitioner before this Court. The petitioner, in the present petition, has challenged the order of the grant of maintenance on the ground that the petitioner is working only as a driver and earning Rs.3,000/- per month. This fact has not been reflected by the petitioner either before the learned Trial Court on account of his absence or subsequent thereto by filing an application seeking modification of the order of maintenance under Section 127 of the Cr.P.C. Since the petitioner has not adduced any evidence in order to show his source of income or the quantum of income, it will be totally improper for this Court to rely on the documents which are sought to be relied upon by the petitioner before the High Court without his having produced any evidence before the Court below. As a matter of fact, the Court below has noted the fact that the relationship between the parties is not in dispute. The moral and the legal responsibility to maintain the respondent is also not disputed. It is also not disputed that the petitioner has a source of income while as the respondent has none. The lack of resources of the respondents has been established by the respondent no.1 by entering into the witness box. Under these circumstances, one cannot find fault with the order of the Court below. 6. So far as the amount is concerned, an amount of Rs.10,000/-, in today’s time, keeping the high prices of the day-to-day living items, is just a reasonable amount for two persons to survive for the entire month. I do not find any infirmity in the impugned order granting maintenance of Rs.10,000/- per month each. However, in case the source of income of the petitioner changes, he would be well within his right to seek modification of the order of maintenance by filing an application under Section 127 Cr.P.C. 7. So far as the Crl.M.C.3329/2011 is concerned, that challenges the order dated 12.1.2011 passed by the Mahila Court, Dwarka, New Delhi, granting maintenance of Rs.15,000/- for the respondent no.1 and Rs.5,000/- for the respondent no.2. The facts and the grounds of challenge in this petition are almost the same as the ones in Crl.M.C.3322/2011. Apart from the maintenance, she has also been given compensation for the mental agony, harassment and litigation etc. To that extent, I do not find that there should be any problem. However, so far as the question of deposit of an amount of Rs.5,00,000/- to be kept in FDR for the benefit of minor is concerned, I feel that this was slightly harsh order qua the petitioner. For deposit that corpus of Rs.5,00,000/-, I feel that the best course would be to deposit the aforesaid amount within a period of six months from today, if not already deposited. 8. The order of maintenance passed by the two forums comes to Rs.20,000/- in all, though in different proportions. This, in my view, is not very material but what is material in my view, is that the petitioner cannot be made to pay twice once the court itself has held that the total income of the petitioner is Rs.40,000/-. 8. The order of maintenance passed by the two forums comes to Rs.20,000/- in all, though in different proportions. This, in my view, is not very material but what is material in my view, is that the petitioner cannot be made to pay twice once the court itself has held that the total income of the petitioner is Rs.40,000/-. Therefore, I feel whenever the petitioner wants, the respondents can get maintenance only from one forum, apart from the other benefits granted by the Mahila Court. _____________