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2014 DIGILAW 1656 (PNJ)

Sudhir Kapur v. Neel Mani

2014-12-01

K.C.PURI

body2014
JUDGMENT Mr. K.C. Puri, J.: - Sudhir Kapur - petitioner has directed this petition under Section 482 of the Code of Criminal Procedure (in short – the Cr.P.C.) for quashing the orders dated 04.12.2010 and order dated 28.01.2014 (Annexures P-1 and P-2). 2. The brief facts of the present case are that Neel Mani respondent (herein) filed a petition under Section 125 of the Cr.P.C. against her husband Sudhir Kapoor (petitioner-herein) alleging therein that their marriage was solemnized as per Hindu Rites at Karnal on 1.9.1990. Out of their wedlock a son namely Chandek alias Chintu was born on 29.8.1991. However, the present petitioner and his parents were not satisfied with the quantum of dowry given to Neel Mani and due to this Sudhir Kapoorhusband had been harassing her. She was being ill treated and was given beatings by the petitioner right from the marriage. It is alleged that one FIR No.96 dated 5.2.1993 under Sections 406 and 498-A, IPC was got lodged against the petitioner but the same was compromised in this Court and the FIR was quashed vide order dated 26.5.1994. Thereafter, parties again started residing together at Panipat. However, a short while after the petitioner again started giving beatings to the respondent on trivial matters without any rhyme and reason and started raising demand of more dowry i.e. car and cash. Ultimately she was turned out of her atrimonial house in wearing apparels along with her son on 17.5.2000. FIR No.152 dated 19.5.2000 was again got registered against the petitioner. Petitioner filed a petition under Section 13 of the Hindu Marriage Act (in short – the Act) against the respondent but the same was dismissed as the petitioner did not make payment of the maintenace pendente lite. He challenged the said Order before this Court which was dismissed. It has been alleged that the petitioner is having monthly income of Rs. 40,000/- to 45,000/- per month whereas the respondent is unemployed and is dependent upon her parents. She has sought maintenance of Rs. 8500/- plus Rs. 2000/-p.m. for her son. 3. In the written statement filed by the petitioner, he denid the allegations as raised in the petition and has alleged that father of the respondent has deposited a sum of Rs. 9,00,000/- in her name, therefore, she is having sufficient income to maintain herself and her minor child. 8500/- plus Rs. 2000/-p.m. for her son. 3. In the written statement filed by the petitioner, he denid the allegations as raised in the petition and has alleged that father of the respondent has deposited a sum of Rs. 9,00,000/- in her name, therefore, she is having sufficient income to maintain herself and her minor child. Earlier suit filed by the respondent was on false grounds, therefore, the same was withdrawn. The marriage of the parties was a simple marriage without any sort of pomp and show. Thus, question of demand of dowry etc. does not arise. It has been alleged that after the comproise in the first FIR, the petitioner and respondent lived together for seven years. But again the respondent went back to her parental house at her sweet will without his consent along with her brother on 17.5.2000. It has further been alleged that the divorce petition filed by the petitioner was dismissed for non payment of maintenance pendent elite. However, at that time his financial position was not good and he could not make payment of the maintenance. He was doing the job at the salary of Rs.4000/- per month in a company Indiyasoft at New Delhi. It has also been alleged that recital regarding income being Rs. 40,000/- to Rs.45,000/- per month in petition under Section 13 of the Hindu Marriage Act cannot amount to admission of the petitioner. If the same was ever an admission on the part of the petitioner the same is being withdrawn being an erroneous admission. It has also been alleged that the petitioner got his son operated upon at Sir Ganga Ram Hospital, New Delhi due to his problem of Hernia. At that time the respondent and her parents did not bother about the condition of the minor. It has also been alleged that though his father received a sum of Rs.39,00,000/-, 11 years back but his father paid taxes and spent a lot of amount on the extension and renovation of the house no. 212-R, Model Town, Panipat as per the wish of his daughter in law. He also purchased a car in the year 1992. Thereafter he also distributed some amount to his daughters and had discharged his liabilities. The business of the petitioner is not running in good condition and he suffered regular loses in the past. 212-R, Model Town, Panipat as per the wish of his daughter in law. He also purchased a car in the year 1992. Thereafter he also distributed some amount to his daughters and had discharged his liabilities. The business of the petitioner is not running in good condition and he suffered regular loses in the past. The letter received from Indian Bank shows that the concern of the petitioner was closed in the month of October, 2000. It has been alleged that the respondent left his company when she came to know that her husband had suffered losses in the business once again in the year 1999-2000. Other allegations as raised in the petition have been denied. Besides, legal pleas regarding maintainability of the petition have been taken. 4. After adducing evidence, the trial court granted maintenance to the tune of Rs.12,000/- per month to the respondent Smt. Neel Mani only and refused to grant any maintenance to son Chandek @ Chindu as he attained the age of majority vide judgment dated 04.12.2010. 5. Feeling aggrieved with the judgment dated 04.12.2010, both the parties went in revision. 6. Learned Additional Sessions Judge, Karnal vide judgment dated 28.01.2014 modified the order dated 04.12.2010 and awarded maintenance amount to the tune of Rs20,000/- per month to the respondentwife and also awarded Rs.5000/- per month to son from the date of the petition till the age of eighteen years. 7. Feeling dissatisfied with the aforesaid judgments dated 28.01.2014 and order dated 04.12.2010, the present petition has been directed by husband Sudhir Kapoor. 8. I have heard learned counsel for the parties and have gone through the case file with their able assistance. 9. Learned counsel for the petitioner-husband has submitted that the order passed by learned Additional Sessions Judge dated 4.12.2010 is wrong on the face of it. The claim of the respondents-herein is for grant of maintenance @ Rs.8500/- per month to the wife and Rs.2000/- per month to the minor son. The learned trial Court after appreciating the evidence allowed maintenance to the tune of Rs.12,000/- per month to the wife whereas the claim of son was declined as he has attained the age of majority. However, the learned Sessions Judge enhanced the amount to the tune of Rs.20,000/- per month in favour of wife and Rs.5000/- in favour of son. The learned trial Court after appreciating the evidence allowed maintenance to the tune of Rs.12,000/- per month to the wife whereas the claim of son was declined as he has attained the age of majority. However, the learned Sessions Judge enhanced the amount to the tune of Rs.20,000/- per month in favour of wife and Rs.5000/- in favour of son. However, the claim of son of the petitioner was restricted regarding arrears as he has attained the age of majority. It is submitted that against the claim of the wife and the son to the tune of Rs.10,850/- (Rs.8500+Rs2000/-) Additional Sessions Judge has granted the amount to the tune of Rs.25,000/- per month i.e. Rs.20,000/-+ Rs.5000/-. 10. Learned counsel for the petitioner has further submitted that petitioner is earning Rs.4000/- per month as salary by working in a firm at Delhi. Wife in her cross-examination has virtually admitted the factum of drawing salary of Rs.4000/- per month. So, grant of maintenance to the tune of Rs.25,000/- per month against the income of Rs.4000/- is clearly illegal and is liable to be set aside. 11. Learned counsel for the petitioner has further submitted that marriage between the parties was solemnized in the year 1990. Son of the parties has taken birth in the year 1991. There was a dispute between the parties in the year 1993 also but the matter was compromised. Thereafter, the parties lived together about seven years but the respondent along with son of the parties, had left the house without any sufficient cause. The petitioner filed petition under Section 13 of the Hindu Marriage Act, in which maintenance to the tune of Rs.8500/- per month was allowed. The said order was challenged before this Court. However, this Court granted litigation expenses to the tune of Rs.10,000/- to the wife. The petitioner, who is a poor person having income of Rs.4000/- per month only could not pay the said amount and as such the petition filed before this Court was dismissed for nonpayment of the amount. Petition under Section 13 of the Hindu Marriage Act was also ultimately dismissed on the ground that petitioner-husband could not pay the amount of Rs.8500/- per month. 12. Petition under Section 13 of the Hindu Marriage Act was also ultimately dismissed on the ground that petitioner-husband could not pay the amount of Rs.8500/- per month. 12. Learned counsel for the petitioner has further submitted that both the Courts below have observed that in earlier petition under Section 13 of the Hindu Marriage Act, petitioner has admitted his income as Rs.40,000/- to Rs.45,000/-. However, it is submitted that the petitioner has withdrawn the said admission and as such both the Courts below have wrongly considered the income of the petitioner to the tune of Rs.40,000/- to Rs.45,000/- per month. 13. Learned counsel for the petitioner has further submitted that respondent has the FDR of Rs.9,00,000/-. So, she has interest income. The Woolen factory has already been under loss and petitioner has no income from the said factory. 14. Learned counsel for the petitioner has further submitted that trial court has observed that the petitioner has received more than Rs.80,00,000/- in respect of compensation regarding the acquisition of his father’s land. It is submitted that the said amount cannot be said to be the income of the petitioner. The petitioner has already spent an amount of Rs.29,00,000/- for purchase of property. The sale of house in the year 2007 for a consideration of Rs.10,50,000/- has also been utilized. So, prayer has been made for setting aside the order of the trial Court as well as Revisional Court. 15. Learned counsel for the petitioner has further submitted that appeal before the learned Additional Sessions Judge is not maintainable in respect of order passed in proceedings under Section 125 of the Cr.P.C. The learned Additional Sessions Judge, has accepted the appeal and as such the order passed by learned Sessions Judge, is illegal and could be granted as favoritism order in favour of the wife. 16. In support of his contention, Learned counsel for the petitioner has relied upon following authorities :- 1. Chaturbhuj vs. Sita Bai reported in (2008) 2 Supreme Court Cases page 316 and 2. Dev Narayan Halder vs. Anushree Halder (SMT) reported in (2003) 11 SCC page 303 ; 17. Counsel for the respondent has supported the judgment of the learned Additional Sessions Judge. It is submitted that learned Judicial Magistrate Ist Class, granted maintenance only to the tune of Rs.12,000/- per month, which has been rightly enhanced by the learned Additional Sessions Judge. Dev Narayan Halder vs. Anushree Halder (SMT) reported in (2003) 11 SCC page 303 ; 17. Counsel for the respondent has supported the judgment of the learned Additional Sessions Judge. It is submitted that learned Judicial Magistrate Ist Class, granted maintenance only to the tune of Rs.12,000/- per month, which has been rightly enhanced by the learned Additional Sessions Judge. It is submitted that in the earlier litigation under Guardian and Wards Act, the petitioner has pleaded that he belongs to erstwhile Dewan family. Ex.P-6 and Ex.P-7 are the documents regarding property owned by the family. The argument that petitioner is serving and earning only Rs.4000/- is just a joke. It is submitted that monthly bill of electricity of the house of the petitioner is Rs.40,000/-, it means that his monthly charges of electricity is Rs.20,000/- and in such less amount of Rs.4000/- per month he cannot afford to pay Rs.20,000/- per month as electricity charges. The petitioner has Palaces house at Panipat. From the document placed on the file, it is revealed that petitioner has withdrawn more than Rs.80,00,000/-. Rs.70,00,000/- have invested in the shape of FDR. Copies of which have already been placed on record of trial Court and copies are also placed on the record of this case. The petitioner has sold his one of the houses for a consideration of Rs.10,50,000/-. He has purchased the property for a valuable consideration of Rs.29,10,600/- from the department, which document is already on the record. The document has also been placed on the record that petitioner owns a Woolen Mill under the name and style Sudhir Traders. In fact, he does not want to pay anything to his wife and son. Respondent has to maintain herself and her son who is a student of MBA. The petitioner agreed to pay the fee of his son during the pendency of the present case but for reasons best known to him he has not paid the said amount. The petitioner has paid a cheque No.460715 dated 11.07.2014 of Rs.60,000/- on 11.7.2014 and cheque of Rs.36,000/- bearing No.015962 dated 30.10.2014. In case his income is Rs.4000/- per month in that case he could not pay the said amount. 18. Counsel for the respondent has further submitted that the house of petitioner is consisted of more than ten rooms and many portions of the houses have been let down by the petitioner. In case his income is Rs.4000/- per month in that case he could not pay the said amount. 18. Counsel for the respondent has further submitted that the house of petitioner is consisted of more than ten rooms and many portions of the houses have been let down by the petitioner. This Court has held that maintenance amount can be granted even more than the amount claimed under Section 125 Cr. P. C. So, the arguments advanced by the counsel for the petitioner for more than claimed amount cannot be allowed, is without any substance. Reliance on authority Kamaldeep Kaur and another vs. Balwinder Singh reported in [2005(3) Law Herald (P&H) 235] : 2005(3) RCR (Crl.) page 258. 19. Learned counsel for the respondent has further submitted that petitioner has not dared to come into witness box and as such the evidence produced by the wife goes unrebutted. It was the petitioner only, who can state that he was earning Rs.4000/- per month but he has not dared to come to the witness box and to depose. 20. Counsel for the respondent has relied upon the following authorities :- 1. Kamaldeep Kaur and another vs. Balwinder Singh reported in [2005(3) Law Herald (P&H) 235] : 2005(3) R.C.R. (Criminal) page 258 ; 2. Ashwani Mehta vs. Mrs. Vibha Mehta reported in [2014(1) Marriage L.J. 686 (Delhi) (DB)] : 2012(5) R.C.R. (Criminal) page 834 ; and 3. Ashis Mondal vs. State of West Bengal & Anr. reported in 2013(4) AICLR page 106. 21. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 22. The primary objection raised by counsel for the petitioner is that both the Courts below have granted amount more than the amount claimed in the petition. The amount claimed by the petitioner in the petition under Section 125 Cr.P.C. was Rs.8500/- p.m. for wife and Rs.2000/- per month for minor son. The amount granted by the trial Court was Rs.12,000/- per month from the date of order to wife whereas the claim of son was declined having been become major. 23. The learned Additional Sessions Judge on appeal preferred by the wife and the son allowed maintenance @ Rs.20,000/- per month to the wife and son was granted maintenance @ Rs.5000/- per month from the date of application till the attaining the age of majority. 24. 23. The learned Additional Sessions Judge on appeal preferred by the wife and the son allowed maintenance @ Rs.20,000/- per month to the wife and son was granted maintenance @ Rs.5000/- per month from the date of application till the attaining the age of majority. 24. Proceedings under Section 125 Cr.P.C., are summary proceedings and strict law of pleading is not applicable. Otherwise also, in authority Kamaldeep Kaur and another’s case (supra), this Court has held that there is no specific restriction under Section 125 of the Cr.P.C., that Magistrate cannot award more than the amount claimed in the petition. It has been further observed by this court that it is the duty of the Magistrate to award compensation, which is reasonable. So, the argument advanced by the learned counsel for the petitioner that more amount than claimed cannot be awarded, is without any substance. 25. The second contention raised by the counsel for the petitioner is that he is earning Rs.4000/-per month as salary by working in a Company, at Delhi. However, this argument is devoid of any legal force. The said assertion is not proved on the file as petitioner has not come into the witness box to state that he is working at Computer Company, Delhi and earning Rs.4000/- per month. Otherwise also, said pleading is false on the face of it. The petitioner, as per record is paying the electricity bill valuing about Rs.40,000/- for two months. It cannot be believed that person earning Rs.4000/- per month can pay electricity bill of Rs.20,000/- per month. The said stand of the petitioner regarding his employment with Computer company seems to be just to avoid the maintenance. 26. The argument of counsel for the petitioner to the extent that the pleading regarding income of Rs.40,000/- to Rs.45,000/- per month needs to be withdrawn is concerned that submission is without any legal force. The stand taken by the petitioner in earlier proceedings under Hindu Marriage Act, pleading income of Rs.40,000/- to Rs.45,000/- per month, cannot be allowed to be withdrawn on the facts of the present case. 27. In the year 2001 petitioner was directed to pay the maintenance to the tune of Rs.8500/- per month. The stand taken by the petitioner that he could not pay maintenance and on that account petition under Section 13 of the Hindu Marriage Act was dismissed, cannot be believed. 27. In the year 2001 petitioner was directed to pay the maintenance to the tune of Rs.8500/- per month. The stand taken by the petitioner that he could not pay maintenance and on that account petition under Section 13 of the Hindu Marriage Act was dismissed, cannot be believed. Moreover, there is much favourable trend of income in favour of the petitioner. Admittedly, he received a sum of Rs.80,88,326/- and that fact has not been disputed during the course of argument. It is also not disputed that out of the said amount of Rs.80,88,326/-, Rs.70,00,000/- were invested in the shape of seven FDRs valuing Rs.10,00,000/- each. Copy of the same has been placed on the record. It is also not disputed during the course of argument that petitioner is the owner of the house in which he is residing and that house is a big one. It has also come on record that petitioner sold his another house valuing Rs.10,50,000/-. It has also come on record that petitioner purchased the plot for valuable consideration of Rs.29,10,600/- on 29.1.2009. The details regarding the ownership of land has been placed on record as Ex.P-6 and P-7. As per record, the petitioner has crossexamined his wife on so many dates but himself has not appeared in the witness box to support his case. So, the evidence produced by the wife and the son goes un-rebutted. 28. The argument advanced by counsel for the appellant that Rs.9,00,000/- in the name of the wife should be taken into consideration is concerned that argument is devoid of any legal force. Both the Courts below have rightly observed that the said amount was deposited by father of Neel Mani Kapoor. The petitioner has not contributed any amount in the said amount. In case father deposited some amount in the name of his daughter, who has no source of income in that case, the said amount cannot be considered to be her income. During the course of hearing, in the present case, the petitioner offered to pay the amount of fee of his son who happened to join the MBA course. However, later on petitioner has categorically stated that he will not pay any amount towards the fee of MBA paid in respect of his son. During the course of hearing, in the present case, the petitioner offered to pay the amount of fee of his son who happened to join the MBA course. However, later on petitioner has categorically stated that he will not pay any amount towards the fee of MBA paid in respect of his son. It is not disputed during the course of arguments that petitioner in respect of petition for the custody of minor son of the parties has pleaded that petitioner belongs to erstwhile Dewan family, who has very good status in the society. It has also been pleaded in the said petition that petitioner is running factory of blankets and has sufficient income. The petitioner, during the course of arguments, has taken the stand that said factory has run into losses but no evidence in this regard has been produced. Even petitioner has not come into the witness box to depose that fact. Un-substantive assertion without any legal evidence has to be rejected out-rightly. 29. So far as the authority Chaturbhuj’s case (supra) is concerned that authority is remotely connected to the facts of the present case. In the said ruling, it has been further held that man has a natural duty to maintain his wife, children and parents who are unable to maintain themselves and Section 125 of the Cr.P.C., is speedy remedy for the said purpose. 30. Authority Dev Narayan Halder’s case (supra) is distinguishable as in that case, the wife who has left her matrimonial house without any sufficient ground is not entitled to maintenance but in the present case, no such fact has come on the record. The petitioner’s conduct is relevant as he has filed petition under Section 13 of the Hindu Marriage Act for getting the decree of divorce from wife and had failed. Thus, in the present case, petitioner is not ready to rehabilitate his wife. 31. In authority Ashwani Mehta’s case (supra) maintenance @ Rs.60,000/- per month was awarded in favour of the wife by family Court in proceedings under Section 125 of the Cr. P.C. Husband did not appear in the witness box. The Division Bench of Delhi High Court in Ashwani Mehta’s case (supra) has held that income of husband must have increased from the year 2002. The said ruling was passed in the year 2012. P.C. Husband did not appear in the witness box. The Division Bench of Delhi High Court in Ashwani Mehta’s case (supra) has held that income of husband must have increased from the year 2002. The said ruling was passed in the year 2012. The maintenance at the rate of Rs.1,50,000/- per month was granted on account of the failure of the husband to appear in the witness box. 32. In authority Ashis Mondal’s case (supra) Calcutta High Court held that social status of the parties, economic viability and family background has to be considered. Petitioner himself has pleaded that he is member of erstwhile Dewan family and has very good status of the family. 33. The counsel for the petitioner has submitted that appeal was not maintainable before the Additional Sessions Judge and as such the amount of maintenance cannot be enhanced in appeal. However, the said argument is devoid of any legal force. The petitioner himself has challenged the order of the trial court before Sessions Court by describing it as appeal/revision. It is not disputed during the course of arguments that revision is maintainable before the Sessions Judge against the order passed under Section 125 Cr.P.C. Technicalities cannot be impediment in dispensing with the real justice between the parties. In case the wife has described the revision as appeal in that case, the Sessions Judge was well within its rights to entertain the revision against the order of the trial Court for grant of compensation. So, it cannot be said that the Sessions Judge has committed any illegality. The argument advanced by Mr. Mutneja, counsel for the petitioner to the effect that learned Sessions Judge has passed a order by favouring the wife cannot be accepted. The order passed by the learned Additional Sessions Judge is perfectly justified to the facts of the present case. The petitioner received an amount of more than Rs.80lacs as compensation on 18.02.2009. Out of which Rs.70lacs have been invested in the shape of FDRs. He has purchased the property valuing Rs.29,10,600/- and selling another house for consideration of Rs.10,50,000/-. It is not disputed during the course of arguments that property owned by his father came to the petitioner on account of Will. The petitioner is having landed property also as is evident from jamabandies. He has purchased the property valuing Rs.29,10,600/- and selling another house for consideration of Rs.10,50,000/-. It is not disputed during the course of arguments that property owned by his father came to the petitioner on account of Will. The petitioner is having landed property also as is evident from jamabandies. So, under these circumstances, the order of learned Additional Sessions Judge was perfectly legal and justified to the facts of the present case. The conduct of the petitioner is also relevant. He makes a pleading that he is an employee for Rs.4000/- per month, which cannot be believed at all. Person employed at Delhi has to spend a lot if he is resident of Panipat for attending his duties at Delhi. It is not disputed that petitioner is having a big house. 34. So, Considering whole of the circumstances, no case is made out for interference in the impugned orders under Section 482 of the Cr.P.C. Consequently, the petition stands dismissed. 35. A copy of this order be conveyed to the trial Court for strict compliance. ---------0.B.S.0------------ —————————