Sh. Vijay Singh Yadav vs Smt. Rajesh Yadav & Anr.
2009 Latest Caselaw 2563 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. M.C. No.3024/2008

                                    Date of Decision : 10.07.2009

SH. VIJAY SINGH YADAV                           ......Petitioner
                               Through:   Mr. M.B.Singh, Advocate

                                Versus

SMT. RAJESH YADAV & ANR.                       ...... Respondents
                     Through:             Mr.N.K.Sharma, Advocate
                                          for the respondent no.1
                                          with respondent no.1 in
                                          person.
                                          Mr.Jaideep Malik, APP for
                                          the State.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J. (Oral)

1. This is a petition filed by the petitioner under Article 227 of

the Constitution of India read with Section 482 Cr.P.C. against

the order dated 07.4.2008 passed by Ms.Kiran Bansal, MM,

Delhi in M.P. No.372/3/03 u/S 125 of Cr.P.C. directing the

petitioner herein to pay an interim maintenance @Rs.4,000/- per

month to the respondent no.1 w.e.f. December, 2003 till the

disposal of the main petition.

2. Briefly stated the facts leading to the filing of the present

petition are not in dispute except the quantum of earnings of the

petitioner. It is admitted by the petitioner that the respondent

No.1 Smt. Rajesh Yadav is his wife. It is admitted that the

marriage took place between the parties on 26.2.1973 and from

the said wedlock, they were blessed with two sons namely

Sameer Yadav and Goldi Yadav. It is also not in dispute that

from 1993 onwards, the respondent no.1 was living separately

along with her sons. The respondent no.1 Smt.Rajesh Yadav has

made allegations that she was forced to live separately on

account of demand of dowry by the petitioner herein and that she

does not have any independent source of income and

accordingly, chose to file the petition for grant of maintenance

under Section 125 of the Cr.P.C. for herself and her two sons.

The learned Magistrate as early as on 24.11.2003 has directed

the petitioner herein to pay interim maintenance of Rs.4,000/-

per month to the respondent till November, 2003. Somehow this

resulted in prolonged litigation initiated by the petitioner by way

of filing revisions as a consequence of which said order of

payment of interim maintenance could not be complied with and

only a sum of Rs.1 lac has been paid in these proceedings which

has been accepted by the respondent no.1 herein without

prejudice to the rights and contentions on 13.5.2009 that is after

a lapse of almost six years.

3. The main contention of the learned counsel for the

petitioner is that the petitioner has been stated in the impugned

order to be an able bodied person and having 42 Killas of land

while as his holding of agricultural land is stated to be much

less. It has been stated that his income has been taken to be

Rs.30,000/- per month from the land in question as against that

he is earning only a sum of Rs.1,000/- to 15,000/- per month.

The learned counsel for the petitioner has drawn my attention to

the report of the Patwari showing his holding to the extent of 34

Kanal 17 Marlas.

4. The second contention of the learned counsel for the

petitioner is that the respondent cannot be permitted to take

advantage of her wrong inasmuch as she herself has deserted the

petitioner way back in 1993 apart from the fact that she herself

is a stage artist and is making a good living. Learned counsel

has referred to the following authorities contending that

notwithstanding the fact that this is an interim order still there is

a mis-carriage of justice in calculating the total income which

has been taken to be the basis for payment of the interim

maintenance to the respondent that is not sustainable in the

eyes of law. These authorities are as follows:

Chaturbhuj Vs. Sita Bai 2007 (13) Scale 402 Delhi Lotteries Vs. Rajesh Aggarwal 1997 VI AD (Delhi) 529 Krishnan & Anr. Vs.Krishnaveni & Anr. JT 1997 (1) SC 657 MCD Vs. Sub-Judge & Anr. 66 (1997) DLT 50

5. I have carefully considered the submissions made by

counsel for the petitioner. There is no doubt that no revision is

permissible under Section 397 (2) of the Cr.P.C. against an

interlocutory order. However, in appropriate cases, the High

Court in exercise of its powers under Section 482 is competent

enough to intervene or set aside or modify even an interlocutory

order in case it has resulted in abuse of process of law or is

causing grave miscarriage of justice. For this purpose, the

judgments which have been relied upon by counsel for the

petitioner in case of Krishnan & Anr. Vs. Krishnaveni & Anr. &

in case titled Delhi Labour Vs. Raj (supra) are not in dispute.

6. The question which is to be considered in the instant case

is as to whether in the present case the interlocutory order which

has been passed by the learned Magistrate by way of interim

maintenance of Rs.4,000/- per month to the respondent is

causing any grave miscarriage of justice qua the petitioner,

keeping in view his stand that the annual income of the

petitioner from the agricultural land is only Rs.1,000/- to

Rs.15,000/-. I do not feel that the interlocutory order which has

been passed by the learned Magistrate is causing grave

miscarriage of justice or is resulting in an abuse of process of law

which would warrant interference by this Court in altering the

interim maintenance fixed by the learned Magistrate. This is on

account of the fact that this is only an interim maintenance

which has been fixed not only in respect of the respondent Smt.

Rajesh Yadav but also her two sons. Therefore, to content that a

sum of Rs.4,000/- is excessive for three persons is an absurd

proposition.

7. The learned Magistrate while granting interim maintenance

has taken into consideration an average of Rs.30,000/- as the

agricultural income and has also taken note of the fact that the

petitioner had retired from his job and got a sum of Rs.8 to 9 lacs

at the time of his retirement. He has rightly assessed the overall

income of the petitioner as Rs.8 to 9 lacs out of which at best he

has given 50% to the respondent for the purpose of maintenance.

8. The very fact the petitioner was directed to pay an amount

of interim maintenance in order to prevent the vagrancy on the

part of the respondent as early as on 2003, the petitioner's

intention does not seem to be bonafide in preferring this petition

on account of the fact that from 2003 despite the repeated orders

for maintenance. The petitioner has initiated three rounds of

litigations to avoid the discharge of obligation cast on him. It is

only this year for the month of May, 2009 that he has handed

over a sum of Rs.1,50,000/- to the respondent. This clearly

shows that the intention of the petitioner is to avoid the

obligation cast on him by the statute by adopting dilatory tactics.

Therefore, this contention of the learned counsel for the

petitioner that there is miscarriage of justice or that his income

has not been rightly assessed does not have any merit at this

stage on account of the fact that all these aspects will be

considered by the learned Magistrate on merits as and when the

parties adduce their evidence. Accordingly, this contention of the

learned counsel for the petitioner is dismissed.

9. The third contention which has been raised by the learned

counsel for the petitioner is that there are some contradictions in

the stand taken by the respondent in different rounds of

litigation. In addition to this, it has been contended that the

respondent is working as a Stage artist and making an earning.

The very fact that there are some contradictions with regard to

the stand of the respondent will not entitle the petitioner to

completely become oblivious to his obligation to maintain his wife

and children. The petitioner shall be at liberty to adduce such

evidence and show to the learned Magistrate that she was

employed at some point of time which fact will be obviously taken

into consideration by the learned Magistrate while deciding the

matter on merit.

10. For these reasons, I feel even this contention made by

counsel for the petitioner needs to be rejected.

11. The learned counsel for the petitioner had also placed

reliance on the case titled Chaturbhuj Vs. Sita Bai (supra)

wherein the Apex Court laid down that it is essentially on the

wife to discharge the burden to show what is the income of the

petitioner /husband. There is no dispute about the proposition

of law laid down by the Supreme Court. The question of burden

being discharged by the wife and the onus shifting on the

petitioner are all questions of merits. Section 125 Cr.P.C. has

been essentially incorporated in 1973 to prevent the husband

from avoiding his responsibility to maintain his wife, parents or

children so that they are not left to become vagrant. It has been

laid down in the said provision that an interim order or interim

measure can be passed by the Court on the basis of prima facie

evidence. Even at the first stage of presentation of the petition

itself, the learned Magistrate has power to pass any order with

regard to the interim maintenance. In the present case though

an order has been passed almost six years earlier and the

compliance has taken place only in the month of May, 2009.

12. For the reasons mentioned above, there is no merit in the

present petition accordingly, the same is dismissed. However, it

is expected that the question of discharge of burden, quantum of

earnings of the petitioner shall be considered by the learned MM

in detail while disposing of the main petition which may be done

as expeditiously as possible.

13. With these observations, the present petition is dismissed.

V.K. SHALI, J.

July 10, 2009 RN