Pushpender Singh vs Smt. Jasbir Kaur
2010 Latest Caselaw 2059 Del

Citation : 2010 Latest Caselaw 2059 Del
Judgement Date : 20 April, 2010

Delhi High Court

Pushpender Singh vs Smt. Jasbir Kaur on 20 April, 2010

Author: Aruna Suresh

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+           CM(M) No. 522/2010 & CM Nos. 7106-07/2010


                                      Date of Decision: April 20, 2010

       PUSHPENDER SINGH                                ..... Petitioner
                     Through:              Mr.Suresh Sharma,
                                           Advocate.
                      versus

       SMT. JASBIR KAUR                              ..... Respondent
                      Through:             None.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)       Whether reporters of local paper may be
               allowed to see the judgment?
     (2)       To be referred to the reporter or not?            Yes
     (3)       Whether the judgment should be reported
               in the Digest ?                                   Yes

                          JUDGMENT

ARUNA SURESH, J. (Oral)

CM(M) No. 522/2010

1. Impugned in this petition is the order of the Trial Court

dated 9th February, 2010, whereby on an application of the

respondent, Trial Court was pleased to award maintenance of

Rs.5,000/- per month to her besides litigation expenses of

Rs.11,000/-.

2. Grouse of the petitioner is that at the time of grant of

anticipatory bail to the petitioner, respondent had compromised the

dispute with him. As per the settlement, she agreed to receive a sum

of Rs.1,50,000/- from the petitioner. First installment of Rs.50,000/-

was payable to respondent by way of a pay order through the

Investigating Officer within fifteen days of the anticipatory bail order

of the Court dated 13 th January, 2006. Another sum of Rs.50,000/-

was payable to her at the time of first motion and the remaining

amount of Rs.50,000/- was to be paid to her at the time of quashing

of FIR. However, after receiving Rs.50,000/- through Investigating

Officer, respondent backed out and did not join hands with the

petitioner for filing first motion under Section 13B (1) of the Hindu

Marriage Act (hereinafter referred to as the „Act‟) nor she joined the

petitioner for filing a petition seeking quashing of FIR registered

against him.

3. He has argued that matter having been once settled

inter se the parties, Trial Court went wrong in awarding

maintenance to the respondent under Section 24 of the Act without

taking into consideration, the fact that respondent had received

Rs.50,000/- through the Investigating Officer. Terms of settlement

inter se the parties are reflected in the order of the Additional

Sessions Judge dated 13 th January, 2006 whereby petitioner was

granted anticipatory bail. Petitioner filed a petition for divorce on

16th April, 2009 i.e. after about three years of the alleged settlement.

The said settlement lost its meaning. Fact remains that terms were

recorded in an order passed on an application of the petitioner

seeking anticipatory bail. While awarding maintenance to the

respondent, Court took into consideration income of the petitioner as

disclosed by the respondent. Trial Court also noted the defence of

the petitioner that he was unemployed or remained sick. Fact

remains that nothing was placed before the Court to indicate that

petitioner was sick and was not capable of earning anything.

4. During course of arguments when asked, counsel for

the petitioner submitted that petitioner being a sick person and

suffering from some stone problem in his kidneys is not capable of

earning anything and therefore, has no source of income. When

asked further as to how petitioner was maintaining himself, it was

conceded at the Bar that he was working for gain. Obviously,

petitioner has concealed his income from the Court so as to avoid his

liability to pay maintenance to his wife. As pointed out above,

nothing is placed on record to indicate that petitioner is a sick man

and his earning capacity is very low.

5. Court has awarded only Rs.5,000/- per month to

respondent/wife as maintenance, which to my mind is reasonable,

considering income of the petitioner, as disclosed by the respondent

in her application. Petitioner is stated to be running a factory of

manufacturing automobiles focus/fog lights as well as doing business

at D-48, Sewak Park, Uttam Nagar, New Delhi. This averment of

the respondent made in the application has not been specifically

refuted by the petitioner. While awarding maintenance, Trial Court

in para 9 of its impugned order has observed:-

"9. Under the provisions of matrimonial law, the husband has a bounden duty to maintain his wife who is unable to maintain and sustain herself at a similar life style to that of the husband. From the aforesaid discussion, I am of the considered opinion that the respondent is trying to hide his true income so as to wriggle out of his legal obligation to support and pay maintenance to his wife. Therefore, in the absence of any proof of the current income of the respondent, the court has no other alternative but to indulge in guess work to assess the income of the respondent as held in Judgment of the Hon‟ble High Court (Supra). I consider it appropriate to award an Interim Maintenance @ Rs.5,000/- per month (Rupees Five Thousand) to the applicant/respondent /wife w.e.f. date of filing of the present application i.e.14.5.2009 from the litigation expenses of Rs.11,000/-. Any amount payable in any other proceedings to the applicant/ respondent/wife shall be adjustable against the amount awarded as above."

6. Amount of Rs.50,000/- which was allegedly paid to the

respondent through the Investigating Officer cannot be construed as

payment of maintenance as the settlement between the parties had

failed. It seems that petitioner never brought the factum of

settlement between him and his wife and payment of Rs.50,000/- to

the knowledge of the Trial Court. Petitioner, therefore, cannot be

allowed to raise this issue in this petition.

7. It is submitted that respondent has filed an application

under Section 125 Cr.P.C. in which interim maintenance at the rate

of Rs.1,200/- per month was fixed and therefore, once maintenance

was fixed under Section 125 Cr.P.C., Trial Court went wrong in

awarding maintenance at the rate of Rs.5,000/- per month under