Prakash Chand vs Smt. Rekha Rani
2010 Latest Caselaw 62 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+          CM(M) No.489/2009 & CM No.7551 /2009

                       Date of Decision: January 08, 2010

      PRAKASH CHAND                         .....Petitioner
               Through:    Mr. Hari Datt Sharma and
                           Ms. Reena Singh, Advocates.

                          versus

      SMT. REKHA RANI                  ..... Respondent
               Through:    Mr.H.S.Sharma, Advocate.

      %
      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?
     (3) Whether the judgment should be reported
         in the Digest ?

                     JUDGMENT

ARUNA SURESH, J. (Oral)

1. Impugned in this petition is the order of the

Trial Court dated 16th March, 2009, whereby on an

application filed by the respondent, the Trial Court

awarded Rs.1,700/- as interim maintenance to the

respondent from the date of the application adjustable in

maintenance, if any, awarded in proceedings under

Section 125 of the Code of Criminal Procedure

(hereinafter referred to as 'Cr.P.C.') or any other

proceedings.

2. Parties to the petition were married on 9th

December, 1986, at Delhi. Out of the wedlock of the

parties, one male child, namely, Gaurav was born on 24th

January, 1988, who is in the custody of the petitioner

since 17th July, 1989, when parties started living

separately. This resulted into criminal as well as civil

litigation inter se the parties including the divorce

petition filed by the petitioner. Before petitioner's filing

petition seeking divorce under Section 13 of the Hindu

Marriage Act (hereinafter referred to as the 'Act'),

respondent had filed a petition under Section 9 of the Act

for restitution of conjugal rights on 26th November, 1998,

i.e. after about nine years of separation. However, the

said petition was contested by the petitioner and it was

dismissed by the Trial Court vide its impugned judgment

and decree dated 17th August, 2005.

3. It seems that earlier also respondent had filed

a petition under Section 125 Cr.P.C., but she withdrew

the same on 30th August, 1991. She filed another petition

under Section 125 Cr.P.C. and her application for interim

maintenance was dismissed on 13th August, 1999. The

revision petition against the said order was also

dismissed on 18th August, 2001. Respondent lost her

petition under Section 125 Cr.P.C. on 25th July, 2005. She

also lost her revision petition. Proceedings under

Sections 498-A/406/34 IPC are also pending against the

petitioner and his family members.

4. It is submitted by learned counsel for the

petitioner that petitioner is a patient of hypomania, a

mental disease and is undergoing treatment. He is

unable to earn anything and is living on the mercy of his

family members. He is also a diabetic patient, having

gangrene disease in his one leg and his left thumb has

already been imputated. However, the Trial Court failed

to consider that petitioner is suffering from the above

said diseases. The court also failed to consider that one

eye of the petitioner's son has been completely damaged

and he cannot hear from both the ears and it is

petitioner's family members who have to spend money

on his treatment; the court failed to consider that

respondent, who is a graduate, is working for gain and

has her independent income for her survival. It is further

submitted that the Trial Court did not properly consider

the statement of the petitioner recorded under Order 10

of the Code of Civil Procedure (hereinafter referred to as

'CPC'), while granting maintenance of Rs.1,700/- per

month to the respondent.

5. Learned counsel for the respondent has

submitted that petitioner is working with his brothers in

the joint family business and has substantial income to

provide maintenance to the wife as ordered by the court.

He has pointed out that petitioner has not placed on

record any document to indicate that he is a patient of

hypomania. Under these circumstances, counsel for the

respondent has prayed that there are no merits in the

petition. During the course of arguments, learned

counsel for the petitioner has submitted that petitioner

was suffering from hypomania even in the year 1986

when he was married to the respondent. When

questioned it was admitted that he was working with his

brothers in the family business of manufacturing mixi etc.

With all his mental ailment, as is being projected before

this Court, petitioner married the respondent, lived with

her for three years, co-habited with her and was blessed

with a son.

6. Under these circumstances, it becomes

unbelievable that petitioner was and is not mentally fit or

capable of earning his livelihood. The son born out of the

wedlock of the parties is about 21 years of age as on

date. Petitioner has not placed on record any document

of any hospital or any private doctor to show prima facie

that since before his marriage he was suffering from

hypomania and after sometime of the marriage, the

intensity of the disease increased which totally

incapacitated him from physical activities and he is

unable to earn. Documents placed on record are

photocopies of some prescriptions of the year 2009,

which do suggest that petitioner is suffering from some

mental ailment, but, in no manner suggest that he is

suffering from hypomania. May be that petitioner's

mental faculties are not as normal like other persons but,

at the same time, there is nothing on record to suggest

that he is incapable of earning or has no power of

discretion. Possibly Gaurav, son of the parties is suffering

from some impaired hearing and loss of sight in one eye,

but this factor also is not relevant, when it comes to

determination of the earning capacity of the petitioner.

7. Under these circumstances, since prima facie

petitioner has failed to convince the Court that he is

suffering from hypomania and is completely incapable of

earning anything and also keeping in mind the fact that

since before the time of his marriage with the

respondent, petitioner has been working with his brothers

in the family business, I find no reason to interfere in the

impugned order of the Trial Court. It is not out of place to

mention here that petitioner was examined under Order

10 CPC by the court. His statement has been reproduced

by the Trial Court in the impugned order. After reading

the said statement, it can be said that petitioner

understood the questions put to him by the court

indicating that his mental faculties were normal. The

Trial Court rightly observed that since petitioner was

living in the joint family and was working with his

brothers in the joint business, his income could be safely

assessed as Rs.5,000/- per month, which to my mind is

on the lower side.

8. Hence, petition as well as the application, being

without any merits, are hereby dismissed.

(ARUNA SURESH) JUDGE JNAUARY 08, 2010 sb