Hari Om Maheshwari vs Mrs. Usha Maheshwari
2010 Latest Caselaw 3085 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

        + CRL.M.C. 2097/2010 and Crl.M.A. 8187-8188/2010

                                                 Decided on 02.07.2010
IN THE MATTER OF :

HARI OM MAHESHWARI                                          ..... Petitioner
                  Through: Petitioner in person.

                     versus


MRS. USHA MAHESHWARI                                        ..... Respondent
                  Through: Nemo

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may         No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?        No

     3. Whether the judgment should be                No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The petitioner has assailed an order dated 18.02.2010 passed by

the learned Additional Sessions Judge, Delhi, in an appeal preferred by him

against the order dated 18.05.2009 passed by the learned Metropolitan

Magistrate by which, the interim application for maintenance filed by the

respondent, wife of the petitioner, under Section 125 Cr.PC was disposed of

by awarding maintenance @ Rs.12,000/- per month from the date of the

filing of the application, till further orders. The learned ASJ disposed of the

appeal of the petitioner by modifying the order passed by the Metropolitan

Magistrate directing that the respondent would be entitled to maintenance @

Rs.10,000/- per month only instead of Rs.12,000/- per month. It was further

directed that the said order would be effective from the date of the petition

till the date of decision of the main petition under Section 125 Cr.PC.

2. The petitioner, who appears in person, states that the main

petition under Section 125 Cr.P.C is pending before the learned Metropolitan

Magistrate and is at the stage of recording the cross-examination of the

respondent.

3. The main grievance of the petitioner is that the respondent is not

entitled to claim any maintenance whatsoever from him as the parties have

been living separately since the year 1989 and that she has other sources of

income by way of private tuitions that she has been taking since the year

1996. A perusal of the order dated 18.05.2009 passed by the learned

Metropolitan Magistrate shows that the aforesaid ground taken by the

petitioner was duly taken note of in para 15 and thereafter, turned down.

Maintaining a bank account by the respondent cannot by itself establish that

she is earning any income to maintain herself independently. Similarly,

holding of a PAN card by the respondent is also not an indicator in that

direction. The petitioner has not placed any material document on the record

to establish that the respondent is earning any amount by taking tuitions

and, therefore, she is dis-entitled from claiming maintenance from him.

The aforesaid plea of the petitioner is devoid of merits and therefore

rejected.

4. The second grievance of the petitioner is that the court below

failed to consider that he was entitled to claim adjustment of a sum of Rs.4

lacs, which was paid to the respondent in the pending proceedings, filed by

her against one Shri Arun Kumar, under Section 138 of the Negotiation

Instruments Act. This aspect of the matter was taken note of by both, the

learned ASJ & the Metropolitan Magistrate, who observed that the same is a

matter of evidence to be decided after the parties lead the evidence. The

said argument was also considered by the learned Additional Sessions Judge,

who rightly noted that the claim of the petitioner that a lump sum payment

of Rs.15 lacs was made by him to his wife, who in turn invested the same

elsewhere, is a question that requires evidence, and since the main petition

is pending, the said issue cannot be decided at the interim stage.

5. It is lastly argued by the petitioner that if the respondent had

the capacity to engage over four counsels in the Supreme Court in SLP Civil

No.9773/2009, preferred by him against the order dated 11.11.2008 passed

by the High Court in a pending revision petition, by which the interim order

passed in favour of the petitioner was vacated, it shows her sound financial

position. This can hardly be treated as a ground for arriving at a conclusion

that the respondent has other sources of income, which disentitles her from

claiming interim maintenance during the pendency of the main petition.

6. The Court does not find any illegality, arbitrariness or perversity

in the impugned order, which deserves interference. Accordingly, the

present petition is dismissed as being devoid of merits alongwith the pending

applications.

                                                             (HIMA KOHLI)
JULY   02, 2010                                                JUDGE
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