Mahender vs Asha @ Laxmi & Ors.
2011 Latest Caselaw 1918 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.REV.P. 153/2011 and CRL.M.A. 3979-3980/2011

                                                     Decided on: 01.04.2011
IN THE MATTER OF :

MAHENDER                                                   ..... Petitioner
                               Through: Mr. P.K. Dash, Advocate with
                               petitioner in person.

                     versus


ASHA @ LAXMI & ORS.                                          ..... Respondents
                               Through: None

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 present petition is filed by the petitioner under Sections

397/401 read with Section 482 of the Cr.PC praying inter alia for setting

aside order dated 4.2.2011 passed by the learned Additional Principal Judge,

Family Courts, Rohini and for quashing of the petition under Section 125

Cr.P.C. for maintenance as also the application for interim maintenance

preferred by the respondents herein, who are the wife of the petitioner and

their three minor children.

2. By the order dated 4.2.2011, the learned Addl. Principal Judge,

Family Courts had granted interim maintenance of Rs. 3000/- per month to

the respondents from the date of the application and had directed the

petitioner to clear the arrears of maintenance within a period of 6 months

and to pay the monthly maintenance amount regularly by 10 th of each

month.

3. Counsel for the petitioner states in the first place that the

petition under Section 125 Cr.P.C. preferred by the respondents is not

maintainable and should be dismissed, as there exists no valid marriage

between the petitioner and respondent no. 1. He submits that the petitioner

is a man of 65 years whereas respondent no. 1 is 30 years of age, and it

seems improbable that a marriage would have taken place between them.

He further states that respondent no. 1 was a maid servant in the house of

the petitioner and that she was a widow who had three children from her

previous marriage, who are respondents no. 2 to 4 herein. He further argues

that payment of interim maintenance of Rs. 3000/- per month is highly

onerous as the petitioner is a poor man, with insufficient resources. In the

light of these submissions, counsel for the petitioner prays that the aforesaid

order dated 4.2.2011 should be set aside, as it is wholly erroneous and

contrary to law.

4. The issue as to whether there exists a valid marriage between

the petitioner and respondent no. 1 was raised before the learned Addl.

Principal Judge, Family Courts and has been discussed in detail in the

impugned order. The trial court has on a prima facie view of the matter

reached the conclusion that as per settled legal principles, in proceedings

under Section 125 Cr.P.C., the standard of proof required to prove the

validity of a marriage is not very stringent, and if it can be shown that the

parties living as husband and wife, were being treated as married, then the

same would be considered a valid marriage, sufficient to award interim

maintenance to the dependants. This Court finds no illegality, arbitrariness

or infirmity in the aforesaid finding reached by the trial court. Further, this

Court is inclined to agree with the trial court that the determination of the

validity of a marriage can only be made in the course of the trial, after

evidence has been led by both the parties. In this view of the matter, the

submission of the petitioner that as he is not married to respondent No.2, he

is not liable to pay any maintenance, is turned down.

5. As for the contention of the counsel for the petitioner that the

petitioner does not have sufficient monthly income to pay the maintenance,

the same cannot be accepted, as the sum of Rs. 3000/- per month is a

paltry amount, especially in light of the fact that the petitioner has allegedly

removed the respondents from his house and they are now forced to live

with their other relations. Having regard to the fact that the petitioner has

not been able to place on record any document to show that the respondent

No.1 is gainfully employed, the finding of the court below that respondent

no. 1 has no source of income to support herself and her children, deserves

no interference by this Court at this stage.

6. It may be noted that the power of revision vested in the High

Court under Sections 397 and 401 is a limited power to be exercised only

under exceptional circumstances, when some patent illegality, arbitrariness

or infirmity, can be shown on the face of the record, which deserves

interference by this Court. No such illegality, arbitrariness or infirmity has

been found in the impugned order herein. Further, having regard to the fact

that the impugned order is only interim in nature and that the petitioner

would be at liberty to adduce evidence and advance all his pleas during trial,

the relief sought by the petitioner is declined.

7. The petition is accordingly dismissed as being devoid of merits

alongwith the pending applications.

                                                            (HIMA KOHLI)
APRIL 1, 2011                                                  JUDGE
pm