Delhi High Court

Vipin Tyagi vs Smt. Roopa Tyagi & Anr. on 18 February, 2011

Author: Hima Kohli

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.M.C. 370/2011 & Crl.M.A. No.1447/2011


                                                       Decided on 18.02.2011
IN THE MATTER OF :

VIPIN TYAGI                                  ..... Petitioner
                                     Through : Mr. B.S. Chowdhary, Adv.

                   versus

SMT. ROOPA TYAGI & ANR.                       ..... Respondents
                                     Through : None.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Section 482

Cr.P.C. against the order dated 28.10.2010 passed by the learned

Metropolitan Magistrate in the Complaint Case No.200/4/2009 filed by

respondent No.1, wife of the petitioner, for maintenance under Section 125

Cr.P.C. for herself as also for respondent No.2, a daughter aged around 1-½

years.

2. Counsel for the petitioner states that the impugned order, by

which interim maintenance of `5,000/- per month is fixed as payable to

respondent No.2, is liable to be set aside on the ground that the petition

preferred by respondent No.1 under Section 125 Cr.P.C. was only for

seeking maintenance in respect of herself, and not in respect of respondent

No.2, the minor child. He seeks to draw the attention of this Court to the

prayer clause of the aforesaid petition to contend that it was only

respondent No.1 who had claimed maintenance from the petitioner.

3. However, a perusal of the petition preferred by the respondents,

enclosed as Annexure P-2, does not bear out the submission made by the

counsel for the petitioner. In fact, in para 23 of the aforesaid petition, it has

been specifically stated on behalf of both the respondents that they are

unable to maintain themselves and are totally dependent on the aged

parents of respondent No.1. To do complete justice between the parties,

the courts are required to examine the petition as a whole and not just the

prayer clause. Such a technical approach if adopted by the courts would

lead to grave miscarriage of justice. Therefore, the aforesaid argument is

turned down as being devoid of merits.

4. The second contention of the counsel for the petitioner is that

the trial court did not appreciate the fact that the petitioner has been

disowned by his own parents and therefore, he is not a beneficiary of the

various properties taken note of in para 8 of the impugned order, for the

purpose of fixing the interim maintenance. He states that the fact of the

petitioner being disowned by his family was taken up as a preliminary

objection in his reply to the petition filed by the respondents under Section

125 Cr.P.C. He is however unable to inform the Court as to the date on

which the parents of the petitioner disowned him.

5. The aforesaid submission made on behalf of the petitioner of his

being disowned by his parents has been taken note of by the court below

only to be discarded with the observation that as a matter of practice,

whenever any matrimonial litigation is filed by the wife of the son, the first

step taken by his parents is to debar him from all their properties on paper.

This Court is inclined to agree with the aforesaid observation. In any case,

the present order is only an interim order and not a final order. The

aforesaid argument can be taken up before the trial court in the course of

arguments after the petitioner is able to establish this fact in the course of

trial.

6. The third and final ground taken by the learned counsel for the

petitioner to seek quashing of the interim order is that the petitioner is

undergoing treatment at the Institute of Human Behaviour & Allied Sciences

(IHBAS) for mental unsoundness since the year 2009 and is therefore not in

a position to pay the interim maintenance as ordered by the court below.

Pertinently, the documents placed on record by the petitioner were,

admittedly, not before the trial court when the impugned order came to be

passed. Counsel for the petitioner submits that the aforesaid documents

were filed subsequently and are on the record of the trial court.

7. While refraining from commenting on the mental condition of the

petitioner in the present proceeding, it is apparent from a perusal of the

aforesaid documents that the petitioner has only been issued an OPD Card

and prescribed some medicines. The mental health of the petitioner can be

established in the course of trial and in case the petitioner succeeds, then

appropriate orders shall follow. However, at the stage of deciding the

legality of an interim order, this Court is not inclined to conduct an indepth

examination of the aforesaid documents, more so when the said documents

were not placed before the trial court at the time of addressing arguments

on the interim application. As per the petitioner, he is undergoing treatment

at IHBAS since the year 2009. Thus, the documents being sought to be

relied upon before this Court, were always available to the petitioner for

filing before the trial court along with his reply. Having failed to file them at

the appropriate stage, the petitioner cannot be permitted to advert to them

in the present proceedings, so as to overturn the order of interim

maintenance granted to respondent No.2.

8. It is also settled law that the powers of this Court in exercise of

its inherent powers under Section 482 of Cr.P.C. are extraordinary in nature

and should be exercised with great caution. In the case of Janata Dal vs.

H.S. Chowdhary reported as (1992) 4 SCC 305, it was held by the

Supreme Court as follows: -

"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

Having regard to the facts and circumstances of the present case, this Court

is of the opinion that the petitioner has failed to place on record any facts

which justify exercise of such powers in his favour.

9. Pertinently, despite the fact that there is no stay operating in his

favour, counsel for the petitioner states that the petitioner has not paid any

maintenance to respondent No.2 ever since the passing of the impugned

order. Under the impugned order, the said amount was directed to be paid

by the petitioner from the date of filing of the application, i.e., w.e.f. May,

2009. The explanation sought to be offered for non-payment is the

pendency of the present petition, which was filed in this Court two months

after passing of the impugned order, i.e., on 31.1.2011. It is stated that the

next date of hearing fixed before the trial court is 28.3.2011 for recording of