Karamchand & Ors vs State Nct Of Delhi & Anr
2011 Latest Caselaw 1815 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.M.C. 1010/2011 & Crl.M.A. No.3773/2011


                                                 Decided on 29.03.2011
IN THE MATTER OF :
KARAMCHAND & ORS                                     ..... Petitioners
                          Through : Mr. Dharmendra Kumar Vashishtha, Adv.

                     versus

STATE NCT OF DELHI & ANR                        ..... Respondents
                    Through : Mr. M.N. Dudeja, APP for State.


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 petitioners under Section 482

Cr.P.C. praying inter alia for quashing of the impugned order dated

24.1.2011 passed by the learned ASJ in a criminal appeal preferred by

petitioner No.1, husband of respondent No.2, and petitioners No.2 & 3, sons

of petitioner No.1, against an interim order dated 24.12.2008 passed by the

learned Metropolitan Magistrate, Mahila Court, granting interim maintenance

to respondent No.2, on a complaint filed by her under Section 12 of the

Protection of Domestic Violence Against Women Act, 2005 (in short 'the

Act').

2. Vide order dated 24.12.2008, the learned Metropolitan Magistrate,

Mahila Court had directed petitioner No.1 to pay a sum of `5,000/- per

month and petitioners No.2 & 3 to pay a sum of `2,500/- each per month to

respondent No.2 as interim maintenance, from the date of the order.

3. Aggrieved by the aforesaid interim order granting maintenance to

respondent No.2, the petitioners filed an appeal before the Sessions Court,

which was partly allowed by the impugned order dated 24.1.2011, wherein

petitioner No.1 was directed to pay a sum of `2,000/- per month and

petitioners No.2 & 3 to pay a sum of `1,000/- and `2,000/- respectively per

month to respondent No.2. In other words, the petitioners were collectively

directed to pay a sum of `5,000/- per month to respondent No.2.

4. Counsel for the petitioners submits that while passing the impugned

order dated 24.1.2011, the learned ASJ did not consider the fact that

respondent No.2 continues to reside with the petitioners, and that they are

bearing all the household expenses. He further states that the provisions of

Section 20 of the Act could not have been invoked by respondent No.2 for

seeking maintenance, as the same can be granted only under or in addition

to the maintenance sought under Section 125 Cr.P.C., and since respondent

No.2 has not claimed any maintenance under Section 125 Cr.P.C., she would

not be entitled to seek such a relief under Section 20 of the Act.

5. It may be stated at the outset that the order dated 24.12.2008 passed

by the learned Metropolitan Magistrate, Mahila Court is only an interim order

which is passed on a prima facie view of the matter. Further, the said order

has been modified in the appeal preferred by the petitioners, by halving the

interim maintenance of `10,000/- per month granted by the learned

Metropolitan Magistrate, Mahila Court to `5,000/- to be collectively borne by

the three petitioners.

6. Having regard to the fact that only a prima facie view on the matter

has been expressed by the learned MM while granting interim maintenance

to respondent No.2 and that the impugned order is interim in nature, which

has been further modified by the learned ASJ, this Court does not find any

patent illegality or arbitrariness, resulting in miscarriage of justice, in the

impugned order, in order to exercise its inherent powers under Section 482

Cr.P.C. As regards the contention of the counsel for the petitioners that as

the petitioners are bearing all the household expenses of respondent No.2,

she is not entitled to any separate maintenance, the same has been

considered by the learned ASJ while modifying the order passed by the

learned MM on 24.12.2008 and further, the same shall be a matter of

consideration before the learned Metropolitan Magistrate at the time of final

arguments. Admittedly, pleadings in the complaint filed by respondent No.2

before the learned Metropolitan Magistrate are complete and the matter is at

the stage of recording of evidence. At the stage of arguments, the

petitioners would be at liberty to take all the pleas available to them before

the learned MM.

7. It is stated by the counsel for the petitioners that the amount payable

by the petitioners w.e.f. 24.12.2008 is huge and petitioner No.1 has in any

case, been paying a sum of `1,400/- per month to respondent No.2 directly,

even prior to the filing of the complaint by her. Hence, he is not entitled to

pay any further maintenance to respondent No.2. Such a payment by

petitioner No.1 cannot be considered compliance of the order dated

24.1.2011 passed by the learned ASJ. The sum of `5000/- per month to be

paid collectively by the petitioners to respondent No. 2, as directed by the

learned ASJ, has to be paid over and above, any amount which is being

spent towards household expenses. Further, the petitioners can show proof

of payment to the court below and claim adjustment from the arrears that

have accumulated. Admittedly, as of date, no amount on account of

accumulated arrears, has been paid by the petitioners to respondent No.2 as

interim maintenance, as directed by the learned ASJ.

8. As regards the submission of the counsel for the petitioners that the

remedy, if any, available to respondent No.2 is under Section 125 Cr.P.C.,

and that the only way for respondent no. 2 to seek maintenance under

Section 20 of the Act would be under or in addition to Section 125 Cr.P.C.,

the said submission is contrary to the very spirit of the Act. A perusal of

Section 20 of the Act clearly shows that the said provision was made for

granting monetary relief to a woman who claims to be a victim of domestic

violence. The section provides for such relief to be paid under four heads,

one of which is payment of maintenance under or in addition to the

maintenance sought under Section 125 Cr.P.C. If the section is read in the

manner suggested by the counsel for the petitioners, then clause 1(d) of

Section 20 of the Act would be rendered otiose and if such had been the

intention of the legislature then there would have been no need to enact a

specific provision for payment of maintenance in the Act. In this view of the

matter, the submission of the counsel for the petitioners is rejected as being

untenable.

9. Even otherwise, the inherent powers vested in this Court under

Section 482 of the Cr.PC are extraordinary in nature and it is a settled law

that the same ought to be exercised with restrain. Given the aforesaid facts

and circumstances, this Court is not inclined to exercise its inherent powers

under Section 482 Cr.P.C in favour of the petitioners. The petition is

accordingly dismissed along with the pending application.

10. However, having regard to the fact that the counsel for the petitioners

states that the petitioners are not in a financial position to clear the arrears

of maintenance right away and further in view of the submission that

petitioner No.1 has been paying an amount of `1,400/- per month to

respondent No.2, even prior to the passing of the interim order by the

learned MM, the petitioners are permitted further time to pay the arrears of

maintenance at the rate of `5000 per month w.e.f. the date of passing of

order by the learned MM, amounting to `1.40 lacs(approx.) to respondent

No.2 in four equal monthly installments, after deducting the sum of `1,400/-

being paid by petitioner No.1 to respondent No.2 during the said period,

subject to showing proof of payment to the court below. The first

installment of `35,000/- shall be paid by the petitioners to the respondent

No.2 within four weeks. In case the petitioners comply with the aforesaid

order of payment of arrears in installments as indicated above, no coercive

steps shall be taken against them. However, in case of default of payment of

arrears, respondent No.2 shall be entitled to seek her remedies in

accordance with law.

                                                             HIMA KOHLI,J
      MARCH      29, 2011
      sk