Chandni Sharma vs Gopal Dutt Sharma
2011 Latest Caselaw 2818 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.REV.P. 767/2010

                                                 Reserved on:     05.04.2011
                                                 Date of Decision:26.05.2011
IN THE MATTER OF :
CHANDNI SHARMA                                               ..... Petitioner

                          Through: Ms. G.A. Arife, mother of the petitioner-in-
                          person

                   versus

GOPAL DUTT SHARMA                                           ..... Respondent
                          Through: Ms. Gita Dhingra and Mr. M.G. Dhingra,
                          Advocates
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.

1. The present revision petition is filed by the petitioner, through

her mother who is her natural guardian, under Sections 397/401 read with

Section 482 of the Cr.PC praying inter alia for revising the order dated

13.02.2009, passed by the learned Metropolitan Magistrate directing the

respondent herein, father of the petitioner, to pay her a sum of `1,000/-

p.m. from 24.9.2001 to 31.3.2005 and a sum of `1,500/- p.m. from

1.4.2005 to 22.8.2007, as maintenance.

2. The brief relevant facts of this case are that the petitioner's

mother had alleged that she had got married to the respondent on

3.12.1988, and from this union, the petitioner was born 22.8.1989.

However, the fact of the marriage was denied by the respondent, who

subsequently got married to another lady. The respondent further denied

being the father of the petitioner. Since the petitioner was a minor, hence a

petition for maintenance under Section 125 Cr.PC was filed on her behalf by

her mother and natural guardian, Ms. G.A. Arife. By the impugned order

dated 13.2.2009, the said petition was disposed of by the learned MM, in the

aforementioned manner.

3. It is mentioned in the impugned order that by an earlier order

dated 5.5.1993 passed by the learned MM, the petitioner was awarded

interim maintenance at the rate of `300/- p.m. Later on, the matter came up

before the High Court and as the respondent disputed being the father of the

petitioner, he was directed to undergo a DNA test, to determine the

paternity of the petitioner, which test confirmed the fact that the respondent

was the father of the petitioner. In the aforesaid case registered as Crl.MM

no. 3029/1993, the High Court vide order dated 29.4.2003 awarded to the

petitioner, interim maintenance at the rate of `500/- p.m. The difference of

`200/- per month was paid by the respondent in three installments. Till

24.9.2001, the highest amount of maintenance that could have been

awarded under the statute was `500/-. The said provision came to be

amended w.e.f 24.9.2001, as a result of which, the monetary limit placed on

the amount of maintenance that could be awarded, was removed. The

petitioner filed an application for enhancement of maintenance on

8.12.2003. In the impugned order, the learned MM observed that since the

petitioner had attained majority on 22.8.2007, hence the period for which

maintenance was required to be determined in the petition was for the

period from 24.9.2001 till 22.8.2007. The same period concerns this court

for determination of maintenance, in the event an enhanced sum is found to

be due and payable to the petitioner. The learned MM also observed that the

respondent had not disputed the report of the DNA test for the purposes of

the petition by the petitioner filed seeking maintenance. On the basis of the

materials placed on record and the testimonies of the petitioner's mother

and the respondent, maintenance was granted to the petitioner at the rate

of `1,000/- p.m. from 24.9.2001 to 31.3.2005 and at the rate of `1,500/-

p.m. from 1.4.2005 to 22.8.2007, while directing that the interim

maintenance already paid to her be deducted from the amount so awarded.

4. The petitioner, appearing through her mother, Mrs. G.A. Arife

has challenged the impugned order on the limited point of quantum of

maintenance granted to her and has sought an enhancement thereof. In the

course of arguments, the mother of the petitioner further expressed that she

did not wish to press the relief, with regard to the non-disposal of an

application filed by the petitioner before the court below, for action to be

taken against the respondent under Sections 174 and 193 IPC, which

submission was duly recorded in the order of this court dated 15.2.2011. Ms.

Arife had also brought to the notice of this court the order of the Supreme

Court dated 13.12.2010, requesting that the present revision petition be

disposed of on or before 31.01.2011. As the petition came to be listed before

this court only two days before 31.1.2011, i.e. on 28.1.2011, that date could

not be met. However, the matter has been heard and disposed of with

reasonable despatch.

5. The argument advanced on behalf of the petitioner was that the

respondent had failed to disclose his correct income before the learned MM

and consequently, the maintenance that was granted under the impugned

order was erroneous and inadequate. It was further urged that the

maintenance granted was not proportionate to the actual monthly income

earned by the respondent during the relevant time period. It was also stated

that the income that was disclosed by the respondent was after deductions

had been made from it towards income tax, home and car loans, provident

fund, etc., which was not permissible. It was contended that since these did

not qualify as statutory deductions, they should not have been permitted to

be deducted from the income of the respondent, for the purposes of

calculating the maintenance payable to the petitioner.

6. On the other hand, the counsel for the respondent refuted the

arguments advanced on behalf of the petitioner, and laid much stress on the

fact that the respondent had, on his part, disclosed his correct income before

the learned MM, who had taken into consideration the deductions and

granted maintenance accordingly, hence the amount awarded should not be

enhanced. Counsel for the respondent further challenged the maintainability

of the revision petition on the grounds inter alia that the scope of a revision

petition is limited and also that the revision petition was filed with a delay of

425 days, with no explanation for the same forthcoming from the petitioner.

She relied upon a decision in the case of Ashish Aggarwal v. BSES Rajdhani

Power Ltd. in Crl. Rev. P No. 513/2007 decided on 20.8.2007, to urge

that where the petition is filed with a delay, each day's delay would have to

be explained, for the same to be condoned. The locus standi of the mother

of the petitioner to file the revision petition on behalf of the petitioner was

also questioned and it was asserted that as the petitioner has attained

majority, it was for her to file such a petition in her own right.

7. This court has heard both the petitioner's mother and the

counsel for the respondent. At the outset, the question of maintainability of

the revision petition is required to be dealt with. The argument urged on

behalf of the respondent that the mother of the petitioner could not have

appeared on behalf of the petitioner, who is now a major, in the absence of

a power of attorney executed in her favour, does not find favour with this

court as it is to be noticed that the interests of Ms. Arife, the mother and

natural guardian of the petitioner, are not antithetical to her interests. In

fact the mother has not sought any maintenance from the respondent for

herself and her sole interest lies in getting maintenance for the wellbeing of

the petitioner. Further, records reveal that the maintenance petition was

being contested by the mother of the petitioner in the court below, even

after the petitioner had attained majority and a perusal of the order dated

13.12.2010 passed by the Supreme Court, shows that in the said

proceedings also the petitioner was being represented by her mother, and

she was permitted to do so. In light of the facts and circumstances of this

case, the argument advanced, on behalf of the respondent regarding locus

standi of the mother of the petitioner, cannot be accepted and is turned

down.

8. Insofar as the maintainability of the present petition, filed with a

delay of 425 days, without any specific explanation offered in the application

for condonation of delay is concerned, a pointed query was directed towards

the petitioner's mother regarding the explanation for the delay in filing of the

petition. Ms. Arife explained that delay occurred in filing due to the

protracted litigation between her and the respondent in the divorce

proceedings initiated by her, under the Hindu Marriage Act. She stated that

the petitions filed by her, for seeking divorce and permanent alimony

respectively, were rejected by the learned ADJ vide order dated 9.4.2010.

The two matrimonial appeals filed by her in the High Court also came to be

dismissed, vide a common order dated 13.08.2010. She submitted that the

SLP preferred by her to the Supreme Court, was dismissed on 13.12.2010.

Ms. Arife further stated that she had been personally pursuing the aforesaid

cases, as she could not afford to engage a counsel, therefore she was able to

file the present petition only on 8.12.2010. Keeping in mind the fact that the

mother of petitioner has been appearing in all proceedings in person,

without engaging the services of a counsel, this court considers the

explanation, offered for the delay, just and sufficient and in exercise of its

inherent powers, deems it appropriate to condone the delay of 425 days, as

prayed for, thus deciding the question of maintainability of the petition, on

the ground of limitation, in favour of the petitioner.

9. Counsel for the respondent also challenged the very basis of the

maintenance being granted to the petitioner, by stating that the purpose of

granting maintenance is to prevent vagrancy and destitution of the

dependant. She canvassed that at the present time, the petitioner, who is

now a major and has pursued her studies in engineering, is quite capable of

supporting herself and is no longer in a state of vagrancy or destitution to

claim any maintenance . This argument of the counsel for the respondent is

found to be untenable and cannot be accepted as the respondent being the

father of the petitioner cannot be permitted to shirk his responsibility

towards her, merely because her mother somehow managed to eke out the

resources to support the petitioner's education. Further, the decision of the

Supreme Court in the case of Kirtikant D. Vadodaria v. State of Gujarat

reported as (1996) 4 SCC 479 and of this court in the case Harish Cander

& Anr. v. Santosh Kumari & Ors. reported as 1(1985) DMC 355, relied on

by the counsel for the respondent, cannot come to the aid of the respondent

as these judgments do not lay down a mandatory negative prescription, i.e.,

where destitution or vagrancy is not shown, maintenance cannot be granted.

Rather, based on the facts and circumstances of a case, where existence of

destitution or vagrancy would be a dominant factor for consideration,

maintenance can be granted.

10. Furthermore, the fact that the petitioner attained majority, while

maintenance proceedings were pending, cannot prejudice her rights qua the

respondent, as the application for enhancement of maintenance was filed by

her mother as early as on 8.12.2003 when the petitioner was still a minor,

and the order of the learned MM dated 13.02.2009 was subsequent to the

petitioner attaining majority on 22.08.2007. It is also significant to note that

there are decisions of the Supreme Court, where maintenance has been

awarded to unmarried daughters till the date of their marriage, even after

their having attained majority. Without going into the question of

entitlement of the petitioner to any future maintenance subsequent to the

attainment of majority, the scope of the present petition is confined to the

period, before the petitioner attained majority. This court is, therefore,

firmly of the opinion that nothing would turn on the factum of the petitioner

attaining majority during the pendency of the present proceedings, so as to

disentitle her from claiming an enhanced maintenance from the respondent.

11. Counsel for the respondent also contended that the learned MM

had erroneously directed the respondent to pay maintenance to the

petitioner from the date of the amendment made in Section 125 of the

Criminal Procedure Code, 1973 i.e. from 24.9.2001, by taking into

consideration the fact that the original application for maintenance was filed

prior to the amendment, and hence maintenance beyond the statutory limit

of `500/- would be paid from the date of the amendment. She urged that

such a view would be incorrect as the relevant date was 8.12.2003, on

which date an application for enhancement of maintenance was filed by the

petitioner, and it would be this date from which the respondent would be

required to pay maintenance, and not prior thereto, as awarded in the

impugned order. At the outset, it may be noted that such an argument

would not lie in the mouth of the respondent, as it is not he who has come in

revision to this court against the impugned order, but the petitioner, who

has filed the present petition. If the respondent was aggrieved by the

impugned order, he had a legal remedy available to him, which he has failed

to avail of, and furthermore, he has complied with the impugned order by

paying to the petitioner, the maintenance for the periods as fixed by the

learned MM, thus clearly accepting the said order, and waiving his right to

contest the same.

12. Furthermore, not only on the point of lack of locus of the

respondent, but also on merits, the aforesaid argument is found to be devoid

of merits. A perusal of Section 125(2) of Cr.PC shows that the provision

envisages that maintenance would be paid either from the date of

application or from the date of the order, if so ordered. It has to be seen

that the date of institution of the maintenance proceedings before the

learned MM was 28.9.1990, and the said matter was still pending and had

yet not been finally adjudicated upon, when the provision was amended.

Had the application for enhancement been filed subsequent to the final order

on the maintenance petition but before the amendment had taken place,

then the argument of the counsel for the respondent could perhaps have cut

some ice. But in the facts of the present case, no benefit can be claimed on

this count by the respondent.

13. The final argument advanced by the counsel for the respondent

was that the scope of a revision petition preferred under the Cr.PC is very

limited and unless a palpable illegality or irregularity or perversity can be

demonstrated on the face of the record, this court should not interfere with

the order of the court below. It was vehemently argued that that no such

illegality or irregularity or perversity has been shown by the petitioner in the

impugned judgment to deserve interference. In support of her submission,

learned counsel for the respondent relied on a decision of the Supreme Court

in the case of Southern Sales & Services v. Sauermilch Design & Handels

GMBH reported as (2008) 14 SCC 457.

14. There is no gainsaying the fact that the scope of revisionary

power of this court is indeed limited and should be exercised with restraint.

However, it has also been held by the Supreme Court in the case of T.N.

Dhakkal v. James Basnett reported as (2001) 10 SCC 419, that such a

power is discretionary in nature and is to be exercised to correct miscarriage

of justice and further, whether or not, there is justification for the exercising

such power, would depend upon the facts and circumstances of each case.

In the present case, it is quite clear that the calculation of the income of the

respondent, for the purposes of determination of maintenance payable to

the petitioner, was done erroneously by excluding all deductions, both

statutory and voluntary in nature. It is to correct this material irregularity

that this court proposes to exercise its powers of revision to enhance the

maintenance granted to the petitioner, on the basis of the correct income of

the respondent, for the relevant period.

15. Coming to the merits of the case, the mother of the petitioner

has sought interference in the impugned order, for enhancement of the

quantum of maintenance, on the ground that the respondent misled the

learned MM into excluding all deductions, both voluntary and statutory, from

his income, and due to this error, the maintenance granted in the impugned

order was not proportionate to the real income of the respondent. She

argued that only those deductions that are statutory in nature could have

been excluded from the income of the respondent such as income tax, and

not the voluntary deductions such as monthly installments towards the

house and car loans or the provident fund, as the respondent would

eventually benefit from such deductions. This court is inclined to accept the

petitioner's argument that in calculating the net income of the respondent,

while the deductions towards income tax being statutory deductions can be

excluded, however voluntary deductions such as house building allowance

cannot be excluded. Furthermore, it has to be seen that the voluntary

deductions are of such a nature which would eventually benefit the

respondent and his family. There is no good reason as to why the petitioner

should be prejudiced in this regard, at the stage of determination of

maintenance, just because she does not happen to be a part of the

respondent's family. Based on such reasoning, vide order dated 21.2.2011,

this court had calculated the net income of the respondent for the month of

December 2002 to be `13,300/- (as the gross monthly income of the

respondent was admittedly `24,470/- excluding income tax of `7,869/- while

retaining the component of house building allowance), and not `5,614 as

erroneously calculated in the impugned order. In the light of the above, the

submission made on behalf of the petitioner for enhancement of the

maintenance fixed in the impugned order, is accepted and it is held that the

same is liable to be revised.

16. For the purposes of calculating the maintenance payable to the

petitioner, accurate figures of the respondent's monthly income and

deductions were required. In the month of February 2011, the respondent

retired from his service as the Principal Director, Integrated Headquarters,

Ministry of Defence (Navy). As the figures of his monthly income furnished

by the respondent himself for the relevant period were found to be

somewhat ambiguous and incoherent, the Deputy Director (Claims), Naval

Headquarters, Ministry of Defence, the former employer of the respondent,

was summoned and called upon to furnish a summary of the pay and

allowances of the respondent for the relevant period. The statement so

furnished, with an advance copy to both sides, was taken on record on

4.4.2011.

17. As observed in the decision of the Supreme Court in the case of

Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors. reported as (1997)7

SCC 7, it is settled law that no set formula can be laid down for fixing the

amount of maintenance payable and the calculation of the same would

always depend upon the facts and circumstances of each case. In the facts

of the present case, the methodology adopted in the cases of Annurita Vohra

v. Sandeep Vohra reported as 110(2004) DLT 546 and S.S. Bindra v.

Tarvinder Kaur reported as 112(2004) DLT 813 has been found to be a

useful tool to determine the monthly salary of the respondent, in order to

calculate maintenance payable to the petitioner. In the aforesaid cases, after

taking into account the compulsory deductions from the salary, the

remaining income was divided equally by the court between all the family

members entitled to maintenance, with one extra portion/share being

allotted to the earning spouse solely for the extra expenses that would

necessarily occur. In the present case, other than the petitioner and the

respondent himself, there are three dependants entitled to maintenance, i.e.

petitioner's wife and two children. Therefore, no extra portion needs to be

allotted to the respondent as all extra expenses can be accommodated in the

separate allotments made to the three dependants and the respondent

himself. As a result, the net monthly salary of the respondent for the

relevant years, would be liable to be divided in five equal portions, with one-

fifth part of the salary going to the share of the petitioner towards

maintenance.

18. As per the salary statement of the respondent furnished by his

employer, the following amounts are found to be payable to the petitioner

towards maintenance for the relevant blocks of time period, arrived at on

the basis of the upward revision of the emoluments received by the

respondent from time to time:-

S.     Blocks of time period      No. of    Monthly  Salary for   Maintenance
                                  Months     Salary  the block    to petitioner
No                                in the      less      less      for the block
                                   block    Income income tax
                                    (a)       Tax    deducted      (d) = 1/5th
                                           deducted                    of c
                                               (b)  (c) = a X b
                                               (`)       (`)            (`)
  1. 24.9.2001 31.12.2002          15       19,560   2,93,400         58,680

  2. 1.1.2003         28.2.2003     2      19,560     39,120          7,824



   3. 1.3.2003         29.2.2004    12     22,461     2,69,536        53,907

  4. 1.3.2004         28.2.2005    12     24,106     2,89,266        57,853

  5. 1.3.2005         28.2.2006    12     30,116     3,61,389        72,278

  6. 1.3.2006         28.2.2007    12     37,973     4,55,673        91,135

  7. 1.3.2007         22.8.2007    6      40,615     2,43,688        48,738

                                  TOTAL                            3,90,415

19. The aforesaid revised amount as calculated would be payable by

the respondent to the petitioner as maintenance, after deducting the

maintenance amount already received by the petitioner from the respondent

in compliance with the impugned order. The said amount shall be paid by

the respondent to the petitioner within six weeks from today. Failure to pay

the maintenance, as calculated above, shall attract simple interest at the

rate of 10% p.a. The revision petition is allowed and the impugned order is

modified as indicated above, with costs quantified at `5,000/-.

                                                            (HIMA KOHLI)
MAY     26, 2011                                               JUDGE
pm