Ghanshyam vs Suman
2012 Latest Caselaw 3054 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. M.C. No. 1616/2012

                                             Date of Decision: 8th May, 2012

GHANSHYAM                                                  ...... Petitioner

                            Through:     Mr. L.K. Verma, Advocate

                                    Versus

SUMAN                                                 ...... Respondents

                            Through:     None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition is filed under Section 482 Cr.P.C. assailing the order dated 18th April 2012 passed by the learned District Judge, Saket Court whereby appeal against the judgment dated 16th May, 2011 of learned Metropolitan Magistrate (Mahila Court) in criminal complaint No. 35/2009 under Section 12 of the D.V. Act (in short D.V.Act') was dismissed.

2. The Respondent had filed a petition against the Petitioner under Section 12 of D.V. Act before the learned Metropolitan Magistrate(Mahila Court). Vide judgment dated 16th May, 2011 the learned Metropolitan Magistrate(Mahila Court) granted certain reliefs s to the Respondent including that of grant of maintenance from the Petitioner at Rs.2500/- per month from the date of filing of the petition i.e. 14th January, 2009. The relief of litigation expenses to the tune of Rs. 5000/- was also granted to the Respondent. The Petitioner carried this order in an appeal before the

District Judge who vide order dated 18th April, 2012 dismissed the same on the ground of limitation.

3. The impugned judgment of District Judge has been assailed mainly on the ground that the learned District Judge failed to appreciate that the Petitioner herein was in judicial custody from July, 2011 to January, 2011 and that the order of the learned Metropolitan Magistrate(Mahila Court) came to his knowledge only on 3rd February, 2011. The order of the learned Metropolitan Magistrate(Mahil Court) has also been assailed on merits alleging that the Petitioner had obtained a decree of conjugal rights against the Respondent from the District Judge, Panchkula, Haryana and that withdrawing by the Respondent from the company of the Petitioner, being without reasonable excuse, she was not entitled to the maintenance as granted by learned Metropolitan Magistrate(Mahila Court). It was also submitted that the income of the Petitioner was wrongly assessed by the learned Metropolitan Magistrate(Mahila Court) as Rs.6000/- per month and consequently grant of maintenance of Rs.2500/- per month was based on conjectures and surmises.

4. I have heard learned counsel for the Petitioner and perused the impugned judgment of District Court and that of Metropolitan Magistrate(Mahila Court).

5. At the outset, it is seen that though the petitioner is filed under Section 482 Cr.P.C. but it is in fact nothing but a second revision against the order of the learned Metropolitan Magistrate(Mahila Court). The Petitioner has already availed the remedy of first revision. The second revision petition was not maintainable in this Court. In any case, I have

chosen to examine the contentions which have been raised in assailing the impugned judgment and that of the judgment of the Metropolitan Magistrate(Mahila Court). It would be seen that the complaint that was filed by the Respondent under Section 12 of the D.V. Act against the Petitioner, the later had contested the same by filing written statement. Interim maintenance was awarded in favour of the Respondent under Section 23 of the said Act. It is seen that after the award of interim maintenance to the Respondent, the Petitioner stopped appearing in the said case and was ultimately proceeded ex-parte on 20th January, 2011. Consequently, the Respondent led ex-parte evidence based on the evidence that was led and the material on record, the protection order was passed by the Magistrate(Mahila Court) against the Petitioner under Section 18 of the Act restraining the Petitioner from inflicting/causing any kind of domestic violence upon the Respondent. The Petitioner himself had taken the plea in the written submissions that he owns five bighas agricultural land. He however did not disclose as to his income from the said land or otherwise. It was observed by the learned Metropolitan Magistrate that the Petitioner had intentionally concealed the income. In this situation, the learned Metropolitan Magistrate(Mahila Court) had no option but to assess the income of the Petitioner at Rs.6000/- per month based on the prescribed minimum wages of unskilled person as per Minimum Wages Act. The Petitioner being an able-bodied person and there being no evidence led by any of the party as regards to his income, there was nothing wrong in assessing his income as Rs.6000/- per month which was the minimum wages prescribed as per the Minimum Wages Act. Based on this income he was directed to pay a maintenance of Rs.2500/- to the Respondent. No

illegality or impropriety could be pointed out in the said judgment of the Mahila Court.

6. This judgment was passed by the learned Metropolitan Magistrate on 16th May, 2011 and the appeal was instituted only on 16 th February, 2012 i.e. after a gap of about nine months. The plea that was taken by the Petitioner herein before the Appellate Court was that he was in judicial custody from July, 2011 to January, 2011 and came to know about the judgment of the learned Metropolitan Magistrate(Mahila Court) only on 3 rd February, 2011. This plea was rightly disbelieved by the learned District Court. In view of the fact that the petitioner went in July, 2011 judicial custody almost two months after the judgment of the learned Metropolitan Magistrate(Mahila Court). Even if the plea of the petitioner regarding limitation is taken to be correct, still the petitioner has no case on merits as I could not find any infirmity and illegality in the judgment dated 16 th May, 2011 of the learned Metropolitan Magistrate(Mahila Court).

7. I also find no illegality or any perversity in the impugned judgment of learned District Judge. The petition, being devoid of any merit, is dismissed.

M.L. MEHTA, J.

MAY 8, 2012/dk