Manoj Sharma vs Reena Sharma & Ors.
2012 Latest Caselaw 3383 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                 CRL. M.C. No. 3322/2011

                                           Date of Decision : 21.05.2012

MANOJ SHARMA                                               ......Petitioner
                                   Through:         Mr. Jayesh K., Adv.

                                       Versus

REENA SHARMA & ORS.                                      ...... Respondents
                                   Through:


                                           WITH

                  CRL. M.C. No. 3329/2011

MANOJ SHARMA                                               ......Petitioner
                                   Through:         Mr. Jayesh K., Adv.

                                       Versus

REENA SHARMA & ORS.                                      ...... Respondents
                                   Through:


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. These are two petitions filed u/S 482 Cr.P.C. challenging two

different orders passed by two different Courts in different

proceedings pertaining to the grant of maintenance. But in

both the petitions, the parties are the same and so are the

facts, therefore, they are dealt with together. The

petitioner/husband, after initial appearance, has been

proceeded ex parte in both the petitions. In the first petition,

the petitioner has challenged the order dated 2.5.2011 passed

by Shri Deepak Jagotra, Judge, Family Courts, Dwarka Courts,

New Delhi, directing the petitioner to pay ad interim

maintenance @ Rs. 10,000/- each per month to the

respondent nos.1 and 2.

2. The case of the respondent no.1 is that she got married to the

petitioner on 15.2.2004 according to Hindu rites and customs

and from the said wedlock, a male child, Master Pratham, was

born on 22.1.2006. The respondent no.1 was subjected to

demand of dowry, domestic violence and mental agony,

because of which the relations between them got strained and

ultimately, the respondent no.1 was thrown from the

matrimonial home on 29.6.2006. Since then, she is living with

her parents. So far as the income of the petitioner and the

grant of maintenance by the respondent no.1 is concerned, it

was observed in the impugned order as under:-

6. It is further averred that respondent no.1 is a man of means and running an educational society in the name Nishant Nirala Educational and Welfare Society and his monthly income from the educational society is about Rs.35,000/- to Rs.50,000/- per month. It is further averred that respondent also imparts computer training and his income from the same is about Rs.80,000/- to Rs.1,20,000/- per month. It is further averred that respondent is also running a Motor Driving School in the name of Chacha Motor Driving Training School and earns

about Rs.15,000/- to Rs.20,000/- per month and respondent is also running Nishant Computer Academy and Nishant PT College at five different places and earns about Rs.1,50,000/- to Rs.2,00,000/- per month from there. It is further averred that respondent also owns two plots of 200 sq. yds. at Rohini and Harsh Vihar having value of Rs. Sixty Five Lacs and respondent has also shares in different companies and has fixed deposits in his name and earns Rs.15,000/- to Rs.25,000/- per month from there.

3. The petitioner was proceeded ex parte on 31.3.2011, as he

did not put in appearance after initial appearance. The

respondent no.1 entered into the Witness Box and testified in

support of her complaint that the petitioner is not paying the

maintenance despite having the resources, while as she does

not have any independent source of income to maintain

herself and her minor son. She had also reiterated the

averments made in the application with regard to the various

sources of income of the petitioner.

4. The Court, after hearing the learned counsel for the

respondent no.1, held prima facie that the income of the

petitioner would be around Rs.40,000/- per month from all

sources. The Court below did not believe the statement of the

respondent no.1 on all counts so far as the income of the

petitioner is concerned. Accordingly, taking the income of the

petitioner as Rs.40,000/-, she was granted maintenance of

Rs.10,000/- each for self and minor son. So far as the wife is

concerned, she was given maintenance for life or till the time

she remarries. As regards the minor son, he was given the

maintenance till he attains the age of majority.

5. It is this ex parte order which has been assailed by the

petitioner before this Court. The petitioner, in the present

petition, has challenged the order of the grant of maintenance

on the ground that the petitioner is working only as a driver

and earning Rs.3,000/- per month. This fact has not been

reflected by the petitioner either before the learned Trial

Court on account of his absence or subsequent thereto by

filing an application seeking modification of the order of

maintenance under Section 127 of the Cr.P.C. Since the

petitioner has not adduced any evidence in order to show his

source of income or the quantum of income, it will be totally

improper for this Court to rely on the documents which are

sought to be relied upon by the petitioner before the High

Court without his having produced any evidence before the

Court below. As a matter of fact, the Court below has noted

the fact that the relationship between the parties is not in

dispute. The moral and the legal responsibility to maintain

the respondent is also not disputed. It is also not disputed

that the petitioner has a source of income while as the

respondent has none. The lack of resources of the

respondents has been established by the respondent no.1 by

entering into the witness box. Under these circumstances, one

cannot find fault with the order of the Court below.

6. So far as the amount is concerned, an amount of Rs.10,000/-,

in today's time, keeping the high prices of the day-to-day

living items, is just a reasonable amount for two persons to

survive for the entire month. I do not find any infirmity in the

impugned order granting maintenance of Rs.10,000/- per

month each. However, in case the source of income of the

petitioner changes, he would be well within his right to seek

modification of the order of maintenance by filing an

application under Section 127 Cr.P.C.

7. So far as the Crl.M.C.3329/2011 is concerned, that challenges

the order dated 12.1.2011 passed by the Mahila Court,

Dwarka, New Delhi, granting maintenance of Rs.15,000/- for

the respondent no.1 and Rs.5,000/- for the respondent no.2.

The facts and the grounds of challenge in this petition are

almost the same as the ones in Crl.M.C.3322/2011. Apart

from the maintenance, she has also been given compensation

for the mental agony, harassment and litigation etc. To that

extent, I do not find that there should be any problem.

However, so far as the question of deposit of an amount of

Rs.5,00,000/- to be kept in FDR for the benefit of minor is

concerned, I feel that this was slightly harsh order qua the

petitioner. For deposit that corpus of Rs.5,00,000/-, I feel

that the best course would be to deposit the aforesaid amount

within a period of six months from today, if not already

deposited.

8. The order of maintenance passed by the two forums comes to

Rs.20,000/- in all, though in different proportions. This, in my

view, is not very material but what is material in my view, is

that the petitioner cannot be made to pay twice once the

court itself has held that the total income of the petitioner is

Rs.40,000/-. Therefore, I feel whenever the petitioner wants,

the respondents can get maintenance only from one forum,

apart from the other benefits granted by the Mahila Court.

V.K. SHALI, J.

May 21, 2012 tp