Sachin Tyagi vs Anshu Tyagi
2013 Latest Caselaw 4870 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: October 23, 2013

+       CRL.REV.P. 536/2013

        SACHIN TYAGI                                       ..... Petitioner
                           Through:       Mr. M.M. Singh and Mr. Sharad Pandey,
                                          Advs.

                           versus

        ANSHU TYAGI                                         ..... Respondent
                           Through:       None.

        CORAM:
        HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J. (Oral)

1. This is a petition under Section 397 Cr.P.C. seeking setting aside of order dated 10.07.2013 passed by Learned ASJ, Karkardooma Court, Delhi whereby the order passed by the Learned Metropolitan Magistrate dated 11.04.2013 granting interim maintenance to respondent-wife and her child @ Rs. 7,000/- per month has been upheld.

2. The grievance of the petitioner/husband is that the higher amount of interim maintenance has been awarded to respondent/wife in proceedings under Section 12 of Protection of Women from Domestic Violence Act (referred to as DV Act). The learned counsel for the petitioner has submitted that earlier the petitioner was working as a commission agent and was earning Rs. 10,000/-

- Rs. 12,000/- per month and on that basis he had offered Rs. 5,000/- as an interim maintenance to the respondent/wife and child in the aforesaid proceedings vide his reply dated 10.11.2010. It is submitted that thereafter the position had changed and the petitioner/husband started working in a private concern i.e. Mayur Prints w.e.f. 01.6.2011 at a meagre salary of about Rs. 6000/-. Under such circumstances, the Learned Metropolitan Magistrate ought not to have awarded maintenance @ Rs. 7,000/- per month to respondent/wife and child.

3. I have considered the submissions made.

4. Perusal of record shows that the petitioner/husband has filed a detailed reply dated 10.11.2010 in respect of application of the respondent/wife for the grant of interim maintenance wherein he has stated that he is engaged in small business of taking orders for supply of fabrics from boutiques etc. and is earning commission/margin and his total monthly income is around Rs. 10,000/- to Rs. 12,000/-. He has also stated that he is ready to pay Rs. 5,000/- per month to respondent/wife and child. It is also stated that in the divorce proceedings filed by petitioner/husband he has offered interim maintenance of Rs. 5,000/- per month to the respondent and the child.

5. Learned counsel for petitioner has further submitted that in the year 2011, petitioner had to leave the aforesaid business which he was earlier doing and had started working in a private company i.e., Mayur Prints on a meagre salary of Rs. 6000/- per month. It is stated that salary certificate was also filed but the ld.M.M. as well as ld.ASJ did not consider the aforesaid aspect of the matter. It is submitted that petitioner/husband is unable to pay maintenance

amount @ Rs.7000/- per month as ordered by the ld.M.M. However, he is still ready to pay the amount of Rs.5000/- as an interim maintenance which he had offered before the ld.trial court. It is submitted that considering his present income the interim maintenance be reduced to Rs.5000/- per month.

6. Nothing has been placed on record to show as to why the petitioner had to leave the business which he was doing for the past so many years and had to take up a job in a private firm, as is alleged. The allegations made in this regard are not believable. Further if his earning is only Rs.6000/- per month, as is alleged then how he is offering interim maintenance @ Rs.5000/- per month to respondent and the child. The chances of taking such a stand to avoid making less payment to respondent/wife cannot be ruled out. In these circumstances, the stand taken by petitioner is not believable. Further interim maintenance @ Rs.7000/- per month in these days is a very meagre amount for the survival of two persons.

7. It may also be mentioned that the ld.ASJ has considered the aforesaid aspect of the matter and has observed as under:-

"The appellant initially had claimed that he was in the business of taking orders for supply of fabrics from boutique etc. and was earning Rs. 10,000 - Rs. 12,000/- p.m. (para 35 of the reply dt. 10.11.2010). Respondents no. 2, 3 and 5 in their reply dt. 15.12.10 stated in para 35 that respondent no. 1 had nothing to do with the proprietorship concern M/s. S.G. Traders which belongs to respondent no. 2. Thus, it was clear at the time of filing of first reply by the appellant/respondent no. 1 and the reply filed by respondents no. 2, 3 and 5 that the appellant did not have any concern with the business of respondent no. 2 and as per his own pleading he was carrying independent work of trading in fabrics

and was earning commission. Accordingly, his averment in the application and the amended reply that he had to take up the job because he was turned out of the business by his father is factually incorrect. There is no explanation given as to why he had to stop his business and had to take up the job and therefore, the application seeking amendment of reply was rightly dismissed by the Ld. Trial Court and the observations of Ld. Trial Court that the appellant in fact was making an attempt to change his defence, which is not permissible under law, is correct as per law".

8. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this Court in exercise of revisional powers under Section 397 Cr.P.C.

The petition stands dismissed.

Crl.M.A.14488/2013(for stay) In view of the order passed in the main petition, no further orders are required to be passed in this application. The same stands disposed of.

VEENA BIRBAL, J OCTOBER 23, 2013 cl/ssb