Delhi High Court
Brijesh Kumar Gupta vs Shikha Gupta & Anr. on 4 February, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 04, 2015
+ CRL.M.C. 133/2013 & Crl. M.A.No.502/2013
BRIJESH KUMAR GUPTA ..... Petitioner
Through: Ms. Geeta Luthra, Senior Advocate
with Ms. Malini & Ms. Naina
Dubey, Advocates with petitioner
in person
versus
SHIKHA GUPTA & ANR. ..... Respondents
Through: Mr. Maninder Singh, Advocate for
respondent No.1
Mr. Vinod Diwakar, Additional
Public Prosecutor for respondent
No.2-State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned order of 18th December, 2012 entertained petitioner's
appeal under Section 29 of The Protection of Women from Domestic
Violence Act, 2005 subject to deposit of arrears of maintenance, as
granted by the trial court while permitting petitioner to deduct the amount
of `92,000/- from the amount due. Appellate Court vide impugned order
has directed the petitioner to convert the arrears of maintenance into two
Crl.M.C.No.133/2013 Page 1
fixed deposit receipts of equal amount in the name of respondent-wife.
The challenge to the impugned order of 18th December, 2012 is on
the ground that no pre- condition can be imposed for hearing a statutory
appeal under Section 29 of The Protection of Women from Domestic
Violence Act, 2005. However, at the hearing learned senior counsel for
petitioner had placed reliance upon Apex Court's decision of 29 th
January, 2015 in Crl.M.P.No.1577/2015 in Crl. Appeal No.2070/2014
Shalu Ojha Vs. Prashant Ojha whereby time bound directions have been
issued to the Appellate Court to hear the appeal under Section 29 of The
Protection of Women from Domestic Violence Act, 2005 on merits
without any pre-condition.
During the course of hearing, attention of this Court was drawn to
various interim orders passed by different Benches of this Court whereby
statutory appeal under Section 29 of The Protection of Women from
Domestic Violence Act, 2005 have been directed to be heard upon deposit
of 50% of the maintenance amount. It was submitted by learned senior
counsel for petitioner that till date petitioner has already deposited a sum
of `4,00,000/- and has no means to further deposit the highly inflated
maintenance amount awarded by trial court and since substantial amount
has been deposited by petitioner, therefore, Appellate Court be directed to
hear petitioner's statutory appeal without any further deposit.
Attention of this Court was drawn to Apex Court's decision
rendered on 18th September, 2014 in Crl. Appeal No. 2070/2014 Shalu
Ojha Vs. Prashant Ojha 2014 SCC Online SC 734 to remind this Court
that in proceedings under The Protection of Women from Domestic
Crl.M.C.No.133/2013 Page 2
Violence Act, 2005 the courts should be slow to grant interim orders.
It was pointed out by learned counsel for respondent that arrears of
maintenance till date are of `18,00,000/- and amount of `4,00,000/- only
has been deposited by petitioner towards arrear of maintenance, which is
kept in fixed deposit receipts and respondent is not permitted to withdraw
it and thereby leaving respondent without any means of surviving. It was
submitted by learned counsel for respondent that Apex Court's order of
29th January, 2015 in Shalu Ojha (Supra) relied upon by petitioner's
counsel is distinguishable, as in the aforesaid case, the husband was in
custody due to inability to pay the maintenance amount and in that
background, Apex Court had directed hearing of appeal on merits without
any pre-condition. It was further pointed out that in the instant case,
petitioner has means to pay the maintenance amount but is deliberately
avoiding to do so and thereby driving respondent to penury. Reliance
was placed upon Apex Court's decision in Rajeev Preenja Vs. Sarika &
ors. 159 (2009) DLT 616 and Nitin Gupta Vs. Ruchika Gupta 2012
(3)Crimes 227 (Del) to submit that the provision under Section 125 of the
Cr.P.C. are akin to the provisions of maintenance under The Protection of
Women from Domestic Violence Act, 2005 and this special enactment has
been brought to protect the women and children from neglect. Attention
of this Court was also drawn to Sub-Rule (5) of Rule 6 of The Protection
of Women from Domestic Violence Act, 2006 which mandates that
application under Section 12 of The Protection of Women from Domestic
Violence Act, 2005 shall be dealt with in the same manner as laid down in
Section 125 of the Code of Criminal Procedure. Thus, it was submitted
Crl.M.C.No.133/2013 Page 3
by learned counsel for respondent that the dictum of decisions in Rajeev
Preenja & Nitin Gupta (Supra) squarely applies to the instant case and
there is no illegality in the impugned order and petitioner's appeal be
directed to be heard after the entire arrears of maintenance are deposited,
so that respondent does not come on the road.
After having heard both the sides and on perusal of the impugned
order, material on record and the decisions cited, I find that there cannot
be an absolute rider that the entire maintenance amount, as granted by the
trial court, should be deposited prior to hearing of the statutory appeal
because it would otherwise leave the remedy of statutory appeal illusory.
The Apex Court's order of 29th January, 2015 is of no avail to the case of
petitioner because in the said case, the husband was in custody and was
unable to deposit the arrears of maintenance whereas in the instant case, it
is not so. Petitioner is a practicing lawyer, who claims that even
respondent is a practicing lawyer. Without getting into this aspect, in the
peculiar facts and circumstances of this case, impugned order of 18th
December, 2012 is modified to the extent that instead of depositing the
entire arrears of maintenance, petitioner is directed to deposit 50% of the
maintenance amount from the date of the application after deducting
`92,000/- from it i.e. the amount already paid to petitioner. Petitioner is
granted twelve weeks' time to deposit 50% of the maintenance amount
with the trial court. As an interim measure, respondent is permitted to
withdraw 50% of the maintenance amount w.e.f. the date of filing of this
petition i.e. from January, 2013 till petitioner's appeal is decided by the
appellate court.
Crl.M.C.No.133/2013 Page 4
With aforesaid directions, this petition and application are disposed
of while refraining to comment on the merits.
(SUNIL GAUR)
JUDGE
FEBRUARY 04, 2015
r
Crl.M.C.No.133/2013 Page 5
