Delhi High Court
Munna Lal vs Karan & Ors. on 13 June, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 394/2014
Date of Decision: June 13th, 2016
MUNNA LAL ..... Petitioner
Through: Mr.R.P.S.Bhatti, Adv.
versus
KARAN & ORS. ..... Respondent
Through Ms.Suman Chauhan, Adv. for R-1 to
R-3.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition has been filed under Section 482 of the
Cr.P.C. for setting aside the impugned order dated 19.12.2013 passed
by the learned ASJ in Criminal Revision No. 122/2013 whereby the
revision petition of the petitioner was dismissed.
2. The brief facts of the case are that the petitioner and respondent
No.3 are husband and wife whereas respondent Nos.1 & 2 are their
children. The respondent No.3/wife had filed a petition under Section
125 Cr.P.C. against the petitioner for maintenance to herself and her
children in March, 2009 where the petitioner was initially proceeded
ex parte but on an application being made, the ex parte proceedings
were set aside. It was alleged in the petition that the petitioner/husband
is earning Rs.20,000/- per month by giving tuitions and doing farming
on his land, but never remitted a single penny to the respondents/
complainants.
3. The contentions made in the petition filed under Section 125
Cr.P.C. were opposed by the petitioner/husband on the ground that he
filed a petition under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights against the respondent No.3 and
thereafter she failed to appear and was proceeded ex parte. The
petitioner denied imparting of any tuition and stated that he does not
have any farm land and is dependent upon his father's pension for the
expenses of his family. He also stated that he is unemployed and is
without any means and certificate with respect of his unemployment
has been issued by Gram Pradhan. The allegations of the petitioner
were refuted by the respondent No.3 who stated that petitioner is well
qualified being an M.Sc., earning Rs.30,000/- a month and has no
other responsibility except maintaining the respondents. It was also
stated that the father of the petitioner was also in a government job.
The petitioner being the husband and father of the children is liable to
maintain them. Since it was an interim stage, the fact whether
respondent No.3 left the company of the petitioner without any
sufficient cause or not cannot be decided. Thus, in the given
circumstances, his liability to maintain the respondents was fixed at
Rs.1,300/- per month each from the date of filing of the petition till the
disposal of the petition. The said order was challenged by the
petitioner by filing a revision petition which was also dismissed.
4. The petitioner/husband had taken a ground in the revision
petition that since his petition under Section 9 of the HMA Act had
been allowed, the order passed passed by the Trial Court in a petition
filed by the respondent No.3 is violative of the provisions of Section
125 Cr.P.C. which lays down that the right of maintenance cannot be
availed by a wife who is guilty of living away from the husband for no
justifiable reason. Respondent No.3 stated that she had put in
appearance in the petition under Section 9 of the HMA filed by the
petitioner/husband who exercised pressure on her by sending persons
after her to prevent her from appearing in the Court. The respondent
No.3 stated that she was willing to stay with the petitioner provided he
takes care of her and her children. She admitted that she had been ill
advised by her earlier counsel that she need not appear before the
matrimonial court and also named the advocates who gave her this
advice.
5. The Revisional Court opined that the petitioner had not shown
to the court that he had taken steps to take the custody of his children
and therefore the maintenance qua them cannot be set aside on the
ground that a civil decree had been passed against their mother by a
civil court. As regards the allegation that the respondent No.3/wife had
left the company of the petitioner/husband, it was observed that the
same can be decided only after the trial and not at the stage of interim
application.
6. It was an admitted position that the respondent No.3 was
unrepresented before the Court in the Section 9 of HMA petition and
her version remained unrepresented there. The finding in an ex parte
decree, if unchallenged will remain binding on the petitioner, but it
cannot become a ground for refusing the version of the respondent
No.3 which was not put before the Court at all.
7. The fact that she had been prevented by the men of the
petitioner/husband from entering appearance before the Civil Court is
to be judged after the trial as per the evidence to be led by the parties.
It was also to be appreciated by the Court that she had been misguided
by her previous counsel. Thus, it was inappropriate to bind the
respondent No.3 by a decree in which her part of the story was not
even heard by the court. As for the quantum of maintenance, the
Revisional Court observed that the petitioner/husband himself had not
come out clean on his source of income and thus there was no error in
the finding of the Trial Court holding his income at Rs.6,500/- per
month. However, it is made clear that any payment made in
pursuance of the order granting interim maintenance shall be subject
to the adjustment of the maintenance granted while passing final order
by the Trial Court.
8. Before parting with, any observation made above shall not have
any bearing on the merits of the case.
9. In the facts and circumstances as discussed above, this Court
does not find any infirmity or irregularity in the finding arrived at by
the court below in the order dated 19.12.2013.
10. Thus, the present petition is dismissed.
(P.S.TEJI)
JUDGE
JUNE 13, 2016
dm
