Sharad Kapoor vs Mini Malhotra & Ors
2017 Latest Caselaw 2976 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 3rd July, 2017



+      CRL.REV.P. 509/2015 & CRL.M.A.11729/2015, 506/2017

       SHARAD KAPOOR                                       ..... Petitioner

                          Through:      Mr.Y.P.Narula, Sr. Adv. with
                                        Mr.Abhey Narula, Adv.



                          versus



       MINI MALHOTRA & ORS                                 ..... Respondents

                          Through:      Mr.Prashant Mendiratta, Adv. with
                                        Mr.Anirudh K Mudgal, Adv.

       CORAM:

       HON'BLE MR. JUSTICE I.S.MEHTA

                                   JUDGMENT

I.S. MEHTA, J.

1. Instant revision petition is preferred by the petitioner- Sharad Kapoor under Sections 397 Cr.P.C. read with Section 482 Cr.P.C. for setting aside the impugned order dated 29.06.2015 passed by the learned ASJ-02, Special Judge(NDPS Act), Karkardooma

Courts, Delhi in CA. No. 25/15 titled as Sharad Kapoor vs. Mini Malhotra & Others and the order dated 27.04.2015 passed by the learned Metropolitan Magistrate/Mahila Court/East Delhi.

2. The brief facts stated are that the marriage between the petitioner and the respondent No.1 was solemnized on 28.04.2007 according to Hindu rites and customs at New Delhi. Thereafter, the marital discord between the petitioner and the respondent No.1, led the respondent No.1 to seek recourse of law by invoking provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005. The respondent No.1 also filed an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 seeking interim maintenance.

3. The learned Metropolitan Magistrate vide order dated 27.04.2015 disposed of the application filed by the respondent No.1 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 directing the petitioner to pay an amount of Rs. 1,60,000/- per month to the respondent/complainant from the date of filing of the complaint till the date of the order, i.e. 27.04.2015, and from the date of the order to next two years.

4. Aggrieved by the aforesaid order dated 27.04.2015 the petitioner filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, before the Court of District & Sessions Judge, Karkardooma Courts, Delhi.

5. Consequently, the learned ASJ-02, Special Judge(NDPS Act), Karkardooma Courts, Delhi after hearing the counsels for the parties passed the impugned order dated 29.06.2015 whereby

directing the petitioner to deposite at least 50% of arrears of maintenance as on date, which shall be a pre condition to the issuance of summons to the respondent and granted 15 days time to the petitioner to comply with the order, failing which the appeal shall be dismissed.

Hence the present revision petition.

6. The learned Senior counsel for the petitioner has submitted that the petitioner has offered Rs.30,000/- per month without prejudice to the rights and contention of the parties, however, the appeal before the District Court may be heard on merits and the petitioner is ready to deposit/pay the entire arrears at the rate of 30% without prejudice to the rights and contention of the parties. He further submits that amount for the maintenance Rs.1,60,000/- per month is extortionate amount and same has to be set aside which is pending before the Sessions Court in appeal.

7. On the other hand, the learned counsel for the respondents has submitted that the petitioner is working for Hyatt Group of hotels and he is earning more than 6000 Swiss Frank and is working as Senior Vice President in Hyatt Group of Hotels. He has further submitted that the order passed by the Appellate Court is only 50% of payment of arrears which is against the spirit of judgment of this Court in case Rajeev Preenja vs. Sarika & Others; II (2009) DMC 26 therefore, this revision petition is not maintainable as it is an interlocutory order and the present petition does not come within the preview of Criminal Revision petition. Reliance is placed on

the judgment of this Court in case Rajeev Preenja vs. Sarika & Others; II (2009) DMC 26.

8. It is an admitted fact coming on record that the main application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is pending before the Trial Court. The determination of the same will be done by the Trial Court after leading of evidence by the respective parties and on the basis of material documents and income affidavits of the parties.

9. Since the respondent is to be maintained by the petitioner, in the absence of denial of existence of the marriage the petitioner cannot shy away from his statutory obligation of maintaining his legally wedded wife.

10. Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim relief, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.

11. However, the order passed by the learned Metropolitan Magistrate is an interim maintenance and the determination of the main maintenance application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is yet to be decided. The interim maintenance granted by the trial Court is without prejudice to the rights and contentions of the parties.

12. The order dated 29.06.2015 passed by the leaned ASJ does not warrant any interference by this Court as the learned ASJ has already given 15 days time for compliance of the said order and if the petitioner does not deposit the said amount and if at all he is unable to comply with the said order he shall move an appropriate application before the said Court for extension of time pertaining to justifying delay.

13. In view of the aforesaid, I find no infirmity in the orders dated 27.04.2015 passed by the learned Metropolitan Magistrate and the impugned order dated 29.06.2015 passed by the learned ASJ-02, Special Judge(NDPS Act), Karkardooma Courts, Delhi at this stage.

14. Consequently, the instant revision petition filed by the petitioner is dismissed. However, this judgment shall not affect the merits of the case, application under Section 12 of DV Act pending between the parties as the determination of the same will be done by the Trial Court after considering the evidence on record and income affidavits of the parties.

15. The present petition is disposed of in the above terms. The Trial Court is directed to dispose of the application under Section 12 of DV Act filed by the respondent-wife as soon as possible and preferably within a period of six months from the date of this judgment.

16. Copy of this judgment be sent to the concerned Court(s). No order as to costs.

I.S.MEHTA, J JULY 03, 2017