Delhi High Court
Khem Chand vs Bhagwati @ Laxmi & Anr. on 22 January, 2019
SHAKUN ANAND
31.01.2019 13:01
$~11
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 22nd January, 2019
+ CRL. M.C. 812/2016 & Crl.M.A. 3423/2016
KHEM CHAND ..... Petitioner
Through: Mr. S.C. Singhal, Adv.
versus
BHAGWATI @ LAXMI & ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner and the first respondent were married to each
other on 02.12.2000 at Delhi. From out of the said wedlock, the
second respondent took birth, she being a minor child in the care and
custody of the first respondent. On account of certain circumstances,
the first respondent left the matrimonial home with the second
respondent on 20.10.2002. She was eventually constrained to file a
petition (petition no. 912/3/2011) under Section 12 of Protection of
Women from Domestic Violence Act, 2005 in the Court of
Metropolitan Magistrate.
2. On her application, the Metropolitan Magistrate, by order dated
10.11.2014, directed the petitioner to pay the interim maintenance
allowance of Rs. 3,500/- to the first respondent and Rs. 2,000/- to the
second respondent w.e.f. 13.05.2011, the date of filing of the
application. The petitioner challenged the said order by appeal (CA
no. 57/2014) which, however, was dismissed by Additional Sessions
Judge, by judgment dated 19.01.2016.
3. The petition at hand filed under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C) brought a challenge to the orders
of the courts below to the above effect, it being the contention of the
petitioner that he is unemployed and, therefore, unable to pay, the first
respondent, on the other hand being gainfully employed in a beauty
parlour.
4. The claim of the petitioner that the first respondent is earning
her livelihood from work in a parlour is founded on some photographs
showing her presence at a certain place. This, to say the least, is not
sufficient evidence to show that she has regular income sufficient to
maintain herself and the minor daughter of the parties. The denial of
this on the part of the respondents cannot be disbelieved at this stage,
the burden being of the petitioner to prove his contentions by better
proof.
5. The petitioner claims that he is non-matriculate and has no
source of income, he having been engaged in earning his livelihood as
a driver of three wheeler scooter (TSR) till 2006, cannot be acted
upon. He has not disclosed as to how he has been surviving all along.
It cannot be believed that a person who was capable of supporting a
family by getting married and raising a child would all of a sudden
become devoid of all sources of income.
6. It is clear and is evident from the order of the sessions that the
petitioner is concealing facts, intentionally withholding information
about his income. It is noted that the Metropolitan Magistrate faced
with a situation wherein respondents were also unable to muster clear
proof, has assumed the income notionally on the basis of minimum
wages and on such basis has passed the order of interim maintenance.
The approach of the Metropolitan Magistrate in these circumstances
cannot be faulted.
7. The petition is dismissed.
R.K.GAUBA, J.
JANUARY 22, 2019
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