Delhi High Court
Mala Nidar vs Sunil Sagar on 10 November, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 25th October, 2021
Pronounced on: 10th November, 2021
+ CRL. REV. P. 334/2017 & CRL.M.A. 14082/2021
MALA NIDAR ..... Petitioner
Through: Ms. Sangeeta Chandra, Advocate.
Versus
SUNIL SAGAR .....Respondent
Through: Mr. Simon Benjamin and
Ms.Yashika Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
[THROUGH VIDEO CONFERENCING]
CHANDRA DHARI SINGH, J.
1. This criminal revision under Section 397 read with Section 401 of
the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") has been filed
against the impugned order/judgment dated 28th February 2017, passed by
Principle Judge, Family Courts, Rohini, Delhi in MT No. 42/2016 titled
as Mala Vs. Sunil Sagar, for enhancement of maintenance amount from
Rs.8000/- (Rupees Eight Thousand Only) per month to Rs. 1,00,000/-
(Rupees One Lakh only) per month.
2. Brief facts as transpired from the record are as follows:
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
i. The marriage of the revisionist and the respondent was
solemnized on 24th March 2013, according to Buddhist Rites
Ritual at Trilok Bhawan, Shalimar Bagh, Delhi. On 20th May
2013, the revisionist left matrimonial house due to allegedly
cruelties and atrocities committed by respondent and his family
members. On 21st May 2013, the revisionist lodged the
complaint which was registered as FIR bearing No. 315/2013
under Sections 498A/406/323/506/342/509/34 of Indian Penal
Code, 1860 (in short "IPC") with Police Station Mehrauli, New
Delhi. The respondent was arrested in the said case and
thereafter the respondent moved an application for grant of bail
in the Court of learned Metropolitan Magistrate, Family Court,
Saket, New Delhi. The said bail application was dismissed.
ii. Thereafter, the respondent moved an application before the
learned Additional Session Judge, Saket, New Delhi, which
granted interim bail to the respondent for a period of two
months. Thereafter, the matter was referred to Mediation
Centre, Family Court, Saket, New Delhi and the revisionist and
respondent were directed to appear before the Mediation Centre
on 1st June 2013,. The revisionist along with her mother Smt.
Vimla Devi, brothers namely Mahender and Gyanender and
cousin sisters went to attend the Mediation Centre proceedings
in Saket Court, New Delhi on 29th June 2013. It is alleged that
during the mediation proceeding the respondent and his family
members had misbehaved with the revisionist and her family
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
members and also given threat to face the consequences. The
revisionist sent written complaint to Police Station Saket,
Commissioner of Police, New Delhi, Hon'ble High Court and
other forums.
iii. Upon the incident which had taken place in the Mediation
Centre, Saket, New Delhi, Ld. Additional Chief Metropolitan
Magistrate, Saket, directed to register a case and therefore, FIR
bearing No. 354/2013 dated 05.09.2013 under Section
323/325/401/406/509/34 IPC was registered in Police Station
Saket, New Delhi against the respondent and his family
members.
iv. The revisionist filed a petition under Section 12 of Protection of
Women from Domestic Violence Act, 2005 against the
respondent and his family members which is pending in the
Court of learned Metropolitan Magistrate, Saket Court, New
Delhi.
v. On 22nd January 2014, the revisionist filed a petition under
Section 125 Cr. P. C. seeking maintenance in MT No.42/2016
and claimed maintenance at the rate of Rs. 1,00,000/- (Rupees
One Lakh Only) per month from the date of filing of the
application under Section 125 Cr. P. C. along with litigation
expenses of Rs. 40,000/- (Rupees Forty Thousand only). The
respondent had filed a reply to the application u/s 125 Cr. P. C.
filed by the revisionist in the month of May, 2016. The
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
respondent had also filed the affidavit of his income/assets
before the Court below along with the details of the income and
bank statements.
vi. After recording the evidence in the matter and after hearing
both the sides, the Principle Judge, Family Court, Rohini
disposed of the application under Section 125 Cr. P. C. and
directed the respondent to pay Rs. 8,000/- (Rupees Eight
Thousand Only) per month w.e.f. filing of petition, i.e., 22nd
January 2014 along with the litigation expenses of Rs.11,000/-
(Rupees Eleven Thousand Only) and clear the dues/arrears
within 12 months.
vii. Being aggrieved by the judgment/order dated 28th February
2017, passed by Principle Judge, Family Courts, Rohini, Delhi
in MT No. 42/2016 titled as Mala Vs. Sunil Sagar, the instant
Criminal Revision has been filed by the petitioner and prayed
for enhanced maintenance to the tune of Rs. 1,00,000/- (Rupees
One Lakh Only) per month on the grounds mentioned in the
revision.
3. Ms. Sangeeta Chandra, learned counsel appearing on behalf of the
revisionist submitted that respondent is a man of sufficient mean and is
earning about more than two lakhs per month from the investment.
Further, the respondent runs business and is an Estate Agent and also
invests in property and shares. It is submitted that he also deals in gold
jewellery. The learned counsel appearing on behalf of the revisionist
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
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vehemently submitted that the respondent owns several properties in his
name and received a sum of Rs.1.5 crores as share in respect of sold
property prior to marriage. The learned counsel appearing on behalf of
the revisionist submitted that the revisionist is fully dependent on her
family members and is residing in a rented accommodation.
4. The learned counsel appearing on behalf of the revisionist
submitted that the revisionist examined herself as PW-1 in support of the
petition under Section 125 Cr. P. C. She testified on the lines of the
petition vide her affidavit i.e. Exhibit PW-1/K and relied upon the
documents marked as PW-1/A PW-1/C, PW-1/D, PW-1/G, PW-1/I along
with Exhibit PW-1/B, Exhibit PW-1/E, Exhibit PW-1/F and Exhibit PW-
1/H and submitted that after perusal of the said documents and the
exhibits it is established that the respondent is a resourceful person and he
is also earning more than Rs. 2 lakhs per month.
5. It is submitted that the Trial Court itself observed in para 7 of
impugned judgment, that there is no infirmity or any other reason to
disbelieve testimony of PW-1, but in spite of recording the above said
fact in their judgment the Court below has awarded a meagre
maintenance amount of Rs.8,000/- (Rupees Eight Thousand Only) per
month to the revisionist without any basis and contrary to law established
by the Hon'ble Supreme Court as well as in the several pronouncement of
this Hon'ble Court.
6. The learned counsel appearing on behalf of the revisionist
submitted that the Court below has also failed to appreciate that there is
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
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no evidence on record to prove that the revisionist is employed or earning
any income. It is also not denied by the respondent that she is residing
with her parents in a rented accommodation. It is submitted that the
amount of Rs. 8,000/- (Rupees Eight Thousand Only) awarded as
maintenance is highly inadequate to meet the expenses.
7. It is submitted that the Court below has passed the impugned order
without considering the contentions of the revisionist that the respondent
is earning handsome amount i.e. Rs. 2,00,000/- (Rupees Two Lakh Only)
per month. Even in the income affidavit filed in Domestic Violation Act
proceedings before learned Metropolitan Magistrate, the respondent
admitted that he deals in shares and equity and he is earning the sufficient
amount from the share and equity business. The learned counsel
appearing on behalf of the revisionist vehemently submitted that it is also
the case of the revisionist before the Court below that since respondent is
dealing in the business of share market and he is earning handsome
amount/income from the said business therefore she has claimed the
maintenance from the respondent at the rate of Rs. 1,00,000/- (Rupees
One lakh only) per month which is proportionate with the income of the
respondent and as per the dictum of the law laid down by the Hon'ble
Supreme Court. In view of the above facts and circumstances, the learned
counsel appearing on behalf of the revisionist submitted that the order
passed by the Court below is bad in law, without considering the facts of
the case as well as is contrary to the documents/material on the record. It
is further submitted that taking into consideration of the above said facts
and circumstances of the case the order dated 28th February 2017, passed
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
by the Principle Judge, Family Courts be set aside and prayed to enhance
the maintenance amount from Rs. 8,000/- (Rupees Eight Thousand Only)
per month to Rs. 1,00,000/- (Rupees One lakh only) per month.
8. Per contra, Mr. Simon Benjamin, the learned counsel appearing on
behalf of the respondent vehemently opposed the instant revision and
submitted that the present revision has been filed only to harass the
respondent and submitted that entire allegations made in the maintenance
petition as well as in the revision is based on false, vague, concocted,
frivolous and fictitious facts and therefore there is no merit in the instant
revision and the same be dismissed with cost.
9. Learned counsel appearing on behalf of the respondent submitted
that the revisionist has failed to prove before the Court below that the
respondent is earning handsome amount as claimed by the revisionist in
the petition under Section 125 Cr. P. C. The order was passed after
considering the entire facts of the case as well as the evidence, documents
and other materials on record related to the income of the respondent. The
Court below has passed the detailed order after considering the contention
made in the reply filed by the respondent as well as the contention made
in the petition. Considering the entirety of the matter, the Court below has
passed the maintenance of Rs. 8,000/- (Rupees Eight Thousand Only) per
month to the revisionist as per the principle laid down by the Hon'ble
Supreme Court as well as by this Court in several pronouncements. In
the case of giving the maintenance to the wife should be proportionate of
the income of the husband. There is no illegality in the impugned order
and therefore this Court may not interfere in the impugned order in the
Signature Not Verified
Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
instant revision filed by the revisionist. It is further submitted that there is
limited scope in the revision to interfere in any order passed by the Court
below. In the revisional jurisdiction the Court may only see any error
apparent on record or gross illegality committed by the Court below
while passing any judicial order but in the instant case there are no errors
apparent on the facts or record and there is no gross illegality committed
by the Court below. Therefore, the instant petition is devoid of merits and
is therefore liable to be dismissed.
10. I have heard learned counsel of the parties at length and perused
the record.
11. The fact of marriage between the revisionist/petitioner and
respondent is not denied. The object behind Section 125 Cr. P. C. is to
prevent vagrancy and destitution of wife, minor children and the parents.
In case of Manish Jain Vs. Akanksha Jain, (2017) 15 SCC 801, the
Hon'ble Supreme Court has observed as under:
"16. An order for maintenance pendente lite or for
costs of the proceedings is conditional on the
circumstance that the wife or husband who makes a
claim for the same has no independent income
sufficient for her or his support or to meet the
necessary expenses of the proceeding. It is no answer
to a claim of maintenance that the wife is educated
and could support herself. Likewise, the financial
position of the wife's parents is also immaterial. The
court must take into consideration the status of the
parties and the capacity of the spouse to pay
maintenance and whether the applicant has any
independent income sufficient for her or his support.
Maintenance is always dependent upon factual
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
situation; the court should, therefore, mould the claim
for maintenance determining the quantum based on
various factors brought before the Court."
12. In the instant case, the revisionist/petitioner has stated that while
awarding the maintenance vide order dated 28th February 2017, the Court
below has ignored the facts that the respondent is resourceful person and
having an income from his business and ancestral properties. In the
proceedings under Section 125 Cr. P. C. she examined herself as PW-1 in
support of the petition. She testified on the lines of the petition vide her
affidavit exhibit PW-1/K.
13. She has also relied on certain documents which were marked as
PW-1/A PW-1/C, PW-1/D, PW-1/G, PW-1/I along with Exhibit PW-1/B,
Exhibit PW-1/E Exhibit PW-1/F and Exhibit PW-1/H. As per the
documents which have been filed by the revisionist before the Court
below regarding the proof of income of the respondent does not establish
any exact income of the respondent. The revisionist herein vehemently
submitted that since he is doing business in the share market, gold
jewellery and investment business, therefore, she has presumption that he
is earning more than 2.5 lakhs income per month. And therefore she has
claimed proportionate maintenance of the income of the respondent. The
Principle Judge, North West, Family Court, New Delhi while disposing
of the application under Section 125 Cr. P. C. bearing MT No. 42/2016
has observed in para 10 as:
"10. A bare perusal of the loan
agreement/agreements dated 01 November, 2013, 26
September, 2013 between Gautam Sagar and Sunil
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
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Sagar and receipt dated 20.10.2013 executed by
Gautam Sagar regarding part payment of loan reflects
the address of the respondent as B-126C, Freedom
Fighters Enclave and, as such, the claim on behalf of
the respondent that he is residing in a rented premises
appears to be doubtful. Further, the large transactions
in respect of the loans itself reflect that the respondent
is a man means and his claim that he was working as
an Office Attend with S.K. Properties, does not appear
to be probable. Even otherwise, the aforesaid stand of
the respondent could not be proved on record since
his defence stood struck off. An agreement dated
09.09.2015 between respondent and his brother
Gautam Sagar whereby the share and plot valued at
Rs.11,86,523/- were received by Gautam Sagar, also
corroborates the stand of petitioner that respondent
was dealing in shares and his claim that he was
having an income of Rs.5,800/- per month appears to
be a last ditch effort to escape the liability of payment
of maintenance to the petitioner. Counsel for the
petitioner has also referred to the various entries in
the passbook of Corporation Bank whereby it has
been pointed out that in entry dated 25.09.2013 and
15.10.2013 there is reference to conversion to FDs of
Rs.50,000/- and Rs.20,000/- which have not been
disclosed by the respondent in affidavit. Similarly,
credit entries dated 27.04.2015 and 07.09.2015
relating to credit of Rs.49,949/-, Rs.52,636/-,
Rs.23,686/- and Rs.6,355/- also reflect that the
respondent had some additional income and assets.
The respondent has been proved to be belonging to a
reasonable well settled family and was residing in the
family property. The income of respondent as claimed
to be Rs.5,800/- per month is not believable as even
the minimum wages for a skilled labourer are in the
range of Rs. 11,830/- per month approximately.
Considering the overall nature of transactions as
revealed from his own affidavit, the income of the
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
respondent can be presumed to be not less than
Rs.25,000/- per month. A person with the meager
income of Rs.5,800/- per month as claimed by the
respondent cannot be spending litigation expenses to
the tune of Rs. 1,68,000/-.
Further, there is no evidence on record that the
petitioner is employed or earning any income and is
residing with her parents in a rented accommodation.
Merely on the basis of an entry dated 20.07.2013 in
her IDBI Bank Account for deposit of Rs.45,000/-; it
cannot be presumed that she has a regular income."
14. After perusal of the above such paragraph in which the Court
below has determined the income of the respondent on the basis of the
affidavit filed by the petitioner as well as the documents which were
exhibited by the petitioner and the reply of the respondent, found that
income of the respondent can be presumed to be not less than Rs.
25,000/- (Twenty Five Thousand Only) per month and on the said basis
the maintenance has been awarded to the respondent.
15. The Hon'ble Supreme Court in the case of Chaturbhuj Vs. Sita
Bai (2008) 2 SCC 316, has held that the object of the maintenance
proceedings is not to punish a person for his past neglect, but to prevent
vagrancy by compelling those who can provide support to those who are
unable to support themselves and who have a moral claim to support. The
Hon'ble Supreme Court has observed as under:
"6. The object of the maintenance proceedings is not
to punish a person for his past neglect, but to prevent
vagrancy by compelling those who can provide
support to those who are unable to support themselves
and who have a moral claim to support. The phrase
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
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"unable to maintain herself" in the instant case would
mean that means available to the deserted wife while
she was living with her husband and would not take
within itself the efforts made by the wife after
desertion to survive somehow. Section 125 Cr. P. C. is
a measure of social justice and is specially enacted to
protect women and children and as noted by this court
in Captain Ramesh Chander Kaushal v. Veena
Kaushal falls within constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution of
India. It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It
provides a speedy remedy for the supply of food,
clothing and shelter to the deserted wife. It gives effect
to fundamental rights and natural duties of a man to
maintain his wife, children and parents when they are
unable to maintain themselves. The aforesaid position
was highlighted in Savitaben Somabhai Bhatiya v.
State of Gujarat."
"7. Under the law the burden is placed in the first
place upon the wife to show that the means of her
husband are sufficient. In the instant case there is no
dispute that the appellant has the requisite means. But
there is an inseparable condition which has also to be
satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the
requirement that the husband must have neglected or
refused to maintain his wife. It has to be established
that the wife was unable to maintain herself. The
appellant has placed material to show that the
respondent wife was earning some income. That is not
sufficient to rule out application of Section 125 Cr. P.
C. It has to be established that with the amount she
earned the respondent wife was able to maintain
herself."
Signature Not Verified
Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
16. The objective of granting interim/permanent alimony is to ensure
that the dependant spouse is not reduced to destitution or vagrancy on
account of the failure of the marriage, and not as punishment to the other
spouse. The financial capacity of the husband is actual income with
reasonable expenses for his own maintenance, and dependant family
members whom he is obliged to maintain under the law, liabilities if any,
would be required to be taken into consideration, to arrive at the
appropriate quantum of maintenance to be paid. It is settled law that
balance and equity must carefully be drawn between all relevant factors.
The test of determination of maintenance in matrimonial disputes
depends on the financial status of the respondent and the standard of
living that the revisionist was accustomed to in her matrimonial home.
17. In the case of Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316, the
Hon'ble Supreme Court has held that the maintenance amount awarded
must be reasonable and realistic, and advised either of the two extremes
i.e. maintenance awarded to the wife should neither be so extravagant
which becomes oppressive and unbearable for the respondent, nor should
it be so meagre that it derives the wife to penury. The sufficiency of the
quantum has to be adjudicated so that the wife is able to maintain herself
with reasonable comfort.
18. The Hindu Marriage Act, 1955 provides statutory guidance with
respect to the criteria for determining the quantum of maintenance. It
provides the following factors which may be taken into consideration:
a) Position and status of the parties.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
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b) Reasonable wants of the claimant
c) If the petitioner/claimant is living separately,
the justification for the same.
d) Value of the claimant's property and any
income derived from such property.
e) Income from claimant's own earning or from
any other source.
19. A perusal of the law laid down by the Hon'ble Supreme Court
would indicate that the proceedings under Section 125 Cr. P. C. have
been enacted to remedy/reduce the financial sufferings of a lady who was
forced to leave her matrimonial house, so that some arrangements would
be made to enable her to sustain herself. It is the duty of the respondent to
maintain his wife and to provide financial support to her and their
children. The Husband cannot avoid his obligation to maintain his wife
and children except if any legally permissible ground is contained in the
statute.
20. In the present case, the petitioner/revisionist relies on the
documents which show that the respondent is involved in several
businesses but has not placed on record any documents to establish his
exact income from that business as claimed by the petitioner/revisionist.
The petitioner/revisionist has not exhibited any proof of exact income of
the respondent during the proceedings before the Principle Judge, Family
Court to establish that the respondent is earning more than Rupees Two
Lakhs as claimed by the revisionist in the revision.
Signature Not Verified
Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
21. The petitioner has also not been able to point out any perversity in
the impugned order. The Court below i.e. Principle Judge, Family Court
while allowing the maintenance under Section 125 of the Cr. P. C. and
while granting the maintenance to the petitioner vide order dated 28th
February 2017, has taken into consideration entire facts and
documents/materials on record and even this court does not find any
material placed on record to ascertain the exact income of the respondent
before the trial Court.
22. Having examined the materials on record and keeping in mind the
limitation of revisional jurisdiction [ref: Deb Narayan Haldar Vs.
Anushree Haldar (2003) 11 SC 303], this court is not inclined to
interfere in the present revision petition and hence the Crl. Rev. P. No.
334/2017 is hereby dismissed. Consequently, the pending application is
also disposed of.
23. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
November 10, 2021
gs
Signature Not Verified
Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:11.11.2021
15:17:51
