The Single Bench of the Delhi High Court in the case of Rohit Kumar & Anr vs Varsha consisting of Justice Asha Menon while dismissing a petition under Article 227 of the Constitution of India read with Section 482 CrPC reiterated that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised to re-appreciate evidence.
Facts
The respondent herein had filed an application u/s 23 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) seeking interim maintenance @ Rs. 20,000/- per month from the petitioner No.1 for herself and the minor child. The learned MM concluded that the income of the petitioner No.1 could be assessed at Rs.30,000/- per month and dividing the income equally amongst the family members with an extra portion to the petitioner No.1, granted a sum of Rs.15,000/- per month to the respondent and the child of the petitioner No.1 and the respondent, till they were legally entitled to receive the same or till the final disposal of the case. Being aggrieved, the present petitioners filed an appeal u/s 29 of the DV Act, which the learned Appellate Court dismissed, holding that the order did not call for interference.
Contentions Made
Petitioner: The impugned order of the Learned Appellate Court, as well as the order of the Learned Mahila Court, suffered from infirmity, as they had failed to factor in many material facts. The respondent had been employed till the birth of the child and, therefore, was capable of earning. Petitioner No.1 had also to discharge a loan of Rs.3,50,000/-, in respect of which EMIs were also remaining to be paid. Moreover, the Covid-19 lockdown had also adversely affected his salary which had been now reduced to a mere Rs.10,000/- per month.
Respondent: In exercise of the jurisdiction u/s 482 CrPC or even Article 227 of the Constitution of India, the court could not re-consider the facts. There was no perversity in the impugned orders calling for any interference by this Court. The fact that the respondent had been employed at some point of time, would not justify a denial of maintenance to her.
Observations of the Court
Relying on certain judgments, the Bench observed that it is settled law that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised as a “cloak of an appeal in disguise” or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, and circumspection and only to prevent grave miscarriage of justice.
So, the Court cannot consider the question of facts as to whether the assumption of the salary of the petitioner No.1 by the learned Mahila Court was not correct as per the record or the mere proclamation of the petitioner No.1 that because of Covid-19, his income had shrunk to Rs.10,000/- p.m. be accepted at face value. Even the plea that regular income had been flowing into the accounts of the respondent would be a question of fact.
Judgment
Regarding the payment of Rs.3,50,000/-, it was observed that the courts rightly concluded that the said payment was in lieu of the jewellery that was not returned by the petitioners to her. Under no circumstance could that amount have been adjusted towards maintenance payments.
The petition being completely devoid of any merit, was dismissed with costs of Rs.10,000/- to be paid to the respondent before the learned Trial Court.
Case Name: Rohit Kumar & Anr vs Varsha
Citation: CRL.M.C. 2227/2020, CRL.M.A. 15819/2020 (for stay)
Bench: Justice Asha Menon
Decided on: 02nd May 2022
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