Delhi District Court
Rishi Kapoor (Husband) vs 2 on 25 January, 2010
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IN THE COURT OF SHRI S.K.SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURS/NEW DELHI
Criminal Appeal No. 132/2009
1. Rishi Kapoor (Husband)
S/o Shri Virender Kapoor
R/o 1361 A, Sector 29,
HIG Flat, Faridabad, Haryana
2. Shri Virender Kapoor (Father-in-law)
R/o 1361 A, Sector 29,
HIG Flat, Faridabad, Haryana
3. Smt. Usha Kapoor (Mother-in-law)
W/o Shri Virender Kapoor
R/o 1361 A, Sector 29,
HIG Flat, Faridabad, Haryana
4. Ms. Karisma Kapoor (Sister-in-law)
R/o 1361 A, Sector 29,
HIG Flat, Faridabad, Haryana
5. Smt. Pushpa Vig (Maternal Grand Mother-in-law)
R/o H-33, Kalkaji, New Delhi-19
6. Shri Ashu Babbar (Cousin Brother of Sh. Rishi Kapoor)
R/o 15/5, Opposite Gurudwara B Block,
Kalkaji, New Delhi-19 ........... Appellants
Versus
2
Mrs. Kavita Kapoor
W/o Shri Rishi Kapoor
Present Address:
474, Sector 2, Sadik Nagar,
New Delhi-110049 ..........Respondent
Date of Institution : 02/09/09
Date when arguments
were heard : 20/10/09 and 16/12/09
Date of judgment : 25/01/2010
JUDGMENT
This appeal is directed against the impugned interim order of maintenance in favour of the respondent dated 20/07/09 passed by learned Metropolitan Magistrate under Section 23 of the 'Protection of Women from Domestic Violence Act, 2005' (in short Act) by which the learned Metropolitan Magistrate granted interim maintenance in the sum of Rs. 15,000/- p.m. to the respondent who is wife of appellant No. 1.
I have heard the learned counsel for the parties and have gone through the record of the case and the authorities produced on behalf of the respondent.
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The first controversy between the parties is with regard to the question of limitation. According to the learned Counsel for the appellants, the order is passed by learned Metropolitan Magistrate on 20/07/2009. The present appeal is filed on 02/09/09. The certified copy was applied by the appellants on 22/07/09 which was ready for delivery on 03/08/09 and was delivered to the appellants on 11/08/09. Therefore, the appellants being entitled to exclusion of the time taken in obtaining certified copy to the impugned order of learned trial court, the appeal is filed within prescribed period of limitation of 30 days.
The learned Counsel for the respondent, on the other hand, has argued that the provisions of the Indian Limitation Act, 1963 for excluding the time taken for obtaining the certified copy are not applicable as the Act is a special Act in which 30 days period of limitation is prescribed under Section 29 of the Act. It is also argued that Section 24 of the Act makes it obligatory on the trial court to supply the copy of the order free of cost to the parties. Therefore, the appeal ought to have been filed within 30 days from the date of impugned order as prescribed under Section 29 of the Act. Reliance 4 is placed upon Vanka Radhamanohari (SMT) Vs. Vanka Venkata Reddy and others (1993) 3 Supreme Court Cases 4 and Arun Vyas and another Vs. Anita Vyas (1999) 4 Supreme Court Cases
690. In reply to arguments, learned Counsel for the appellants has argued that no copy of the impugned order was supplied by learned Metropolitan Magistrate as provided under Section 24 of the Act. So, the appellants had to apply to Copying Agency for obtaining the copy and they are entitled to the exclusion of time taken for supply of certified copy from the Copying Agency.
It is not disputed that if the time taken for obtaining certified copy is excluded then the appeal is filed within 30 days from date of order. It is true that the Act is a special Act and its provisions would override the general provision of the other Acts dealing with the same procedure, but no provision is made in the Act for exclusion of period of time taken for certified copy. When the arguments on behalf of the appellants is that they were not supplied the copy of the impugned order by the court of learned Metropolitan Magistrate to comply with 5 Section 24 of the Act, the interest of justice also demands that the time taken in obtaining certified copy by appellants should be excluded in computing the period of limitation. If there is no provision for the Act dealing with the exclusion of time for obtaining certified copy from the prescribed limitation period for filing appeal then the provisions dealing with the same in the Indian Limitation Act, 1963 which is of general application would certainly be attracted to this case as it cannot be said that there is any provision in the Act dealing specifically with exclusion or no exclusion of time taken in obtaining certified copy which is in conflict with any provisions dealing with same matter in the Indian Limitation Act, 1963. Therefore, the appellants being entitled to exclusion of period of obtaining certified copy of the impugned order, the appeal filed by the appellant is within the prescribed period of limitation of 30 days as provided under Section 29 of the Act.
In Vanka Radhamanohari's case (supra), Hon'ble Supreme Court has highlighted differences between Section 473 CrPC and Section 5 of Limitation Act, 1963. But both these 6 provisions of these two different Acts are inapplicable to the present case. So, Vanka Radhamanohari's case (supra) does not apply here. Same is the position of Arun's case (supra) relied upon by the respondent due to distinct fact situation.
The learned Counsel for the appellant has argued that the respondent nowhere in the application under Section 23 of the Act had demanded interim maintenance and what has been demanded by her is a sum of Rs. 50,000/- p.m. as interim maintenance. So, learned trial court should not have granted the interim maintenance in the sum of Rs. 15,000/- p.m. to her. It is also argued that the appellant No.1, the husband of the respondent, is unemployed since March, 2008 is an admitted fact which fact is also considered by the learned trial court in the impugned order and the respondent is gainfully employed as P.A. to Director, Max Health Care and is earning Rs. 18,000/- p.m. after necessary deductions. It is also argued that a full and final settlement was arrived at between the parties at the time of grant of bail by Hon'ble High Court . The interim bail was granted and a cheque of Rs. 5,00,000/- was given to the 7 respondent for full and final payment in which the matter was referred to the Mediation Cell of Hon'ble High Court. So the learned trial court ought not to have passed the impugned order which is liable to be set aside.
Learned Counsel for the respondent has argued that the Act is enacted for the protection and benefit of women. The respondent has claimed several reliefs in the main application and also under Section 23 of the Act.
The amount of Rs. 5,00,000/- paid to the respondent, at the time of grant of bail, was towards the compensation towards dowry articles and was paid by father of the appellant No.1 husband. It is also argued that even if the respondent is employed she is entitled to equal status in respect of maintenance and residence of the respondent so learned trial court rightly granted interim maintenance in the sum of Rs. 15,000/- p.m. to the respondent and the appeal is liable to be dismissed. Reliance is placed upon following authorities:
1. Rajesh Chaudhary Vs. Nirmala Chaudhary 125 (2005) DLT 311 8
2. Sonia Khurana & Anr Vs. State & Anr. 132 (2006) DLT 7
3. Bhupinder Singh Vs. Delhi Commission For Women & Ors. 137 (2007) DLT 411
4. Baby Rupali & Anr. Vs. Rajesh Grover and Ors. II (2005) DMC 531
5. Neelam Malhotra Vs. Rajinder Malhotra and Ors. 1994 AIR (Delhi) 234
6. Meenu Chopra Vs. Deepak Chopra 92 (2001) DLT 873
7. Renu Jain Vs. Mahavir Prashad Jain AIR 1987 Delhi 43
8. Sapna Singh Pathania Vs. Sh. Jagdish Chander Mehta & Ors.
1998 IV AD (Delhi) 1
9. Sanjiv Sangwan Vs. Sangeeta Sangwan 143 (2007) DLT 306
10.Vanka Radhamanohari(SMT) Vs. Vanka Venkata Reddy and others (1993) 3 SCC 4
11.Chaturbhuj Vs. Sita Bai 2008 (1) JCC 486
12.Bharat Hegde Vs. Saroj Hegde 140 (2007) DLT 16
13.Radhika Narang & Ors. Vs. Karun Raj Narang & Anr. FAO (OS) 139/2006, order dt. 16.01.2009 9
14.Rajeev Preenja Vs. Sarika & Ors. Crl. M.C. 1859/2008 order dated 26.2.2009
15.Analytical Study of Nature of Maintenance Proceedings Under Section 125, Cr.P.C. 2008 Journal 53.
16.Amrendra Kumar Paul Vs. Maya Paul & Ors. 2009 (3) JCC 2422
17.Anupam Talukdar Vs. Smt. Piyali Talukdar 2009 Cri.L.J. 1846
18.Vijay Singh Yadav Vs. Rajesh Yadav Crl. M. C. No. 3024/2008, Decided on 10/07/2009.
I have heard respective arguments and have gone through the authorities relied upon by learned Counsel for the both the parties.
The authorities relied upon by learned Counsel for the respondent either deal with Section 125 CrPC or Section 24 of Hindu Marriage Act, 1955 or Section 18 of Hindu Adoption of a Maintenance Act, 1956. These authorities though deal with the question of grant of maintenance under the said different Acts cannot be said to apply to the present case with full force, on account of somewhat variance in the objects of grant of maintenance to the wife in these different Acts under different situations. Further, the fact situation in these 10 authorities is quite distinguishable. So the above authorities relied upon on behalf of the respondent do not apply to the present appeal.
There seems to be variance in the arguments of learned Counsel for the respondent that amount of Rs. 5,00,000/- was given to the respondent as per interim order of bail dated 16/07/2008 passed by Hon'ble High Court towards compensation to the respondent for her dowry articles. This payment was made as an interim maintenance to settle the dispute regarding dowry articles which also included the jewellery articles. This relief is also claimed in the main application filed before the learned trial court by the respondent. Therefore, this payment of Rs. 5,00,000/- has no direct bearing on the question of interim maintenance granted to the respondent by learned trial court.
In any proceedings related to grant of interim or final maintenance to a wife against her husband, the most important two questions are whether the wife is unable to maintain herself and what is the income and source of income of the husband. In the present case the respondent in her main petition filed before learned trial court 11 or in the application under Section 23 of the Act has nowhere alleged about the income of her husband appellant No.1. Undisputedly, the respondent is gainfully employed and is earning Rs. 18,000/- p.m. as P.A. to Director, Max Health Care. The case of the appellants is that the appellant No.1 Rishi Kapoor, husband of respondent, is unemployed since March, 2008. Perhaps due to this factual position the respondent wife has not specifically claimed the monthly maintenance from her husband in the application under Section 23 of the Act filed before learned trial court. What actually is claimed by her is Rs. 50,000/- as interim maintenance, besides other reliefs which are not granted by learned Metropolitan Magistrate in the impugned interim order by indicating that the contentious issues between the parties are to be adjudicated by way of evidence of the parties. While the learned trial court has not rightly granted the other reliefs in the application under Section 23 of the Act as the facts with regard to other reliefs were disputed, the learned trial court, in my view, ought not to have granted the interim maintenance of Rs. 15,000/- p.m. in the given facts situation when appellant No.1 the husband is claiming 12 to be unemployed and the respondent wife is admittedly gainfully employed and is able to maintain herself notwithstanding the fact that there is prima facie allegations of domestic violence against respondent as disclosed in the main petition under Section 12 of the Act made by her which need investigation and trial.
There is also difference between scope of revisional jurisdiction and that of appellate jurisdiction. In Vijay Singh Yadav's case (supra) relied upon on behalf of the respondent it is held while dealing with revision petition normally interim maintenances granted by the learned trial court should not be disturbed in the exercise of revisional jurisdiction. The fact situation is normally not appreciated while dealing with revision petition but the first appeal is treated on different footing where the fact situation can also be appreciated by the Appellate Court. There is marked difference between the powers of the court exercising the revisional jurisdiction and the appellate jurisdiction. Therefore, Vijay Singh Yadav's case (supra) relied upon by learned Counsel for the respondent wife wherein it is held that normally the interim maintenance granted by learned trial court 13 should not be disturbed do not apply to the present appeal on this count also.
In view of the above, it is held that the learned trial court has not properly appreciated the fact situation to arrive at a correct finding on the question of interim maintenance. Therefore, the impugned order is set aside. However, it is clarified that maintenance amount, if any, paid by the appellants till the filing of the appeal in terms of impugned order of learned trial court shall not be liable to be refunded by the respondent wife and would be retained by her subject to outcome on merit of the main petition under Section 12 of the Act. The appeal is allowed accordingly and impugned order dated 20/07/09 passed by learned Metropolitan Magistrate is set aside.
The trial court record be returned alongwith copy of this judgment. The judgment be sent to the server (www delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open (S K SARVARIA )
court on 25th January, 2010 Addl. Sessions Judge : 01 : South
Patiala House Courts/New Delhi
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