Delhi District Court
Lalit Prasad vs State (Nct Of Delhi) on 2 May, 2016
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IN THE COURT OF SH. GURDEEP SINGH,
SPECIAL JUDGE (PC ACT), CBI-05 PATIALA HOUSE COURTS,
NEW DELHI.
C.R. No. : 127/15
Unique Case ID no. : 02403R0266332015
Lalit Prasad
S/o Sh. Shambhu Lal
R/o 113, Munirka Village,
New Delhi - 110 067 .... Revisionist
Vs.
1. State (NCT of Delhi)
2. Mithlesh
D/o Sh. Ram Rattan
R/o Village Wazirabad,
Gali No. 1, H. No. 54, Near Gopal Pur
New Delhi - 110 084 .... Respondents
Date of Institution : 11.12.2015
Date of arguments : 21.04.2016
Date of pronouncement : 02.05.2016
ORDER
1. This revision petition is directed against the order dated 28.10.2015 passed by learned MM in the execution in DV Act case, whereby the JD/ revisionist was given one opportunity to clear 50% of the present outstanding payment by the next date of hearing and CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 1 of 9 :: 2 ::
warrant of attachment was recalled and matter was fixed for 21.12.2015.
2. The relevant facts of the case are that respondent no.
2 Smt. Mithlesh had filed petition under Section 125 Cr. P.C. in the year 2002. In the said petition, petitioner was directed to pay Rs.2500/- per month as interim maintenance. While confirming the order of maintenance and deciding the petition under Section 125 Cr. P.C., the trial court ordered the revisionist to pay Rs.5000/- per month as maintenance to the respondent no. 2. The said order was confirmed w.e.f. 24.02.2011. The respondent no. 2 had also filed application under Section 23 D.V. Act which was decided on 05.04.2010 whereby, learned MM while considering the amount being paid as interim maintenance under Section 125 Cr. P.C. also directed to pay Rs.1500/- per month for her accommodation. Respondent no. 2 had filed execution against the same on which attachment warrants were issued. On that account, JD/ revisionist was directed to pay 50% of the arrears.
3. The notice of the revision petition was issued to respondent, who appeared. Trial court record was also summoned and I have perused the same. I have heard Sh. Nadeem Abbasi, Advocate for appellant; Sh. Arun CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 2 of 9 :: 3 ::
Kumar, learned Addl. PP for State and Sh. Rohit Singh, Advocate for respondent no. 2.
4. Learned counsel for revisionist submitted that as per law, the respondent can get maintenance only from one Court which has passed the order of maintenance on the higher side. Thus, once maintenance is fixed under Section 125 Cr. P.C, the separate maintenance under D.V. Act is not payable. He cited Santosh Malhotra V. Ved Prakash Malhotra [2012(2) JCC 1325; Sunil Garg V. Jyoti Kumar [2008(3) JCC 2133]; Renu Mittal V. Anil Mittal [2010 (173) DLT 269] and Rachna Kathuria V. Ramesh Kathuria [2010 (173) DLT 289].
5. On the other hand, learned counsel for respondent submitted that D.V. Act provides for additional right in addition to right under Section125 Cr. P.C. He submitted that learned MM while deciding the application under D.V. Act had considered the maintenance already paid under Section 125 Cr. P.C. and categorically mentioned that it is for the purpose for rent. He submitted that in judgment of Hon'ble Delhi High Court, it has not noticed the provision under Section 20(1) of DV Act, which has created the additional right. He cited Shahid Sheikh V. Shabanaz [Crl. Writ Petitin No. 122/2013 dated 16.01.2015]. In CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 3 of 9 :: 4 ::
the said case, judgment of Rachna Kathuria (supra) was considered and distinguished. It is also submitted by learned counsel for revisionist that order under DV Act was never challenged and by way of this revision petition, only the order under execution has been challenged. Since, the main order was never challenged, it has attained finality. Therefore, unless main order is challenged, the execution of the same cannot be challenged.
6. Firstly, let us consider the impugned order dated 28.10.2015, which is being reproduced hereunder:
"......
28.10.2015 .....
An application for cancellation of warrants of attachment issued against the JD has been moved.
Application perused. Heard.
Report of execution on warrants of attachment has also been received according to which warrants of attachment have remained unexecuted.
Counsel for the JD submits that JD is ready to make part payment of Rs.10,000/- in respect to outstanding today before the court CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 4 of 9 :: 5 ::
and also ready to bear the previous cost of Rs.2000/-. He further submits that JD needs some time to make the balance payment of the outstanding amount. Heard.
A sum of Rs.10,000/- cash towards part payment in the present petition and Rs.2000/- towards cost are handed over to DH today before the court.
Counsel for the JD submits that JD needs at least 8 months time to make the balance payment which now stands at Rs.98,000/-.
Strongly opposed by opposite counsel that already 10 months have lapsed since filing of the present petition and JD is also not making payment of the maintenance amount per month.
In view of the said submissions, JD is given one opportunity to clear 50% of present outstanding on the NDOH to show his bonafide failing which heavy penalty shall be imposed upon him.
In view of above observations, warrants of attachment against JD are recalled.
Counsel for the JD also submits that he does not have the a/c details of the DH and therefore regular monthly maintenance could CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 5 of 9 :: 6 ::
not be deposited in her a/c.
DH is directed to supply details of her bank a/c no. within two days from today and file a copy on record.
..."
7. Now, let us consider the order dated 05.04.2010 passed by learned MM on application under Section 23 D. V. Act.
".... In the facts and circumstances of the case I direct the respondent to pay a sum of Rs.1500/- per month to the appellant so that she can able to given rent for her accommodation. This payment will be made from the date of filing of this application and till its final disposal...."
8. Section 20(1) of D.V. Act reads as under:
"....20. Monetary reliefs.--
(1) While disposing of an application under sub-
Section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person and any child of the aggrieved person as a CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 6 of 9 :: 7 ::
result of the domestic violence and such relief may include, but it is not limited to-
(a) ...................
(b) ...................
(c) ...................
(d) the maintenance for the aggrieved person
as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. ..."
9. Let us examine judgments of Santosh Malhotra and Sunil Garg (supra) are with respect to order of maintenance passed under Section 24 of Hindu Marriage Act and Section 125 Cr. P.C. In the case of Sunil Garg (supra), it was observed that any sum payable to the wife towards maintenance has to be adjusted from maintenance awarded under Section 24 of the Hindu Marriage Act. Similarly in Santosh Malhotra's case (supra) also the maintenance under Section 125 Cr. P.C. and Section 24 of the Hindu Marriage Act was considered. However, in Renu Mittal's case (supra), it was observed that jurisdiction to grant maintenance under Section 125 Cr. P.C. and DV Act is CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 7 of 9 :: 8 ::
parallel jurisdiction. It is also not necessary that under DV Act, issue of maintenance be again adjudicated. In Rachna Kathuria's case (supra), Hon'ble High Court observed that Protection of Women from Domestic Violence Act does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track.
10. Hon'ble Bombay High Court in Shahid Sheikh's case (supra) observed that Hon'ble Delhi High Court had given no consideration to the specific provision under DV Act which confirms special right upon the aggrieved person to claim maintenance which is in addition to right under Section 125 Cr. P.C.
11. In this case, learned MM while directing the order of payment of Rs.1500/- as maintenance under DV Act, considered the award of maintenance under Section 125 Cr. P.C. and after due consideration observed that the additional amount with respect to payment of rent. Therefore, in due consideration of the existing maintenance and in addition to the same, the said order was passed. The said order has attained finality long back by way of revision petition against execution.
CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 8 of 9:: 9 ::
The main order cannot be challenged, by way of present revision petition, the direction would amount to setting aside the main order. As regards the adjustment of amount being paid, the same is in addition to earlier interim maintenance, therefore, the same cannot be adjusted against maintenance paid under Section 125 Cr. P.C. Since final order of maintenance is Rs.5000/-, the proper course would be to seek modification. There is no irregularity or impropriety in the order of learned MM. The revision petition is accordingly dismissed.
Trial court record be sent back along with copy of this order.
Revision file be consigned to record room.
Announced in the open court on (GURDEEP SINGH) 02nd May, 2016 ADDITIONAL SESSIONS JDUGE SPECIAL JUDGE (PC ACT); CBI-05 NEW DELHI/ 02.05.2016 CR No. 127/15 Lalit Prasad Vs. State & Anr. Page No. 9 of 9