Delhi District Court
Deepa S/O Sh. Sanjeev vs Sanjeev @ Amit on 22 May, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL
SESSIONS JUDGE01, NORTH, DELHI
Crl. Rev. No.: 45/2012
M.P. no. : 130/4/2010
P.S. : Burari
U/s : 125 Cr.P.C.
IN THE MATTER OF :
1. Deepa S/o Sh. Sanjeev
2. Master Ankur S/o Sh. Sanjeev
3. Master Raman S/o Sh. Sanjeev
4. Baby Manisha D/o Sh. Sanjeev
(Petitioner no. 2 to 4 being minor through their mother and natural
guardian Smt. Deepa)
All R/o House No. 167, Gali No. 3, Vishwas Nagar, Gzb, U.P.
.................Petitioners
Vs.
Sanjeev @ Amit
S/o Sh. Om Prakash
R/o D1139, Gali No. 9
Nathupura, Burari, Delhi
.............Respondent
Date of Institution : 07.04.2012
Crl. Rev. No.: 45/2012 1/7
Date of Arguments : 22.05.2012
Date of Order : 22.05.2012
ORDER
1. This is a revision petition filed by the petitioners aggrieved by the order dated 6.3.2012 passed by Ld. Trial court whereby Ld. Trial court declined to grant the interim maintenance in favour of petitioner no. 1 & 2 in the proceedings u/s 125 Cr.P.C. and directed for grant of maintenance @ Rs. 1000/ per month each for petitioners 2 & 3 which according to petitioners is also not sufficient.
2. The marriage between the parties was not disputed, however respondent had leveled the allegations of adultery against petitioner no.1 and had also raised doubt about the paternity of petitioner no. 4 and alleged that she was also not his daughter but was the outcome of adulterous relationship of petitioner no.1 with one Manoj Kumar. The respondent as stated had also filed a complaint u/s 497 Cr.P.C. whereby said Manoj Kumar had been summoned for the said offence and Ld. Trial court while observing that the filing of the said complaint and the summoning of said Manoj Kumar in the complaint u/s 497 IPC , prima faice proves the allegations of adultery against petitioner no. 1 and observed that in these circumstances, the petitioner no. 1 was not entitled for interim maintenance. Similarly since there was dispute pertaining to the paternity of petitioner no. 4, therefore Ld. Trial court also declined to grant interim maintenance in her favour. Aggrieved by the said order of Crl. Rev. No.: 45/2012 2/7 declining to grant interim maintenance for petitioner no. 1 and 4 as well as on the ground that the maintenance which had been granted in favour of petitioner no. 2 and 3 @ Rs. 1000/ per month is also not sufficient considering the higher income of the respondent, aggrieved by which the present revision petition has been filed by the petitioners.
3. Ld. Trial court with respect to the quantum of maintenance observed that petitioner no.1 has not placed on record any document with respect to the earnings of respondent and at the same time, also discarded the plea of respondent that he was daily wager since he had taken three policies for sum of Rs. 50,000/, , Rs. 50,000/ and Rs, 2,00,000/ in the name of his children and had been regularly paying the premium against the said policies , therefore could not have been presumed to be working as daily wager which as observed was definite concealment of income on his part. With respect to the allegations of adultery, though it is correct that the summoning order has been passed in the complaint u/s 497 IPC against said Manoj Kumar but mere summoning of Manoj Kumar does not ipso facto prove the offence or the allegations of adultery against petitioner no.1. It was also argued by Ld. Counsel for respondent during the course of arguments that petitioner no. 1 had also mentioned her address in the affidavit given in the trial court which was the residential address of said Manoj Kumar to which it was sought to be clarified by Ld. Counsel for petitioner that since she had been turned out by the respondent as well as had not been given shelter by her parents, therefore Crl. Rev. No.: 45/2012 3/7 had no option but to reside at the house of Manoj Kumar who is her relative. It was also stated that the said Manoj Kumar is already married and is having his own family consisting of his wife and children and there was never any adulterous relationship between petitioner no.1 and Manoj Kumar. It was also argued by Ld. Counsel for respondent that the petitioner while leaving the home, herself had left behind a letter admitting her relationship with Manoj Kumar and also the fact that father of her daughter was Manoj Kumar. It was further stated that a complaint had also been filed by the wife of said Manoj Kumar with respect to his illegal relationship with petitioner no. 1 which also suggests the adulterous relationship between petitioner no.1 and Manoj Kumar. However the said letter allegedly left by petitioner no.1 on dated 11.6.2009 is denied by her and at the same time, the respondent himself had filed the complaint with the police dated 22.6.2009 wherein though he leveled the allegations of adultery against his wife but did not dispute the paternity of her daughter and rather sought the help of police in taking back his daughter.
4. Further Ld. Counsel for petitioner has placed on record the statements of petitioner as well as of the respondent recorded before HMA court wherein the respondent had shown his willingness to meet all his three children who are petitioners no. 2, 3, & 4 herein and in those statements recorded on 13.12.2011, again had not disputed the paternity of petitioner no. 4. Even otherwise since the child was born during the Crl. Rev. No.: 45/2012 4/7 subsistence of the marriage between the parties and there being no material on record to substantiate the averment of the respondent, the child i.e. petitioner no. 4 is deemed to be born out of the wedlock of the parties to the marriage and therefore in these circumstances cannot be declined the maintenance nor the respondent can get rid of his liability to make arrangements for the maintenance of the daughter also.
5. With respect to the adulterous relationship between petitioner no. 1 and Manoj Kumar, as already observed merely because summons have been issued against Manoj Kumar in the complaint u/s 497 IPC is not sufficient to conclude the finality of the allegations against the petitioner no. 1 and till the time the allegations are not proved against her conclusively, she also cannot be deprived of her right to claim maintenance from the respondent in view of her denial of those adulterous relationship. The respondent during the course of arguments also sought to send the letter allegedly written by petitioner no. 1 for opinion of handwriting expert as well as also sought for conducting the DNA test for his daughter for which the respondent shall have to take steps during the trial, if he wishes to prove the same in his evidence but at this stage of passing of the order on interim maintenance and till the time those allegations are proved by the respondent, it may be reiterated that neither petitioner no. 1 nor the child born during the subsistence of the marriage of petitioner no. 1 and respondent can be denied their right to claim maintenance from respondent and cannot be left to lead the life of Crl. Rev. No.: 45/2012 5/7 destitution. However to secure the right of respondent, the indemnity bond may be directed to be furnished by the petitioner no.1 who shall be liable to return the amount of maintenance received from the respondent if the allegations of adultery are proved against her.
6. With respect to the quantum of maintenance granted by Ld. Trial court, though Ld. Trial court has observed that no document had been placed on record by either of the parties but perusal of the trial court record reveals that the petitioner had placed on record the salary certificate of the respondent who was stated to be working as CNC Operator and had been drawing the salary of Rs. 13696/ whereas respondent had also placed on record the appointment letter with respect to his appointment as CNC Operator with Frick Indian Limited whereby his salary was fixed @ Rs. 10,000/ per month. The salary certificate which has been placed on record by the petitioner for Rs. 13,696/ for the month of February 2010 is not denied by the respondent and at the same time, he could have also filed the salary certificate of the same year i.e. 2010 or the current salary certificate, had the figure mentioned in that salary certificate not been correct. Rather the salary of the respondent ought to have been increased after 2010 in a span of two years. In these circumstances, on the failure of the respondent to place on record the best evidence available with him, the salary certificate which has been placed on record by the petitioner should be given more weightage and according to which the salary of respondent was Rs. 13696/. The respondent as Crl. Rev. No.: 45/2012 6/7 submitted during the course of argument has been residing in a rent free accommodation owned by his father and has no other responsibility except for the petitioners. Accordingly respondent is directed to pay Rs. 2000/ per month each to all the petitioners. The order of trial court is modified in above terms, however it is made clear that in case the allegations of adultery stand proved against petitioner no. 1, she shall be liable to return the amount of maintenance received by her.
7. Revision petition filed by the petitioner is disposed off accordingly. Trial Court Record alongwith copy of this order be sent back to the court concerned. Revision file be consigned to Record Room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 22.05.2012 Crl. Rev. No.: 45/2012 7/7 Crl. Rev. No. : 45/2012 Deepa & Ors. Vs. Sanjeev 22.05.2012 Present : Counsel for petitioner.
Counsel for respondent.
Arguments addressed. Vide separate order, present revision petition filed by the petitioner is disposed off. TCR alongwith copy of order be sent back to the trial court. Revision file be consigned to Record Room.
(SAVITA RAO) ASJ01/NORTH/DELHI/22.05.2012 Crl. Rev. No.: 45/2012 8/7