Delhi District Court
Appellant vs Amit Sharma on 5 December, 2018
IN THE COURT OF DR. NEERA BHARIHOKE,
ADDITIONALSESSIONS JUDGE06, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No.328/2018
Meenakshi Sharma
W/o Shri Amit Sharma
R/o K1/128, Top Floor,
Chitranjan Park,
New Delhi
. . . . . . . Appellant
Versus
Amit Sharma
S/o Shri Krishan Gopal Sharma
R/o 5E/164165, Vyas Marg,
Bikaner, Rajasthan
Also at : 06218, Block 317A,
Anchor Vale Road,
Sengkang, Singapore
. . . . . . . Respondent
Date of Institution : 23.07.2018 Date of Arguments : 03.12.2018 Date of Judgment : 05.12.2018 J U D G M E N T
1. Vide this judgment, I shall decide the present appeal filed under CA No.328/18 Page No.1 of 7 section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act") against the order dated 11.07.2018 passed by learned Metropolitan Magistrate (in short "MM")01, SouthEast District, New Delhi.
2. The present appeal is filed against the impugned order on the ground that the learned trial court had fixed interim maintenance in favour of the appellant and the said order of fixing interim maintenance was challenged in appeal by the respondent. The said appeal was dismissed. Against the said order of dismissal, the respondent has filed a revision before Hon'ble High Court of Delhi which is still pending. The copy of the order dated 15. 03. 2018 of Hon'ble High Court of Delhi was supplied during the course of arguments.
3. Hon'ble High Court of Delhi issued notice of the revision petition to the appellant herein which was accepted on behalf of the appellant herein by her counsel. In the said order, Hon'ble High Court of Delhi directed the petitioner/respondent herein that he should deposit with the Registrar General of Hon'ble High Court of Delhi, the entire maintenance amount payable for the son with effect from 01.10.2012 at the rate of ₹ 40,000 per month and deposit 50% of the amount payable to the respondent with effect from 01.10.2012 within a period of 4 weeks from the date of order. The petitioner/respondent herein was also directed that he shall continue to pay the monthly amount at the above rate.
CA No.328/18 Page No.2 of 74. Learned counsel for appellant has argued that the respondent has not complied with the said direction of Hon'ble High Court of Delhi and thus he had prayed before learned trial court by way of an application to strike of the defence of the respondent in view of non compliance of directions of Hon'ble High Court. However learned trial court declined to grant the relief under the said application by way of impugned order dated 11.07.2018 and hence the present appeal has been filed.
5. The appellant has relied on the law laid down in Kamla Devi versus Rati Ram, 1985 LawSuit(P&H) 924, Bani versus Parkash Singh, 1997 (1) DMC 5, Gaurav Sondhi versus Diya Sondhi, 2005 (5) AD(Del)) 487, Satish Kumar versus Meena, 2001 (93) DLT 545, and Atreyapurapu Venkata Subba Rao versus Atreyapurapu Venkata Shyamala, 1990 (2) DMC 486 and in all of these judgments, the respective Hon'ble High Courts have held that the defence can be struck off for failure to pay the maintenance. Rather in the matter of Atreyapurapu Venkata Subba Rao versus Atreyapurapu Venkata Shyamala (supra), Hon'ble High Court of Andhra Pradesh had observed that the power under section 151 CPC can be exercised to strike out the defence. Relying on these observations, learned counsel for appellant has argued that the learned trial court should have passed an order for striking of the defence of the respondent in view of noncompliance of directions of Hon'ble High Court of Delhi by respondent.
CA No.328/18 Page No.3 of 76. The learned counsel for respondent has argued that the submissions made by the learned counsel for appellant are not sustainable and that the order of striking of the defence of the respondent cannot be passed and he has relied on the observations of Punjab and Haryana High Court in the matter titled Gurvinder Singh versus Murti and Ors., 1991 Cri. LJ 2353 in which the husband had not paid the interim maintenance awarded in favour awarded to her under section 125 Code of Criminal Procedure and his wife had filed an application for striking of the defence of her husband for nonpayment of interim maintenance. In the said matter it was observed that "Legally speaking, it would not be permissible for a criminal court under section 125 of the Code to strike of the defence of a party for nonpayment of interim maintenance." The respondent has also placed reliance on the order passed in the matter titled Sakeer Hussain versus Naseera and Others, R.P. (F.C.) No. 177 of 2016 decided on 9th day of September 2016 where it was observed that neither expressly nor by necessary implication, Code of Criminal Procedure conferred a power identical to that of striking of defence on criminal courts. It was also observed that the Magistrate courts are not conferred with an inherent power like that of section 151 CPC. It was thus held that they cannot exercise inherent powers also. It was argued on behalf of learned counsel for respondent that the judgments relied upon by the learned counsel for appellant has been passed under section 24, Hindu Marriage Act and are not applicable to the proceedings under Protection of Women from CA No.328/18 Page No.4 of 7 Domestic Violence Act, 2005 as the same are governed by Code of Criminal Procedure. Learned counsel for respondent has argued that there is no merit in the present appeal and the same deserves to be dismissed.
7. Submissions made by learned counsel for respondent are found to be correct. The judgments relied upon by learned counsel for appellant have been passed under the provisions of Hindu Marriage Act in view of nonpayment of interim maintenance awarded under the said Act. I concur with the submissions made by learned counsel for respondent in view of law laid down in the judgments relied upon by the respondent, i.e. Gurvinder Singh versus Murti and Ors. (Supra) and Sakeer Hussain versus Naseera and Others (supra). Section 28 of Protection of Women from Domestic Violence Act, 2005 specifically provides that all proceedings under section 12, 18, 19, 20, 21, 22.23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure. The judgments relied upon by the respondent have been passed in relation to the nonpayment of maintaining granted under section 125 of Code of Criminal Procedure and are thus applicable to the facts of the present appeal. Hon'ble High Court only stayed the execution of the impugned order subject to the deposit of the amount directed by it to be paid by the petitioner/respondent herein. Since the petitioner/respondent herein has admittedly not paid the said amount as ordered by Hon'ble High Court vide its order dated 15.03.2018, the appellant has the remedy of filing execution proceedings against the respondent in terms of the CA No.328/18 Page No.5 of 7 said order as there is no stay in operation against the execution proceedings as the stay was granted subject to deposit of the amount ordered by Hon'ble High Court of Delhi which has not been deposited by the respondent.
8. In the matter of Surya Parkash versus Rachna, MCRC No. 16718/2015, Hon'ble High Court of Madhya Pradesh vide its order dated 10.10. 2017, observed that nonpayment of maintenance allowance is also a breach of 'protection order' or' interim protection order' and provisions of section 31 of Protection of Women from Domestic Violence Act, 2005 can be invoked for the same. Section 31 of the said Act specifically provides for penalty for breach of protection order by respondent which again does not provide any power to the courts exercising jurisdiction under the said Act to strike of the defence of the respondent for nonpayment of interim maintenance.
9. In view of these observations I find no infirmity in the impugned order and the same is accordingly upheld. The appeal is therefore dismissed.
10. Parties are directed to appear before learned trial court on date fixed.
11. A true copy of the judgment alongwith TCR be sent to learned trial court concerned.
CA No.328/18 Page No.6 of 712. Appeal file be consigned to record room.
Announced in the open (DR.NEERA BHARIHOKE)
court today i.e.05.12.18 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2018.12.06
12:50:34
+0530
CA No.328/18 Page No.7 of 7