Delhi District Court
Mr. Anil Sharma vs Ms. Ojisha Sharma on 14 December, 2012
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-03, WEST,
TIS HAZARI COURTS, DELHI
Unique case Identification Number : 02401R0350932012.
Criminal Revision Number : 03 of 2012
Mr. Anil Sharma
Son of Mr. Mool Chand Sharma
Resident of E-61, Om Vihar Extension,
Uttam Nagar, Delhi.
.................................................................................................Revisionist.
Versus
1. Ms. Ojisha Sharma
Daughter of Mr. Duli Chand Bhardwaj
Wife of Mr. Anil Sharma
2. Master Om Sharma
Son of Mr. Anil Sharma
(Minor through his mother, the respondent no. 1)
Both residents of B-5, Sector-3,
Near Jaipur Golden Hospital, Rohini, Delhi-85.
...............................................................................................Respondents.
Date of institution : 01.08.2012.
Date of conclusion of arguments : 11.12.2012.
Date of orders : 14.12.2012.
Appearances : Revisionist in person with counsel, Mr. Jagdish Chandra
and Mr. Devender Pal Singh.
Respondent number 1 in person.
Mr.Sandeep Tiwari, counsel for both the respondents.
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ORDER
1. This order shall dispose of the revision preferred by the revisionist Mr. Anil Sharma (hereinafter referred to as the revisionist) who has challenged the order dated 28.06.2012 of the learned Metropolitan Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 1 of 11 ::-
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Magistrate, Mahila Court, West, Tis Hazari Court, Delhi, whereby he has been directed to pay interim maintenance of Rs. 15,000/- per month to the respondent numbers 1 and 2, Ms. Ojisha Sharma and Master Om Sharma (hereinafter referred to as the respondents) in the petition under section 125 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C) filed by the respondents herein against the revisionist herein.
2. The trial Court record was requisitioned and the notice of the revision was issued to the respondents on which the respondent number 1 along with her counsel have appeared before the Court.
3. I have heard the arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and precedents on the point.
4. The revisionist has challenged the impugned order submitting that the learned Trial Court has failed to appreciate the material on record. The income of the respondent number has not been taken into consideration and the impugned order is against the law. The details of the grounds of revision are not being reproduced herein being a matter of record.
5. The counsel for the respondents, on the other hand, has submitted that the impugned order is in consonance with law and does not require any interference. The interim maintenance has been awarded to an estranged wife as interim maintenance for her benefit and upkeep.
6. As regards the contentions of cruelty, desertion, etc. or whether or not Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 2 of 11 ::-
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the respondent is living separately due to her own (mis) conduct, the same can be agitated at the appropriate stage and are not relevant at this stage. The only relevant fact is whether or not the respondents are entitled to any (interim) maintenance.
7. The object of section 125 Cr.P.C is to prevent vagrancy and destitution. It provide a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to the fundamental rights and natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. It is not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. In the present case apparently the revisionist has prima facie not shown anything which could indicate that the wife, respondent does not have any independent source of income sufficient for her support and necessary expenses.
8. It may be observed that the Court should not succumb to niceties, technicalities and mystic. Special care must be taken to see that innocent victims do not suffer and those responsible under the law do not escape liability merely because of some doubt here or obscurity there.
9. In the present case, it is not in dispute that the revisionist and the respondent number 1 have a minor school going child, respondent number 2. It is also clear from the record that the respondent number 1 as petitioner before the learned trial Court has in her petition very clear and categorically mentioned about the parties having a son who is in her Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 3 of 11 ::-
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care and custody and this averment has not been disputed by the revisionist as respondent before the learned trial Court in his written statement.
10.As regards the impugned order, I am of the considered opinion that the revisionist has not shown anything before the learned trial Court or even before this Court which could indicate that the respondent is working presently or that she is leading a life of luxury or has any earnings and she can sustain ans support herself and the child.
11.The respondent number 1 had claimed in her petition that revisionist is earning Rs.75,000/- approximately per month but she had failed to produce any document in support of her claim. In such a situation, the admission of the revisionist that he is earning Rs. 55,343/- per month can be a guiding factor for deciding the maintenance but can not be treated as conclusive proof without adducing a evidence as the exact income of the revisionist is in his exclusive knowledge.
12.There is no dispute that respondent number 1 is the wife and respondent number 2 is the minor son of the revisionist. It is also not in dispute that they are living separately and that respondent number 2, the minor son of the parties, is in the care and custody of respondent number
1.
13.In the revision petition, respondent number 1 has filed her reply with affidavit stating that she is presently "engaged in a temporary natured job on contract basis ie., lecturer with some institution namely "Delhi Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 4 of 11 ::-
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Institute of Rural Development" vide appointment letter dated 22.01.2010 and her pay was fixed of Rs. 18,000/- for secession 2009-2010 and is continue for 20.11.2012 session but the GGSIP University didn't approve her job, because she was not qualified as per the guidelines and not fulfilling necessary eligibility ie., doctorate, net qualified etc. therefore, they did not renewed the contract". She has also filed a copy of letter of appointment dated 22.01.2010 of the Delhi Institute of Rural Development to show that she has been appointed to the post of lecturer for the pay of Rs. 18,000/- for the current session ie., 2009-2010. She has also submitted that she is continuing there till date.
It is also not in dispute that she is educated and is professionally qualified (BBA, M.Com, MCA).
14.The revisionist has admitted that respondent number 1 has been working intermittently but has disputed her earnings stating that she is earning much more and is not disclosing her correct income. The revisionist has not denied his own income but has submitted that he is bearing the responsibility of his aged mother.
15.The learned Trial Court, in the impugned order, has observed that the income of the revisionist is around Rs. 50,000/- per month. (In the revision it is submitted that his total income is Rs. 55,343/- per month). The expenditure claimed by him around 48,500/- is not acceptable. It has also been observed that it is not believable that the respondent number 1 would be earning Rs. 20,000/- per year specially when she has claimed her expenses to be Rs. 55,000/- per month.
Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 5 of 11 ::-
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16.The revisionist may be morally and legally bound to maintain his aged mother but it definitely would not be at the cost of his estranged wife and minor son who also need the financial support.
17.Although the respondent number 1 is working but apparently her earnings, as per her reply supported by the affidavit and the letter of appointment, are not sufficient to maintain both the respondents. The revisionist has claimed that her earnings are much more but he has failed to substantiate his averments at this stage, since he has not placed on record any of the document to show the earnings of the respondent number 1.
18.It is also unfortunate of note that a father is trying to avoid paying the maintenance for his own minor child. For a person whose monthly income is Rs.55,343/-, expenses of Rs.48,500/- does not appear to be justified or acceptable. He has also not placed any document on the record to show that he is maintaining his aged mother. The averments of the revisionist clearly show that a deliberate attempt has been made by him to project the lessening of his income and exaggerating his expenses and he cannot be permitted to take advantage of this fact. It is also clear from the record that the revisionist does have responsibility of his estranged wife and minor child.
19.Attempt by husband to conceal his true income would justify adverse inference by court about his stated income. The income of the husband is within his special knowledge, he should have disclosed his true and correct income. The failure to do so without giving good reasons entitles Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 6 of 11 ::-
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the Court to presume against him and accept the allegations of the wife as to amount of his income. When the wife comes forward with an application and she says that she is unable to maintain herself and has no independent income for her support, it is for the opposite party to prove the contrary. The safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties.
20.The respondent number would require at least an amount of Rs.10,000/- for her subsistence and the child would require at least an amount of Rs. 5000/- for his subsistence as this would be a minimum amount needed to fulfil their basic requirements for food, shelter, education etc. Rs. 20,000/- per annum (income of the respondent number 1) would remain be insufficient. After paying Rs.15,000/- per month to the respondents from his income of Rs.55,343/-, a substantial amount of Rs.40,343/- still remains with the revisionist which appears to be reasonable and sufficient for him as well as for his mother.
21.It may also be mentioned that the impugned order is only interim order for maintenance during the pendency of the petition under section 125 Cr.P.C and does not in any manner conclusively decide about the issues in dispute regarding the exact amount of income of the revisionist of the amount require to be given to the respondent as maintenance.
22.It may also be mentioned here that the disputes regarding the conduct of both the sides with each other during their stay together is not required to be taken into consideration for passing of the interim order for maintenance as the same are not relevant. Only the earnings, Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 7 of 11 ::-
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properties, assets, etc. of both the sides is to be taken into consideration for the purpose of maintenance.
23.The maintenance must be depending upon the status, family background, qualification and social circle etc. of both the sides. The maintenance must be depending upon the status, family background, qualification and social circle etc. of both the sides.
24.The impugned order has been passed correctly on the basis of the material on record after taking into consideration the documents of both the sides as well as their rival contentions. The amount of Rs.10,000/- per month ordered to be paid by the revisionist to the respondent number 1 and Rs.5,000/- per month ordered to be paid by the revisionist to the respondent number 2 are absolutely correct and reasonable and there is nothing on the record to show otherwise and it cannot be said by any stretch of imagination that the amount is on the higher side or excessive. The respondents would require atleast this much amount to live with dignity and maintain themselves. This Court is of the opinion that the monthly maintenance as such can be granted to the respondents.
25.A married man is under a legal and moral obligation to maintain his estranged wife and minor son whether he possesses any property or not or whether or not he has any income if the wife and child are unable to maintain themselves and could be forced to lead a life of vagrancy and destitution in the absence of maintenance. The obligation to maintain them is personal in character and arises from the very existence of the relationship between the parties. It is hardly believable that the income Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 8 of 11 ::-
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of the revisionist would be sufficient to meet his own requirements when his wife i.e. the respondent number 1 and minor son i.e. respondent number 2 also need maintenance. When he has so much income, it is hardly convincing that it is sufficient only for himself and it becomes his legal and imperative duty to provide for his wife and son and it seems that he is trying to suppress his real income by making wrong averments. The revisionist is under a legal responsibility to pay the maintenance pendente lite to the respondents, being his wife and his minor son.
26.The order dated 28.06.2012 is only in interim order which is to be complied with during the pendency of the matter before the learned trial Court and has been passed correctly on the basis of the material on record after taking into consideration the documents of both the sides as well as their rival contentions. The amount of Rs.15,000/- ordered to be paid by the revisionist to the respondents is absolutely correct and reasonable and there is nothing on the record to show otherwise. It cannot be said by any stretch of imagination that Rs. 15,000/- ordered as interim maintenance to the respondent is on the higher side or excessive. The respondent number 1 would require atleast this much amount to live with dignity and maintain herself and the minor son of the parties.
27.There is nothing to show that the impugned order is erroneous or suffers from any legal infirmity.
28.It is also made clear that in case respondent will delay the proceedings Unique case Identification Number : 02401R0350932012. Criminal Revision Number : 03 of 2012 Anil Sharma versus Ojisha Sharma and another. -:: Page 9 of 11 ::-
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by seeking unnecessary adjournments then the learned trial Court can suspend the maintenance allowance of the applicant for the period so delayed to its satisfaction.
29.It is also made clear that in case the revisionist takes unnecessary adjournments or does not comply with the order, then adverse inference shall be taken against him and appropriate orders shall be passed as per the settled law, more specifically elaborated in the judgment of the Delhi High court reported as Santosh Sehgal versus Murari Lal Sehgal 130 (2006) Delhi Law Times, 643 (DB) Delhi (HC) and contempt proceedings can also be initiated against him.
30.Further, the amount of arrears of maintenance deposited by the revisionist before this Court as per the impugned order in terms of the judgment of the Delhi High Court reported as Rajeev Preenja v. Sarika, 2009 (159) DLT 616 as well as Nitin Gupta v. Ruchika Gupta, 2012 (3) Crimes 227 (Del.) be released in favour of the respondent number 1.
31.Nothing said herein shall be construed to be an expression of opinion and shall have any bearing upon the merits of the case.
32.The net result of the aforesaid discussion is that the aforesaid impugned order dated 28.06.2012 of the learned Metropolitan Magistrate, Mahila Court, West, Tis Hazari Court, Delhi, is maintained and this revision is accordingly dismissed.
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33.The trial Court record be sent back along with copy of the order to the learned Metropolitan Magistrate, Delhi for proceeding further in the case, as per law.
34.The learned Trial Court shall also ensure the compliance of the judgments of the hon'ble Delhi High Court reported as Gaurav Sondhi v. Divya Sondhi, C.R.P 1091/2003 decided on 03.05.2005, 2005 Rajdhani Law Reporter 333 and Santosh Sehgal v. Murari Lal Sehgal, 130 (2006) Delhi Law Times, 643 (DB) Delhi (HC) regarding the date and manner of payment of maintenance and the eventuality in case the appellant does not comply with the order, then adverse inference is to be taken against him and appropriate orders are to be passed as per the settled law and contempt proceedings can also be initiated against him.
35.Both the sides shall appear before the learned Metropolitan Magistrate, Delhi on 19.12.2012.
36.After doing the needful by the Ahlmad of this Court, the appeal file be consigned to record room.
Announced in the open Court on (Nivedita Anil Sharma) this 14th day of December, 2012. ASJ-03, West, Delhi.
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