Delhi District Court
Sh. Sunny Garg vs Smt. Vidhi Garg @ Vidhi Jain on 8 April, 2010
THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03,NORTH, DELHI.
Crl. Rev. No.: 01/2010
M.P. No.: 137/4/08
U/s: 125 Cr.P.C.
P.S.: Sarai Rohilla
Concerned/Successor Court:
Ms. Charu Aggarwal, MM, Delhi
IN THE MATTER OF :
Sh. Sunny Garg
S/o Sh. Ashok Garg
R/o BM2, (East) Shalimar Bagh,
Delhi110088.
........ Petitioner
Versus
Smt. Vidhi Garg @ Vidhi Jain
W/o Sh. Sunny Garg
D/o Sh. Anand Jain
R/o B1757/1, Shashtri Nagar,
Delhi110052.
.........Respondent
ORDER
1. This is a revision petition filed by the petitioner against the order dated 21.10.2009 passed by the Ld. MM whereby the Ld. MM Crl. Rev. No.: 01/2010 1/14 granted interim maintenance to the respondent/wife @ 5000/ per month in case titled as Smt. Vidhi Garg @ Vidhi Jain Vs. Sh. Sunny Garg, Maintenance Petition no. 137/4/08.
2. Facts giving rise to the present petition are that the respondent/wife filed a maintenance petition in the court of Ld. MM u/s 125 Cr.P.C. on the allegations that marriage between the petitioner and respondent took place on 28.6.2007 according to Hindu rites and customs. The marriage proposal between the parties was fixed by the reference of maternal uncle of the respondent/wife on 13.5.2007 and as the both the petitioner and respondent belong to Vaish community, the dowry demands were specifically made and while fixing the marriage, the family members of the petitioner/husband straightaway demanded that a sum of Rs.50 lacs be spent on the marriage. But the father of the respondent/wife stated that it is not possible for him to spend Rs. 50 lacs but in all he conveyed to the father of the petitioner/husband that he could only spend a total sum of Rs. 30 lacs including cash, jewellery and reception of the Barat. It is further stated that engagement ceremony was solemnised in the Celebration Banquet Hall, Wazirpur Industrial Area, Ring Road, Delhi on 27.6.2007 and upto the time of engagement the father of the respondent/wife paid Rs. 2o lacs in cash for purchase of car, furniture, jewellery and electronics items. The marriage was solemnised on 28.6.2007 at B2, Marriage Hall, near Britannia Crossing, Ring Road, Delhi and at this marriage function a sum of Rs. 5 lacs was Crl. Rev. No.: 01/2010 2/14 spent on food and other arrangement at the said banquet hall. It is stated that out of the funds provided by the father of the respondent/wife, a car worth Rs. 9 lacs make Hyundai Verna, was also purchased by the petitioner/husband. Thus in total the parents of the respondent/wife spent about Rs.30 lacs on the marriage, out of which Rs.20 lacs were paid in cash for purchase of car, jewellery worth Rs.10 lacs, electronic items. After the marriage the respondent/wife came to the maternal home and on the very first day of the marriage itself, the jewellery was taken by the parents of the petitioner/husband stating that jewellery should be kept in safe custody. The marriage was not consummated due to the impotency/weakness of the petitioner/husband and for sometime the factum regarding physical weakness of the petitioner/husband and non consummation of the marriage was not told by the respondent/wife to anybody. But later on, when she told about this fact to the mother and sister of the petitioner/husband, they started abusing and torturing the respondent/wife by stating that petitioner/husband is hale and hearty and there is no problem whatsoever and they started blaming the respondent/wife for bringing bad name to the family of the petitioner/husband. The petitioner/husband, his father, mother and sister started committing torture and they also started demanding more dowry and stated that they were getting marriage proposals from other girl's parents who were agreeable to spend about rupees one crore on the marriage whereas Crl. Rev. No.: 01/2010 3/14 the parents of the respondent/wife only spent Rs.30 lacs on the marriage. The respondent/wife tolerated the torture and harassment at the hands of the petitioner/husband and his family members and stayed at the resident of the petitioner/husband upto 27.8.2007. It is stated that when the marriage was solemnised, it was informed by the petitioner/husband and his parents that petitioner/husband is having residential house and is having other movable and immovable properties. It was also claimed by the petitioner/husband that he is having independent income of about Rs. 50,000/ per month as he is doing the business in the name and style of M/s Ambe Chemicals and is also doing the business of the sale and purchase of vehicles on commission basis in the name and style of M/s Ambika Properties & Motors. After returning to her parents' house, the respondent/wife narrated the whole facts to her parents and told them that she would not go back to her matrimonial home as there is threat to her life and she is being subjected to mental and physical torture and the petitioner/husband is not able to establish the relationship of husband and wife. The parents of the respondent/wife and other relatives time and again met the petitioner/husband and his father and told them the real facts but instead of realising their mistake, they started blaming the respondent/wife for non cooperation with her husband. They produced a medical certificate dated 6.9.2007 from a private doctor stating that petitioner/husband is having proper and developed sexual organ and is Crl. Rev. No.: 01/2010 4/14 capable to establish a proper coitus. The respondent/wife and her parents tried their level best to settle all matrimonial disputes amicably and they requested to return the dowry articles, cash, jewellery and other electronics items including car purchased out of the funds provided by the father of the respondent/wife and the parties should take divorce by mutual consent as there is no possibility of living together. But the petitioner/husband was adamant and the parents of the petitioner/husband threatened that they would not pay even a single penny back to the respondent/wife. It is stated that initially the respondent/wife was not interested in lodging any complaint to the police or filing court cases if the petitioner/husband and his parents apologise for their misconduct and return the dowry articles but the petitioner/husband filed a case under section 9 of HMA.
3. The petitioner/husband filed reply to the petition u/s 125 Cr. P.C. and denied all the allegations levelled against him. He stated that he took the respondent/wife on honeymoon to Shimla and he also applied for passport for taking the respondent/wife for abroad, but soon after the marriage, the respondent/wife started misbehaving with the petitioner/husband and his family. Petitioner/husband admitted that in the marriage of the parties, the amount of Rs.30 lacs was spent but he stated that said amount was spent by the father of the petitioner/husband and not by the father of the respondent/wife since the father of the respondent/wife was not in financial capacity to spend Crl. Rev. No.: 01/2010 5/14 the same. He denied having a residential house or any other movable and immovable property and also his income of Rs. 50,000/ per month and having of business in the name of and style of M/s Ambe Chemicals and Ambika Properties and Motors. He stated that M/s Ambe Chemicals was the sole proprietorship of the father of the petitioner/husband and same has been closed now. It is stated that M/s Ambika Properties and Motors is exclusively owned and operated by the father of the petitioner/husband and he is assisting his father in the business and has no independent income and getting Rs.4500/ per month as pocket money. It is stated that in order to improve his educational skill, the petitioner/husband joined two years software course at NCCT Computer Centre since 2007 and has been paying Rs.2000/ per month as fees besides spending Rs. 500/ on books and other expenses.
4. After hearing both the both the parties, ld. MM has granted interim maintenance to the petitioner and it is against this order, present revision has been filed.
5. After filing of the revision petition, notice was given to the respondent. Counsel for the respondent appeared and argued on the revision petition.
6. I have heard the Ld. counsel for the respondent and have carefully perused the record as despite numerous opportunities counsel for the petitioner did not appear and chose not to argue his case.
7. So far as the factum of marriage is concerned, same stands Crl. Rev. No.: 01/2010 6/14 admitted by both the parties. The petitioner has taken the plea that at the time of finalisation of the proposal of marriage it was agreed that all the expenses of the marriage shall be borne by the father of the petitioner/husband and that father of the respondent/wife shall not spend any amount. This plea itself seems to be false one as in our country it is customary practice generally in all the Hindu families that no person from the boy's side ever spend anything on the marriage and either it can be called as tradition, customs or rituals that it is the girls father only who spend on the marriage. The petitioner/husband stated that he applied for the passport of the respondent/wife for going abroad on honeymoon. This plea of the petitioner/husband is in contradiction to his statement that he is only given a pocket money by his father and nothing else. If the petitioner/husband was planning to go abroad on honeymoon, then in no circumstances it can be believed that he was given only a sum of Rs. 4500/ per month by his father as a pocket money. In the petition filed by the respondent/wife, the respondent/wife has taken the plea that at the time of marriage it was told by the petitioner/husband and his family members that petitioner/husband is having a residential house and is having other movable and immovable properties and also having income of Rs. 50,000/ per month as he is doing the business under the name and style of M/s Ambe Chemicals and is also doing the business of sale and purchase of vehicles on commission basis under the name and style of M/s Ambika Properties Crl. Rev. No.: 01/2010 7/14 and Motors. In reply, the petitioner/husband has taken the plea that M/s Ambe Chemicals was the sole proprietorship of his father and M/s Ambika Properties and Motors is exclusively owned and operated by his father and he is assisting his father in his business and has no independent income. Petitioner/husband in the trial court has taken the plea that respondent/wife is running Jain Coaching and giving tuition th to the children upto 5 class and has 1520 children in the centre and is earning Rs.4000/ per month. So far as the running of institute is concerned, except this the petitioner/husband has not filed any document or photographs to show that respondent/wife is running a coaching centre and giving tuition to the children. From the photographs of marriage filed on record, it seems that even car was also given in the marriage. The marriage was performed in a banquet hall which also shows the status of the parties. Income tax return of the petitioner/husband for the assessment year 200607 has been filed. So far as the income tax return is concerned, then in our country payment of income tax is an exception and evasion of the income tax is a norm especially in the business class people and present case is no exception to this rule. In the income tax, the petitioner has shown his income from the business and profession and also from the consultancy contract in the income tax return. The petitioner/husband has shown his gross net income as Rs.1,19,000/which falsify the case of the petitioner/husband that he was not doing anything, but was merely Crl. Rev. No.: 01/2010 8/14 assisting his father and getting pocket money of Rs. 4500/ from his father.
8. To determine the amount of maintenance, the financial means of both the spouses have to be scrutinized by way of summary inquiry. The Hon'ble High Court of Delhi in Bharat Hedge vs. Saroj Hedge 1 (2007) DMC 815 has culled out the following 11 factors from judicial precedents which are to be taken into consideration while deciding an application u/s 24 of HMA for grant of maintenance
1. Status of parties
2. Reasonable wants of the claimant.
3. Independent income and property of the claimant.
4. The number of persons the nonapplicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
6. Nonapplicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the nonapplicant.
9. Some guess work is not ruled out while estimating the income of the nonapplicant when all the sources or correct sources are not disclose.
10. The nonapplicant to defray the cost of litigation.
11. The amount awarded under section 125 Cr. PC is Crl. Rev. No.: 01/2010 9/14 adjustable against the amount awarded under section 24 of the HMA.
9. From the averments made by both the parties, it is clear that petitioner/husband has clearly concealed his true income from the court. In such circumstances, the court is left with no option but to act on probability. Admittedly till the filing of the present revision petition, the petitioner/husband had not paid any single penny of maintenance to the respondent/wife and despite the orders of the court again and again, the petitioner/husband has not given any maintenance. It was only on 15.3.2010 that proxy counsel for the petitioner/husband appeared and submitted in the court that petitioner/husband has paid a sum of Rs. 20,000/ to the respondent.
10. Recently in Crl. M.C.1859/2008 titled as "Rajeev Preenja Vs. Sarika & Ors." decided on 26.2.2009 the Hon'ble High Court has held that "The other phenomenon that requires to be discouraged is that a mere filing of a revision petition by a husband against an order granting interim maintenance to the wife and/or child is construed as an implied stay of that order. As a result the wife has to wait for an even longer period for the implementation of the order in her favour. The method that should be deployed to overcome this hurdle is for the revisional court to insist that the husband's revision petition will not be entertained till such time the husband against whom the order of interim maintenance has been passed, deposits the entire arrears of interim Crl. Rev. No.: 01/2010 10/14 maintenance up to date in terms of the said order of the Ld. MM in the court of Ld. ASJ. Otherwise the husband will be able to indefinitely postpone the implementation of the orders of interim maintenance by driving the wife from one court to another without her receiving any payment whatsoever. This only compounds the agony of the wife and serves to defeat the interest of justice. This situation ought not to be allowed to continue if justice in the real sense should be done to an Indian wife who is in dire straits and unable to survive with her child for want of economic means of subsistence".
11. Hon'ble High Court further laid down the guidelines to be implemented by the Ld. MM while dealing with the applications seeking enforcement of the interim maintenance or maintenance. The relevant guidelines read as under:
"The matrimonial courts should follow the following procedure while granting interim maintenance/ maintenance:
(i) Whenever maintenance/interim maintenance is ordered, the th Court will direct that it will be paid on or before 10 day of every month unless the court finds that the nature of the employment of the husband and his manner of income makes such monthly payments impractical. In such a situation appropriate orders may be passed which shall take into account the circumstances of the husband which warrant departure from the time bound monthly payment directions contained in this order.;
(ii)Whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank Crl. Rev. No.: 01/2010 11/14 th account every month before the 10 day of the month.
(iii)The payment shall be made to the wife/child and in case of any difficulty in receiving or tendering the payment, it should be made through counsel. The order of deposit in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court's registry. If for good reasons upon finding difficulty in payments to a wife and her counsel the deposits in Court are made such deposits should be in the name of the wife by a draft/crossed cheques, which may be retained on the court file for retrieval by the wife without the Court account and subsequent withdrawal by the recipient;
(iv)In case there is first default for payment of maintenance, the Court may condone it. However, in case of second default without justification, it will be open to the Court to impose a penalty up to 25% of the amount of monthly maintenance awarded;
(v)In case there is third or fourth default, the penalty may go up to 50% of the monthly amount of maintenance upon the court finding that the default was not condonable or contumacious in nature.
(vi)The Court must ensure that the orders of maintenance are not a mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the child.
(vii)In case interim maintenance is being paid and adequate litigation expenses have been awarded to the wife, it should be ensured that the written statement/reply is filed within a Crl. Rev. No.: 01/2010 12/14 reasonable time.
(viii)However, in judging the nature of default the relative affluence of the husband and the regular nature of his occupation and income will be taken into account.
Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally. The above directions are reiterated and it is expected that the Ld. MMs dealing with applications under Section 125 Cr.PC will ensue their compliance".
12. From the above said discussion, it is clear that petitioner/husband has concealed his true income from the trial court. Ld. MM has rightly observed that perusal of file shows that out of four members in the family, one member does not know driving and the family is maintaining three cars and younger brother of the respondent who is still studying has been provided car but respondent is not. Trial court has right held that respondent is trying to mislead the court by hiding his true income. Generally in such type of cases the party who claims the maintenance, exaggerates the income of other party and the party who is required to pay maintenance always discloses his/her income to be at minimum. The present case is also no exception to his rule. The trial court has assessed the income of the petitioner/husband at Rs. 25,000/ to Rs. 30,000/ per month. Same is not exorbitant or on higher side. There is no infirmity or illegality in the order dated Crl. Rev. No.: 01/2010 13/14 21.10.2009 passed by ld. MM.
13. In view of above said discussion, the order dated 21.10.2009 passed by ld. MM is upheld. Revision petition filed by the petitioner is, therefore, dismissed. Parties are directed to appear before the Ld. Trial Court on 22.4.2010. Ahlmad to send the trial court record alongwith copy of this order to the trial court on or before 22.4.2010. Revision file be consigned to Record Room.
(MADHU JAIN) Additional Sessions Judge3 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 08.4.2010. Crl. Rev. No.: 01/2010 14/14