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Delhi District Court

Nitin Sagar Bajaj vs Ashima Bajaj on 17 September, 2013

               THE COURT OF ADDITIONAL SESSIONS JUDGE:
                  SPECIAL JUDGE (NDPS): WEST / DELHI
                     PRESIDED BY :  MS. PINKI
                    CRIMINAL APPEAL NO. 66/13

      IN THE MATTER OF

      NITIN SAGAR BAJAJ,
      S/O SH. PREM SAGAR BAJAJ,
      R/O Z­99, VILLAGE AJAY NAGAR,
      PO/PS KAKORE,
      DISTRICT BULAND SHAHAR, U.P.
                                                                    APPELLANTS

                      VERSUS

      ASHIMA BAJAJ,
      W/O SH. NITIN SAGAR BAJAJ,
      R/O A­511, SARITA VIHAR,
      NEW DELHI - 110076                                            RESPONDENTS


      DATE OF INSTITUTION                            :       17.08.2013
      DATE OF RESERVING THE ORDER                    :       13.09.2013 
      DATE OF DECISION                               :       17.09.2013


                                       ORDER

1. The present appeal has been filed by the revisionist on 16.08.2013 impugning the order dated 17.07.2013.

2. The record as well as trial court record has been carefully and thoroughly perused. Submissions of Sh. Vijay Babbar, Advocate learned counsel for appellant and Sh. Lalit Kumar, Advocate learned counsel for respondent have been heard. Respective submissions of either side as well as authorities relied by learned counsel for appellant and respondent have been considered.

CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 1/9

3. The short question in controversy in this case is, whether the learned Metropolitan Magistrate has rightly passed the impugned order dated 17.07.2013?

4. Ld. counsel for appellant has relied on the following judgements:­

1. Malli K. Dhanalakshmi Ammal Vs. Malli Krishnamurthi, AIR (38) 1951 Madras 756

2. Jolly George Varghese and another Vs. The Bank of Cochin, AIR 1980 Supreme Court 470

3. Sanjay Bhardwaj & Ors. Vs. The State & Anr., Crl. M.C. No. 491/2009 passed by Hon'ble High Court on 27.08.2010

4. Mamta Jaiswal Vs. Rajesh Jaiswal, CR No. 1290/99 passed by Hon'ble High Court of Madhya Pradesh on 24.03.2000

5. Damanreet Kaur Vs. Indermeet Juneja & Anr., Crl. Revision Petition No. 344/11 passed by Hon'ble High Court on 14.05.2012

6. Vijay Kumar Vs. Harsh Lata Aggarwal, CM(M) No. 539/08 passed by Hon'ble High Court on 10.09.2008

5. Ld. counsel for respondent has relied on the following authorities:­

1. Abhijit Bhikaseth Auti Vs. State of Maharashtra & Anr., 2009 Crl. L.J. 889

2. Tejaswini Vs. Aravinda Tejas C handra, 2010 Crl. L.J. 616

3. Kuldep Kaur Vs. Surinder Singh and another, AIR 1989 Supreme Court 232

4. Mehrunnisa Vs. Noor Mohammad, AIR 1971 Allahabad 138 CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 2/9

6. The respondent Ashima Bajaj has filed two Execution Petitions. In Execution Petition No. 232/12 respondent Ashima Bajaj has sought execution of order dated 20.03.2012. This Execution Petition is for execution of interim maintenance for the period from 10.11.2009 to 10.05.2012 at the rate of Rs. 50,000/­ per month for thirty one months. Another Execution Petition No. 52/13 was also filed by the respondent Ashima Bajaj for execution of order dated 20.03.2012 for the period up to July, 2013.

7. It is the admitted case of the parties that marriage between them was solemnized. The parties are living separately. Appellant has challenged order dated 20.03.2012 vide which interim maintenance was awarded in Protection of Women from Domestic Violence Act petition, appeal was dismissed vide order dated 05.11.2012 passed by Ms. Nivedita Anil Sharma, Ld. ASJ in Criminal Appeal No. 32A/12. Order dated 20.03.2012 has attained finality. The appellant has not paid any amount. Initially warrants of attachment were ordered vide order dated 08.08.2012 passed by Ld. Metropolitan Magistrate and vide order dated 19.11.2012 warrant of arrest was ordered to be issued. Pursuant to that appellant was arrested and vide order dated 01.12.2012 passed by Ld. Metropolitan Magistrate he was sentenced to civil imprisonment for non payment of maintenance amount for the month of November, 2009. Vide orders dated 02.01.2013, 02.02.2013, 04.03.2013, 03.04.2013 and17.07.2013 appellant has been sentenced to civil imprisonment for non payment of maintenance amount for the month of November, 2009, December, 2009, January, 2010, June, 2010 etc.

8. Vide order dated 20.03.2012 interim maintenance was awarded at the rate of Rs. 50,000/­ per month from the date of filing of the petition under section 12 of The Protection of Women from Domestic Violence Act against the husband / appellant i.e. from 10.11.2009 till further CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 3/9 orders / remarriage. Arrears were ordered to be cleared within a period of six months.

9. On 04.07.2013 appellant has moved an application submitting that father of the appellant is suffering from mental disorder and mother is suffering from heart problem, diabetes and other medical problems. He has prayed for recording of his statement that every single article he owns be attached and he be released to present him to find employment and start earning.

10. Ld. counsel for appellant has argued that parties have lived together just for forty eight days and since 01.12.2012 appellant is in custody. It is not possible to keep the appellant in custody in this manner.

11. During the course of arguments on the specific query of the Court as to the details of articles, movable / immovable property which the applicant / appellant owns, Ld. counsel for appellant has submitted that let the respondent exhaust the list, only then the appellant will furnish the details, otherwise some other allegations will be levelled against the appellant. It is pertinent to mention that in the impugned order the Ld. Trial Court has observed that ".........the JD has not given any undertaking or shown willingness to make the payments he has however, sought an opportunity to find employment and staff earning. JD Nitin be released from custody subject to payment of the 50% of the arrears of the execution amount of both the execution petitions bearing no. 232/12 and 52/13 i.e. period of 10.11.2009 to July 2013".

12. Ld. counsel for appellant has referred to six judgements. Only judgement No. 1 & 2 i.e. Malli K. Dhanalakshmi Ammal Vs. Malli Krishnamurthi (Supra) and Jolly George Varghese and another Vs. The CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 4/9 Bank of Cochin (Supra) are relevant in the instant case, however, other judgements are in respect of grant of maintenance and order dated 20.03.2012 has already attained finality. Ld. counsel for appellant has submitted that under section 58(2) CPC judgement debtor is not liable to be arrested again and committed to jail for this maintenance amount accruing after he had been previously arrested and committed to jail. He has further submitted that section 58(2) CPC cut the trunk at the root, all the branches fell down automatically with it and no re­arrest is possible. The liability for maintenance remain, under section 58(2) CPC despite the release of the appellant and it can be recovered by other methods like proceedings against the charged properties and other properties of the judgement debtor and maintenance decree cannot be held to be a different decree in respect of each matter adjudicated in it for the purpose of re­ arrest and committal to civil prison under section 58(1) and 58(2) of the CPC.

13. Ld. counsel for respondent has submitted in respect of this judgement titled Malli K. Dhanalakshmi Ammal Vs. Malli Krishnamurthi (Supra) referred by Ld. counsel for appellant that this judgement is not applicable in the facts and circumstances of this case. He has submitted that this appeal under section 29 of The Protection of Women from Domestic Violence Act is not maintainable. He has further submitted that the execution petition is under section 125(3) of Cr.P.C. and section 28 of PWDV Act provides that provision of PWDV Act shall be governed by the provisions of Cr.P.C., therefore, this appeal is not maintainable.

14. In that case husband was committed to civil prison for six months in an execution petition for recovery of movables and costs, however, in the instant case he has never been sentenced for six months in one go. He is being sentenced on monthly basis for default of each month.

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With due respect this judgement is not disputed but is of no help to the appellant in the instant case. Submission of Ld. Counsel for respondent has force.

15. Ld. Counsel for respondent has further submitted that in judgement titled Jolly George Varghese and another Vs. The Bank of Cochin (Supra) relied by Ld. counsel for appellant it was a money decree and it was for non payment of amount due to bank and in the instance case interim maintenance has been awarded. It is not decree and since the execution petition is under section 125(3) Cr.P.C., this judgement is not applicable. This Court is of the opinion that arguments putforth on behalf of respondent has force

16. Ld. counsel for respondent has relied on the judgement tiled Abhijit Bhikaseth Auti Vs. State of Maharashtra & Anr. (Supra) and submitted that appeal is maintainable under section Protection of Women from Domestic Violence Act in three categories i.e. the first category is of the final order passed on application under sub­section (1) of Section 12. The second category is of the ex­parte ad interim orders under sub­section (2) of Section 23 of the Act and the third category will be of the interim orders under sub­section (1) of section 23 of the Act. Therefore, appeal in respect of order passed in execution petition under section 125 (3) Cr.P.C. is not maintainable. In view of section 28 of The Protection of Women from Domestic Violence Act, execution petition for interim maintenance awarded under Protection of Women from Domestic Violence Act has been filed under section 125(3) Cr.P.C. Therefore, appeal is not maintainable.

17. Ld. counsel for respondent has relied on the judgement titled Tejaswini Vs. Aravinda Tejas C handra (Supra). This judgement is regarding capability of the wife and this is not the matter for adjudication CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 6/9 in the instant case, therefore, with due respect this judgement is not disputed but not applicable in the instant case.

18. Ld. counsel for respondent has relied on the judgement titled Kuldep Kaur Vs. Surinder Singh and another (Supra) and submitted that in para­6 Hon'ble Supreme Court has held that the order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been discharged by sending the person liable to pay the monthly allowance to jail. It is only a mode or method of recovery and not a substitute for recovery. In that case husband was not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail and the amount is still recoverable notwithstanding the fact that the respondent who is liable to pay the monthly allowance has undergone a sentence of jail for failure to pay the same. Even the Apex Court had ordered the Ld. Metropolitan Magistrate to issue warrant for his arrest, cause him to be arrested and put in jail for his failure to comply with the orders passed by the Hon'ble Supreme Court and shall not be released till he makes the payment. It is well settled proposition of law as laid down by the apex court.

19. It is pertinent to mention that section 125 (3) Cr.P.C. reads as under:­ "125.............

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made......."

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20. The record / bank account statements etc. filed by both the parties clearly show withdrawal of amount by the appellant from his account and transferred to the account of his family members, father and mother etc. Ld. counsel for respondent has also argued that appellant has transferred amount from his bank and also closed the bank account intentionally. Intentionally the appellant is disobeying orders of the Ld. Trial Court dated 20.03.2012 which was confirmed vide order dated 05.11.2012 passed by Ld. ASJ and has not paid a single penny. Even he has not complied with orders dated 17.07.2013 i.e. the impugned order. In order to seek his release he has to pay 50% of the arrears of the execution amount in two execution petitions no. 232/12 and 52/13 pending before the Ld. Trial Court, for his release. It is also clear that appellant was working with Merchant Navy on contract basis. His contract was till 05.04.2010 with Anglo - Eastern Ship Management (I) Pvt. Ltd., Fleet Personnel Division - Delhi.

21. The arguments of Ld. counsel for respondent has force on the basis of material on record by both the parties that after lapse of four years of disposing off his movable / immovable properties, he has prayed the Ld. Trial Court to get his statement recorded in respect of attachment of property. He has closed his account in Syndicate Bank, Maya Puri and HSBC, South Extension­II, New Delhi.

22. Keeping in view the provisions of section 28 of The Protection of Women from Domestic Violence Act and section 125(3) Cr.P.C. and totality of the matter, the Ld. Trial Court is empowered to sentence him for breach of whole or any part of each month's interim maintenance remaining unpaid after the execution of the warrant, to imprisonment for one month or until payment if sooner made i.e. for each month's breach person can be sentenced for one month under section 125(3) Cr.P.C. The Ld. Trial Court has rightly passed orders for sentencing him for monthly CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 8/9 breaches. The Ld. Trial Court was conscious enough for release of the appellant, therefore, has passed conditional order for his release i.e. subject to payment of 50% of the arrears of the execution amount of both the execution petitions bearing no. 232/12 and 52/13 i.e. period of 10.11.2009 to July 2013.

23. In view of the foregoing reasons, this Court is of the considered view that there is no illegality or infirmity in the impugned order. Impugned order does not warrant any interference. Impugned order is upheld. Therefore, the present appeal stands dismissed.

Copy of order be sent alongwith the TCR.

Appeal file be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT ON : 17TH SEPTEMBER, 2013 (PINKI) ADDITIONAL SESSIONS JUDGE SPECIAL JUDGE (NDPS) (WEST) DELHI / TIS HAZARI COURTS CA No. 66/13 Nitin Sagar Bajaj Vs. Ashima Bajaj Page No. 9/9