Delhi District Court
Tejpal vs Ritu Banafal on 13 October, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 12/2023
IN THE MATTER OF:
Tejpal
S/o Sh.Nand Ram
R/o 34C, 2nd Floor,
Village Barthal, Dwarka,
Sector-26, New Delhi-110077 .......Appellant
Versus
Ritu Banafal
W/o Sh. Tejpal
D/o Sh. Chetram
R/o H.No. F-316/12,
Main M.B. Road,
Lado Sarai,
New Delhi-110030 ........Respondent
Instituted on : 11.01.2023
Reserved on : 27.09.2023
Pronounced on : 13.10.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) preferred by Mr. Tejpal against the order dated 19.10.2022 of Ld. MM-02 (Mahila Court), South District in Ct case no. 4437/2017 titled as "Ritu Banafal Vs. CA 12/2023 Tejpal Vs. Ritu Banafal Digitally Page 1/6 signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.10.13 14:08:57 +0530 Tejpal And Ors." whereby his application under Section 25(2) of the Act was dismissed. It is to be noted at the outset that appellant has also challenged order dated 21.05.2018 of Ld. Magistrate in the present appeal, however same has been dismissed vide order dated 17.05.2023 of this Court after noting that earlier appeal against that order preferred by appellant was dismissed by Ld. Sessions Court vide order dated 12.10.2018.
2. Briefly stated the facts as per record are as under:-
The respondent filed an application under Section 12 of the Act before Ld. Magistrate on 22.04.2017 against Mr. Tejpal (husband) and seven other relatives. Vide order dated 28.04.2017, Ld. Magistrate after considering the material on record, directed issuance of notice of the application to the appellant herein alongwith three other relatives (Mr. Nand Ram, Ms. Kamla and Mr. Girdhari). Summoning of remaining four relatives was declined. An application under Section 23 of the Act moved on behalf of the respondent praying for interim maintenance was disposed of (after hearing both the parties) by Ld. Trial Court vide order dated 21.05.2018. Vide said order, the appellant was directed to pay a sum of Rs.25,000/- per month to the respondent as maintenance with effect from date of order till disposal of the case. As mentioned earlier, that order was challenged by him before Ld. Sessions Court by way of an appeal u/s 29 of the Act which was dismissed vide order dated 12.10.2018. Thereafter, he moved an application before Ld. Trial Court u/s 25 of the Act praying for alteration of order dated 21.05.2018 on the ground that he was unable to pay interim maintenance amount of Rs.25,000/- per month as his monthly income was Rs.13,500/- only. That application was dismissed by Ld. Magistrate vide order dated 24.01.2020. The appellant moved another application dated 08.06.2020 u/s 25 of the Act praying for alteration of interim maintenance order dated 21.05.2018 which was dismissed by Ld. Magistrate vide order dated 19.10.2022. That order is being challenged in these proceedings.
Digitally CA 12/2023 Tejpal Vs. Ritu Banafal signed by Page 2/6 SUNIL SUNIL GUPTA Date:
GUPTA 2023.10.13 14:09:09 +0530
3. Arguments heard from both the sides.
4. Ld. Counsel for appellant has argued that Ld. Trial Court has dismissed his application without appreciating the facts in correct perspective. It has been argued that respondent was admittedly working till December, 2021 and was getting a salary of Rs.15,000/- per month but she concealed this material fact from Ld. Trial Court which led to passing of interim maintenance order dated 21.05.2018 against him. It has also been submitted that respondent was providing accountancy services including those pertaining to GST registration and filing of returns. It has been submitted that relevant documents in this regard were filed before Ld. Trial Court, however same were not properly considered. It has been argued that respondent has with held information pertaining to a bank account which she was maintaining alongwith her mother. It has been further submitted that appellant was earning only a sum of Rs.20,500/- per month out of which he was paying rent to the tune of Rs.3,500/- per month and was also having medical expenses to the tune of Rs.8,000/- per month. It has been submitted that he was not in a position to pay interim maintenance to the tune of Rs.25,000/- as directed by Ld. Trial Court vide order dated 21.05.2018. It has been prayed that impugned order be set aside and his appeal be allowed. Reliance has been placed on the judgment of Hon'ble Apex Court in Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur, Crl. Appeal No.879/2009.
5. Per contra, it has been submitted by Ld. Counsel for the respondent that there was no illegality in the impugned order. It has been submitted that appellant was filing multiple applications u/s 25 of the Act without any basis. It has been submitted that conduct of the appellant is worth noting as despite his earlier appeal having been dismissed against the order dated 21.05.2018 of Ld. Magistrate, he chose to file another appeal against same order before this Court which is clearly abuse of process of law. It has been submitted that it has come on record that the respondent has left Digitally signed by CA 12/2023 Tejpal Vs. Ritu Banafal SUNIL Page 3/6 SUNIL GUPTA GUPTA Date:
2023.10.13 14:09:52 +0530 her job in December, 2021. Further, the proof regarding her alleged profession of providing accountancy services was considered and rejected by Ld. Trial Court as same was not attached with certificate u/s 65B Indian Evidence Act. It has been further submitted that the matter before Ld. Trial Court is about to be concluded as same has reached the stage of final arguments. Prayer has been made for dismissal of appeal.
6. I have considered the rival submissions alongwith record.
7. As the appellant herein is seeking modification of order dated 21.05.2018 of Ld. Trial Court by way of present appeal, it will be appropriate to consider the facts as elaborated by Ld. Magistrate in that order to arrive at the finding that earning capacity of respondent was not less than Rs.1 lac per month which led to issuance of directions to the appellant to pay a sum of Rs.25,000/- per month to the respondent as interim maintenance. As mentioned earlier, an appeal was filed against that order by the appellant before Ld. Sessions Court which was dismissed vide order dated 12.10.2018. As per order dated 21.05.2018, the respondent was not having any monthly income whereas her monthly expenditure was Rs.50,000/-. The appellant was stated to be working as driver-cum-office assistant at the monthly salary of Rs.12,000/- and his monthly expenditure was Rs.10,500/-. There were no children out of wedlock between the parties. Ld. Magistrate considered the Income Tax Returns of Assessment Years 2014-15, 2015-16 and 2017-18 showing gross total income of Rs.2,37,638/-, Rs.11,14,409/- and Rs.22,58,757/- respectively and for that reason, was not convinced that he was earning Rs.12,000/- per month only. The submission of appellant to the effect that he was previously working with his brother as the Vice- President of a Company was taken note of and thereafter, his earning capacity was determined as not less then Rs.1 lac. In his earlier application u/s 25 of the Act filed before Ld. Trial Court on 30.07.2019 praying for alteration of order dated 21.05.2018, the ground taken by appellant was that he was working as a Sales Digitally CA 12/2023 Tejpal Vs. Ritu Banafal signed by Page 4/6 SUNIL SUNIL GUPTA Date:
GUPTA 2023.10.13 14:10:04 +0530 Executive with monthly salary of Rs.13,500/- only and with no other source of income, he was not in a position to pay Rs.25,000/- per month as interim maintenance to the respondent. That application was dismissed by Ld. Magistrate by holding that he has failed to show any change in circumstances entitling him to a modification of order dated 21.05.2018. Section 25 of the Act is material here which provides as under:-
"25. Duration and alteration of orders.--
(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."
8. Perusal of application dated 08.06.2020 u/s 25 of the Act filed by the appellant before Ld. Trial Court shows that he has taken only two substantial grounds while praying for alteration of order dated 21.05.2018. One of the grounds was that he was not having enough income at his disposal to pay monthly maintenance to the tune of Rs.25,000/- to the respondent. The other grounds was that the respondent was gainfully employed and was trying to mislead the Court by concealing this fact. In his petition of appeal, he has relied upon several documents and testimonies of witnesses examined during recording of evidence being done on his behalf before Ld. Trial Court. It is to be noted that both the parties are engaged in acrimonious litigation. Record shows that the respondent after recording of her cross-examination in part, refused to lead evidence till the time her application for striking off defence of the appellant was decided. Accordingly, her right to lead evidence was closed vide order dated 29.04.2019 of Ld. Trial Court. It is also to be noted that the matter is at the stage of respondent evidence (i.e. for evidence to be led by appellant herein) since 01.02.2020. Perusal of order dated 25.05.2023 shows that it was fixed for final arguments for 07.07.2023, however an application u/s 311 Cr.P.C. was filed on behalf of appellant on that date praying for summoning of bank officials. That application is Digitally signed by CA 12/2023 Tejpal Vs. Ritu Banafal SUNIL Page 5/6 SUNIL GUPTA GUPTA Date:
2023.10.13 14:10:17 +0530 yet to be decided as Ld. Trial Court after hearing the arguments has called a report from concerned Bank regarding present status of bank accounts as mentioned in the application before passing an order thereupon.
9. It appears that appellant is not interested in final disposal of proceedings before Ld. Trial Court and is adopting various tricks to get the matter delayed including by way of filing repeated applications u/s 25 of the Act. He even took a chance with this Court by filing present appeal against the order dated 21.05.2018 of Ld. Trial Court also, by concealing the fact that earlier appeal to this effect was dismissed way back in October, 2018. The appellant seems more interested in getting out of his legal obligation to pay interim maintenance to the tune of Rs.25,000/- per month to the respondent by hook or crook.
10. Considering the fact that appellant has not come to this Court with clean hands and that the proceedings before Ld. Trial Court are at its fag end, this Court is of the view that he is not entitled to any relief in present appeal. Ld. Trial Court is requested to make efforts to expeditiously dispose of the proceedings pending there. It is worth mentioning here that Hon'ble High Court had passed a direction way back in the year 2019 to dispose of the matter expeditiously preferably within six months.
Appeal is disposed of in above terms. Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.10.13
14:10:29
+0530
Announced in the open (Sunil Gupta)
Court on 13.10.2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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