Delhi District Court
Hemant Sood S/O H K Sood vs Smt. Pooja Sood W/O Hemant Sood on 29 March, 2012
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , DELHI.
Criminal Rev. No.226/2/12
IN THE MATTER OF :
Hemant Sood s/o H K Sood
R/o 43B, GG1,
Vikaspuri, New Delhi
..............Revisionist
Versus
1. Smt. Pooja Sood w/o Hemant Sood
d/o sh. Surender Maggo,
R/o 29/6, Ashok Nagar
New Delhi.
2. Master Akashat Sood (minor)
s/o Hemant Sood
Trough his mother
Smt. Pooja Sood
R/o 29/6, Ashok Nagar
New Delhi.
................Respondents
29.03.2012
ORDER
1. By this order I shall dispose of revision petition filed by the revisionist against the enhancement of interim maintenance order dated 14.12.2011 passed by ld. MM, Delhi (hereafter referred as impugned 1 / 15 order) in the complaint case no.508/1/08 titled as "Smt. Pooja Sood Vs Hemant Sood" u/s 125 Cr. PC on the application filed u/s 127 of Cr.PC whereby ld. trial court enhanced the interim award in respect of respondent no.1 Pooja Sood to Rs.48,000/ per month and that awarded in favour of respondent no.2 Rs.40,000/ from the date of filing of the application u/s 127 Cr. PC i.e. from 07.08.2010. Arrears to be cleared within a period of 6 months. Thereafter, case was fixed for remaining P.E. for 18.05.2012.
2. Briefly the factual matrix of revision is that complaint case no.508/1/08 titled as "Smt. Pooja Sood Vs Hemant Sood" u/s 125 Cr. PC has been filed against the revisionist by the respondents before ld. trial Court on the grounds that revisionist and respondent no.1 are husband and wife and their marriage was solemnized on 11.03.2001 according to Hindu Rites and Customs. It is also admitted fact that respondent no.2 Master Akshat Sood (minor) has born out from this wedlock on 10.02.2003. Respondent has alleged that she was treated with cruelty by the revisionist and his family members in connection with 2 / 15 dowry demand. Though, revisionist denied all these allegations.
There are various allegations and counter allegations made by the parties against each other. Ld. trial Court after seeing the purpose of section 125 Cr.PC which is to prevent vagrancy to the wife, it was held that respondents are entitled to claim interim maintenance vide maintenance order dated 19.07.2008 wherein earlier ld. trial court awarded interim maintenance Rs.7000/ per month in favour of Respondent no.1 and Rs.5000/ per month in favour of respondent no.
2. During the course of trial respondents moved an application u/s 127 Cr. PC on 07.08,2010 for enhancement of interim maintenance order. On the application filed u/s 127 of Cr.PC ld. trial court enhanced the interim award in respect of respondent no.1 Pooja Sood to Rs.48,000/ per month and that awarded in favour of respondent no.2 Rs.40,000/ from the date of filing of the application u/s 127 Cr. PC i.e. from 07.08.2010. Arrears to be cleared within a period of 6 months.
Thereafter, case was fixed for remaining P.E. for 18.05.2012. Feeling aggrieved with the impugned order this revision petition has been filed by the revisionist.
3 / 153. Ld. counsel for the revisionist argued and submitted that earlier interim maintenance order was modified by the order of ld. ASJ who reduced the maintenance @ Rs.4000/ per month. Thereafter, respondent went to Hon'ble High Court where it was agreed to pay the maintenance @ Rs.8000/ per month and consequently, as per the order, revisionist has been paying the maintenance at the rate of Rs.
8000/ per month and upto date maintenance has been paid. Ld. counsel for the revisionist further argued and submitted that during the pendency of the petition u/s 125 Cr.PC , respondents moved an application u/s 127 Cr.PC for modification of the maintenance amount, ld. trial court without affording opportunity to the parties lead evidence on the application filed u/s 127 Cr.PC and directed the revisionist to pay a sum of Rs.48,000/ per month on account of the maintenance to respondent no.1 and a sum of Rs.40,000/ per month on account of the maintenance to respondent no.2. Ld. counsel submitted that impugned order dated 14.12.2011 is illegal and the same is bad in the eyes of law. Ld. counsel further argued and submitted that 4 / 15 respondent no.1 is a qualified teacher and serving one of the best schools of West Delhi i.e. K R Manglam Public school at Vikashpuri, New Delhi and she is drawing a salary of Rs.40,000/ per month and besides the salary she has also been taking tuition classes and earning about Rs.20,000/ per month and thus total income of the respondent no.1 is more than Rs.60,000/ per month. Ld. counsel again argued and submitted that ld. trial court while passing the impugned order did not consider the need and the requirements of the respondents. Ld. counsel again argued and submitted that ld. trial court while holding that revisionist is earning more than Rs.1,95,000/ per month on account of salary, failed to appreciate that there was no evidence available on record to show that what is the net salary available with the revisionist. However, documentary evidence has been placed on the record, showing that out of the said salary, various deductions are to be made by the department while giving the carry home salary and of the revisionist is approximately Rs.1,35,000/ per month and out of the said income, revisionist has to maintain his old aged parents and also to maintain himself as per the status report. He is also paying 5 / 15 Rs.15,000/ per month as rent of the flat. During the course of arguments, Ld. Counsel for the revisionist submitted that interim maintenance of Rs.8,000/ was passed by Ld. Trial Court vide order dt.
19.07.2008. He further submitted that the matter reached upto Hon'ble High Court, vide order dt. 13.08.2009 vide which Hon'ble High Court ordered that the interim maintenance of Rs.8,000/ to continue till final disposal of the case. On these grounds, he submitted that the trial court has committed the contempt of the order of Hon'ble High Court.
In support of his contentions he has relied upon the following citations:
i) Manish Kumar Vs Pratibha - 2009 1 FemiJuris CC 320 (Del), wherein it has been held that: "5. From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering 6 / 15 the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA.
6. In the instant case, it is nowhere pleaded by the wife in her application under Section 24 that the income being earned by her was not sufficient for her maintenance. Her contention in the application was that the petitioner was liable to bring her to the same status and station as if she was living with him in the matrimonial home. In my view, this is not the intent and purpose of Section 24. The purpose and intent of 24 is quite different as stated above.
7. The salary slips of the wife has been placed on record which show that she was having salary in the range of around Rs.50,000/ per month. Her statement of salary account from February 2007 to January 2008 shows that she had a takehome salary during this year of Rs.6,80,188/. The average monthly salary was thus Rs.56,682/. This salary was after deduction of tax, employees provident fund, PF contribution etc. Her gross salary inclusive of tax, provident fund etc was around Rs.80,000/ per month. A person who is earning this much of salary can very well maintain herself with such a standard which may be envy of many and under no stretch of imagination it can be said that the income earned by her was not enough to maintain her. There was no other liability on her. There is no offspring from this wedlock.
8. In view of my foregoing discussion, I consider that the trial court has wrongly allowed maintenance to the respondent wife. The petition is allowed and the impugned order dated 25th July 2008, granting maintenance of Rs.7500/ per month to the wife, is hereby set aside. However, the petitioner would be liable to pay the litigation expenses, as ordered by the trial court. No order as to costs."
ii) Rohini Vs R. Durairaj - (2005) 2 M I J - 579, wherein it has been observed that: "Section 24 - Maintenance Wife is entitled to get maintenance from her husband only if she is unable to maintain herself Wife having sufficient means to maintain herself Petition for interim maintenance rightly dismissed by trial Court."
7 / 15iii)Pushplata Sharma Vs Yash Paul Sharma - 1 (1990) DMC 517 Punjab And Haryna High Court, wherein it has been held that: "This Court is of the considered view that the applicant is not entitled to maintenance as she is a working lady, may be , she is not attending the office for one reason or the other. However, she is entitled to litigation expenses to the tune of Rs. 1000/. It is further observed that the applicant may either apply for her transfer to the concerned authorities on compassionate grounds and this Court hopes that if a good case for transfer is made out, she should be accommodated as according to her, the husband is not permitting her to attend the office. This order would not, however, mean the expression of any opinion as regards the conduct of the husband. This Civil Misc. application stands disposed of with the aforementioned observations. The litigation expenses of Rs.1000/ would be paid to the petitioner in the shape of the draft within two months from today."
iv)Ram Lal Vs Surinder Kaur 1 (1996) DMC 191 (DB) Punjab and Haryana High Court, wherein it has also been observed that: "6. While granting the relief under Section 25 of the Act, the Court has to keep in mind the following considerations:
(i) Husband's own income;
(ii) Income of the husband's other property;
(iii) Income of the applicant; and
(iv) Conduct of the parties.
The object of providing maintenance is that none of the parties should suffer to get adequate justice from the Court on account of his or her financial difficulties and should not be deprived of maintaining himself or herself after the decree. While awarding the maintenance the Court is required to keep in view as to whether the spouse claiming the maintenance was himself or herself earning so that the other party could not be saddled with the monetary burden. In the instant case, however, it is admitted even by the respondentwife that she was drawing a salary of Rs. 2,300/ p.m. being a J.B.T. teacher. She has, however, claimed the maintenance for the child. No maintenance allowance to the child can be granted under Sections 24 and 25 of the Act. As the respondentwife is proved to have sufficient income, the appellanthusband cannot be directed to pay any maintenance. The 8 / 15 applications of the respondentwife for the grant of the maintenance allowance or permanent alimony are dismissed."
v) Kavita Prasad Vs Ram Ashray Prasad - CM (M) 1153/2008) decided on 01.10.2008, wherein it has been observed that: "The petitioner who is an MBBS qualified Doctor and admittedly had been in practice before, claims that she was sitting at home despite eing a qualified Doctor and does not work. The petitioner claimed maintenance ........................... adjustment of the maintenance being received by her under section
125. Since counsel for the petitioner........... I consider that as she is receiving maintenance from husband, the court should not allow her experience and qualification to go waste. I consider that she should be directed to work as a honorary doctor in some public welfare institute or school free of charges where she can take care of health of the poor people. Let her come to Court and give an undertaking that she was prepared to work without charging anything in any institution named by this court around her house minimum 5 hours a day and 6 days a week, so long as she receives maintenance from her husband on the plea of being unemployed.
vi)Ram Pal Vs. Nisha - AIR 1994 Rajasthan 204, it has been held that : "12. In this case, the monthly income of the husband appellant is Rs. 6100/ (Rupees 3300/ from pay + Rs. 800/ father's pension + Rs, 2000/ income from renting the house as claimed by the wife whereas the monthly income of the wiferespondent is Rs. 2300/. The wiferespondent is residing in village. Dhabhan in Tehsil Sangaria, where she is employed as a Teacher and, therefore, it cannot be said that she cannot meet out her day to day expenses. She can easily maintain herself according to the status of her husband out of her monthly pay of Rs. 2300/. In this view of the matter, we are firmly of the view that the wife respondent (applicant) is not entitled to receive any amount of maintenance to meet out her day to day expenses from her husband."
9 / 154. Contrary to it, Ld. Counsel for respondents submitted that there is specific provision in section 127 Cr.P.C. that in case of change of circumstances, the amount of maintenance can be varied in accordance with the facts and circumstances. He again submitted that the order of maintenance passed by Ld.Trial court was passed on the facts of misleading by the revisionist. Ld. counsel for the respondent further submitted that revision petition is not maintainable under section 127 Cr.P.C. On these grounds, he submitted that revision petition is liable to be dismissed. In support of his contentions ld. counsel has relied upon the following citations : i. A.V. Papayya Sastry and Others Vs. Govt. of A.P. and Others 2007) 4 Supreme Court Cases 221, wherein it has been observed that: "It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings."
10 / 15ii. Ramjas Foundation & Anr. Vs Union of India & Ors - VIII (2010) SLT 156, wherein it has been held that: "14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case."
5. The relevant section 127 Cr. PC is also being reproduced verbatim for the sake of brevity and convenience, which is as under:
127. Alteration in allowance.
1[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that
(a) The woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;
11 / 15(b) The woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order
(i) In the case where such sum was paid before such order, from the date on which such order was made,
(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 2 [maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom 3[ monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person 4[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order."
6. I have heard the submissions of ld. counsel for the revisionist and ld.
counsel for the respondents as well. I have also gone through the citations as relied upon by the ld. counsel for the respondents. These judgments are not applicable in the present case since the facts in both the cases are entirely different. Having perused the entire case file it has come on record that there is already an oder dt. 13.08.2009 of Hon'ble High Court of Delhi in Crl. M C No.1164/2009, the important extract of the said order is being reproduced below: 12 / 15 "The ld. Consel for the respondent has very fairly agreed that the Respondent will pay a sum of Rs.8000/ per month as interim maintenance starting from 1 st August 2009 onwards. This is subject to the condition that it will be only an interim maintenance till the time the ld. magistrate decides the question of grant of maintenance finally.
I have heard the Ld. counsel for the petitioners, the proposal had been accepted by the Ld. Counsel for the petitioners.
........... Accordingly, the matter is remanded back to the Magistrate with the direction that till the time the Ld. Magistrate decide the grant of maintenance finally on merits the Respondent shall continue to pay interim maintenance @ Rs.8000/ per month ......................"
8. Having perused the entire case file it has come on record that there is already an oder dt. 13.08.2009 of Hon'ble High Court of Delhi in Crl. M C No.1164/2009 that was compromise order, which was to last till the petition u/s 125 Cr. PC is finally disposed of by the Mahila Court. It transpires that ld. trial court overlooked the order of Hon'ble High Court.
Thus, the passing of the impugned order dated 14.12.2011 u/s 127 Cr.
PC was simply misuse and abused of process of law. This clearly demolishes such factual assumptions, basing there upon the ld. court looks to have disturbed the same in proportion against the law. In light of these facts and circumstances of the case and in view of the order dated 13.08.2009 of Hon'ble High Court, Delhi, the impugned order dated 14.12.2011 is set aside since final decision of the petition, 13 / 15 pending before ld. trial court, is yet to come. Accordingly, revision petition stands disposed of. Trial Court record, if any be sent back with a copy of the order. Parties are directed to appear before the court.
Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 29.03.2012 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):DELHI 14 / 15 Cri. Rev. No.226/2/12 29.03.2012 Pre: Mother for the revisionist.
Vide separate order placed along side in the file, the impugned order dated 14.12.2011 is set aside since final decision of the petition, pending before ld. trial court, is yet to come. Accordingly, revision petition stands disposed of. Trial Court record, if any be sent back with a copy of the order. Parties are directed to appear before the court on 04.04.12.
Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):DELHI 15 / 15