Delhi District Court
Smt. Madhu Taneja vs The State Govt. Of Nct Of Delhi on 24 August, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CR No.05/2013
1. Smt. Madhu Taneja,
W/o Sh. Sanjay Taneja,
D/o Sh. Jagdish Kumar,
2. Master Vansh Taneja @ Sagar (Minor),
S/o Sh. Sanjay Taneja,
Both resident of 12/11, Subhash Nagar,
New Delhi - 110027. .....Revisionists.
Versus
1. The State Govt. of NCT of Delhi,
2. Sh. Sanjay Taneja,
S/o Sh. Kanwar Bhan Taneja,
R/o House No.705/5, III, Ward No.3,
Mehrauli, New Delhi - 110030. .....Respondents.
Date of filing of petition : 11.01.2013.
Date of judgment : 24.08.2015.
: J U D G M E N T :
1. Aggrieved by the order dated 06.12.2012 passed by Ld. MM (Mahila Court), West District, Tis Hazari Courts, Delhi in a case bearing RBT No.446/4/12 titled as "Madhu Taneja Vs. Sanjay Taneja" whereby Ld. Trial Court dismissed the application of petitioners filed U/s 127 Cr.P.C for enhancement of interim maintenance and fixed the case for leading of PE.
2. It is pertinent to mention here that revisionists have filed a petition under Section 125 Cr.P.C on 31.07.2002, wherein vide Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.1 of pages 10 order dated 13.10.2004, Ld. MM, Delhi had assessed the income of respondent no.2 as Rs.14,000/ per month and in view thereof had awarded a sum of Rs.3,000/ per month to the revisionist no.1 and Rs.1,500/ per month to respondent no.2 as maintenance. Thereafter, a revision petition was filed interalia challenging the same and the maintenance stood enhanced to Rs.5,500/ per month for both the revisionists. Further respondent no.2 had filed a petition for divorce under Section 13 (1) (i) (a) of Hindi Marriage Act on 18.10.2002 and in the said petition, revisionist had filed an application under Section 24 of Hindu Marriage Act, whereupon Ld. Addl. District Judge, Delhi awarded maintenance in the sum of Rs.5,000/ per month. Thereafter, an application was preferred seeking enhancement of the said maintenance. Ld. Addl. District Judge, Delhi vide order dated 11.12.2008 enhanced the maintenance in respect of application under Section 24 of Hindu Marriage Act from Rs. 5,000/ per month to Rs.6,000/ per month. Aggrieved by the said order, revisionist no.1 had assailed the same by way of CM (Main) Petition No.78/2009 filed before the Hon'ble High Court of Delhi and vide judgment dated 14.09.2010, Hon'ble High Court enhanced the maintenance to Rs.15,000/ per month with effect from 31.10.2005 upto 01.02.2010. The respondent had assailed the said judgment dated 14.09.2010 before the Hon'ble Supreme Court by way of SLP No.10559/2011 and the Hon'ble Apex Court vide order dated 25.04.2011 had dismissed the said petition. Thereafter, revisionists no.1 had preferred application under Section 127 Cr.P.C before the Ld. Trial Court dealing with the petition under Section 125 Cr.P.C, which was kept in abeyance by the court. Thereafter, another application under Section 127 Cr.P.C was preferred by the revisionist and vide order dated 06.12.2012, Ld. Trial Court dismissed both the Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.2 of pages 10 applications filed U/s 127 Cr.P.C, which is being assailed by the revisionists on various grounds as mentioned in the petition itself.
3. Notice of the petition was accepted by Ld. Addl. PP for the State on behalf of respondent no.1, whereas respondent no. 2 put his appearance before the court in person alongwith his counsel on receipt of notice of the petition and led his arguments in the matter through his counsel. Submission of Ld. Addl. PP and Ld. Counsel for revisionists also heard in detail.
4. It has been submitted on behalf of revisionists that the impugned order as passed by Ld. Trial Court is contrary to law and facts established on record of the case. Ld. Trial Court has erred in observing that there was no change in circumstances entitling the revisionists to enhancement as envisaged under Section 127 Cr.P.C. In the present case, revisionist no.1 is not only to maintain herself but also single handedly taking care of th minor child of the parties, who at present is studying in 9 standard in Shedley Public School, Rajouri Garden, New Delhi and the monthly expenses of the said minor under any circumstances is not less than Rs.15,000/ per month. Further it has not been appreciated that the Hon'ble High Court vide judgment dated 14.09.2010 was pleased to award maintenance in the sum of Rs.15,000/ per month to the revisionist while observing that respondent was bound to maintain his wife and child and therefore, awarded maintenance in the aforesaid sum. Ld. Trial Court without adverting to the facts of the present case or the order passed by the Hon'ble High Court by way of a cryptic order dismissed the applications under Section 127 Cr.P.C. One one hand, the Courts of Law have observed that the respondent is concealing his own income, on the other hand, the revisionist is being made to strive hard for sum of Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.3 of pages 10 maintenance, which she is otherwise legitimately entitled to. The legislature being meant for the benefit of the spouse, who is not being maintained, Ld. Trial Court by interpreting the provisions of Section 127 Cr.P.C in such a narrow manner has now sought to benefit the erring spouse and has given the respondent advantage of his own wrongs. Further Ld. Trial Court has erred in observing that the revisionist was stressing on the point that the divorce petition was dismissed, whereas, the revisionist while pointing out that the divorce petition was dismissed, only wanted to bring home the fact that the relationship of husband and wife continuous to subsist, therefore, the respondent was duty bound to maintain the petitioner. Further, the revisionist at this stage was not wanting any adjudication on merits of right, therefore, for the Ld. Trial Court to insist that the revisionist must establish change of circumstances, was totally perverse. It is settled law that remedies under Section 24 of Hindu Marriage Act and Section 125 Cr.P.C are concurrent remedies available to parties. The higher amount of maintenance awarded in one forum, is payable by the spouse, who has been directed to pay the same. Thus once the Hon'ble High Court in proceedings under Section 24 of Hindu Marriage Act had found that the respondent was duty bound to pay an amount of Rs.15,000/ per month as maintenance to the revisionists, which was challenged before the Hon'ble Supreme Court by the respondent by way of SLP No.10559/2011 and same was dismissed by the Hon'ble Apex Court, the onus lay upon the respondent to dislodge the same.
According to Ld. Counsel for respondent, after committing various atrocities upon the respondent and his family members, the revisionist left the house alongwith the minor child and started living with her parents w.e.f. 18.05.2001 and is living Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.4 of pages 10 there since then. Thereafter, she filed a petition U/s 125 Cr.P.C and another complaint case under the provisions of Domestic Violence Act. An amount of Rs.4,500/ towards interim maintenance i.e. a sum of Rs.3,000/ per month to the revisionist no.1 and Rs.1,500/ per month to respondent no.2, was awarded by Ld. Trial Court against which, revisionist preferred a revision petition, wherein respondent voluntarily accepted to enhance the maintenance from Rs.4,500/ per month to Rs.5,500/ per month. The respondent herein had filed a divorce petition and the revisionist herein moved an application under Section 24 of the H.M.A Act, whereby the maintenance was awarded by Ld. ADJ at the rate of Rs.5,500/ per month and was later on enhanced to Rs.6,000/ per month. The revisionist no.1 assailed the order and the Hon'ble High Court had ordered to pay the maintenance pendentelite at the rate of Rs.15,000/ per month. The said order was pendentelite during the pendency of the divorce which petition was dismissed on 31.01.2010. After passing of said order, revisionist herein moved an application for enhancement of the maintenance amount before Ld. Trial Court and Ld. Trial Court passed the order that no enhancement application shall be decided till the evidence is led. Till date, despite of having the last opportunity, revisionist herein has not appeared in the witness box as a witness and to lead her evidence right from 2007 onwards and had been taking various opportunities to lead the evidence knowingly fully well that the respondent herein had been complying with the orders so passed in the present petition and it is a well settled principle of law that if the revisionist/wife does not come in the witness box, even the maintenance awarded to her should be stopped. Simultaneously, another application for enhancement of the Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.5 of pages 10 maintenance was also filed by the revisionist herein in RBT No. 446/4/12, which application was filed on the similar facts, wherein the revisionist again took the same stand of passing of the order by the Hon'ble High Court, which application was again dismissed while observing that "there is no change of any circumstances of the revisionist. The term change in circumstances, envisages a change of pecuniary or other circumstances of the party paying or receiving allowances which would justify the increase or decrease in the maintenance amount." In the present case, there was no such change and the application was dismissed. The matter was again listed for PE for 16.03.2013 but till date, no copy of additional affidavit has been supplied which was to be supplied within 15 days of the passing of the order dated 06.12.2012, nor the revisionist has come into the witness box. Further the quantum of maintenance can be varied according to the circumstances. The amount of maintenance whether it is fixed by a decree of agreement is liable to be increased to diminished whenever there is a change of circumstances as would justify a change in the rate. The right to maintenance is a substantive and continuing right, the quantum of maintenance is thus variable from time to time. In the absence of evidence on the point of income, the court can not decide the amount of alimony. The fixation of permanent alimony is to be considered on the husband's net income and not on the basis of the gross/rough income. The revisionist is a woman of means; she has enough money in her hands. She has got FDRs which were got made by the respondent in the name of revisionist and which she fraudulently got encashed and took away the entire amount and has invested and is getting the amount for the same.
5. Having heard the rival submissions of both the sides and Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.6 of pages 10 carefully perusing the entire material placed before particularly the contents of revision petition specially the grounds taken therein, record summoned from Trial Court as well as the written submissions filed on behalf of the parties, I find substance in the submission of Ld. Counsel for revisionist. First of all, the orders regarding passing of interim maintenance to the tune of Rs.4,500/ per month i.e. a sum of Rs.3,000/ per month to the revisionist no.1 and Rs.1,500/ per month to respondent no.2, has been passed by Ld. Trial Court on 13.10.2004, which was subsequently enhanced to Rs.5,500/ per month by the court in revision. Since the passing of order regarding interim maintenance by Ld. Trial Court around eleven years have been elapsed and considering the present scenario of inflation in the country, granting of interim maintenance to the tune of Rs.4,500/ or Rs.5,500/ is not enough to maintain the revisionists herein. Further looking into the other aspect of the case, where in the other case between the same party, Hon'ble High Court had ordered to pay the interim maintenance to the revisionist by the respondent no.2 herein to the tune of Rs. 15,000/ per month, granting of same amount in the present case of maintenance, pending before Ld. Trial Court, would not be exorbitant particularly in the circumstances where inflation is raising in the country rapidly and revisionist no.1 is not only having the responsibility to maintain herself but also single handedly taking care of minor child of the parties, who is a school going child. Further the respondent no.2 is duty bound to maintain them particularly in the circumstances where the relationship of husband and wife still exists between the parties. In such circumstances, the amount of interim maintenance as fixed by Ld. Trial Court does seem to be unreasonable and liable to be rectified/enhanced.
Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.7 of pages 10 The provisions contained in Section 125 Cr.P.C is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweet of Article 15 (3) reinforced by Article 39 to protect the weaker section like women and children. The object is to compel a man to perform the moral obligation which he owns to society in respect of his wife, parent and children so that they are not left beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
In Radhika Vs Vineet Rungta 2004 (II) AD (Delhi) 629 Cr.P.C, it was held that 'While granting maintenance it is incumbent on the court to make such monetary arrangements as would be conducive to the spouses continuing a life style to which they were accustomed before the matrimonial discord.' In Bharat Hedge Vs Saroj Hedge 2007 (96) DRJ 110, it was held that: "While considering a claim for interim maintenance, the Court has to keep in mind the status of the parties, reasonable wants of the applicant the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all.
It was further held that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comforts as in the matrimonial home, but it should not be so exorbitant that the non Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.8 of pages 10 applicant is unable to pay."
6. In view of aforesaid, the revision petition as filed by the revisionist is liable to be succeed and the impugned order regarding dismissal of application filed U/s 127 Cr.P.C is liable to be set aside. Accordingly, respondent no.2 is directed to pay the maintenance to the revisionists no.1 & 2 to the tune of Rs. 15,000/ per month from the date of filing this revision petition. The respondent no.2 is also directed to clear the arrears of interim maintenance, as awarded by Ld. Trial Court, within the period of four months from the date of this order. The amount, if any paid, by the respondent no.2, shall be duly adjusted. As regards to the grievance expressed by the respondent no.2 herein regarding the fact that the revisionist no.1 is avoiding to enter into the witness box and to get her evidence concluded, the same can be met with/satisfied by way of passing a direction to the revisionist herein to appear and produce her evidence before the Ld. Trial Court on 17.09.2015 and Ld. Trial Court shall take an endeavor to complete the trial of the case within the period of six months from today. It is ordered accordingly.
7. TCR alongwith the copy of the judgment be sent to the Ld. Trial Court for information and for proceeding further in the matter as per law.
8. Both the parties are directed to appear before Ld. Trial court on 17.09.2015.
9. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR1)
Court on 24 August, 2015) Addl. Sessions Judge/Special
th
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.9 of pages 10
CR No.5/2013
Madhu Taneja & Ors. Vs. State & Anr.
24.08.2015
Present: Ld. Counsel for revisionists.
Ld. Addl. PP for the State.
Ld. Counsel for respondent no.2.
Vide a separate judgment, revision petition of the revisionist stands disposed off.
TCR alongwith the copy of the judgment be sent to the Ld. Trial Court for information and for proceeding further in the matter as per law.
Both the parties are directed to appear before Ld. Trial court on 17.09.2015.
Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR1) ASJ/Spl. Judge (NDPS) (West) 24.08.2015 Madhu Taneja & Ors. Vs. State & Anr. (CR No.5/2013) Page No.10 of pages 10