Delhi District Court
Bhupinder Singh vs Smt. Sonia on 18 August, 2008
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, ADDL. SESSIONS JUDGE,
ROHINI, DELHI
Criminal Revision No. 08/2008
Date of institution: 15.02.2008
Arguments heard on: 12.08.2008
Order pronounced on: 18.08.2008
Bhupinder Singh,
S/o Late Shri Kartar Singh Bhalla,
R/o WZ-131-A (Back side),
Gali No.6, Virender Nagar,
Jail Road,
New Delhi-01 .... Petitioner
Versus
1. Smt. Sonia,
W/o Shri Bhupinder Singh,
D/o Shri Jogender Khanna
2. Master Shivam,
S/o Shri Bhupinder Singh,
3. Master Ansh,
S/o Shri Bhupinder Singh
All R/o D-11/11, Sector-8,
Rohini, Delhi-110085 .... Respondents
ORDER
This revision petition is directed against an order dated 15.01.2008, passed by learned Metropolitan Magistrate, Rohini Courts, Delhi.
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2. The back drop of the present revision petition is that respondents herein filed a petition under Section 125 of the Code of Criminal Procedure against the petitioner / revisionist for grant of maintenance. The case of the respondents is that respondent No.1 Smt. Sonia was married with the petitioner / revisionist on 30.09.2000. The marriage of respondent No. 1 was second marriage as her earlier husband had expired and she was having a male child, who is respondent No.2, Master Sivam, at the time of marriage with the petitioner. The petitioner adopted the minor child, Master Sivam as his son. On 28.06.2001 respondent No.1 gave birth of male child namely Master Ansh, who is respondent No.3 at Saroj Hospital, Delhi. After some days of marriage, petitioner started harassing the respondent No.1 for not bringing sufficient dowry articles. The petitioner is living separately from respondent No.1 since 3rd week of July-2001 and he had not made any provision for the maintenance of respondents. The respondents alleged that petitioner / revisionist is gainfully employed with MTNL as Senior TOA (G) and is getting salary of Rs.24788/- per month besides rental income of Rs.5000/- per month. It is also alleged that the petitioner is engaged in the business of money lending and is earning Rs.10,000/- per month as interest. The respondents filed a appellant before Delhi Commission for Woman, who granted interim maintenance @ Rs.6000/- per month, vide order dated 03.07.2006. The respondents alleged that respondent No.1 wife and her sons have no source of income and they do not have any property. The respondents claimed maintenance @ Rs.10,000/- per month for respondent No.1 and Rs.5000/- per month each for respondents No. 2 and 3.
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3. The petitioner / revisionist contested the petition by filing reply on the grounds interalia that petitioner is not the father of Master Sivam and Master Ansh, who are respondents No.2 and 3. The respondent No.2 Master Sivam is son of late Shri Anup Ram and petitioner is not liable to maintain him. The petitioner husband has filed a petition for divorce which is pending. The petitioner / revisionist also alleged that respondent No.1 is living in adultery with Shri Harish Kohli, who is brother in law (Jija) of respondent No.1. On 10.01.2000 the petitioner husband reached home before lunch due to ill health and he found respondent Nol.1 locked a room with Shri Harish Kohli and she declared that she had a old relationship with Shri Harish Kohli. Again on 09.03.2001, on the occasion of Holi, respondent No.1-wife was found in semi naked condition with Shri Harish Kohli. The petitioner alleged that respondents are not entitled for maintenance as she is living in adultery. On merits, the petitioner has not disputed the marriage with the respondent No.1 on 30.09.2000. The petitioner-husband alleged that respondent No.1 owns immovable property bearing house No. D-11/11, Sector-8, Rohini and the first floor of the said house has been rented out to Ms. Sapna Aggarwal, who is paying monthly rent of Rs.4500/-. The respondent No.1 had sold house No. 13/89, Sector-3, Rohini for a consideration of Rs. 45 lacs in October-2006. The respondent No.1 has a MIG flat at Ashok Vihar and she is getting rent of Rs.4000/- per month besides interest from FDR in Madurai Bank and Canara Bank.
4. The respondents moved an application for grant of interim maintenance alongwith the petition. After considering the plea taken by both the parties, learned trial Court observed that respondent No.2 is not Criminal Revision No. 08/2008 -: 4 :- entitled to maintenance as he is son from the first marriage of the respondent No.1 and directed the petitioner to pay maintenance at the rate of Rs.5000/- per month to respondents No. 1 and 3 w.e.f. Filing of the application till disposal of the petition, vide impugned order dated 15.01.2008. Feeling aggrieved by the said order the petitioner has preferred the present revision petition.
5. I have heard Shri K.P. Mavi Advocate for the petitioner and Shri Kapil Jain Advocate for the respondents. I have also carefully gone through material on record.
6. Ld. counsel for the petitioner contended that the petitioner was married with respondent No.1 on 30.09.2000 and the marriage survived only for ten months and the parties lived together for a couple of day. The petitioner had not access to respondent No.1 in the month of October / November 2000 and there was coitus act between the parties during the period in which respondent No.2 might have been conceived. The respondent No.3 is neither legitimate nor illegitimate child of the petitioner and the petitioner is not biological father of the children on whose behalf the maintenance has been claimed by respondent No.1.
7. Ld. counsel for the petitioner also submitted that the petitioner moved an application for DNA test in respect of respondent No.3, master Ansh which was dismissed by learned trial Court vide order dated 04.05.2007. The petitioner moved Criminal M.C. No. 1815/07 before the Hon'ble High Court of Delhi, which was allowed and direction has been issued for DNA test of respondent No.3 at All India Institute of Medical Science vide order dated 12.05.2008, passed by Hon'ble High Court.
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8. Ld counsel for the petitioner also urged that before granting interim maintenance, learned trial Court should have decided whether the petitioner / revisionist is father of respondent No.3 or not. In support of his submissions he has relied upon Judgment in case titled as Thakur Prasad Vs. Mt. Godavari Devi reported as AIR 1951 Patna 514 and case titled as Bhaskaran Vs. Kunhipennu reported as AIR 1960 Kerala 110.
9. Ld counsel for the respondents urged that the petitioner is father of respondent No.3. He further submitted that the allegation of the petitioner-husband that respondent No.1 was living in adultery, is without any substance. He also pointed out that the petitioner has to prove that there was continuous adulterous act on the part of respondent No.1. In support of his submission he has relied upon Judgment in case titled as K. Veeriah Vs. Muthulakshim reported as 1999 (2) RCR (Criminal) 53.
10. Ld counsel for the respondents further submitted that even the illegitimate child is entitled for maintenance under Section 125 Cr.P.C.
11. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. In K. Veeriah's case (supra), relied upon by learned counsel for the respondents it was held that allegation of husband that wife was living in adultery, the husband should prove that there is continued adulterous conduct, a single or occasional lapse from virtue is not sufficient to refuse maintenance. Living in adultery means an outright adulterous conduct where wife lives in quasi permanent union with a man with whom she is continuing adultery shortly before or after petition for maintenance.
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12. Sub-section 4 of Section 125 of Code of Criminal Procedure read as under:-
"1..............................
2..............................
3..............................
4. No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent."
13. The petitioner / revisionist in his reply to the petition has alleged that he is not father of respondent No.3 and respondent No.2 Master Sivam. He has also alleged that respondent No.1 is living in adultery with Shri Harish Kohli. He has filed petition for divorce on the ground of adultery, which is pending.
14. Sub-section 4 of the Section 125 of the Code which is exception. Section 125 of the Code entitles a woman to claim maintenance, which makes no distinction whether the cause for her approaching the Court is adultery or infidelity of the husband. A similar question cropped up before our own Hon'ble High Court in case titled as Arun Kumar Vs. Meenu Kumar reported as 2007 VIII AD (Delhi) 382. In the said case respondent alleged that wife was living in adultery and she is not entitled to interim maintenance. It was held that cautious approach should be adopted and one should not rush into presumption on the basis of allegations, conclusions or primary assumptions, since Section Criminal Revision No. 08/2008 -: 7 :- 125 (4) enacts an exception. The Court should be satisfied of the soundness of such a charge and cannot be content to elevate allegations into findings.
15. In the present case learned trial Court has not adverted to the objection taken by the petitioner / revisionist that respondent No.1 is living in adultery. In the factual matrix, in my view, learned trial Court should have proceeded to decide the application for grant of interim maintenance, after taking into account the allegation of adultery, raised by the petitioner.
16. As a result of above discussion, the revision petition is accepted and the impugned order dated 15.01.2008 is set aside. Ld. trial Court is directed to decide the application for grant of interim maintenance afresh, after deciding the plea taken by the petitioner that respondent No.1 is living in adultery and whether the respondent No.3 is child of the petitioner or not. Both the parties are directed to appear before learned trial Court on 01.09.2008. Trial Court record alongwith copy of this order be sent back. File of revision petition be consigned to record room.
Announced in open Court (V.P. VAISH)
Dated: 18.08.2008 ADDL. SESSIONS JUDGE
ROHINI: DELHI
Sadique
Criminal Revision No. 08/2008