Delhi District Court
1 Lekh Raj vs . Ritu (2) Mahi on 3 February, 2010
1 Lekh Raj Vs. Ritu (2) Mahi
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Revision No. 292/09
Shri Lekh Raj
S/o Sh. Balwant Singh
R/o D-2/18, Brij Puri
Delhi - 94 ........Petitioner
Vs
1. Smt. Ritu
W/o Shri Lekh Raj
D/o Shri Tej Pal Singh
198/1, Chiragh Delhi
New Delhi
2. Miss Mahi
D/o Shri Lekh Raj
Through her mother Ritu
198/1, Chiragh Delhi
New Delhi ........Respondents
Date of Institution 06/11/2009
Date when arguments
were heard 02/02/2010
Date of Order 03/02/2010
ORDER
This revision petition is filed by the petitioner husband 2 Lekh Raj Vs. Ritu (2) Mahi against the order dated 17.08.2009 by which learned Metropolitan Magistrate has granted a sum of Rs.1,000/- per month as maintenance from the date of filing of application to the respondent No.1 wife of revisionist and also a sum of Rs.1,000/- per month as maintenance from the date of filing of application to respondent No.2 the child of respondent No.1 and revisionist. Notice was issued to respondents who appeared through respondent No.1 the mother of the respondent No.2 and contested the revision petition.
Learned counsel for revisionist husband has argued that the revisionist is a compounder in a clinic and earning Rs.3,000/- per month. The female child of revisionist and respondent No.1 is aged about 5 years. It is argued that the respondent No.1 the wife of revisionist has illicit relations with one Uttam, a cable operator and the revisionist has tape recorded the conversations between them in CD which is already filed in the trial court record along with transcription of the conversation. It is argued that in the divorce proceedings before Matrimonial Court on 13.03.2007, the Court has kept the order on the application under Section 24 of Hindu Marriage Act (in short 3 Lekh Raj Vs. Ritu (2) Mahi HMA Act) in abeyance till the evidence is recorded, therefore, impugned order maintenance passed by learned Metropolitan Magistrate is liable to be set aside. It is also argued that the respondent No.1 wife of revisionist is earning Rs.5,000/- per month by working in beauty parlour. She has also made a false allegation in para 20 of the petition under Section 125 Cr.PC that her father has died but her father is still alive and present in the court. It is also argued that by tampering with the pleadings in trial court record, the line in question is deleted with the blue pen so revision petition may be allowed. The reliance is placed upon the authorities
1. Balbir Singh Vs. Smt. Swaran Kanta AIR 1981 Rajasthan 266.
2. Mamta Jaiswal Vs. Rajesh Jaiswal Madhya Pradesh High Court Civil Revision No.1290 of 1999 Decided on 24.03.2000.
3. Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another (1975) 2 Supreme Court Cases 386.
The arguments of learned counsel for respondents are that the CD is forged by the petitioner to get divorce from respondent No.1 and to solemnize his marriage again. It is argued that proceedings 4 Lekh Raj Vs. Ritu (2) Mahi under Section 24 of HMA Act and Section 125 Cr.PC are parallel proceedings and the orders in the former have no effect on the proceedings under Section 125 Cr.PC. The reliance is placed upon Abinash Ch. Mondal Vs. Jyotsna Rani Mondal 2003 (2) Cr.R. 706 (Cal.) Calcutta High Court. It is argued that the revisionist is running a clinic and is a doctor and has handsome earning, there is no record of evidence that the respondent respondent No.1 wife of revisionist is depend on her parents. It is also argued that learned trial court passed interim order of maintenance considering all the facts of the case so it should be confirmed.
I have heard the learned counsel for parties, have gone through the trial court record, authorities produced and relevant provisions of law.
In Bhagwan Dutt's case (supra) Hon'ble Supreme Court has explained the scope of Section 488 Cr.PC 1898 vis-a-vis Section 125 Cr.PC but this authority does not directly deal with the question of interim maintenance. Balbir Singh's case (supra) and Mamta Jaiswal's case (supra) deal with Section 24 of HMA and not Section 5 Lekh Raj Vs. Ritu (2) Mahi 125 Cr.PC so these also have no direct bearing on the present revision petition. Therefore, authorities relied on behalf of the revisionist do not directly deal with the present revision petition.
As regards, Abinash Ch. Mondal's case (supra), Calcutta High Court has held in it that findings under Section 24 of HMA by the Civil Court are not binding in proceedings under Section 125 Cr.PC as proceedings under both provisions are parallel. There cannot be any dispute with these observations of Calcutta High Court and learned Metropolitan Magistrate dealing with the application in interim maintenance under Section 125 Cr.PC may award a different maintenance amount than awarded by the Matrimonial Court under Section 24 of HMA but it is to be noted that whatever may the figure of maintenance awarded by either of these two courts, the interim maintenance granted by one court is always given due weight and adjustment in the order of interim maintenance passed by the other court. Therefore, the findings of the Matrimonial Court as to interim maintenance to that extent would affect the order of interim maintenance under Section 125 Cr.PC.
6 Lekh Raj Vs. Ritu (2) Mahi As regards, the legal position, Sub-Section (4) of Section 125 Cr.PC, so far as is relevant, bars the grant of allowance for the maintenance or interim maintenance expenses of the proceedings as the case may be from the husband if the wife claiming maintenance is living in adultery. What is more if the wife is living in adultery and is already granted maintenance, the husband can prove it before learned Metropolitan Magistrate to get the order of maintenance awarded by the learned Metropolitan Magistrate to the wife cancelled under Sub-Section (5) of Section 125 Cr.PC. Therefore, the wife who is proved shown to be living in adultery is not entitled to any maintenance allowance from the husband and if the maintenance allowance is already awarded to her by the court then on proof of her living in adultery, the said order of maintenance is liable to be cancelled. Further, on prima facie showing the wife to be living in adultery, she is not entitled for interim maintenance from the husband by virtue of Section (4) of Section 125 Cr.PC.
In the backdrop, the above legal position, the facts of the case are to be analysed. Although, it is disputed on behalf of the 7 Lekh Raj Vs. Ritu (2) Mahi respondent No.1 wife of revisionist that she was living in adultery as alleged by the revisionist but the revisionist has not only filed CD of conversation between respondent No.1 and one Uttam and has also filed the transcription of conversation between these two. These materials, prima facie, support the case of the revisionist, further, the Matrimonial Court has also vide order dated 13.03.2007 on the application under Section 24 of HMA for seeking interim maintenance of respondent No.1 wife of revisionist in the divorce petition, filed by the revisionist on the basis of same CD has kept the interim order of maintenance under Section 24 of HMA in abeyance till recording of the evidence to establish adultery on the part of wife. Although, normally in the revision petition filed against the order of interim maintenance, the trial court order is not interfered with in the revisional jurisdiction but keeping in view of above facts, allegation of adultery supported by CD/transcription and conversation between respondent No.1 and the alleged adultor, the revision petition, in my view, deserves to be allowed so far as the respondent No.1 wife of petitioner is concerned.
8 Lekh Raj Vs. Ritu (2) Mahi As regards, the respondent No.2 child is concerned, the liability of revisionist is absolute, the learned trial court has taken correct view of the matter and there is no infirmity, illegality or impropriety in the impugned order of learned trial court regarding grant of interim maintenance to respondent No.2. The said finding of learned trial court is confirmed.
In view of the above, the revision petition is partially allowed. It is dismissed so far as the interim maintenance granted to respondent No.2 by learned Metropolitan Magistrate in the impugned order dated 17.08.2009. It is allowed, as regards, the interim maintenance granted to respondent No.1 Ritu and the impugned order is set aside to that effect. The parties are directed to appear before learned trial court on 11.02.2010. The trial court record be returned along with copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open
Court on 03/02/2010 (S. K. SARVARIA)
Additional Sessions Judge:01/South
Patiala House Court/New Delhi