Delhi District Court
Anil Kumar Arora vs Smt. Geeta on 30 November, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS JUDGE01,
NORTH, DELHI.
Crl. Rev. No.: 115/2011
M.P. No. : 01/5/09
U/s: 125 of Cr.P.C.
P.S.: Pratap Nagar, Now Gulabi Bagh
Concerned/Successor Court:
Ms. Geetanjali, MM, Delhi.
Case ID No. 02401R0423242011
IN THE MATTER OF :
Anil Kumar Arora
S/o Sh. Om Prakash Arora
R/o Aurangabad Green Mohalla
Kasba Khekra, District Baghpat, U.P.
(Being mentally retarded person)
Through his natural mother and guardian Smt. Bimla Devi.
........ Petitioner
Versus
1. Smt. Geeta
W/o Sh. Anil Kumar Arora
D/o Sh. Munnu Lal
2. Master Nitin (Minor)
S/o Sh. Anil Kumar Arora
3. Master Ritesh (Minor)
Crl. Rev. No. 115/2011 1/7
S/o Sh. Anil Kumar Arora
(Respondent no. 2 & 3 being minor through their natural mother and
Guardian Smt. Geeta, respondent no. 1 )
All R/o House No. 10650, Gali no. 8
Partap Nagar, Delhi 110007
.........Respondents
ORDER
1. Present revision has been filed by the petitioner against the order dated 25.8.2011 passed by Ld. MM where by Ld. MM directed the petitioner to pay maintenance amount of Rs. 1000/ per month each to all the respondents in M.P. No. 01/5/09 u/s 125 of Cr.P.C.
2. In brief facts giving rise to the present revision are that the respondents had filed a maintenance petition u/s 125 Cr.P.C. claiming maintenance from the petitioner in trial court on the ground that respondent no.1 is the wife of petitioner and respondent no.2 and 3 are minor children of petitioner and respondent no.1. Marriage between the petitioner and respondent no.1 was solemnized on 8.7.99 at Delhi according to Hindu Rites and Ceremonies and out of the said wedlock, three children were born out of which elder son is living with the petitioner and other two sons are residing with respondent no.1 . As per respondent no.1, her parents had given handsome dowry and other articles to the petitioner in their marriage but the petitioner and his family members were not satisfied with the dowry and they used to harass and torture her for dowry demands. Respondent no.1 and her family members tried to make the petitioner Crl. Rev. No. 115/2011 2/7 and his family members understand but they did not mend their ways and finally respondent no.1 alongwith her minor children was thrown out of matrimonial home and since 26.6.2004 she alongwith her sons are residing at her parental house and all her belongings, clothes, jewelery etc. are lying with the petitioner. As per respondent no.1, she is not doing anything and does not have any independent source of income. Her parents are looking after her and her two sons and all the expenses for their maintenance are also born by her parents whereas petitioner is having a retail shop of diesel oil and other businesses at Bagpat, U.P. and he is earning at least Rs. 1,00,000/ per month.
3. Initially petitioner was proceeded exparte and the case was decided by the trial court vide order dated 27.6.2008. Subsequently petitioner went in revision against that order and vide order dated 20.4.2009, appellate court set aside the order dated 27.6.2008 with directions to trial court to assess the mental condition, demeanor, physical appearance and other key features of petitioner and also to summon Dr. Saurav from Institute of Human Behaviour and Allied Sciences, Shahdara, Delhi for recording his evidence regarding the mental and physical condition of petitioner to find out whether or not he is a man capable enough for performing his day to day normal duties and to support and maintain his family. Thereafter trial court recorded the statement of Dr. Vijender Singh and petitioner in order to assess the mental condition of petitioner and after hearing arguments of both the parties, Ld. MM vide order dated 25.8.2011 directed the petitioner to pay an amount of Rs. 1000/ per month as maintenance to each of the respondents and it is against this order that the present revision has been filed by the petitioner.
Crl. Rev. No. 115/2011 3/7
4. After filing of the revision, notice was given to the respondents and trial court record was also summoned.
5. The present revision petition was fixed by the court for reply and arguments on the same for 3.1.2012 but subsequently petitioner has moved an application for preponement as the trial court has issued warrant of attachment against him, in such circumstances arguments from the counsel for the petitioner and proxy counsel for the respondents heard.
6. So far as the factum of marriage is concerned, same is not denied. Ld. counsel for the petitioner argued that petitioner is not in a position to maintain himself and is not a mentally fit person and therefore, the question of giving maintenance to the respondents does not arise. On the other hand, Ld. proxy counsel for the respondents argued that petitioner is not suffering from any such illness due to which he cannot maintain himself or respondents. This plea has been taken by the petitioner only to avoid the payment of maintenance. He has petrol pump and is earning more than Rs. 1 lac per day and in order to avoid the maintenance, he has taken this plea. He argued that in the ground of revision it is mentioned that petitioner was cut off from the society for the last 20 years whereas the marriage between the parties took place in the year 1999 and three children were born from this wedlock who are aged about 11, 8 and 5 years respectively. He further argued that petitioner was able to cohabit with the respondent no.1 to give birth to the children but is not able to maintain them and cut off from the social life, it is hard to believe and it is only a made up story.
Crl. Rev. No. 115/2011 4/7
7. Perusal of record shows that maintenance petition u/s 125 Cr. P.C. was decided ex parte as petitioner did not appear in the trial court despite the service of summons. Subsequently when warrant of attachment was issued by the trial court against him, he filed a revision against that order and the revisional court remanded the case back with the direction to first assess the condition of the petitioner as plea of the petitioner is that he is suffering from mental disorder and is not in a position to look after even himself.
8. Perusal of record shows that a disability certificate issued by Institute of Human Behaviour and Allied Sciences, Jhilmil, Delhi dated 10.10.2009 filed by the petitioner is on record which shows that he is suffering from Bipolar affective disorder with disability of more than 40% and further same will be reassesssed after two years. For year 2011 no certificate has been filed by petitioner which shows that in the year 2011 no assessment has been got done by the petitioner. There is one more certificate of January2009 issued by the Chief Medical Officer, Baghpat which shows the disability of the petitioner as 65 per cent. When petitioner's disability in January09 was 65 per cent which reduced to 40 per cent in October2009 itself, meaning thereby that there was consistent improvement in the condition of the petitioner in 2009 itself. Ld. counsel for the petitioner has also filed some literature on Bipolar disorder down loaded from the internet and as per the same, bipolar disorder is characterized by period of deep, prolonged, and profound depression that alternate with periods of excessively elevated or irritable mood known as mania. Neither under depression nor in the periods of irritable mood any presumption can be raised for any person that he cannot maintain himself or his wife and children. In the ground E of the revision, it is stated that petitioner is Crl. Rev. No. 115/2011 5/7 suffering from disease for the last so many years and even if for the argument's sake it is presumed that he is cured from such mental disorder, then it would take sometime for rehabilitation as he was cut off from the society since 20 years. The marriage between the parties took place in the year 1999 and three children born from this wedlock subsequently who are aged around 11, 8 and 5 years respectively. Proxy counsel for the respondents argued that if the petitioner was able to marry and cohabit with the respondent no.1, then in no circumstances a presumption can be raised regarding the illness and regarding the fact that he was cut off from the society for the last 20 years. The submission of Ld. proxy counsel for the respondents bears force.
9. Doctor examined by the trial court deposed on oath that total duration of illness is 19 years. The petitioner is their regular patient and had suffered 15 to 16 episodes of manic and depression but since July, 2008 he is improving. He has further stated in the trial court that patient of bipolar affected disorder can work when he is in remission. The trial court has rightly held that from the testimony of the doctors it is clear that petitioner is not suffering from any such mental disorder which renders him incapable to maintain himself or his wife and children. It seems present revision petition through natural guardian has been filed by the petitioner only to escape from the liability to provide maintenance to his wife and three children.
10. Regarding the mental condition of the petitioner from the evidence collected by the trial court on record, there is nothing on record to suggest that petitioner is suffering from such mental disorder that he is not capable to maintain himself or the respondents. Though he is suffering from bipolar disorder but his condition is not such which renders Crl. Rev. No. 115/2011 6/7 him incapable to maintain himself or his wife and children. Merely because the petitioner got aversion from his wife and cannot take his wife back is no ground to deprive the respondents for their maintenance. Trial court has rightly held that petitioner is not suffering from such a mental disorder that he cannot maintain the respondents.
11. So far as the financial condition of both the parties are concerned, then none of the parties have filed any documents in support of their contentions. In such circumstances, if trial court has taken the income of the petitioner at Rs. 5000/ per month and granted maintenance of Rs. 1000/ per month to each of the respondents then same is not on higher side or exaggerated one keeping in view the cost of living in the cities like Delhi. Thus, there is no infirmity or illegality in the order dated 25.8.2011 passed by the trial court.
12. In view of the abovesaid discussion, there is no infirmity or illegality in the order dated 25.8.2011 passed by the trial court. Same is, therefore, upheld. The present revision filed by the petitioner is dismissed. Parties to appear before the trial court on 09.12.2011. Trial court record alongwith copy of this order be sent back. Revision file be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 30.11.2011.
Crl. Rev. No. 115/2011 7/7