Punjab-Haryana High Court
Master Dev Dutt vs Banwari Lal on 12 November, 2014
Author: Jaspal Singh
Bench: Jaspal Singh
Criminal Revision No. 4197 of 2012 (O&M) --1--
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision:- November 12, 2014
1. Criminal Revision No. 4197 of 2012 (O&M)
Master Dev Dutt (minor)
....Petitioner...
v.
Banwari Lal
....Respondent...
2. Criminal Revision No. 3674 of 2013
Banwari Lal
....Petitioner....
v.
Master Dev Dutt
....Respondent...
CORAM:- HON'BLE MR. JUSTICE JASPAL SINGH
Present:- Mr. Rajesh Lamba, Advocate,
for the petitioner (in CRR No. 4197 of 2012) and
for the respondent (in CRR No. 3674 of 2013).
Mr. Ashok Kaushik, Advocate,
for the respondent (in CRR No. 4197 of 2012) and
for the petitioner (in CRR No. 3674 of 2013).
****
JASPAL SINGH, J.
By this common judgment, this Court intends to dispose of CRR No. 4197 of 2012 and CRR No. 3674 of 2013. CRR No.4197 of 2012 has been preferred by Master Dev Dutt seeking enhancement of maintenance allowance awarded to him vide judgment dated August 29, 2012, passed by District Judge (Family SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --2--
Court) Faridabad, @ 1000/- per month only, alleging the same to be on lower side whereas CRR No. 3674 of 2013, has been preferred by Banwari Lal, father of Master Dev Dutt, for setting aside the aforesaid judgment.
2. Briefly stated, facts necessary for disposal of these petitions are that Ms. Shashi Bala was married to respondent-Banwari Lal on February 16, 1985 according to Hindu rites and ceremonies. They lived and cohabited as such. Three daughters namely Sobha, Arti, Pooja and one son namely, Dev Dutt were born out of their wedlock. She was allegedly tortured, harassed and met with an inhuman behaviour by her husband and was ultimately, deserted and neglected by Banwari Lal and ousted from matrimonial home along with her children. She was constrained to file a petition under Section 125 Cr.P.C. seeking maintenance allowance for herself as well as for three daughters. Even, FIR No. 164, dated September 06, 1990 under Sections 498-A and 406 IPC was also registered by Ms. Shashi Bala against her husband-Banwari Lal. However, matter was patched up and a compromise was arrived on March 11, 1998. In pursuance of the said compromise, she started to reside in the company of her husband from March 12, 1998. During that period, she conceived and gave birth to Master Dev Dutt but she was again thrown out of her matrimonial home on October 16, 1998. Since, then she is residing with her parents. Subsequently, respondent-Banwari Lal was convicted and sentenced in the above referred criminal case but in appeal, he as well as his co-accused were released on probation vide judgment dated July 13, 2002. Claiming that she has SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --3--
no source of income to earn livelihood to herself as well as to her minor children and further that the earlier order passed by the ld. Magistrate, Delhi became nullity in the eyes of law in view of the compromise, a fresh petition was preferred. The respondent is able bodied person and serving as Foreman in DHBVNL and earning `18,000/- per month and is also owner of agricultural land.
3. Upon notice, application was resisted by respondent- husband on the ground that the Court has no jurisdiction to try the petition as Ms. Shashi Bala-petitioner No.1 has already availed jurisdiction of Delhi Court and is getting maintenance allowance regularly. He further pleaded that his wife left the matrimonial home in 1998-99. Since then, she is living separately. He was also dragged into criminal as well as civil litigation like under Sections 498-A, 406 IPC, convicted and sentenced, though ultimately, he was granted the concession of probation. It has further been categorically pleaded that Master Dev Dutt has got no link with him as he was born after, his wife- Shashi Bala started living separately from him and as such he has no liability to maintain Master Dev Dutt-petitioner No.2. He further pleaded that Shashi Bala-petitioner No.1 has neither joined his company on March 11, 1998 nor she conceived a child during the period she allegedly resided with him. He prayed for the dismissal of the claim petition.
4. After analyzing the evidence and hearing learned counsel for the parties, petition was dismissed qua wife-petitioner No. 1, however, it was allowed qua Master Dev Dutt-petitioner No. 2 whereby he was allowed maintenance allowance @ 1000/- per SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --4--
month to be paid by respondent-Banwari Lal.
5. Dissatisfied with the impugned judgment dated August 29, 2012, Master Dev Dutt as well as Banwari Lal preferred these revision petitions, which were admitted for hearing and are now being disposed of by this common judgment.
6. Assailing the impugned judgment and seeking enhancement of maintenance allowance, Mr. Rajesh Lamba, counsel for the petitioner has argued with vehemence that it is an admitted fact that Ms. Shashi Bala is legally wedded wife of respondent- Banwari Lal and out of their wedlock, three daughters were born. Though, it has been denied by respondent-husband that petitioner- Dev Dutt was born after his wife has left the matrimonial home or that his wife neither joined his company on the basis of compromise nor he cohabited with her as such. Yet one thing is evident that Banwari Lal did not make any effort to get either his son or himself subjected to any Deoxyribonucleic Acid test (for short, 'DNA'). Even otherwise, there is sufficient evidence available on file that a compromise has been arrived at in between the parties, in pursuance of which, Ms. Shashi Bala was rehabilitated in his matrimonial home by respondent-husband but thereafter, she again left his company and is now living separately. It is also amply proved on record that respondent-husband is a regular employee of DHBVNL and is earning handsome amount by way of salary whereas petitioner- Dev Dutt is studying in a government school and a sum of `1000/- is not sufficient for his livelihood, which deserves to be enhanced.
7. On the other hand, Mr. Ashok Kaushik, Advocate SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --5--
representing respondent-Banwari Lal has controverted the contention put forth by the learned counsel for petitioner-Dev Dutt.
8. While controverting the contention of learned counsel for petitioner-Dev Dutt, learned counsel for respondent-husband has argued with vehemence that awarding of maintenance allowance to Master Dev Dutt is based upon assumption and presumption and not on cogent or convincing evidence. Had there been any compromise in between the parties to the petition under Section 125 Cr.P.C. or any criminal case got registered by wife of respondent, under Sections 498-A/406 IPC, that would have been withdrawn by wife.
9. It has further been contended by learned counsel for respondent-husband that even daughters have become major and are married, maintenance allowance awarded to wife as well as to daughters is still being deducted in view of the order passed by the Metropolitan Magistrate, Delhi @ `800/- per month from the salary of respondent-husband. Moreover, Shashi Bala has also admitted the violation of the terms and conditions of the alleged compromise by her. While concluding the arguments, it has been submitted by leaned counsel for respondent-husband that impugned judgment is not sustainable in the eyes of law and deserves to be set aside, even, qua the minor son-Dev Dutt.
10. This Court has given an anxious thought to the submissions made by learned counsel for the parties and has perused the record.
11. Relationship in between Banwari Lal and Shashi Bala as husband and wife is an admitted one. Though, respondent-husband has raised some dispute with regard to his relationship with Master SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --6--
Dev Dutt but in view of the evidence as well as compromise (Ex.PW-3/A), it is evident that Ms. Shashi Bala resided with her husband-respondent during the period 1988-99. It is not the case of respondent-husband that his wife was living in adultery or that she has developed any illicit relationship with any person. No doubt, respondent-husband has opted to get himself subjected to DNA test but no such effort was made by him during the pendency of the petition under Section 125 Cr.P.C. before the District Judge, (Family Court), Faridabad. In such situation, presumption is that Master Dev Dutt is the son of Banwari Lal-respondent.
12. Now, coming to the grant or quantum of compensation, admittedly, Ms. Shashi Bala on her behalf as well as on behalf of three minor daughters preferred a petition under Section 125 Cr.P.C. before the Additional Chief Metropolitan Magistrate, New Delhi seeking maintenance allowance and that petition was allowed with the direction to pay maintenance allowance @ `800/- per month to the wife and three daughters vide order dated September 24, 1990. Prior to the disposal of the said petition, FIR No. 164, dated September 06, 1990, was also got registered by Ms. Shashi Bala against her husband under Section 498-A/ 406 IPC, in which, Banwari Lal was convicted and sentenced and subsequently in appeal, he as well as his co-accused were ordered to be released on probation. Thereafter, Master Dev Dutt was born and on his behalf, petition was moved before the Family Court, whereby he was awarded maintenance allowance @ 1000/- per month. It is also an admitted fact that Ms. Shashi Bala violated the terms and conditions SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh Criminal Revision No. 4197 of 2012 (O&M) --7--
of the compromise (Ex.PW-3/A) and left the company of respondent- husband. Maintenance allowance to her has rightly been declined by the ld. District Judge (Family Court), Faridabad. It is also evident from the records available that amount of maintenance awarded by the Additional Chief Metropolitan Magistrate, New Delhi, is being regularly deducted from the salary of respondent-husband. Even, though daughters have become major and their marriages had already been solemnized. In the given circumstances, this Court is of the considered view that what has been awarded by the District Judge (Family Court), Faridabad is legally and factually justified. Since, Dev Dutt is presumed to be the legitimate son of Banwari Lal, therefore, he is legally as well as morally amounts to pay him maintenance.
13. Taking into consideration all the aspects of this case as well as the contention put forth by the learned counsel for the parties, this Court is of the considered view that both the petitions are without any merit. Impugned judgment dated August 29, 2012, does not suffer from any infirmity or illegality. In such a situation, this Court is left with no option but to dismiss both petitions whereby the impugned judgment dated August 29, 2012, is upheld.
14. No order as to costs.
(JASPAL SINGH) JUDGE November 12, 2014 sonika SONIKA 2015.03.13 10:40 I attest to the accuracy and authenticity of this document Chandigarh