closure of his right to cross-examine the respondent. Counsel for the
petitioner says that the trial court has passed the impugned judgment
by violating the principle of natural justice, as his client was not
afforded a chance to rebut the facts and documents tendered by the
respondent. Therefore, the present case is not a case where the
opportunity was not granted. Rather it was granted but the same is
not availed b the petitioner.
24. It is evident that the Sub-section (2) of Section 28 was inserted
for such types of cases, i.e. where the non-applicant is ex parte or the
right to cross-examination of either party is closed despite of
opportunity is granted, the trial court under those circumstances shall
not be prevented from laying down its own procedure for disposal of
an application under Section 12 or Sub-section (2) of Section 23 of
the Act. Under those circumstances, if the trial court is able to find
prima-facie material by way of cogent and unimpeachable evidence,
the Court may lay down its own procedure by fixing the amount under
Section 28(2) of the Act which has been rightly applied in the present
case. After having gone through the findings arrived at by the trial
court as well as by the Appellate Court, as there is no infirmity in the
impugned judgment, in fact, the Appellate Court has passed the
impugned judgment after considering the cogent evidence available
on record, rather the appeal filed by the petitioner was partly allowed
by reducing the amount from Rs.2.5 lac to Rs.50,000/- per month on
the basis of material positively available. Further, it is admitted by the
counsel that when the right to cross-examination of respondent in
2012 was closed the said order was not challenged by the petitioner,
the same becomes final at the time of passing the final judgment. The
petitioner is even not ready to comply the direction issued by the trial
court which are issued in the impugned judgment but at the same
time the petitioner has challenged the findings of the judgment which
are legally correct and there is no legal infirmity. I do not find any
reason to interfere or to take a different view by exercising my
discretion under Section 482 Cr.P.C. in the present case. The
petition is accordingly dismissed.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment pronounced on: 6th April, 2015
Crl. M.C. No.850/2015 & Crl. M.A. No.3213/2015
PRASHANT OJHA
versus
SHALU OJHA
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
Citation:2016 ALLMR(CRI)JOURNAL273
1. The present petition has been filed by the petitioner under
Section 482 read with Section 483 Cr.P.C. seeking quashing of the
impugned judgment dated 13th February, 2015 passed by the
Additional Sessions Judge-04, North-West District, Rohini Courts,
Delhi, in C.A. No.75/2014, titled as Sh.Prashant Ojha vs. Ms.Shalu
Ojha, to the extent it awards maintenance to the tune of Rs.50,000/-
to the respondent.
2. By the impugned judgment dated 13th February, 2015, the
appeal filed by the petitioner under Section 29 of the Protection of
Women Domestic Violence Act, 2005 (hereinafter referred to as the
“Act”), was partly allowed and the maintenance fixed by the trial court
at Rs.2,50,000/- per month was reduced to Rs.50,000/- per month by
the petitioner to the respondent from the date of filing of the petition
under Section 12 of the Act as the Appellate Court felt that this
amount would be sufficient, reasonable and appropriate in view of
material placed on record and peculiar facts of the matter. The
petitioner was directed that in discharge of the arrears of
maintenance granted, after adjusting the sum of Rs.10 lac already
paid to the respondent, to pay a sum of Rs.4 lac to the respondent in
execution proceedings coming up on 24th February, 2015 before the
trial court and further to pay a sum of Rs.8 lac to her on 24th March,
2015 and equivalent sum on 24th April, 2015 and clear the arrears by
making balance payment on 24th May, 2015.
3. I have been informed by the learned counsel for the respondent
on 24th March, 2015 that with great difficulty, the petitioner has only
paid a sum of Rs.4 lac to the respondent. The remaining sum of Rs.8
lac was not paid as directed by the Appellate Court till the date of
hearing of present petition.
4. The Appellate Court has narrated the relevant facts and details
of the previous litigations while passing the impugned judgment in
paras 2 to 10 thereof. The same are reproduced as below :-
“2. The case as set out in appeal in brief, is that the
parties had married to each other on 20.04.2007 in Delhi.
They had stayed in hotel/Executive Farms for few days as
the rental accommodation of appellant at E419, Greater
Kailash, Part-II, New Delhi was occupied by his outstation
relatives. On return to the said home, apparently bickering
had started very soon between the parties. While the
respondent has leveled allegations of harassment, using
abusing language, non-cooperation, beatings and having
extra marital affairs against the appellant in her petition
leading to their separation within a period of four months,
the appellant has alleged her to be misbehaved, erratic and
wished to live lonely life besides exhibiting depressive
nature. The respondent even did not allow the marriage to
be consummated. A petition under Section 13 (1) of The
Hindu Marriage Act being HMA No. 637/07 was therefore,
filed by the appellant before the District Court, Tis Hazari,
Delhi which was dismissed on 03.10.2008 being
premature. Another petition for dissolution of marriage was
filed by the appellant in the District Courts, Patiala House
and that is pending. The appellant claims that the petition
under Section 12 of The Protection of Women from
Domestic Violence Act was filed by the respondent by way
of afterthought and as counter-blast to the divorce petition
filed by him. Alleging that the petition suffered from evil
intention and attitude of the respondent containing false
unsubstantiated facts. The impugned order was passed by
Trial Court without considering or recording any of the facts
and submissions made by the appellant in his reply. The
same is therefore perverse, unreasoned and liable to be
set-aside. The issuance of notice of the petition to the
appellant without considering Domestic Incidence Report
vitiated the entire proceedings and reflects non-application
of mind by the court in deciding the case. Neither the
factum of domestic violence by the appellant could be
established or proved nor same has been recorded in the
impugned order. No relief under Section 19, 20 or 22 of the
Protection of Women from Domestic Violence Act, 2005
therefore could have been granted to the respondent. The
observation of trial court that the appellant has tried to
show his income on a very lower side and since the
respondent has shown his income on very higher side, the
court is left with no option but to indulge in guess work, is
erroneous and beyond the four corners of law. Despite the
availability of income tax returns of the appellant for the
years 2007-10, reflecting his annual income to be in the
range of Rs. 2,10,000 - Rs. 2,55,000/-, assumption of his
income to be Rs. 7,50,000/- per month had no basis and is
hugely exorbitant. The direction to pay maintenance at the
rate of Rs. 2,50,000/- per month to the respondent thus is
unsustainable as there is no scope for guess work in
criminal proceedings. It is stated that the trial court has
committed gross error in recording the fact without
supporting evidence that the match of parties had been
initiated through Sychorian Matrimonial Services Ltd. or
that the profile of appellant was procured therefrom. There
was further no evidence to hold that the appellant was
never accommodating or had thrown respondent out of
matrimonial home on 14.08.2007. In fact, due to regular
disturbance, the appellant had shifted to his friend’s place
on that day as he was facing tremendous mental trauma.
The appellant never gave details for his profile to the
matrimonial services. He is earning just to survive with his
bare basis minimum need. His printing press has only three
machines where 10 laborers are employed. Its business
started running in losses and therefore the printing press
has become dysfunctional. Further there is no evidence to
the effect that appellant had taken the parents of
respondents to his printing press being run in a three
storey building at Okhla or to the lounge/bar namely Urban
Pind stated to be one of the fine multi-cuisine restaurants in
the town. The allegation of appellant being fond of drinking
or keeping his friend at home or of ill-temper have all been
controverted. There is no evidence to the effect that the
appellant was obsessed with his sister-in-law namely Ms.
Tarang Ojha or having humiliated the respondent because
her father did not sponsor their honeymoon trip to Europe.
The Trial Court was under a duty to record only the proved
facts and not the unsubstantiated version. She made no
efforts to find out the truth before passing the impugned
order.
3. In a detailed reply to the grounds of the appeal, the
respondent has asserted the facts pleaded in her petition
and controverted those of the appeal. The impugned order
has been supported by stating that the same has been
passed after appreciating the documents and evidence
available on record. Although, the Domestic Incidence
Report had been called by the Trial Court yet it is not a
condition precedent for issuing notice to the opposite party.
Analysis about the income of appellant from his various
ventures has been inferred/deduced by the respondent.
Since the appellant has purposely and with malafide
intention withheld his financial health from the trial court
despite availing several opportunities and the documents of
his investment of crores of rupees in his companies was
evident and he was enjoying luxuries of life, his claim of
being a poorly salaried person is a white lie with specific
aim to deny maintenance to the respondent. The printing
press of appellant has modern and latest machinery and
opulence/grandeur of his restaurant is to be seen to be
believed. The latter had become a chain of six
restaurants/lounge/bar within a span of four years till April,
2011 and his both the businesses were flourishing.
4. Since the admitted facts are not required to be
proved, the entry in the statement of Vijaya Bank, Defence
Colony, New Delhi pertaining to the appellant would reflect
that he had taken the membership of Sychorian
Matrimonial Bureau. Despite the bureau publishing his
matrimonial advertisements and his profile without his
consent, the appellant did not take any action against
them. It is alleged that the income tax returns filed by the
appellant are bogus, absurd and an eye-wash. He has
made investments worth crores in his companies about
which the said returns are silent. His chain of restaurants
have gained such a popularity and patronage that they are
featured almost daily on Page 3 of English dailies vis.
Times of India and Hindustan Times. It has been denied
that the Trial court has committed any error in passing the
impugned order or that sufficient material was not available
before it to pass the impugned order. On these averments
dismissal of appeal has been urged with exemplary costs
with added claim to enhance the amount of maintenance to
Rs. 3,00,000/- per month and compensation to Rs.
10,00,000/- taking into account status, stature and standing
of the appellant in the society.
5. It is necessary to narrate the sequence of
proceedings in the Trial Court. On completion of pleadings,
parties were asked to file their affidavits in evidence. On
the same being filed by both sides on 07.06.2010, the
appellant/husband was asked to file an affidavit disclosing
his education, employment, movable and immovable
assets, details of bank accounts and Income Tax Returns
for last three financial years and the matter was posted for
final arguments. The respondent/petitioner/wife thereafter
had formally tendered her affidavit on 18.04.2011. The
appellant/husband had sought to cross-examine her on
05.07.2011. An application in this behalf was filed by him
on 12.08.2011 which was allowed on 24.10.2011. When
however, the appellant did not avail three opportunities to
cross-examine the respondent, his right was closed on
22.02.2012. The respondent had declined to crossexamine
the present appellant on 27.03.2012 which was
reiterated on 19.04.2012 and evidence was closed by her.
Appellant had also closed his evidence by making
statement through his counsel on 19.04.2012 itself.
6. In appeal, the matter was referred for mediation for
06.10.2012 but the parties could not settled their case. An
application was filed by the respondent for directing
appellant to pay arrears to pay maintenance etc. on
23.11.2012. The matter was listed for arguments on
application as well as on appeal. It was challenged by the
respondent by filing Crl. M.C. No. 4136/2012 in the Hon’ble
High Court which was disposed off on 07.12.2012 by
observing that the Sessions Court would notice that the
respondent has not been paid maintenance since her
separation i.e. 14.08.2007. The application of respondent
was allowed on 10.01.2013 directing the appellant to
deposit entire arrears within two months in the shape of
two FDRs and the appeal would be heard thereafter. It was
challenged by the appellant by filing Crl. M.C. No.
1026/2013 in the Hon’ble High Court of Delhi. Since the
appeal itself was dismissed on 07.05.2013, for nonpayment/compliance
of order dated 10.01.2013, the
challenge to latter order was held infructuous by Hon'ble
High Court on 21.08.2013.
7. The appellant filed Crl. M.C. No. 1975/2013 in the
Hon’ble High Court against the order dated 07.05.2013 of
dismissal of the appeal. SLP (Crl.) No. 6509-6510/2013
was filed out of the proceedings of Hon’ble High Court but
it was dismissed-in-limine on 13.08.2013 and the parties
were directed to opt for mediation. The case was referred
to High Court Mediation & Conciliation Centre during
pendency of said case but the parties could not settle their
dispute.
8. SLP (Crl.) No. 2210/2014 was filed by the
respondent in Hon’ble the Supreme Court of India against
non-passing of payment orders by the High Court. It was
disposed off on 31.03.2014 and interim stay granted by
Hon’ble High Court against execution of maintenance order
was set-aside.
9. CM No. 18869/13 of the respondent for payment of
current maintenance was dismissed by the Hon’ble High
Court as ‘not pressed’ on 27.05.2010. The respondent
preferred CA No. 2070/2014 arising out of Special Leave
Petition (Crl.) No. 6220/2014 aggrieved by the said order.
The order dated 27.05.2010 was set-aside and appeal
before the Sessions Court was restored vide judgment
dated 18.09.2014 rendering the Crl. M.C. No. 1975/2013
infructuous. The appellant therefore withdrew the same
from Hon’ble High Court on 31.10.2014. The executing
court was directed to complete the process of execution
within eight weeks and report compliance to the High
Court. The Sessions Court was directed to commence
hearing on appeal on its restoration only after the execution Crl. M.C. No.850/2015 Page 8 of 25
of order of maintenance is passed by the Magistrate. Vide
Crl. M.P. No. 25026/2014, the respondent sought some
clarification as the appellant had been detained in civil
prison by the executing court for non-compliance of order
of maintenance. Vide order dated 18.12.2014, this court
was directed to hear the appeal on merits and pass
appropriate orders.
10. Vide further order dated 12.01.2015, Hon’ble the
Apex Court permitted the respondent to place on record
additional documents within one week which she filed on
19.01.2015. Vide Crl.M.P. No. 1577/2015, the appellant
had sought transfer of the case to the place where learned
predecessor of this court, who had substantially heard the
parties on appeal, has been transferred. It was however
dismissed.”
5. It appears that in view of the order passed by the Supreme
Court on 12th January, 2015, the respondent was directed to file the
additional documents which were filed on 19th January, 2015. The
appeal was heard by the Appellate Court between 20th January, 2015
and 23rd January, 2015. The impugneds judgment was passed on
13th February, 2015 which has now been challenged by the petitioner
before this Court.
6. Mr. Prashant Mendiratta, learned Counsel appearing on behalf
of the petitioner, has mainly argued on legal issue raised by him. His
submission is that the final impugned judgment was passed by the
trial court on the basis of the allegations made in the application filed
by the respondent under Section 12 of the Act, her affidavit,
documents and oral arguments. In absence of an opportunity for the
purpose of cross-examination of the deponent/respondent, the said Crl. M.C. No.850/2015 Page 9 of 25
judgment nullify and is bad in law. In support, he has referred Section
28 of the Act and Rule 6(5) of the Protection of Women from
Domestic Violence Rules, 2006 (hereinafter referred to as the
"Rules") and has submitted that the procedure for disposal of an
application under Section 125 Cr.P.C. ought to have not been
followed by trial court.
7. He argues that no doubt, as per sub-section (2) of Section 28 of
the Act the trial court is at liberty for laying down its own procedure
for disposal of such application, but the said provision does not
exclude the procedure as laid down in Sub-section (1) of Section 28
of the Act and Sub-rule (5) of Rule 6 of the Rules, which provides
same procedure as is applicable to applications under Section 125
Cr.P.C. Even as per the scheme of Section 125 Cr.P.C., the
application cannot be disposed of without providing opportunity of
leading evidence.
8. In support of this proposition he has relied upon the decision of
Allahabad High Court in Het Ram vs. Smt. Ram Kunwari, 1975
CriLJ 656, Karnataka High Court in Sankarasetty Pompanna vs.
State of Karnataka and Anr., 1977 CriLJ 2072, and Gujarat High
Court in Pendiyala Sureshkumar Ramarao vs. Sompally
Arunbindu and Anr., 2005 CriLJ 1455. In nutshell, it is also argued
by him that irrespective of the fact that the petitioner’s right to crossexamination
of the complainant was closed due to non appearance,
but still before passing the final judgment by the trial Court, the
petitioner should have been granted one opportunity to cross Crl. M.C. No.850/2015 Page 10 of 25
examine the respondent in order to know the truth. Counsel argues
that had an opportunity been granted to his client, he would have
demolished the case of the respondent in cross-examination as there
is no material on record in order to show the actual income of his
movable and immovable assets.
9. Therefore both courts have incorrectly passed the judgments
without examining the true facts. In support of his submissions, he
has referred few decisions and submits that the impugned order has
been passed contrary to the provisions of the Act.
10. It is true that as per settled law, fairness of the trial generally
speaking is a virtue that is sacrosanct in our judicial system and no
price is too heavy to protect that virtue. The object underlying is that
there may not be failure of justice on account of non-appearance or
failure to avail the opportunity at the appropriate stage by either party
for the purpose of cross-examination of witness(s), but determining
factor at this stage is whether the petitioner is entitled for such benefit
once his right was closed in 2012 and the said order was not
challenged by the petitioner and when the judgment is passed, now
after the expiry of long period, the objection is raised. Apart from the
legal issue, it is also to be examined as to whether the petitioner is
entitled to any relief claimed in the present matter.
11. With regard to legal issue raised by him, as per Rule 6(5) of the
Rules, the procedure prescribed for final disposal of an application
under Section 125 Cr.P.C., is to be applied for disposing of an
application under Section 12 of the Act. On plain reading of Section Crl. M.C. No.850/2015 Page 11 of 25
125 Cr.P.C., the provision for maintenance of wives, children and
parents is made, but procedure for disposal of such application has
been given in Section 126 Cr.P.C.
12. The relevant provisions have been reproduced herein below:
i) Section 18 of the Act.
Protection Orders.- The Magistrate may, after giving
the aggrieved person and the respondent an
opportunity of being heard and on being prima facie
satisfied that domestic violence has taken place or is
likely to take place, pass a protection order in favour of
the aggrieved person and prohibit the respondent
from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of
domestic violence;
(c) entering the place of employment of the aggrieved
person or, if the person aggrieved is a child, its school
or any other place frequented by the aggrieved
person;
(d) attempting to communicate in any form,
whatsoever, with the aggrieved person, including
personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or
bank accounts used or held or enjoyed by both the
parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her
stridhan or any other property held either jointly by the
parties or separately by them without the leave of the
Magistrate;
(f) causing violence to the dependants, other relatives
or any person who give the aggrieved person
assistance from domestic violence;Crl. M.C. No.850/2015 Page 12 of 25
(g) committing any other act as specified in the
protection order.
ii) Section 28 of the Act.
Procedure.- (1) Save as otherwise provided in this Act,
all proceedings under Sections12, 18, 19, 20, 21, 22
and 23 and offences under Section 31 shall be
governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in Sub-section (1) shall prevent the court
from laying down its own procedure for disposal of an
application under Section 12 or under Sub-section (2)
of Section 23.
iii) Rule 6 of the Rules.
Applications to the Magistrate. - (1) Every application
of the aggrieved person under Section 12 shall be in
Form II or as nearly as possible thereto.
XXXXXXXXX
(4) The affidavit to be filed under Sub-section (2) of
Section 23 shall be filed in Form III.
(5) The applications under Section 12 shall be dealt
with and the orders enforced in the same manner laid
down under Section 125 of the Code of Criminal
Procedure. 1973 (2 of 1974).
iv) Section 126 Cr.P.C.
Procedure.-(1) Proceedings under Section 125 may be
taken against any person in any district—
(a) where he is, or
(b) where he or his wife resides, orCrl. M.C. No.850/2015 Page 13 of 25
(c) where he last resided with his wife, or as the case
may be, with the mother of the illegitimate child.
(2) All evidence to such proceedings shall be taken in
the presence of the person against whom an order for
payment of maintenance is proposed to be made, or,
when his personal attendance is dispensed with in the
presence of his pleader, and shall be recorded in the
manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the
person against whom an order for payment of
maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend the
Court, the Magistrate may proceed to hear and
determine the case ex parte and any order so made
may be set aside for good cause shown on an
application made within three months from the date
thereof subject to such terms including terms as to
payment of costs to the opposite party as the
Magistrate may think just and proper.
(3) The Court in dealing with applications under
Section 125 shall have power to make such order as
to costs as may be just.
13. Section 12 of the Act reads as under:
“12. Application to Magistrate.-
(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration
any domestic incident report received by him from the
Protection Officer or the service provider.Crl. M.C. No.850/2015 Page 14 of 25
(2) The relief sought for under Sub-section (1) may
include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid
or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if
any, left after such set off.
(3) Every application under Sub-section (1) shall be in
such form and contain such particulars as may be
prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every
application made under Sub-section (1) within a period of
sixty days from the date of its first hearing.”
14. In case all relevant provisions of the Act are read conjointly, it is
evident that nowhere in the Act any direction with regard to receiving
or recording of evidence of the parties has specifically been
mentioned. Sub-section (1) of Section 28 of the Act mandates that all
the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the
Act shall be governed by the provisions of Code of Criminal Crl. M.C. No.850/2015 Page 15 of 25
Procedure, 1973, thus, the procedure as laid down in Cr.P.C. has to
be followed.
15. The procedure for enquiry as prescribed by the Code of
Criminal Procedure, 1973 is to be followed and even for grant of
interim relief under Section 23(1) of the Act, the procedure prescribed
by the Code of Criminal Procedure has to be followed. The exception
of Section 28 of the Act reads thus as under:
“Nothing in Sub-section (1) shall prevent the court from
laying down its own procedure for disposal of an
application under Section 12 or under Sub-section (2) of
Section 23.”
16. The exception is that despite the mandate of Sub-section (1) of
Section 28 of the Act that all proceedings under the provisions
referred to above including Section 23(1) of the Act shall be governed
by the provisions of the Code of Criminal Procedure, the proceeding
under Sub-section (2) of Section 23 of the Act need not be so. For
disposal of an application by an ex-parte order under Sub-section (2)
of Section 23 of the Act, the provision envisages that Sub-section (1)
of Section 28 of the Act shall not prevent the Court from laying down
its own procedure for disposal of such application. In other words,
though the procedure prescribed by Code of Criminal Procedure is
made applicable for enquiry in a proceeding under Section 23 of the
Act and the other provisions of the Act, proceedings referred to under
Sub-section (2) of Section 23 of the Act for granting ex-parte interim
relief is excepted which is pertaining to only to grant ex-parte orders
where the Magistrate is satisfied that an application prima facie Crl. M.C. No.850/2015 Page 16 of 25
discloses that the respondent is committing, or has committed an act
of domestic violence or that there is likelihood that the respondent
may commit an act of domestic violence, he may grant an ex-parte
order on the basis of the affidavit.
17. The proceeding under Sub-section (1) of Section 23 of the Act
which allows to pass interim order has to be governed by the
provisions of Code of Criminal Procedure by virtue of Section 28(1) of
the Act. But when the magistrate declines to grant ex parte relief and
he has to be heard and in such cases, Section 28(1) of the Act
applies and the procedure prescribed by the Code of Criminal
Procedure becomes applicable.
18. It is correct that in Cr.P.C. for various type of cases different
procedures have been mentioned e.g. in; (1) Chapter VIII, which
deals with security for keeping the peace and for good behaviour, (2)
Chapter IX, which deals with order for maintenance of wives, children
and parents, (3) Chapter X, which deals with maintenance of public
order and tranquillity, and (4) Chapter XVIII to Chapter XXIX, which
provide different procedures for trial of different offences. But, the
Legislature has inserted Section 37 of the Act vesting powers with the
Central Government to make Rules for carrying out different
provisions of the Act. Sub-section (2) of Section 37 indicates that the
Rule making power of the Central Government is very wide, in which
it is provided that in particular and without prejudice to the generality
of the foregoing powers, such Rules may provide for all or any of the
following matters, namely, (a) to (m).Crl. M.C. No.850/2015 Page 17 of 25
19. Under Section 37 of the Act, the Rules are framed which have
been published in the Gazette of India. Extra, Part II, Section 3(i),
dated 17th October, 2006, vide G.S.R No. 644(E), dated 17th October,
2006. The Rules framed by the Central Government are having
statutory force and shall require to be given effect to. Although vide
Sub-section (3) of Section 37 of the Act the parliament can amend or
disagree with the Rules, yet unless such amendment or
disagreement comes in existence, the operation of these Rules will
remain in force and have to be effective. In order to give more clarity
in Section 28(1) of the Act, the Legislature has given a mandate to
follow the procedure as laid down in Cr.P.C., but the same has not
been clarified as to what procedure will be adopted in dealing with the
application under Section 12 of the Act, the Rule 6(5) has been
framed. After inserting Rule 6(5) of the Rules and the said confusion
has been clarified in further mandatory words by mentioning, that the
application under Section 12 shall be dealt with and order enforced in
the same manner as laid down under Section 125 Cr.P.C.
20. It is, thus, evident that withpout providing opportunity of leading
evidence such application cannot be finally disposed of unless the
other side is ex-parte or not contesting the matter. The procedure
required to be adopted to deal with an application under Section 12 of
the Act to comply with the direction under Section 28(1) of the Act
read with Rule 6(5) of the Rules. The Magistrate is required to comply
with the provisions of this sub-rule read with Section 28(1) of the Act Crl. M.C. No.850/2015 Page 18 of 25
and was required to follow the procedure as laid down in the Code of
Criminal Procedure for the application under Section 125 Cr.P.C.
21. Sub-section (2) of Section 28 stipulates that nothing in Subsection
(1) shall prevent the Court from laying down its own
procedure for disposal of an application under Section 12 of the Act.
But from the conjoint reading of Sub-sections (1) and (2) of Section
28 of the Act and Rule 6(5) of the Rules, it is evident that ambiguity
with regard to the provision of Section 28(1) of the Act has now been
clarified by the Central Government under its powers given by
Section 37 of the Act by insertion of Rule 6(5) of the Rules.
22. Therefore, it is held that in all the applications filed by the
petitioner under Section 12 of the Act, before passing the final
judgment the evidence of the parties is mandatory and an opportunity
for the purpose of cross-examination of the witnesses is to be
granted to both the parties, except in the case where the respondent
is ex parte. The procedure prescribed by Code of Criminal Procedure
as referred to in Sub-section (1) of Section 28 of the Act becomes
applicable. In case non-applicant is ex-parte or despite of
opportunity, he lost his right to cross-examine the applicant, under
these circumstances, Sub-section (2) of Section 28 of the Act would
be attracted. If it is an ex parte order, then the procedure prescribed
by Sub-section (2) of Section 23 of the Act would be applicable.
22. In the present case, no doubt after filing the affidavits in the
present case, the trial court fixed up the matter for arguments on
several dates. When it was pointed out before the Court about the Crl. M.C. No.850/2015 Page 19 of 25
evidence, the opportunity to cross-examine the respondent was
sought for the first time on 5th July, 2011 which was allowed on 24th
October, 2011. However, the petitioner did not cross-examine the
respondent on 13th December, 2011 and 22nd February, 2012. Thus,
the learned trial court closed the right of the petitioner to crossexamine
the respondent. In view of the above, the respondent also
closed her right to cross examine the petitioner. The statements in
this regard were recorded on 19th April, 2012.
23. The petitioner did not challenge the order in any Court for
closure of his right to cross-examine the respondent. Counsel for the
petitioner says that the trial court has passed the impugned judgment
by violating the principle of natural justice, as his client was not
afforded a chance to rebut the facts and documents tendered by the
respondent. Therefore, the present case is not a case where the
opportunity was not granted. Rather it was granted but the same is
not availed b the petitioner.
24. It is evident that the Sub-section (2) of Section 28 was inserted
for such types of cases, i.e. where the non-applicant is ex parte or the
right to cross-examination of either party is closed despite of
opportunity is granted, the trial court under those circumstances shall
not be prevented from laying down its own procedure for disposal of
an application under Section 12 or Sub-section (2) of Section 23 of
the Act. Under those circumstances, if the trial court is able to find
prima-facie material by way of cogent and unimpeachable evidence,
the Court may lay down its own procedure by fixing the amount under
Section 28(2) of the Act which has been rightly applied in the present
case.
25. In the present case, the trial court at the initial stage fixed the
amount of Rs.2,50,000/- which has been reduced by the Appellate
Court to Rs.50,000/- by passing the impugned judgment. While
reading the impugned judgment, it appears to the Court that the
Appellate Court has given the reasons after examining the cogent
evidence placed by the respondent and on the basis of the said
evidence, the amount of Rs.50,000/- was fixed. Had there been no
evidence or the evidence produced by the respondent, then the
situation would have been different. But, in the present case, the
Appellate Court rather after examining the clear evidence has
reduced the amount from Rs.2,50,000/- to Rs.50,000/-.
26. The said findings of the Appellate Court are given in paras 18 to
27 which reads as under:-
“18. It has therefore, been stated by Sh. Menhdiratta,
Advocate that since this appeal was restored vide the
referred order dated 18.09.2014 of Hon’ble Apex Court,
reference to an article in business magazines therein
cannot be termed to be final pronouncement of the court
but just a prelude to get the appeal decided on its merits by
the competent court. Sh. Singh although resisted by saying
that acclaimed business magazines publish articles akin to
those relied upon by him after thorough research and
verification of facts from concerned stake holders and as
such are close to truth yet did not contradict the legal
proposition. The extensive reference to the newspapers/
business articles, hard copies of information available on
the internet therefore is not being taken cognizance of by
this court.
19. Turning to the crucial issue of financial status of the
appellant based on Sychorian factor, it has vehemently
been contended on behalf of the respondent that the profile
containing the monthly/annual income of the appellant was
provided by Sychorian Matrimonial Services to her. The
said service provider could not have prepared it on its own
and rather the same must have been vetted by the
appellant. The non-initiation of any proceedings against the
Service Provider also indicates that the plea of appellant of
his profile containing facts which he had not disclosed to
them, holds no water. Learned Counsel for the appellant on
the other hand claimed that his so called profile has been
manipulated by the respondent otherwise she would have
examined a witness from the matrimonial services for
proving it as per law. It is contended that the multiple
litigations on many fronts initiated by the respondent left no
scope and resources with the appellant to open up legal
action against Sychorian.
20. The profile of the appellant purportedly collected
from the Sychorian, forming the backbone of impugned
order, by the respondent is neither authenticated nor
signed on behalf of the service provider. The information
contained therein cannot be ex-facie read against the
appellant without substantiation as the respondent herself
does not claim to be privy thereto. Non-initiation of any
action against Sychorian by the appellant would not
automatically tantamount to acceptance of the contents of
profile in the background of his incessant denial thereof
since beginning.
21. Ld. Counsel for the appellant has resented that the
Trial court resorted to guesswork despite the availability of
documents which the appellant had filed with his affidavit
pursuant to order dated 07.06.2010. Sh. Singh, Advocate
on the other hand contended that the appellant did not
clear his heart by disclosing his actual and true income to
the trial court and that compelled it to dispose off the
application of respondent by applying guesswork. It is also
asserted that estimation of income of the husband in such
facts is not unknown to the law pertaining to grant of
maintenance. Since appellant himself was found wanting in
sharing crucial details out of his personal knowledge and
custody, the impugned order cannot be blamed.
22. I would observe that the parties had propelled the
trial court to resort the guesswork by their lackadaisical
attitude towards the trial of their rival pleadings. It is
another matter that such guesswork by the court seems to
have gone haywire. True that the trial court had initially
proceeded tangentially in adopting the procedure yet on
correcting its path, the parties chose not to adduce specific
evidence to enable it to justly assess the earning of
appellant. The appellant on his part has shirked from
disclosing his true income/earning from various sources
from threshold. His reply/affidavit reflects as if he were
under a sort of cross-examination. It manifestly lead
respondent to frantically gather whatever documents she
could lay her hands on pertaining to the appellant and the
companies/firm with which he was associated, to cull out
his income. During the course of arguments, the intended
information had to be dug out of plethora of documents. In
the melee, the distinction between financial health of a
juristic person and/or a partnership firm and that of an
individual, the appellant in this case, who is one of its
operators has been marred. It has to be appreciated that
the financial well being of a juristic or fictitious person
cannot be an appropriate parameter to correspond it to the
individuals operating it. There is no material to construe the
paid up capital of the appellant in the various concerns and
the share of profits disbursed to him over the years.Crl. M.C. No.850/2015 Page 23 of 25
23. The Income Tax returns heavily relied upon by the
appellant to contend that in the presence of documentary
evidence, the trial court should not have turned to guessing
his monthly incomes, suffer from lacuna firstly because
they are unilateral documents which are not shown to have
been verified by the concerned Government department
and secondly it is not expected that an individual paying
monthly rent of Rs. 23,000/- is earning a measly sum in the
range of Rs. 20,000/- per month.
25. Besides paying aforesaid rental, the appellant had
been paying monthly installments of Rs.23,609/-,
Rs.22,837/- and Rs.8,359/- which are categorically
reflected in his account maintained with Vijaya Bank,
Defence Colony, New Delhi. The appellant has utterly
failed to explain as to how he had been managing all these
regular expenses out of the income disclosed to the
Income Tax department. The amounts credited in his one
of these bank accounts from 2008 onwards has not been
satisfactorily explained by the appellant. Besides managing
all these recurring expenditures, the appellant had been
maintaining servants at home, car with driver and liberal
household expenditure. Although, the appellant claims to
have left the partnership of restaurant Urban Pint yet the
intellectual property rights case filed by M/s. Sun F & B
Hospitality against 21st Hospitality Pvt. Ltd. has his affidavit
of 2013 wherein he has proclaimed to be its partner.
Anyone having a regular source of income of less than
Rs.1,40,000/- – 1,50,000/- per month will not be able to
manage all these expenditures leaving aside the
expenditures on parties, hotels, liquor etc. Due to the
handicap of the appellant having hesitantly produced paltry
documents of his income / earning, this court again will
take recourse to the exercise of estimation albeit close to
admitted /acceptable documents, to the above extent. On
conservative note therefore I would deem his monthly
income to be not lesser than Rs. 1,40,000/- to Rs.
1,50,000/- p.m.Crl. M.C. No.850/2015 Page 24 of 25
26. It has lastly been contended that by Shri
Mehndiratta that respondent is an able bodied and
educated young lady capable of earning. She has not
disclosed the efforts made for securing employment. Her
earning potential however, cannot be diminished. She may
not need any maintenance from the appellant if these
factors are taken into consideration. Reliance in this behalf
has been placed upon Sanjay Bhardwaj V. State,
2010(118) DRJ 358 where it was held that Section 20 of
the Act only enables the Magistrate to pass the order as
per the rights available under the existing law and does not
create any additional right in favour of the wife. A husband
cannot be set to beg, borrow or steal for paying
maintenance to the wife. Further, in Bhushan Kumar Meen
V. Mansi Meen, (2010)15 SCC 372, it was observed that
having regard to the qualifications of wife, there is no
reason as to why she ought not to be in a position to
maintain herself. The amount of interim maintenance
granted by the Trial Court was reduced therefore. Shri
Singh, countered the submissions by stating that such
averment is missing from the pleadings and that the
appellant very well knows it a matter of fact that respondent
has not been earning. He cannot shirk from his liability on
flimsy ground.
27. There is no document to discern the educational /
professional qualifications of the respondent to estimate
her earning potential. Since it had not been made one of
the grounds to reduce / deny the maintenance to the
respondent/wife so steadfastly before Ld. Trial Court, the
maintenance cannot be declined to her as she had no
opportunity to lead whatever evidence on the point.”
27. After having gone through the findings arrived at by the trial
court as well as by the Appellate Court, as there is no infirmity in the
impugned judgment, in fact, the Appellate Court has passed the
impugned judgment after considering the cogent evidence available
on record, rather the appeal filed by the petitioner was partly allowed
by reducing the amount from Rs.2.5 lac to Rs.50,000/- per month on
the basis of material positively available. Further, it is admitted by the
counsel that when the right to cross-examination of respondent in
2012 was closed the said order was not challenged by the petitioner,
the same becomes final at the time of passing the final judgment. The
petitioner is even not ready to comply the direction issued by the trial
court which are issued in the impugned judgment but at the same
time the petitioner has challenged the findings of the judgment which
are legally correct and there is no legal infirmity. I do not find any
reason to interfere or to take a different view by exercising my
discretion under Section 482 Cr.P.C. in the present case. The
petition is accordingly dismissed.
28. No order as to costs.
(MANMOHAN SINGH)
JUDGE
APRIL 06, 2015
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