Yashoda v. Kalka Prasad Singh

1. Proceedings under Section 125 Cr.P.C. were instituted by Yashoda to claim maintenance from KalkaPrasad Singh, her husband, on 02.01.2007. Kalka Prasad Singh contested the said petition. Vide order dated 10.02.2012 the learned Metropolitan Magistrate/Mahila Court (E), Karkardooma Courts awarded interim maintenance @ ^13,000/- p.m. to Crl.M.C.Nos.149/2013 &851/2013 PoQe lof[4] 2013:DHC:7308 V J Yashoda from the date of filing of the petition till further orders. Kalka Prasad Singh went in revision. Vide order dated 03.10.2012 the learned Additional Sessions Judge modified the order and directed Kalka Prasad Singh to pay ^6,000/- P.M. as interim maintenance with effect from the date of filing of the petition till the final disposal. Both Yashoda and Kalka Prasad Singh are aggrieved of the said order and have challenged its correctness by filing petitions under Section 482 Cr.P.C.

2. I have heard the learned counsel for the parties and have examined the record. Relationship of husband and wife between the parties is not under challenge. It is not in dispute that both the parties are living separate since 1999. Yashoda did not file petition under Section 125 Cr.P.C. to claim maintenance for about eight years and did not offer plausible explanation for not claiming maintenance from Kalka Prasad Singh for so long. In her petition under Section 125 Cr.P.C. she averred that despite written agreements dated 22.08.2000 and 16.07.2002 Kalka Prasad Singh did not bother to maintain her. Apparently, Yashoda did not challenge the execution and genuineness of the agreement dated 16.07.2002. She lodged complaint dated 20.09.2005 to Chairman, Women Commission, Delhi in which there was reference of agreement dated 16.07.2002 by which she started living separate and was allowed to Crl.M.C.Nos.149/2013 &851/2013 Page 2 of[4] V retain the properties in her possession. There is no substance in the counsel's plea that no such agreement was executed between the parties. Vide mutual agreement dated 16.07.2002 both Yashoda and Kalka Prasad Singh had agreed to live separate on the terms and conditions mentioned therein. Yashoda was to remain alone in the property bearing No.46/2 Kishan Kunj Extention, Laxmi Nagar, Delhi. She was also to retain possession ofplot at Vandana Enclave, Khoda Colony, U.P. The said agreement has been acted upon and Yashoda is living at 46/2, Kishan Kunj Extention, Laxmi Nagar, Delhi. She also earned some income by letting out the house on rent as admitted in para 8ofthe petition. Plot at Khoda Enclave was also inher possession and it is stated that it was sold by her for 25 lacs. Yashoda has not controverted this fact. In the complaint dated 20.09.2005 she assessed valuation ofthe house in her possession as ^60 lacs.

3. Yashoda has notpresented true facts and has given divergent versions about the properties given toher inthe said agreement. At some places she claims that these were purchased by her out ofher own income. At other places, she has pleaded that these were given to her by her brother. These assertions are contrary to the specific and express terms and conditions of the mutual agreement dated 16.07.2002 executed in the Crl.M.C.Nos.149/2013 &851/2013 Page 3 of[4] V presence of her brother. Since the parties are living separate by mutual consent, under Section 125 (4) IPG, primafacie, Yashoda is not entitled to get maintenance under Section 125 Cr.P.C. Her interest was protected after she was given two properties in lieu of maintenance etc. Silence of Yashoda for eight years not to claim any maintenance lends credence to KalkaPrasad Singh's versionregarding validityofthe agreement.

4. In the light of the above discussion, the impugned order whereby Kalka Prasad Singh was directed to pay ^6,000/- p.m. as interim maintenance cannot be sustained and is set aside. It is, however, made clear that observations in the order would not have any impact upon the merits of the case and the Trial Court shall not be influenced by it while deciding the petition under Section 125 Cr.P.C. on merits after getting evidence ofthe parties.

5. In the interest of justice, Yashoda is permitted to retain amount (if any) paid to her as maintenance in compliance of the orders of the Trial Court and Kalka Prasad Singh shall not insist for its return.

6. Crl.M.C.No.851/2013 is allowed and Crl.M.C. No.149/2013 is dismissed. iCp.garg,j SEPTEMBER 05,2013/sa Crl.M.C.Nos.149/2013 &851/2013 Page 4 of[4]