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Crl.M.C.No.269/2013 Page 1 HIGH COURT OF DELHI
CRL.M.C. 269/2013 & Crl.M.A.No.913/2013
GYAN CHAND ..... Petitioner
Through: Mr. Islam Khan, Advocate
CRL.M.C. 269/2013 & Crl.M.A.No.913/2013
GYAN CHAND ..... Petitioner
Through: Mr. Islam Khan, Advocate
VERSUS
BIRWATI & ANR. ..... Respondents
Through: Respondent No.1-in-person
Through: Respondent No.1-in-person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 21.08.2013
In proceedings under Section 125 of Cr.P.C., respondents have been granted maintenance of `4,000/- p.m. each which was challenged by petitioner by preferring a revision petition. Impugned order of 28th September, 2012 which upholds trial court’s order is under challenge in this petition.
Petitioner’s counsel had vehemently urged that first respondent is not his wife and second respondent is not his child and maintenance is awarded from the date of filing of petition i.e. September 2002 which petitioner is not required to pay. Attention of this Court was drawn to copy of salary certificate of petitioner of the year 2002 as well as of January, 2013 to show that in the year 2002, petitioner was earning about `10,000/- p.m. only and now he is earning `23,943/- p.m.. First respondent refuted the aforesaid stand taken on behalf of petitioner and submitted that petitioner had filed a
2013:DHC:4114 Crl.M.C.No.269/2013 Page 2 petition under Section 9 of Hindu Marriage Act, which negates petitioner’s plea of first respondent being not his wife.
Upon hearing, and on perusal of the impugned order, trial court’s order and material on record, I find that if petitioner is right then in normal course he should have sought DNA test but no such effort has been made by him.
Regarding petitioner filing petition under Section 9 of Hindu Marriage Act, what has been said by the revisional court in the impugned order is as under:-
“Learned Counsel for the revisionist/husband submits that signatures on petition u/s 9 of Hindu Marriage Act are not similar to the affidavit annexure-A. Ld MM ought not to have passed an order without opinion of the expert.
Perusal of Trial Court record by this Court reveals that alongside order sheet dated 31.10.2002, revisionist/husband’s signatures are available on record which, even to a naked eye appear exactly similar to the signature on the petition u/s 9 of Hindu Marriage Act, filed by revisionist/husband on 25.10.2002. This Court finds no merits in the contention of Learned Counsel for revisionist/husband. Thus, it is clear that petition u/s 9 of
Hindu Marriage Act was filed by revisionist stating therein that respondent No.1 was his wife and case put forth by revisionist is not convincing.”
On the quantum of maintenance amount revisional court in impugned order has noted as under:-
“Lastly, Learned Counsel for revisionist/husband submits that respondent No.1/wife has a lot of agricultural property in her name. This fact was disputed by learned counsel for respondents, who submits that she has only
1/3rd share therein as Sh. Bal Kishan her first husband
Crl.M.C.No.269/2013 Page 3 was having 1/3rd share. Nothing has been placed on record to show that she is deriving any income from there.
Respondent No.1/wife submits that there is a stay order of the Court at Faridabad where she is a party. Nothing is placed on record by revisionist to show that respondent
No.1 is deriving any income from that land. On asking, respondent No.1 submits that she is earning about
Rs.10,000/- per annum from that land. That income is too meagre to affect the impugned order. As regards his present monthly salary, revisionist stated that it was about
Rs.25,358/- whereas, respondent No.1/wife stated it was
Rs.38,318/-. Parties were asked to file affidavit.
Respondent No.1/wife filed an affidavit in this regard whereas, revisionist did not file any affidavit to dispute this fact. Perusal of record shows that revisionist has not come to the Court with clean hands. He has not only taken shifting stands but also has attempted to mislead the
Court and story put forth by revisionist is untrustworthy.”
Upon perusal of the deposition of petitioner as well as of first- respondent, I find that the deposition of first respondent remains unchallenged. Apart from it, copy of the salary certificate of the year 2002 now placed on record cannot be taken into consideration as it is being relied for the first time now and was not a subject matter of discussion before the trial court or the revisional court.
Thus, finding no palpable error in the impugned order, this petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 21, 2013 vn
In proceedings under Section 125 of Cr.P.C., respondents have been granted maintenance of `4,000/- p.m. each which was challenged by petitioner by preferring a revision petition. Impugned order of 28th September, 2012 which upholds trial court’s order is under challenge in this petition.
Petitioner’s counsel had vehemently urged that first respondent is not his wife and second respondent is not his child and maintenance is awarded from the date of filing of petition i.e. September 2002 which petitioner is not required to pay. Attention of this Court was drawn to copy of salary certificate of petitioner of the year 2002 as well as of January, 2013 to show that in the year 2002, petitioner was earning about `10,000/- p.m. only and now he is earning `23,943/- p.m.. First respondent refuted the aforesaid stand taken on behalf of petitioner and submitted that petitioner had filed a
2013:DHC:4114 Crl.M.C.No.269/2013 Page 2 petition under Section 9 of Hindu Marriage Act, which negates petitioner’s plea of first respondent being not his wife.
Upon hearing, and on perusal of the impugned order, trial court’s order and material on record, I find that if petitioner is right then in normal course he should have sought DNA test but no such effort has been made by him.
Regarding petitioner filing petition under Section 9 of Hindu Marriage Act, what has been said by the revisional court in the impugned order is as under:-
“Learned Counsel for the revisionist/husband submits that signatures on petition u/s 9 of Hindu Marriage Act are not similar to the affidavit annexure-A. Ld MM ought not to have passed an order without opinion of the expert.
Perusal of Trial Court record by this Court reveals that alongside order sheet dated 31.10.2002, revisionist/husband’s signatures are available on record which, even to a naked eye appear exactly similar to the signature on the petition u/s 9 of Hindu Marriage Act, filed by revisionist/husband on 25.10.2002. This Court finds no merits in the contention of Learned Counsel for revisionist/husband. Thus, it is clear that petition u/s 9 of
Hindu Marriage Act was filed by revisionist stating therein that respondent No.1 was his wife and case put forth by revisionist is not convincing.”
On the quantum of maintenance amount revisional court in impugned order has noted as under:-
“Lastly, Learned Counsel for revisionist/husband submits that respondent No.1/wife has a lot of agricultural property in her name. This fact was disputed by learned counsel for respondents, who submits that she has only
1/3rd share therein as Sh. Bal Kishan her first husband
Crl.M.C.No.269/2013 Page 3 was having 1/3rd share. Nothing has been placed on record to show that she is deriving any income from there.
Respondent No.1/wife submits that there is a stay order of the Court at Faridabad where she is a party. Nothing is placed on record by revisionist to show that respondent
No.1 is deriving any income from that land. On asking, respondent No.1 submits that she is earning about
Rs.10,000/- per annum from that land. That income is too meagre to affect the impugned order. As regards his present monthly salary, revisionist stated that it was about
Rs.25,358/- whereas, respondent No.1/wife stated it was
Rs.38,318/-. Parties were asked to file affidavit.
Respondent No.1/wife filed an affidavit in this regard whereas, revisionist did not file any affidavit to dispute this fact. Perusal of record shows that revisionist has not come to the Court with clean hands. He has not only taken shifting stands but also has attempted to mislead the
Court and story put forth by revisionist is untrustworthy.”
Upon perusal of the deposition of petitioner as well as of first- respondent, I find that the deposition of first respondent remains unchallenged. Apart from it, copy of the salary certificate of the year 2002 now placed on record cannot be taken into consideration as it is being relied for the first time now and was not a subject matter of discussion before the trial court or the revisional court.
Thus, finding no palpable error in the impugned order, this petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 21, 2013 vn
JUDGMENT