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Crl.Rev. P. No. 567/2012 Page 1 HIGH COURT OF DELHI
CRL.REV.P. 567/2012
ANJALI GUPTA & ANR ..... Petitioners
Through: Mr. Rajat Wadhwa and Mr. Ashish Batra, Advocates
CRL.REV.P. 567/2012
ANJALI GUPTA & ANR ..... Petitioners
Through: Mr. Rajat Wadhwa and Mr. Ashish Batra, Advocates
VERSUS
SACHIN GUPTA ..... Respondent
Through: Mr. V.K. Diwan, Advocate
Through: Mr. V.K. Diwan, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 25.04.2013
Impugned order of 30th May, 2012 grants interim maintenance of
`17,500/- p.m. to petitioner-Anjali in proceedings under Section 125 of
Cr.P.C. Not satisfied with the interim maintenance granted vide impugned order, petitioner has preferred this petition seeking enhancement of interim maintenance by asserting that though the decision of a Coordinate Bench of this Court in Annurita Vohra v.
Sandeep Vohra I (2004) DMC 568, has been noted in the impugned order but its ratio has not been followed. Petitioners’ counsel asserts that by applying the ratio of the decision in Annurita Vohra (supra), the interim maintenance ought to be suitably enhanced.
On the contrary, respondent’s counsel relies upon decisions in
Rachna Kathuria & Ors. V. Ramesh Kumar C.M(M) No. 934/2006
2013:DHC:2082 Crl.Rev. P. No. 567/2012 Page 2 decided by this Court on 30th July, 2009, Rachna Kathuria v. Ramesh Kathuria Crl.M.C.No.130/2010 decided on 30th August, 2010, Sushma Khanna v. Suresh Khanna AIR 1982 Delhi 176 & Bhushan Kumar Meen v. Mansi Meen @ Harpreet Kaur, decided by Apex Court in Criminal
Appeal No. 879/2009 on 28th April, 2009 to contend that to seek enhancement of maintenance, petitioner ought to invoke Section 127 of
Cr.P.C. and infact the respondent has already invoked the aforesaid provision for getting the interim maintenance reduced as respondent has to pay EMI amount of ` 40,000/- p.m. which had not accrued when interim maintenance was fixed vide impugned order.
Upon hearing both the sides and on perusal of the impugned order, material on record as well as the decisions cited, I find that the interim maintenance has to be fixed on broad principles to arrive at a reasonable amount. In Annurita Vohra (supra), the method to be adopted while apportioning disposal income of the husband has been spelt out in these words: -
"In my view, a satisfactory approach would be to divide the Family Resource Cake in two portions to the
Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members."
To resist the adoption of aforesaid method of calculation by approximation, respondent’s counsel had sought to urge that even the parents of respondent are dependent upon respondent and so they are also entitled to claim maintenance and, therefore, no case is made out for enhancement of interim maintenance amount awarded. However, Crl.Rev. P. No. 567/2012 Page 3 respondent counsel was unable to show as to if any such stand was taken by respondent in the reply to application under Section 125 Cr.P.C.
Pendency of an application under Section 127 Cr.P.C. would be no bar to judge the legality of the impugned order, which takes the net income of respondent to be ` 52,000/- p.m. but the principles highlighted in
Annurita Vohra (supra) have not been correctly applied by the trial court in the impugned order. By applying the ratio of Annurita Vohra (supra), the composite interim maintenance to which petitioner-Anjali and her minor child are entitled would be `25,000/- p.m. and not ` 17,500/- p.m. as awarded by the trial court.
To the aforesaid extent, impugned order is modified and the interim maintenance is enhanced from `17,500/- to `25,000/- p.m. to which first petitioner would be entitled on her behalf and on behalf of her minor child. It is made clear if there is any change of circumstances of second petitioner now going to school, the same has to be brought to notice of the trial court by moving an application under Section 127 of
Cr.P.C.
This petition and the application are disposed of while clarifying that the enhancement of interim maintenance by this order will not stand in the way of either side before the trial court in proceedings under
Section 127 of Cr.P.C.
(SUNIL GAUR)
JUDGE
APRIL 25, 2013 vn
Impugned order of 30th May, 2012 grants interim maintenance of
`17,500/- p.m. to petitioner-Anjali in proceedings under Section 125 of
Cr.P.C. Not satisfied with the interim maintenance granted vide impugned order, petitioner has preferred this petition seeking enhancement of interim maintenance by asserting that though the decision of a Coordinate Bench of this Court in Annurita Vohra v.
Sandeep Vohra I (2004) DMC 568, has been noted in the impugned order but its ratio has not been followed. Petitioners’ counsel asserts that by applying the ratio of the decision in Annurita Vohra (supra), the interim maintenance ought to be suitably enhanced.
On the contrary, respondent’s counsel relies upon decisions in
Rachna Kathuria & Ors. V. Ramesh Kumar C.M(M) No. 934/2006
2013:DHC:2082 Crl.Rev. P. No. 567/2012 Page 2 decided by this Court on 30th July, 2009, Rachna Kathuria v. Ramesh Kathuria Crl.M.C.No.130/2010 decided on 30th August, 2010, Sushma Khanna v. Suresh Khanna AIR 1982 Delhi 176 & Bhushan Kumar Meen v. Mansi Meen @ Harpreet Kaur, decided by Apex Court in Criminal
Appeal No. 879/2009 on 28th April, 2009 to contend that to seek enhancement of maintenance, petitioner ought to invoke Section 127 of
Cr.P.C. and infact the respondent has already invoked the aforesaid provision for getting the interim maintenance reduced as respondent has to pay EMI amount of ` 40,000/- p.m. which had not accrued when interim maintenance was fixed vide impugned order.
Upon hearing both the sides and on perusal of the impugned order, material on record as well as the decisions cited, I find that the interim maintenance has to be fixed on broad principles to arrive at a reasonable amount. In Annurita Vohra (supra), the method to be adopted while apportioning disposal income of the husband has been spelt out in these words: -
"In my view, a satisfactory approach would be to divide the Family Resource Cake in two portions to the
Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members."
To resist the adoption of aforesaid method of calculation by approximation, respondent’s counsel had sought to urge that even the parents of respondent are dependent upon respondent and so they are also entitled to claim maintenance and, therefore, no case is made out for enhancement of interim maintenance amount awarded. However, Crl.Rev. P. No. 567/2012 Page 3 respondent counsel was unable to show as to if any such stand was taken by respondent in the reply to application under Section 125 Cr.P.C.
Pendency of an application under Section 127 Cr.P.C. would be no bar to judge the legality of the impugned order, which takes the net income of respondent to be ` 52,000/- p.m. but the principles highlighted in
Annurita Vohra (supra) have not been correctly applied by the trial court in the impugned order. By applying the ratio of Annurita Vohra (supra), the composite interim maintenance to which petitioner-Anjali and her minor child are entitled would be `25,000/- p.m. and not ` 17,500/- p.m. as awarded by the trial court.
To the aforesaid extent, impugned order is modified and the interim maintenance is enhanced from `17,500/- to `25,000/- p.m. to which first petitioner would be entitled on her behalf and on behalf of her minor child. It is made clear if there is any change of circumstances of second petitioner now going to school, the same has to be brought to notice of the trial court by moving an application under Section 127 of
Cr.P.C.
This petition and the application are disposed of while clarifying that the enhancement of interim maintenance by this order will not stand in the way of either side before the trial court in proceedings under
Section 127 of Cr.P.C.
(SUNIL GAUR)
JUDGE
APRIL 25, 2013 vn
JUDGMENT