Amit Guglani v. Pushpa Guglani

1. By virtue of the present petition, the petitioner has challenged the order dated 20.01.2011 passed by the learned Additional Sessions Judge, Karkardooma Courts in revision petition filed by present petitioner upholding the order dated 18.09.2009 passed by the learned Metropolitan Magistrate Mahila Court (E) granting interim maintenance to the respondent/wife @ ~3,000 per month.

2. Briefly stated, the facts of the case are that the petitioner/husband got married with the respondent/wife on 04.12.1996 and from the wedlock, a son was born in the year 2000 or

2001.

3. The parties were not having cordial relationship on account of which a first motion was filed which was granted by the Court. Thereafter, the said proceedings were not taken to its logical _ -~J... -:-! -~ 2011:DHC:12943 conclusion by filing the second motion petition and consequently, the parties as on date continue to be married and their status is that of husband and wife. The respondent/wife filed a complaint under Section 125 Cr.P.c. for maintenance from the present petitioner.

4. The learned Magistrate passed an order dated 18.9.2009 directing the present petitioner to pay the maintenance @ ~3000/- per month to the respondent, as the son is stated to be in the custody of the present petitioner. The income of the petitioner was taken in the range of ~10000-12000/- as he is working as an LIC agent and the matter was fixed for 20.01.2010 for the purpose of recording of the evidence.

5. The present petitioner feeling aggrieved by the interim order for maintenance filed a revision petition against the same which was also rejected by the learned Additional Sessions Judge vide order dated 20.01.2011. The plea which was taken by the learned counsel for petitioner before the learned Additional Sessions Judge was that the petitioner and the respondent/wife are living separately by mutual consent and for this purpose the statement of the respondent in the first motion petition was placed on record for the perusal of the Court. On the basis of these facts the petitioner took the plea since the respondent is living separately of her own volition in terms of the settlement arrived at between them, therefore, she is not entitled to ---'.. --:! ~ grant of any maintenance.

6. This plea of the petitioner was rejected by the learned Additional Sessions Judge holding that the grant of maintenance is a statutory right of the wife and the same cannot be discarded. Reliance in this regard was placed by the learned Additional Sessions Judge on a judgment titled Ranjit Kaur Vs. Pavittar Singh 1992 Crl. L.J. 262 where it was held that maintenance is a statutory right and an agreement surrendering maintenance rights is against public policy and cannot be enforced. Reference in this regard was also made to another judgment titled as Vinita Devangan Vs. Rakesh Kumar Devangan II (2009) DMC 833.

7. The present petitioner feeling aggrieved has preferred the present petition against the order of the learned Add!. Sessions Judge dated 20.01.2011 as well as against the order dated 18.09.2009 passed by the learned Magistrate.

8. On the last date of hearing i.e. on 26.4.2011 notice was issued to the respondent subject to the petitioner's depositing the maintenance amount in the trial Court and the execution of the arrest warrants issued against the present petitioner were stayed. Now despite expiry of five months, the petitioner has not deposited even a single penny or paid any maintenance in pursuance to the order passed by the learned trial court and yet he claims that the petition --4 --.-1... under Section 125(4) Cr.P.c. filed by the respondent/wife w~s not maintainable in view of the Section 125 (4) Cr.P.c.

9. I am not inclined to interfere for two reasons; firstly, there is no infirmity in the order passed by the learned Additional Sessions Judge and the learned Magistrate. Secondly, there is a judgment of this Court though it is in context of revision petition that if a husband seeks to assail the order of grant of maintenance be that ad-interim or final, in the revision petition, he must show his bona fide by complying with the order of maintenance. Reference can be made to the judgment of this Court in case titled Rajeev Prunja Vs. Ms. Sarika & Ors., 159 (2009) DLT 616.

10. A direction was given to the petitioner to show his bona fides by either paying or depositing some amount of the maintenance to the respondent/wife so that she can survive. Despite this, the petitioner has not given a single penny to the respondent/wife.

11. For the above mentioned reasons, I feel that there is no merit in the contention of the learned counsel for the petitioner and the husband seems to be perpetuating the miseries of his wife who has no resource of maintenance. Accordingly, the petition is dismissed.

SEPTEMBER 21, 2011 b ~' V.K. SHALl, J -"-.!... ---'.