Furkan v. State

1. This is a petition under Section 482 Cr.P.C. against the order dated 21.01.2011 passed by Shri R.P.S. Teji, Additional Sessions Judge, Karkardooma Court, Delhi in appeal no. 03/2010 filed by the petitioner under Section 29 of Protection of Women From Domestic Violence Act by virtue of which the learned Additional Sessions Judge upheld the order dated 04.06.2010 passed by the learned Magistrate • in complaint case no.SS/09 titled Smt. Saira Bano Vs. Furkan and Ors.

2. It is stated that the learned Magistrate rejected application of the petitioner/husband wherein he had made allegations against the respondent/wife that she was earning substantial amount of money by doing stitching work. It was prayed by the petitioner/husband that inquiries be got made through the SHO regarding the income of the 2011:DHC:12956 respondent/wife. This prayer of the husband was rejected by the learned Magistrate holding that the Court cannot become a party to the collection of the evidence, which is to be produced by the petitioner himself.

3. Thereafter, an application was filed by the respondent/wife wherein she claimed maintenance for herself and her six children born ~ from the wedlock with the petitioner. She has stated in the application that the petitioner husband has an income of ~40000/- per month and • therefore, appropriate ad-interim maintenance be paid to her and her children so that she can survive.

4. The petitioner/husband took a plea that he is not doing any business in furniture as alleged and he is only a daily wage earner but no documentary evidence was adduced by the petitioner/husband with regard to the same as a consequence of which learned Magistrate vide order dated 4.6.2010 directed the petitioner/husband to pay a sum of ~2000/- per month to the respondent/wife and a sum of ~800/- per month to each children namely Sitara, Ruksar, Amir and Fasan.

5. The petitioner feeling aggrieved by the aforesaid order preferred an appeal bearing Crl. Appeal no.03/2010, titled Furkan Vs. State and.Another which was dismissed by the learned Additional Sessions Judge, Karkardooma Court, Delhi vide order dated 21.01.2011.

6. The petitioner/husband still feeling aggrieved has filed the present petition against both the orders passed by the learned Courts • below.

7. have heard the learned counsel for the petitioner. The main contention of the learned counsel for the petitioner is that the learned trial court has not taken into consideration the documents, which he has placed along with the present petition.

8. It is further contended that if these documents would have been taken into account the petitioner would not have been fastened with the said liability of payment of maintenance. It is further contended that Sitara got married in 2005 and other child of his by the names of Asif and Amir are major and therefore, they are not entitled to any maintenance from the petitioner/husband.

9. I have carefully considered the averments made by the learned counsel for the petitioner. The petitioner has admittedly not placed on record the documents on which he wants to place reliance before the Court which has passed the orders, therefore, this court, while taking into consideration the facts of the case cannot rely upon the documents which were not the part of the trial court. Apart from that, the petitioner had filed an appeal which was dismissed by the learned Additional Sessions Judge, therefore, the petitioner by invoking Section 482 Cr.P.C. cannot circumvent his liability in law to maintain his wife and children. Even otherwise, the amount of maintenance which has been fixed by the learned trial court is very meager, keeping in view the rising prices of various food articles which have to be purchased for the purpose of sustenance. In any case, the petitioner is free to adduce evidence when the question of grant of maintenance has to be decided on merits.

9. Moreover, the petitioner has not to paid a single penny in pursuance to order dated 04.06.2010 in order to show his bona fide. L-( The power of High Court under Section 482 Cr.P.C. is no doubt unlimited but it has to be exercised in a contingency when there is an abuse of processes of law or in the interest of justice. So far as, the present case is concerned, there is no such contingency available.

10. Accordingly, the present petition is misconceived and the same is dismissed. However, it shall be open to the petitioner/husband to produce evidence, on which he wants to place reliance when he enters ~< into his defence.

11. Dismissed. No order as to costs. • V.K. SHALI,J SEPTEMBER 20, 2011 b