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'="" 70# $~ HIGH COURT OF DELHI
CRL.M.C. 2819/2011
SANTOSH MALHOTRA ..... Petitioner
Through: Ms. Manjusha Wadhwa, Advocate. o;o
CRL.M.C. 2819/2011
SANTOSH MALHOTRA ..... Petitioner
Through: Ms. Manjusha Wadhwa, Advocate. o;o
VERSUS
VED PRAKASH MALHOTRA
Through: None.
Through: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
26.08.2011 Crl.
M.A. No. 10042/2011 (Exemption)
Allowed, subject to all just exceptions.
Crl. M.C. No. 2819/2011 ..... Respondent This is a petition under Section 482 Cr.P.C. seeking quashing of the order passed by the learned Additional Sessions Judge in Criminal Revision
No. 15/10 whereby the revision petition filed by the Petitioner herein was dismissed.
The facts which led to the filing of the present petition are that th.e
Petitioner had filed an application under Section 125 Cr.P.C. wherein she
CRL.M.C. 281912011 \ --~· 'I ·-~ -, ! 2011:DHC:10891
~ was granted maintenance for a sum of Rs. 2,000/- per month. Since the
Respondent failed to comply with the directions and the maintenance amount of Rs.54,000/- became due, the Petitioner filed an execution petition for clearance of the maintenance due with interest along with the penalty.
The Respondent, before the learned Metropolitan Magistrate cleared the dues and on account of failure to deposit the maintenance the learned
Metropolitan Magistrate awarded a penalty of Rs. 10,000/-. Against the said -------~ order of imposing penalty of Rs. 10,000/- the Petitioner filed a revision stating that the penalty amount was insufficient.
The learned Additional Sessions Judge held that there was no
-- -- -·~~ infirmity in the order since the discretion was given to the Courts to impose
'! penalty of 25o/o of monthly maintenance on second default without justification which can be enhanced to 50% in case ofthird or fourth default.
As per the learned Trial Court and the Learned Revisional Court the
··~ Respondent has been making the payments of the decreetal amount on different dates and only an amount of Rs. 4,000/- remained due. Even as per
~I_ the Petitioner after the filing of the execution petition, the Respondent has '~~ paid the Petitioner as follows:
-----~ CRL.M.C. 281912011 Page 2 of4 04.04.2009
11.05.2009 05.06.2009 20.08.2009 16.11.2009 11.12.2009
18.12.2009 23.01.2010 01.02.2010 05.03.2010 Total
Rs. 1000/- Rs. 2000/- Rs. 5000/- Rs. 5,000/- Rs.l9000/-
Rs. 48,000/- )
Thus according to the Petitioner along with the penalty @ 50%, the amount would be Rs. 27,000/-. Adding Rs. 6,000/- as balance and interest@
18% the total amount she is entitled to is Rs. 42,720/-.
This Court in Gaurav Sandhi vs. Divya Sandhi, 120 (2005) DLT 426, laid down the guidelines for the procedure to be followed while granting maintenance/interim maintenance. It laid down that in case of first default of payment the court may condone it, however, in case of second default without justification, it will be open to the Court to impose a penalty upto
25% ofthe amount ofmonthly maintenance awarded.
It is the case of the Petitioner herself that the Respondent has recently undergone surgery at Apollo Hospital and thereafter he went to stay with his son to take rest. Thus in this view of the matter the imposition of a penalty ofRs. 10,000/- in lump sump cannot be said to be unjustified.
CRL.M.C. 281912011 Page3 of4 ~-------'< - -----·-~
-,~~' -':~~ ~----'< 'C:::- '---~ I find no infirmity in the impugned orders. There is neither any interest of justice nor any abuse of the process of Court warranting interference by this Court.
Petition is dismissed. Order dasti.
~~- AUGUST 26, 2011/'vn' CRL.M.C. 281912011 Page4 of4
I '
~_....
-~ ---~
26.08.2011 Crl.
M.A. No. 10042/2011 (Exemption)
Allowed, subject to all just exceptions.
Crl. M.C. No. 2819/2011 ..... Respondent This is a petition under Section 482 Cr.P.C. seeking quashing of the order passed by the learned Additional Sessions Judge in Criminal Revision
No. 15/10 whereby the revision petition filed by the Petitioner herein was dismissed.
The facts which led to the filing of the present petition are that th.e
Petitioner had filed an application under Section 125 Cr.P.C. wherein she
CRL.M.C. 281912011 \ --~· 'I ·-~ -, ! 2011:DHC:10891
~ was granted maintenance for a sum of Rs. 2,000/- per month. Since the
Respondent failed to comply with the directions and the maintenance amount of Rs.54,000/- became due, the Petitioner filed an execution petition for clearance of the maintenance due with interest along with the penalty.
The Respondent, before the learned Metropolitan Magistrate cleared the dues and on account of failure to deposit the maintenance the learned
Metropolitan Magistrate awarded a penalty of Rs. 10,000/-. Against the said -------~ order of imposing penalty of Rs. 10,000/- the Petitioner filed a revision stating that the penalty amount was insufficient.
The learned Additional Sessions Judge held that there was no
-- -- -·~~ infirmity in the order since the discretion was given to the Courts to impose
'! penalty of 25o/o of monthly maintenance on second default without justification which can be enhanced to 50% in case ofthird or fourth default.
As per the learned Trial Court and the Learned Revisional Court the
··~ Respondent has been making the payments of the decreetal amount on different dates and only an amount of Rs. 4,000/- remained due. Even as per
~I_ the Petitioner after the filing of the execution petition, the Respondent has '~~ paid the Petitioner as follows:
-----~ CRL.M.C. 281912011 Page 2 of4 04.04.2009
11.05.2009 05.06.2009 20.08.2009 16.11.2009 11.12.2009
18.12.2009 23.01.2010 01.02.2010 05.03.2010 Total
Rs. 1000/- Rs. 2000/- Rs. 5000/- Rs. 5,000/- Rs.l9000/-
Rs. 48,000/- )
Thus according to the Petitioner along with the penalty @ 50%, the amount would be Rs. 27,000/-. Adding Rs. 6,000/- as balance and interest@
18% the total amount she is entitled to is Rs. 42,720/-.
This Court in Gaurav Sandhi vs. Divya Sandhi, 120 (2005) DLT 426, laid down the guidelines for the procedure to be followed while granting maintenance/interim maintenance. It laid down that in case of first default of payment the court may condone it, however, in case of second default without justification, it will be open to the Court to impose a penalty upto
25% ofthe amount ofmonthly maintenance awarded.
It is the case of the Petitioner herself that the Respondent has recently undergone surgery at Apollo Hospital and thereafter he went to stay with his son to take rest. Thus in this view of the matter the imposition of a penalty ofRs. 10,000/- in lump sump cannot be said to be unjustified.
CRL.M.C. 281912011 Page3 of4 ~-------'< - -----·-~
-,~~' -':~~ ~----'< 'C:::- '---~ I find no infirmity in the impugned orders. There is neither any interest of justice nor any abuse of the process of Court warranting interference by this Court.
Petition is dismissed. Order dasti.
~~- AUGUST 26, 2011/'vn' CRL.M.C. 281912011 Page4 of4
I '
~_....
-~ ---~
JUDGMENT