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CRL.M.C. 15/2011 & Cr1. M.A. 64/2011 (Stay) and Cr1.
M.A. NO. 66/2011 (Delay)
MOHD.IMRAN Petitioner
Through: Mr. Haneef Mohammad, Anil Vyas and Mr. Kamal Pundir, Advocates.
Through: Mr. G.M. Faroqqe, Advocate.
16.08.2011 By the present petition the Petitioner seeks setting aside of the order dated 301h March, 2010 passed by the learned Additional Sessions Judge in
Criminal Revision No. 3/2010 upholding the order dated
181h November, 2009 passed by the Trial Court in CC No. 353/3006/2008 wherein Rs. 8,000/- were granted as interim maintenance under Section 23 of Protection of Women from lb Domestic Violence Act, 2005 to the Respondent.
Briefly the facts of the case are that Petitioner, Mohd. Imran and
Respondent Hina were married according to Muslim Rites and Ceremonies on
19th March, 2005 at I elhi and out of the wedlock a male child was born on 31st October, 2006 who is in the custody of the Respondent. It is alleged
2011:DHC:9265 that after about one week of the marriage the family members of the Petitioner committed cruelty upon the Respondent and demanded a sum of Rs. 5 lakhs for the business of the Petitioner. An esteem car, pulsar motorcycle and gold worth Rs. 10 lakhs were given along with the other household articles at the time of marriage. It is stated that on refusal to meet the demand of further dowry the Respondent was beaten mercilessly and harassed. In August, 2006 while the Respondent was living with her parents the child was born, the expenses whereof were borne by her parents. Thereafter the Respondent lodged an FIR under Section 406/498A/34 IPC and a complaint under Section
12/18/19/20/22 of Protection of Women from Domestic Violence Act(in short the PWDV Act) for grant of maintenance etc. The application under Section 23 of the PWDV Act was disposed of by the learned Metropolitan Magistrate granting the relief to the Respondent holding that the income of the Petitioner herein was Rs. 20,000/- if not more and awarding Rs.8,000/- per month as interim maintenance to the Respondent herein. This order was challenged by the Petitioner by way of a revision petition before the learned Additional
Sessions Judge. Vide order dated 30th March, 2010 learned Additional
Sessions Judge upheld the order passed by the learned Magistrate. This order of the learned Additional Sessions Judge is impugned in the present petition.
ORDER
3. Learned counsel for the Petitioner states that the conduct and behavior of the Respondent was not proper and amicable to the Petitioner or his family members. She was influenced by her mother and even on petty issues used to leave the matrimonial house and reside at her parental home. It is contended that due to the humiliating circumstances created by her the petitioner pronounced Talaq upon her in the court of learned Special Executive Magistrate. Subsequently, the Respondent filed a false and frivolous case • under Section 406/498A/34 IPC against the Petitioner and his family members. The present complaint under the provisions of the PWDV Act is baseless. It is stated that the conclusion of the learned Trial Court is based upon presumptions, conjectures and surmises which render the decision illegal abinitio. The allegation of the Respondent that the Petitioner has let out his second and third floor on rent and is earning Rs. 7,000/- and Rs.5,000/- per month respectively is false as there is no tenant in the said house and the petitioner is receiving no rental income whatsoever from the said house. There is no evidence to show that the Petitioner owns another property from which he is generating Rs. 1 lakh per month. Learned Trial Court has ignored the averment of the Petitioner that he is earning Rs. 3,000/- per month and is not having any shop or commercial accommodation anywhere. The Petitioner had categorically contended before the learned Trial Court and the learned CRL.M.C. 15/2011 page 3 to 5 Revisional Court that he was having only one shop in Old Court Market, Dargah Sheikh Kalimullah, Red Fort Delhi which has been demolished by the order of the High Court and no alternate shop has been allotted to him by the authorities. Thus the learned trial court as well as the learned Revisional Court failed to appreciate the averments of the petitioner and have passed illegal orders. Per contra, learned counsel for the Respondent contends that the impugned orders are correct and do not suffer from any illegality or infirmity. The status of the families and the standard of living clearly shows that the petitioner is earning well and is just trying to run away from his duties to maintain his wife and child. The present petition has no merits and is liable to be dismissed. I have learned counsel for the parties. The Petitioner and Respondent were married according to Muslim rites and ceremonies on 19th March, 2005. Admittedly an Esteem Maruti car, Pulsar Motorcycle and gold worth Rs. 10 lakhs were given along with the other household articles at the time of marriage. The learned trial court observed that the marriage ceremony between the Petitioner and the Respondent was solemnized with pomp and show which shows the status of the parties. The fact of owning the shop has been admitted and no evidence has been led in regard to the demolition of the same. Based on CRL.M.C. 15/2011 page 4 to 5 the evidence before the learned Magistrate he granted interim maintenance to the Respondent. At the stage of grant of interim maintenance under Section 23 PWDV Act the learned Magistrate has not to meticulously weigh the evidence. He has to pass a just and proper order on the basis of broad probabilities. The question of assessment of income of the husband has to be done after the evidence is led while deciding the petition on merits finally. In the present case the relief granted by the learned Magistrate is not a final order passed on the basis of the evidence led by the parties and it is open for the learned Trial Court to vary/modify or recall the order as and when the proceedings attain finality. It would be relevant to note that the Respondent has a child aged five years to be looked after and a sum of Rs.8,000/- for the maintenance of Respondent and the child is just and reasonable and in no way excessive.
6. I find no illegality or infirmity in the impugned order. No ground for interference is made out. Petition is dismissed being devoid of any merit.
MUKTA GUPTA, J. AUGUST 16, 2011 'vn'