Kiran Jyot Maini v. Anish Pramod Patel

1. In the above captioned petition i.e. Crl.M.C. 406/2023, the petitioner has filed the present application under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) seeking grant of interim relief by way of issuance of direction against the respondent for payment of arrears of maintenance due till 31.12.2022.

2. The case set out by the petitioner in the instant application is that she had filed an Application No. 4622 of 2016 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘PWDV Act’) before the learned Judicial Magistrate, Gautam Budh Nagar, wherein an application seeking interim maintenance had also been filed by her under Section 23 of the Act. The learned Judicial Magistrate vide order dated 10.05.2018 had directed the respondent herein to pay interim maintenance of Rs. 35,000/- (Rupees Thirty-Five Thousand Only) to the petitioner. Against the said order, appeals had been preferred by both the parties and the learned Additional Sessions Judge, Gautam Budh Nagar vide order dated 01.02.2019, had modified the order dated 10.05.2018 and had directed the respondent to pay Rs.45,000/- per month to the petitioner as well as Rs.55,000/- per month to the daughter. It is stated that till date, no maintenance amount has been paid by the respondent despite the orders passed by the learned Additional Sessions Judge except for Rs.45,000/- in favour of petitioner for 3 months in view of the direction of Hon'ble Supreme Court. It is also stated that no directions till date have been passed by the learned Trial Court in Delhi and the maintenance to the tune of Rs.52,95,000/- is due from the respondent till 31.12.2022 and the petitioner is forced to run pillar to post for seeking directions for compliance with the orders passed by the learned Additional Sessions Judge. It is also stated that petitioner has very few means of income and is also dependent on her parents for her day-to-day needs and the respondent is not paying the interim maintenance to petitioner and her daughter. It is stated that respondent earns approximately more than Rs. 10,00,000/- per month and has all the means to support the petitioner and her daughter and to pay the small sum granted by way of interim maintenance. In such circumstances, the petitioner seeks grant of interim relief by way of payment of arrears of maintenance due till 31.12.2022.

3. Mr. Gaurav Bhatia, learned senior counsel for the petitioner, submits that marriage between the parties was solemnized on 30.04.2015 and subsequently, an FIR bearing no. 34/2016 was registered on the complaint of present petitioner at Police Station Mahila Thana, Gautam Buddh Nagar, U.P. under Sections 498A/323/504 of Indian Penal Code, 1860 and Sections 3/4 of Dowry Prohibition Act, 1961. It is stated that the respondent had filed a Criminal Miscellaneous Writ Petition before the High Court of Allahabad for stay of arrest and quashing of the FIR. Pursuant to the same, on 06.05.2016, the High Court of Allahabad had passed the order by way of which the matter was referred to mediation and an order of stay of arrest of respondent was passed. However, on 22.09.2016, the High Court of Allahabad had dismissed the writ petition due to lack of merits. After this, the petitioner had preferred complaint under PWDV Act along with an application for interim maintenance, on which order was passed by learned Judicial Magistrate on 10.05.2018, and in an appeal, by learned Additional Sessions Judge on 01.02.2019. It is stated by learned senior counsel that against these orders granting interim maintenance, the respondent had preferred application bearing NO. 12860/2019 under Section 482 Cr.P.C. before the High Court of Allahabad and the matter was again referred to mediation vide order dated 09.04.2019 and learned counsel for the petitioner at that time had given an undertaking that during the course of mediation, they will not initiate any action against the respondent. However, it is stated that the mediation between the parties had failed on 06.07.2019. It is stated that subsequently, the petitioner had moved an application under Section 31(1) of PWDV Act against respondent for non-compliance of order dated 01.02.2019 i.e. for non-payment of interim maintenance and summons were issued by the Court concerned, but these summons were challenged by the respondent before High Court of Allahabad and the same were stayed vide order dated 16.09.2019 till next date of hearing. It is further argued by learned senior counsel that vide order dated 13.12.2019, the High Court of Allahabad had directed expeditious disposal of application filed by petitioner under Section 12 of PWDV Act which was pending before learned Judicial Magistrate as there was no stay of proceedings. It is further stated that respondent had ultimately preferred transfer petitions before the Hon’ble Supreme Court seeking transfer of all criminal cases and complaints filed by petitioner as well as applications filed by him under Section 482 Cr.P.C. before High Court of Allahabad to the courts in Delhi. It is stated the Hon’ble Supreme Court vide order dated 06.11.2020 had referred the matter to Supreme Court Mediation Centre and thereafter had also allowed transfer petitions vide order dated 13.08.2021 by transferring all the cases to Tis Hazari Court, Delhi, except applications under Section 482 Cr.P.C. which were pending before the High Court of Allahabad since the prayer in this regard was not made. After the cases were transferred to Delhi, they were registered on 02.04.2022, and while Case NO. 41/2019 was registered at Delhi as Case No. 882/2022, Case NO. 4622/2016 was registered as Case No. 691/2022, and on 04.04.2022, notices were issued to both the parties. It is stated that the Mahila Court, Delhi vide order dated 15.09.2022 had sought clarification regarding stay on Criminal Case No. 882/2022, i.e. original Case No. 41/2019 filed under Section 31(1) of PWDV Act, by the High Court of Allahabad. Learned senior counsel for the petitioner argues that the stay granted by High Court of Allahabad vide order dated 16.09.2019 was only till the next date of hearing and that too was obtained on false pretext by the respondent by submitting before the Court that mediation was pending between the parties, even though the same had already failed a few months prior. It is, however, stated by learned senior counsel that without prejudice to the said argument, on 14.03.2023, the High Court of Allahabad vide two separate orders dated 14.03.2023 has dismissed the applications filed by respondent under Section 482 Cr.P.C. being Application No. 33533/2019 and Application No. 12860/2019 as infructuous on the statement made by the respondent. It is, thus, prayed that interim maintenance which is due till 31.12.2022 be released in favour of the petitioner.

4. The respondent has filed reply to the present petition wherein it is stated that the conduct of the petitioner towards the respondent was inhumane. It is stated that they had gone to Thailand for their honeymoon, which was not even remotely an ideal place to visit for a newly wedded couple as the petitioner, exercising her irrational behaviour, had traumatized the respondent. It is also stated that the petitioner had even informed the respondent about her sexual affair with a married man whom she had met after her first divorce but before marrying the respondent, however, the respondent had overlooked the same. It is submitted that the petitioner had indulged into a futile exercise to impose bald and vague allegations against the respondent, and in fact, the petitioner had deliberately inflicted the acts of cruelty upon the respondent and had failed to discharge her obligations and marital bliss qua the respondent. It is further submitted that the respondent had shown immense love and affection towards the petitioner and her daughter and he had used his entire network of friends due to which her daughter had got admission in Edu-Bridge International School in Mumbai. It is also stated that before the respondent could pay for the minor daughter admission to the school, the petitioner had transferred the money from Noida to the account of school, and had informed the respondent that she had received alimony and child support from her previous marriage to pay for her daughter’s education. It is further averred that petitioner had failed to attend/cooperate in the Mediation proceedings. Further, it is submitted that the divorce proceedings were initiated by the respondent only after the petitioner had implicated him in false and malicious cases.

5. The respondent, in reply to the present application for interim relief, submits that in the contents of the application, the petitioner has stated that respondent had not paid any maintenance to the petitioner except for Rs.45,000/- for 3 months in view of the direction of Hon’ble Supreme Court, whereas the perusal of Payment Chart annexed by the petitioner itself shows that respondent had paid the said amount for 9 months. It is stated that petitioner had portrayed herself to be dependent on her parents for her daily needs and also, fraudulently and dishonestly had concealed the fact that she is a lady of means. It is stated that she is proficiently working at the post of Head-Talent Acquisition & Management with Pathways International School, Noida and earning approx. Rs.3,00,000/- per month. It is also stated that she has deliberately not disclosed her assets and income and not filed any affidavit in this regard till date.

6. Mr. Prabhjit Jauhar, learned counsel for respondent submits that the petitioner is attempting to indulge into forum shopping as she has already moved an Execution Petition bearing no. Ex.Crl.172/2022 titled as ‘Kiran Jyot Maini v. Anish Pramod Patel’, claiming the same amount of Rs. 52,95,000/- against the respondent, which is pending adjudication before learned Trial Court in Delhi, which is conveniently not disclosed before this Court. It is also stated that during the same time, petitioner was also preferring urgent listing of applications before the High Court of Allahabad. It is further stated that the Hon’ble Apex Court had not transferred the applications filed under Section 482 Cr.P.C. pending before the High Court of Allahabad and there was a stay operating in favour of respondent as granted by the High Court of Allahabad. Further, learned counsel for respondent states that the Hon’ble Apex Court had denied the maintenance for minor daughter as she was conceived from petitioner’s previous marriage and the petitioner has already received alimony for her expenses from her previous husband and had only directed to pay Rs.45,000/- to the petitioner till the pendency of Transfer petition. It is also stated that while disposing of the transfer petition, Hon’ble Apex Court also had denied to grant any relief to the petitioner qua the issue of arrears of maintenance. It is argued by learned counsel for respondent that petitioner has blatantly failed to comply with the mandatory requirement of filing Affidavit of Disclosure of Assets and Liabilities before the learned Trial Court, which is mandatory to adjudicate or determine the quantum of maintenance/interim maintenance, as per judgment of Rajnesh v. Neha

7. This Court has heard arguments addressed by both the counsels at length, and has carefully perused the material on record.

8. In the present case, interim maintenance of Rs.35,000/- was granted to the petitioner on 10.05.2018 by the learned Judicial Magistrate, Gautam Budh Nagar, in the proceedings under PWDV Act. However, in an appeal, the learned Additional Sessions Judge, Gautam Budh Nagar vide order dated 01.02.2019 modified the order passed by learned Magistrate and ordered the respondent to pay Rs.45,000/- to petitioner and Rs.55,000/- to the minor daughter of petitioner. As per the case of petitioner, no maintenance has been paid till date, except for the period when the Hon’ble Apex Court had directed to do so, and total amount of arrears of maintenance of Rs.52,95,000/- has become due towards the petitioner.

9. It was contended on behalf of respondent that Hon’ble Apex Court had denied grant of maintenance to the daughter of the petitioner since she was conceived from the previous marriage of petitioner. It was also contended that Hon’ble Apex Court had denied grant of any relief to the petitioner despite her submission regarding arrears of maintenance. In this regard, this Court takes note of the orders dated 06.11.2020 and 13.08.2021 passed by Hon’ble Apex Court in Transfer Petition (Criminal) Nos. 76-80 of 2020.

9.1. The relevant portion of order dated 16.11.2020 reads as under: “...Since it is submitted by Mr. Gaurav Bhatia, the learned senior counsel, that the interim maintenance ordered for the wife has not been paid so far, Rs. 45,000/- per month is ordered to be paid as interim maintenance by the petitioner to the Respondent(wife) in terms of the computation made by the concerned Appellate Court...”

9.2. The relevant portion of order dated 13.08.2021 reads as under: “...There is dispute as regards payment of maintenance and the respondent-wife’s complaint is that there are sums due on that account. It has been asserted on behalf of the respondent- wife that without paying the entire sum, the petitioner ought not to be permitted to approach this Court for transfer of a case, which is a discretionary relief. While hearing Transfer Petition, however, I would be lacking in my jurisdiction to direct release of the sum, if any, is due to the respondent-wife. It shall be open to the respondent to apply before the appropriate Court for relief on this count...”

10. In order dated 06.11.2020, Hon’ble Apex Court had directed the respondent to pay Rs.45,000/- to the petitioner during pendency of transfer petitions since the learned counsel for petitioner had raised this issue and had requested for the said relief qua petitioner. The order nowhere records that maintenance was being denied to petitioner’s daughter since she was conceived from the previous marriage of petitioner. Furthermore, even in order dated 13.08.2021, the Hon’ble Apex Court had directed the petitioner to approach the concerned Court for seeking relief qua payment of arrears of maintenance.

11. Though one of the most contentious issues before this Court in the present application and petition between the parties initially was as to whether there was any stay existing in relation to Criminal Case NO. 882/2022 pending before learned Trial Court in Delhi i.e. original Case No. 41/2019 filed under Section 31(1) of PWDV Act on which stay was granted in favour of respondent by Hon’ble High Court of Allahabad. In this regard, it will be apt to note that Hon’ble High Court of Allahabad vide two separate orders dated 14.03.2023 in Application No. 33533/2019 and Application No. 12860/2019 has dismissed the said applications/petitions as infructuous. Thus, in any case, the stay if any which had existed on the proceedings which are currently before the learned Trial Court in Delhi, stands vacated.

12. Thus, suffice it to say, as on date, there is no stay of any of the proceedings which are pending before the learned Trial Court in Delhi.

13. Coming to the present application seeking interim relief, the chart of arrears as submitted by the petitioner before this Court reflects that arrears of maintenance to be paid to the petitioner/wife and her daughter till 31.12.2022, in terms of order passed by learned Additional Sessions Judge, Gautam Budh Nagar, stand at Rs.52,95,000/-. The same has neither been disputed nor denied by the respondent before this Court, since the primary plea taken by the respondent before this Court was that due to operation of stay in favour of respondent, he was not supposed to pay the amount of maintenance, but the same does not exist as on today. However, learned counsel for respondent had raised objections to the amount of maintenance decided by the learned Additional Sessions Judge inasmuch as the same was decided on a higher side even though no Affidavit of Disclosure of Assets and Liabilities was filed by the petitioner and further that the amount of Rs.55,000/- awarded qua daughter of petitioner was ex-facie unjust and illegal since she was conceived from the union of petitioner and her first husband and the petitioner had already received alimony from her first husband.