Lucky Panchal v. Prem Lata & Anr

1. The present revision petition under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘CrPC’), and Section 19 of the Family Courts Act, 1984, has been filed by the petitioner assailing the judgment dated 16.09.2019, passed by the learned Principal Judge, Family Court, Patiala House Courts, New Delhi in MT No. 269/2018, titled Smt. Prem Lata v. Sh. Lucky Panchal, whereby the learned Family Court partly allowed the petition under Section 125 of the CrPC, filed on behalf of the respondent no. 1 herein. The learned Family Court in the impugned judgment held that respondent no. 1 would not be entitled to any maintenance, but awarded maintenance in the sum of Rs. 8,000/- per month to Ms. Chhaya, respondent no. 2 (minor child), till she remains unmarried, effective from her date of birth and with an enhancement of 5% every year.

2. Briefly stated, facts relevant for adjudication of the present petition are as under: i. Marriage between Mr. Lucky Panchal (petitioner) and Ms. Premlata (respondent no. 1) was solemnized on 19.04.2014, in accordance with Hindu rites and ceremonies. ii. Due to temperamental differences between the petitioner and respondent no. 1, they started to reside separately from 02.02.2015. On 16.02.2015, the petitioner served a legal notice to respondent no. 1 from Crime Against Women Cell, Ghaziabad, Uttar Pradesh, wherein respondent no. 1 was told that in case she wished to return to her matrimonial home, she would have to return the stridhan received from the petitioner. Thereafter, on 28.02.2015, respondent no. 1 signed few documents and returned the aforesaid articles to the petitioner’s father and was assured that she can join her matrimonial home after Holi. iii. Thereafter, on 22.04.2015, petitioner filed a petition for dissolution of marriage before the learned Principal Judge, Family Courts, Ghaziabad, Uttar Pradesh. Subsequently, respondent no. 1 lodged an FIR against the petitioner and his family members, bearing FIR No. 953/2015, under Sections 498A/406/34 of the Indian Penal Code, 1860 ('IPC'), registered at P.S. Vasant Kunj and a complaint case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('DV Act'), pending for adjudication before the Patiala House Courts, New Delhi. iv. On 06.10.2015, respondent no. 1 had filed a petition seeking maintenance under Section 125 of the CrPC. before the Family Court, Patiala House Courts, New Delhi. During the conciliation proceedings which had taken place between the petitioner and respondent no. 1, on 24.09.2016, Ms. Chhaya (respondent no. 2) was born out of the wedlock. v. The learned Principal Judge, Family Courts, Patiala House Courts, New Delhi, vide order dated 18.10.2016, referred the matter to a Principal Counselor for a possible settlement, on account of birth of respondent no. 2/minor child. Thereafter, vide order dated 14.03.2017, the learned Principal Judge directed the petitioner to pay ad-interim maintenance in the sum of Rs. 4,500/- per month to respondent no. 2 (minor child). vi. Thereafter, the learned Principal Judge vide order dated 12.10.2017, directed the petitioner to file an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure (‘CPC’), impleading respondent no. 2 (minor child) as a party to the petition. During the proceedings under Section 125 of the CrPC, respondent no. 1 moved an application impleading respondent no. 2 (minor child) as a party to the petition. vii. On 27.04.2017, the learned Principal Judge, Family Courts, Ghaziabad, Uttar Pradesh, in Case No. 646/2015, granted interim maintenance in the sum of Rs. 1,000/- per month to respondent no. 1, under Section 24 of Hindu Marriage Act, 1955. Thereafter, the petitioner filed an appeal before the Hon'ble High Court of Judicature at Allahabad, bearing First Appeal Defective No. 303/2017, which was admitted but no stay was granted. viii. The learned Principal Judge, Family Courts, Patiala House Courts, New Delhi, vide judgment dated 16.09.2019, disentitled respondent no. 1 from claiming maintenance as her past records indicated that she was working as a director in Creature Interior Solutions Private Limited. The said company was managed by her father and she was a shareholder, which made her capable of earning her livelihood. The learned Family Court affirmed that respondent no. 2 (minor child) was entitled to maintenance in the sum of Rs. 8000/- per month, with effect from her date of birth, with an enhancement of 5% every year to respondent no. 2 (minor child) till she remains unmarried. ix. Aggrieved by the aforesaid judgment dated 16.09.2019, the petitioner has preferred the present criminal revision petition.

3. Learned counsel appearing on behalf of the petitioner submitted that the learned Principal Judge has erred in granting maintenance to respondent no. 2 (minor child) as she was born 19 months after the petitioner and respondent no. 1 had separated. It is further submitted that respondent no. 2 (minor child) was not a party to the petition filed under Section 125 of CrPC proceedings and the application for impleadement of respondent no. 2 (minor child) as a party was allowed on the day of final arguments. He stated that respondent no. 2 (minor child) was impleaded as a party in the aforesaid petition in a hasty manner and the learned Principal Judge did not adjudicate on the paternity of respondent no. 2 (minor child). The learned counsel for the petitioner has not pressed any other ground.

4. Learned counsel appearing on behalf of the respondents disputes the aforesaid facts and submits that the petitioner did not challenge the order dated 20.08.2019, wherein the learned Family Court allowed the application for impleadment filed on behalf of respondent no. 1 under Order I Rule 10 CPC read with Section 151 of the CPC. It is further submitted that after the impleadment of respondent no. 2 (minor child), another application was sought on behalf of the parties under Order VI Rule 17 read with Section 151 of the CPC, seeking amendment in the pleadings, which was allowed by the learned Family Court, on 31.08.2019. It is pointed out that the petitioner chose not to file any reply to the aforesaid application and subsequently, the issues were re-settled. It is further submitted that after the re-settlement of issues, evidence of the parties were recorded again to a limited extent, to which the petition was amended and thereafter the matter was heard.

5. Heard learned counsel for the parties.

6. Perusal of the records of the learned Family Court reflects that even after the order dated 20.08.2019, whereby the learned Family Court allowed the application moved on behalf of the respondent herein, under Order I Rule 10 read with Section 151 of the CPC, there was an attempt made for conciliation between the parties. The parties were referred to a counselor on 26.08.2019. It is pertinent to note that only after the conciliation had failed between the parties, the amendment application under Order VI Rule 17 read with Section 151 of the CPC, was filed seeking amendment in the pleadings. It is further pertinent to note that even at the time of recording of the evidence, post the impleadment and amendment, there was no question put to respondent no. 1 herein with regard to the paternity of respondent no. 2 (minor child).

7. The perusal of the record reflects that cross-examination of respondent no. 1 on behalf of the counsel for the petitioner herein, on 31.08.2019, runs into four pages and despite the said lengthy cross-examination, nothing was suggested to the respondent no. 1 herein with regard to the paternity of respondent no. 2 (minor child).

8. The learned Principal Judge in the impugned judgment has addressed the paternity of respondent no. 2 (minor child) as under: " …51. As per the ordersheet dated 18.10.2016, both parties were present in person when they were sent to the counselor. It therefore means that since the application was moved by the petitioner on 06.9.2016 that she was at advance stage of pregnancy and on 18.10.2016 they were sent to the counselor, she was pregnant and was at advanced stage of pregnancy. Therefore, the respondent was aware even on 18.10.2016 that she was pregnant and had participated in the mediation proceedings and proceedings before the court. Even in the ordersheet dated 18.10.2016, the Ld. Predecessor of this court has cleared mentioned that he had interacted with both the parties. Therefore, the respondent even aware of the pregnancy of the petitioner at that time also but he did not raise any objection or raise any question of paternity of the child before the Ld. Judge or Principal Counselor.

52. Further, when the presence of the child was marked by the Principal Judge on 14.03.2019, both the parties were present. Even at that time when the Ld. Predecessor Court has written in his order sheet that minor child has been produced by the petitioner. The respondent despite being present did not object to the child not being fathered by him. He also did not object to the interim maintenance being granted to the minor child.

53. In his evidence led on record, after amendment application was allowed nothing was brought to the notice to the court to prove that he had not fathered the minor child in this case.

54. Considering the same, I am of the opinion that the respondent could not approve that the child born in this case, impleaded as petitioner no.2 was not fathered by him. More so, since he has not moved any application till date for conducting the paternity test and therefore, the petitioner no.2 is entitled to maintenance from the respondent. xxx

70. It is the most unfortunate that the respondent is disputing the paternity of the child at this stage of trial too, to avoid paying maintenance to the petitioner. In these circumstances, I therefore of the opinion that minor child who is petitioner no. 2 was born from this marriage and is entitled to maintenance of Rs. 8000/- per month on the basis of her age based needs from the date of her birth and the fact that I have held that petitioner no. 1 is earning being capable to do so, and will thus contribute to the upbringing of the child."

9. The aforesaid observation and reason of the learned Principal Judge is in conformity with the records of the case and this Court find no occasion to interfere with the impugned judgment. In totality of the facts and circumstances as mentioned hereinabove, the present petition challenging the aforesaid judgement has no merits and is dismissed.

10. In view of the above, the petition is dismissed and disposed of accordingly alongwith all the pending application(s), if any.

AMIT SHARMA JUDGE FEBRUARY 27, 2023