Shalu Ojha vs Prashant Ojha

,,

A.K. SIKRI, J.",,

On an earlier occasion, after hearing the petitioner who appeared in person, and the learned counsel for the respondent, we had passed order dated",,

September 4, 2017, there by disposing of this petition with the following directions:",,

(a) insofar as domestic violence proceedings before the Family Court are concerned, necessary documents shall be filed by both the parties within",,

four weeks from today and evidence led pursuant thereto. The trial court shall endeavour to decide the case finally, within a period of eight months",,

from today, on the basis of evidence and fix the rate of maintenance finally; and",,

(b) Crl.MC. No. 850 of 2015, pending before the High Court, shall be taken up for hearing immediately and the High Court shall endeavour to dispose",,

of the same as,,

expeditiously as possible and determine at what rate interim maintenance is to be given, i.e. whether order dated February 13, 2015 passed by the",,

learned ASJ need any modification or not.,,

2) Thereafter, review petition was filed by the petitioner pointing out that there was apparent error in passing the aforesaid directions inasmuch as",,

matter was remitted to the High Court for presumption that proceedings were pending but the fact is that no such proceedings are pending under the,,

Protection of Women from Domestic Violence Act, 2005 (for short the ‘DV Act’).",,

Realising this error, the review petition was allowed and the Special Leave Petition was restored which has been heard afresh.",,

3) Notwithstanding the aforesaid factual error which had crept in the order dated September 4, 2017, the other factual details recorded in the said",,

order are a matter of record. Therefore, it would be in the fitness of things to reproduce the same:",,

Though this case has a chequered history, only those facts which are very material are taken note of, eschewing other unnecessary details, in order to",,

avoid burdening this judgment with the facts which may not be relevant.Â,,

The petitioner is the respondent’s wife. It is unfortunate that after their marriage on April 20, 2007 in Delhi, they stayed together hardly for four",,

months. Thus, for almost ten years they have parted company and are living separately. It is not necessary to go into the reasons which led to the",,

matrimonial discord as in the present petition this Court is concerned only with the dispute regarding the rate of maintenance.,,

The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act. In that,,

application, apart from other reliefs, she has claimed maintenance as well. Order dated July 05, 2012 was passed by the learned Metropolitan",,

Magistrate granting interim maintenance @ Rs.2,50,000/- per month with effect from the date of filing of the complaint as well as compensation of",,

Rs.1,00,000/-. Since the respondent did not honour the said order, the petitioner filed the execution petition for recovery of the arrears of",,

maintenance. In the meantime, the respondent challenged the order of the Metropolitan Magistrate granting maintenance, by filing appeal under",,

Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi (for short, the ‘ASJ’). In the said appeal, the learned ASJ issued",,

interim directions dated January 10, 2013 for depositing of the entire arrears of maintenance within two months. As this order was not complied",,

with, the appeal filed by the respondent was dismissed on May 07, 2013. This order of dismissal was challenged by the respondent before the High",,

Court. In those proceedings, order dated July 23, 2013 was passed allowing the appellant herein to file the reply, etc.  As no stay was granted,",,

order dated July 23, 2013 was challenged by the respondent in this Court by filing a special leave petition. This Court, however, did not entertain the",,

same. At the same time, while disposing of the special leave petition, observations were made to the effect that if the parties apply for mediation,",,

the matter shall be referred to the Delhi High Court Mediation and Conciliation Centre at the earliest. Keeping in view these observations, the High",,

Court referred the dispute to the Mediation Centre at the Delhi High Court and also stayed the execution proceedings in the meantime. Mediation,,

proceedings failed. As a result, the High Court took up the matter on merits and passed orders dated September 10, 2013 directing the respondent",,

to pay Rs.5,00,000/- on or before September 30,2013 and another sum of Rs.5,00,000/- on or before October 31, 2013. The petitioner filed an",,

application seeking modification of these orders and prayed for the directions to the respondent to pay entire arrears of maintenance as per the order,,

of the Family Court in domestic violence proceedings.  In the said application only notice was issued and since interim stay on the execution,,

proceedings continued, the petitioner filed special leave petition in this Court for vacation of the interim order passed by the High Court in the",,

execution proceedings.   This special leave petition was converted into appeal on grant of leave, in which judgment was delivered on September",,

18, 2014 allowing the said appeal.",,

Operative portion of the said judgment reads as under:,,

“31. The issue before the High Court in Crl.MC. No. 1975 of 2013 is limited i.e. whether the sessions court could have dismissed the,,

respondent’s appeal only on the ground that respondent did not discharge the obligation arising out of the conditional interim order passed by the,,

sessions court. Necessarily the High Court will have to go into the question whether the sessions court has the power to grant interim stay of the,,

execution of the order under appeal before it.,,

In a matter arising under a legislation meant forprotecting the rights of the women, the High Court should have been slow in granting interim",,

orders, interfering with the orders by which maintenance is granted to the appellant. No doubt, such interim orders are now vacated. In the",,

process the appellant is still awaiting the fruits of maintenance order even after 2 years of the order.,,

We find it difficult to accept that in a highlycontested matter like this the appellant would have instructed her counsel not to press her claim for,,

maintenance. In our view, the High Court ought not to have accepted the statement of the counsel without verification. The impugned order is set",,

aside.Â,,

We are of the opinion that the conduct of therespondent is a gross abuse of the judicial process. We do not see any reason why the,,

respondent’s petition Crl.MC No. 1975 of 2013 should be kept pending. Whatever be the decision of the High Court, one of the parties will (we",,

are sure) approach this Court again thereby delaying the conclusion of the litigation. The interests of justice would be better served if the,,

respondent’s appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of,,

the appellate Court to grant interim orders or the legality of the decision of the Sessions Court to dismiss the appeal only on the ground of the,,

noncompliance by the respondent with the conditions of the interim order. The Criminal Appeal No. 23/2012 stands restored to the file of the,,

Sessions Court.,,

We also direct that the maintenance order passedby the magistrate be executed forthwith in accordance with law. The executing court should,,

complete the process within 8 weeks and report compliance in the High Court. We make it clear that such hearing of the Sessions Court should,,

only be after the execution of the order of maintenance passed by the Magistrate.,,

In the event of the respondent’s success in theappeal, either in full or part, the Sessions Court can make appropriate orders regarding the",,

payments due to be made by the respondent in the execution proceedings.â€​,,

Sl. No.,Description,Particulars

11.,"Monthly expenditure (as

mentioned in S. No. 60)","Rs. 1.5 lac approx. spent jointly by parents and

self. My share in the above expenditure is around

Rs. 1 lac per month.

16.,"If not staying at Matrimonial

home, relationship and income

of the person with whom you

are staying?","Staying with my parents in House in which my

brother has a sizable share. Income Rs. 1.5 lac

p.m.

Other averments in the petitioner’s affidavit was also denied including her share of expenditure in the neighbourhood of Rs.1 lakh per month or,,

that respondent is earning Rs.20 lakhs per month. Â In respect of the particulars given by the petitioner about the businesses of the respondent, the",,

respondent has denied the same and submits that, at present, there is no Restaurant or Bar anywhere in India in which respondent has any share or",,

interest. He has his own explanation and has given alleged circumstances in which he had to give up his share in certain businesses. The petitioner,,

has controverted his averments in her rejoinder affidavit. During arguments, the petitioner also tried to demonstrate, by referring to certain",,

documents filed by her, that the respondent was indulging in falsehood.Â",,

9) We have given a glimpse of the respective cases set up by both the parties, without giving details thereof, as asserted by the petitioner and the",,

manner in which the respondent has refuted the same.Â,,

10) After giving conscious and objective consideration to the documents placed on record by both the sides, we are of the view that it is only after the",,

evidence is led by both the parties, the veracity and evidential value of such material can be finally adjudged, more particularly, when the said material",,

and assertions of the parties would be tested with their crossexamination.Â,,

11) The present proceedings arise out of the petition which was filed by the petitioner under Section 12 of the DV Act.  The trial court had,,

arrived at a figure of maintenance on the basis of affidavits filed by both the parties along with their respective documents. Same exercise is,,

undertaken by the learned ASJ in the impugned order while adjudging the correctness of the order passed by the trial court and, in the process,",,

reducing the maintenance from Rs.2.50 lakhs to Rs.50,000/- per month. This obviously happened as the proceedings under the DV Act are of",,

summary nature.Â,,

12) In these circumstances, the appropriate course of action would be to allow the petitioner to file an application for maintenance under the Hindu",,

Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 so that in these proceedings, both the parties",,

lead their documentary and oral evidence and on the basis of such material, appropriate view is taken by the said Court.Â",,

13) We accordingly dispose of this petition by granting liberty to the petitioner to move appropriate application for maintenance, as indicated above.Â",,

Once such application is moved, same shall be decided by the concerned Court most expeditiously having regard to the fact that the petitioner is",,

fighting for her maintenance for last number of years and these proceedings should attain finality at the earliest. We also make it clear that any,,

maintenance fixed shall not, in any case, be less than Rs.50,000/- per month which figure of maintenance has already attained finality.Â",,

14) As a sequel, the respondent shall continue to pay Rs.50,000/- per month to the petitioner in the meanwhile. The present petition stands disposed",,

of accordingly.,,