$~20 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON :
4. h NOVEMBER, 2016 + CRL.M.C. 367/2016 & CRL.M.A.No.1557/2016 MOHD.SHAHID & ORS. ........ Petitioner
s Through : Mr.S.K.Bhalla, Advocate. VERSUS ........ RESPONDENTS
Through : Ms.Manjeet Arya, APP with SI Dinesh Kumar, PS Chandni Mahal. Mr.M.Hasibuddin, Advocate for R2 along with R2 in person. STATE & ANR. CORAM: HON'BLE MR. JUSTICE S.P.GARG S.P.GARG, J.
(Oral) 1. Present petition under Section 482 Cr.P.C. has been preferred by the petitioners to challenge the legality and correctness of an order dated 19.12.2015 by which defence of the petitioners herein was struck off. Petition is contested by the complainant / respondent No.2.
2. I have heard the learned counsel for the parties and have examined the file. On perusal of the file, it reveals that by an order dated 13.04.2009 the complainant’s husband was directed to pay maintenance @ `4,000/- for her and `2,000/- per month for her daughter. It appears that Crl.M.C.367/2016 Page 1 of 4 subsequently the petitioners moved an application under Section 25 (2) of the Protection of Woman from Domestic Violence Act (In short ‘DV Act’) for reduction of the quantum of maintenance. By an order dated 10.01.2014 in Crl.M.C. 81/2014, filed by the petitioners, the Trial Court was directed to dispose of the said application moved under Section 25 (2) of the DV Act and to execute the order of grant of maintenance subsequent to that. It seems that another application for ‘taking into consideration subsequent events’ after filing the application under Section 25 (2) of the DV Act was filed on 17.05.2014. By an order dated 22.12.2014, the application under Section 25 (2) of the DV Act along with the application for ‘taking into consideration subsequent events’ was dismissed by the Trial Court.
3. The petitioners again filed an application dated 02.12.2015 to recall the order dated 22.12.2014 as it was passed in violation of the order dated 10.01.2014 of this Court. The learned Metropolitan Magistrate dismissed the said application by the impugned order dated 19.12.2015 observing that no application under Section 25 (2) of the DV Act was pending. Since the petitioner had declined to pay the arrears of maintenance, the Trial Court struck off the defence of the petitioners.
4. During the course of arguments, learned counsel for the petitioners informed that the petitioners have paid around `2.66 lacs towards maintenance till the order dated 10.01.2014 was passed by this Court. Learned counsel for the respondent No.2 informed that maintenance arrears have not been paid since 2011. The petitioners’ counsel was unable to respond as to since when the execution petition for claiming arrears of maintenance was pending and how much exact amount has since been given to the complainant. Crl.M.C.367/2016 Page 2 of 4 5. Since the petitioners were negligent in compliance of the order regarding payment of arrears of maintenance, the Trial Court, was within its jurisdiction to strike off the defence. On that score, order of the Trial Court cannot be faulted.
6. Perusal of the file, however, reveals that on 17.05.2014, the complainant had handed over custody of the daughter to the petitioners in the Court. The complainant’s husband had agreed to take the child and to take care of hers. It appears that the Trial Court did not take into consideration the factum of handing over the custody of the child by the complainant to the petitioners while disposing application under Section 25 (2) of the DV Act. Apparently, after the handing over the custody of the child, the complainant was not entitled to claim her maintenance @ `2,000/- per month.
7. Considering all the facts and circumstances of the case, the impugned order dated 19.12.2015 is set aside. Application moved under Section 25 (2) of the DV Act shall be disposed of taking into consideration all the subsequent developments after hearing respective contentions of the parties on merits. The petitioners shall clear the arrears of maintenance @ `6,000/- per month due till 17.05.2014 within a month. They shall pay `4,000/- per month w.e.f. 17.05.2014 and shall clear its arrears too within next one month.
8. This arrangement will continue till the disposal of the application under Section 25 (2) of the DV Act. In case there is any reduction in the quantum of maintenance, the excess amount (if any) paid by the petitioners towards arrears shall be adjusted. Crl.M.C.367/2016 Page 3 of 4 9. The petition stands disposed of in the above terms. Pending application also stands disposed of. NOVEMBER04 2016 / tr (S.P.GARG) JUDGE Crl.M.C.367/2016 Page 4 of 4