* % IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
28. h August, 2017 + CRL.M.C. 5058/2015 & CRL.M.A.No.18213/2015 MEENAKSHI SHARMA ........ Petitioner
Through: Mr.Prashant Mendiratta, with Mr.Harshvardhan Pandey, Advocates. versus AMIT KUMAR SHARMA ........ RESPONDENTS
Through: Ms.Geeta Luthra, Sr. Advocate with Mr.Prateek Yadav, Advocate. CORAM: HON'BLE MR. JUSTICE I.S.MEHTA JUDGMENT I.S. MEHTA, J.
1. Instant petition is preferred by the petitioner under Section 482 Cr.P.C. seeking setting aside of the impugned order dated 02.11.2015 passed by the learned ASJ-04 & Special Judge (NDPS) South East, New Delhi in CA. No.181/2015.
2. The brief facts stated are that the petitioner/wife and the respondent/husband got married on 13.02.2005 and out of the wedlock one child was born to them on 09.05.2009. On 01.10.2012 the petitioner filed an application under Section 12 of the Protections of Women from Domestic Violence Act, 2005 before the Court of Additional Chief Metropolitan Magistrate, Saket Courts, New Delhi alleging therein that the CRL.M.C. 5058/2015 Page 1 of 6 respondent used to physically abuse the petitioner and beat her whenever she asked for any expense for the child or herself. Even the respondent never paid anything towards their expenses and therefore, the petitioner and her child is residing separately since June 2011. The petitioner has also sought interim maintenance vide her affidavit under Section 23 of the PWDV, Act as the petitioner was being constrained to bear the entire expenses of the minor child and was also incapable of maintain the standard of life that they were accustomed to.
3. Consequently, vide order dated 22.05.2015 the learned Mahila Court/MM-01/SED/Saket Courts, New Delhi directed the respondent to pay a sum of Rs. 1,00,000/- per month in favour of the petitioner and Rs. 40,000/- in favour of minor child from the date of filing of the petition, i.e. 01.10.2012, till final disposal of the petition.
4. The aforesaid order dated 22.05.2015 was challenged by the respondent by filing an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 before the Court of District and Sessions Judge, Saket Courts, Delhi and the learned ASJ vide impugned order dated 02.11.2015 directed the respondent/appellant to deposit an amount of Rs.7.25 Lacs which shall be 50% of arrears of maintenance granted by the learned Trial Court in favour of the minor child. Hence the present petition.
5. The learned counsel for the petitioner has submitted that the impugned order dated 02.11.2015 is perverse and has been CRL.M.C. 5058/2015 Page 2 of 6 passed in a mechanical manner without application of mind and is thus liable to be set aside.
6. The learned counsel for the petitioner has further submitted that the learned appellate Court erred gravely in not considering that by entertaining the appeal filed by the respondent and refusing to direct the respondent to clear the arrears of maintenance, the respondent is being permitted to take advantage of his own wrongs.
7. The learned counsel for the petitioner has submitted that the appellate Court erred in not considering the law on maintenance postulates that the petitioner and the minor child ought to be enabled to live in a standard consummate to the lifestyle enjoyed by the respondent, the standard of life enjoyed by the petitioner and the minor child prior to cessation of cohabitation between the petitioner and the respondent, which is a valuable right being frustrated by the respondent by not complying with the order dated 22.05.2015 passed by the learned Mahila Court/MM-01/SED/Saket Courts, New Delhi directed the respondent to pay a sum of Rs. 1,00,000/- per month in favour of the petitioner and Rs. 40,000/- in favour of minor child from the dated of filing of the petition, i.e. 01.10.2012, till final disposal of the petition.
8. The learned counsel for the petitioner relying on the judgment of this Court in Rajeev Praeenja vs. Sarika & Ors; 159 (2009) DLT616has further submitted that the learned appellate Court erred gravely in not considering the approach to CRL.M.C. 5058/2015 Page 3 of 6 be adopted in cases where the delinquent litigants abuse the process of law by initiating frivolous appeals to defeat the rights of the claimant spouse. However, the learned appellate Court acted in undue haste in not considering the aforesaid plea and passed the impugned order in a premeditated manner without considering the law on the issue or the fact peculiar to the matter being adjudicated.
9. On the contrary, the learned counsel for the respondent has submitted that vide order dated 23.09.2013 a divorce decree was granted by the Court of Republic of Singapore and the Courts of India do not have the jurisdiction to entertain the present petition as the parties have resided in Singapore and the Courts of Singapore have already granted a divorce decree. It is further submitted that the petitioner/wife has preferred to come to India and file a domestic violence complaint against the respondent/husband after a significant gap of 1 year and 4 months therefore, the present petition is not maintainable. Reliance is placed on the following judgments:-
"I. Harbans Lal Malik vs. Payal Malik; (2010) 171 DLT67 II. Inderjit Singh Grewal vs. State of Punjab & Anr.; (2011) 12 SCC588 III. IV. V. VI. Sharad Kapoor vs. Mini Malhotra & Ors;. Brijesh Kr. Gupta vs. Shikha Gupta & Anr.;. Dr. Shyla & Ors. vs. Dr. Jaleel & Ors.;. Gopalakrishna vs. G. Aswathy & Anr.;. CRL.M.C. 5058/2015 Page 4 of 6 VII. Pintu Kumar vs. State of West Bengal & Anr.;. VIII. Ranjeet Nabha vs. Udita Nabha;.
10. The petitioner in its petition has stated that the petitioner- wife and the respondent-husband got married in India at Bikaner, Rajasthan as per Hindu rites and customs.
11. The maintenance petition which has been resisted by the respondent on the ground that the marriage between the parties was dissolved by a decree of divorce by the Courts of Republic of Singapore loses its significance as the mere allegation of the divorce taken place at Singapore does not absolve the respondent from granting maintenance to the petitioner as awarded by the learned Trial Court as this stage.
12. However, it is an admitted fact emerging on record that the marriage between the parties was performed in India according to Hindu rites and customs and the alleged divorce has taken place in a foreign country- Singapore. The validity of the alleged divorce is to be determined by the Trial Court. Reliance is placed on the judgment of this Court in case Harmeeta Singh vs. Rajat Taneja; 2003 (67) DRJ58 13. As far as the income of the petitioner is concerned the same is a disputed fact which is to be determined by the learned Trial Court during the course of trial after considering the evidence on record and income affidavits of the parties.
14. No force emerging in the contentions of the learned Senior counsel for the respondent at this stage. CRL.M.C. 5058/2015 Page 5 of 6 15. In view of the aforesaid, the impugned order dated 02.11.2015 passed by the learned ASJ-04 & Special Judge (NDPS) South East, New Delhi in CA. No.181/2015 which is silent about the maintenance in favour of the petitioner wife is set aside.
16. Consequently, the present petition is allowed and disposed of in the above terms. Pending application(s) (if any) are also disposed of.
17. Copy of this judgment be sent to the concerned Court/Successor Court forthwith, with the direction to dispose of the pending appeal within three months. No order as to costs. I.S.MEHTA, J AUGUST28 2017/sr CRL.M.C. 5058/2015 Page 6 of 6