KIRAN JYOT MAINI vs ANISH PRAMOD PATEL
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 02.11.2023
Pronounced on: 01.12.2023
+ CRL.M.C. 406/2023 & CRL.M.A. 4294/2023, CRL.M.A. 4907/2023, CRL.M.A. 17294/2023
KIRAN JYOT MAINI ….. Petitioner
Through: Mr. Gaurav Bhatia, Sr. Advocate with Mr. Utkarsh Jaiswal, Mr. Vikas Tiwari, Ms. Shubhangi Negi & Mr. Pawan Shree Agrawal, Advocates.
versus
ANISH PRAMOD PATEL ….. Respondent
Through: Mr. Prabhjit Jauhar,Mr. Gautam Panjwani, Mr. Neeraj Jain & Ms. Himanshi Nagpal, Advocates.
CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. By way of this petition filed under Article 227 of Constitution of India and Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.), the petitioner-wife seeks appropriate directions in Ct. Case Nos. 691 of 2022 and Case No. 882 of 2022 pending before learned Metropolitan Magistrate (Mahila Court)-01, Tis Hazari Courts, Central, New Delhi. The petitioner prays for following reliefs:
(a) Direct the Respondent to pay the maintenance as directed by Ld. Additional Sessions Judge vide order dated 01.02.2019 including arrears;
(b) Direct attachment of bank accounts of the Respondent as detailed in para 38 above so that necessary compliance can be made.
(c) In the alternative, direct Ld. MM (Mahila Court)-01, Tis Hazari, Central, New Delhi to issue necessary directions regarding the interim maintenance in Ct. Case nos. 691 of 2022 and 882 of 2022 finally on the next date of hearing i.e., 28.01.2022 without any adjournment.
2. Facts of the present case are that the marriage between the petitioner-wife and respondent-husband was solemnized on 30.04.2015 and subsequently, an FIR bearing no. 34/2016 was registered on the complaint of 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. Thereafter, the respondent had filed a Criminal Miscellaneous Writ Petition before the High Court of Allahabad for stay on 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. Thereafter, the petitioner 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 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. Aggrieved by these orders granting interim maintenance, the respondent had preferred an Application bearing No. 12860/2019 under Section 482 of Cr.P.C. before the High Court of Allahabad and the matter was again referred to mediation vide order dated 09.04.2019 and the 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, the mediation between the parties had failed on 06.07.2019.Subsequently, the petitioner had preferred a Criminal Application No. 41/2019 under Section 31(1) of PWDV Act against the 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 of learned Additional Civil Judge, Third, Gautam Budh Nagar, but these summons were challenged by the respondent before High Court of Allahabad vide Application No. 33533/2019 under Section 482 of Cr.P.C. and the summons were stayed vide order dated 16.09.2019 till next date of hearing.
3. Vide order dated 13.12.2019, the High Court of Allahabad had directed expeditious disposal of application filed by the petitioner under Section 12 of PWDV Act which was pending before learned Judicial Magistrate as there was no stay of proceedings. Thereafter, the respondent had ultimately preferred transfer petitions before the Honble Supreme Court seeking transfer of all criminal cases and complaints filed by the petitioner-wife as well as applications filed by him under Section 482 of Cr.P.C. before High Court of Allahabad, to the Courts in Delhi. The Honble 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 of Cr.P.C. which were pending before the High Court of Allahabad since the prayer in this regard was not pressed. 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. On 04.04.2022, notices were issued to both the parties by the concerned Court at Tis Hazari. Further, 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. On 14.03.2023, the High Court of Allahabad vide two separate orders dated 14.03.2023 had dismissed the applications filed by the respondent under Section 482 Cr.P.C. being Application No. 33533/2019 and Application No. 12860/2019 as infructuous on the statement made by his counsel.
4. Learned Senior Counsel for the petitioner argues that despite the aforesaid cases being transferred to Delhi from State of Uttar Pradesh pursuant to orders of Honble Apex Court, the respondent on one pretext or the other has tried to delay the present proceedings and has not paid the maintenance to the petitioner as per court orders. It is stated that when the present petition was filed before this Court, there were arrears of interim maintenance of Rs.52,95,000/- as on 31.12.2022 and the respondent had not paid the interim maintenance to the petitioner except for a few months when he was directed to pay Rs.45,000/- per month by the Honble Apex Court. It is also stated that after an interim order was passed by this Court, the respondent had paid 10% of the arrears of Rs.52,95,000/-. It is stated that petitioner is forced to run pillar to post for seeking directions for compliance with the orders passed by the learned Sessions Court. It is argued that the respondent is a man of means, who is working as an investment banker and has earnings of more than Rs.10,00,000/- per month i.e. Rs. 1.2 crore annually and the petitioner on the other side is a single mother who is working as a HR in a contractual job, having no assurance of regular employment or income. It is stated that the salary certificate of the petitioner will show that she is earning an annual amount of Rs. 14.5 lakh i.e., Rs. 1,20,000/- per month (approximately), which is 1/10th of the salary which is earned by the respondent. Moreover, the petitioner has to take care of the needs of her child who is currently pursuing education at school. It is stated that the petitioner is unable to meet her basic financial needs with the limited income she receives, and the maintenance amount awarded to her through the orders dated 10.05.2018 and 01.02.2019 will enable her and her child to attain a basic standard of living, ensuring they have access to essential necessities and the ability to lead a decent life.
5. It is stated that no directions have been passed till date by the learned Trial Court with regard to non-payment of interim maintenance and also for attachment of bank accounts of the respondent. It is also submitted on behalf of petitioner that this Court in an application seeking interim relief in the present case, had directed the respondent to deposit 10% of the amount of arrears of maintenance i.e. 10% of Rs. 52,95,000/- within 15 days, but the respondent had failed to comply with the said direction and had deposited the entire amount only after a period of about 30 days.
6. Therefore, it is prayed that the present petition be allowed in terms of reliefs sought.
7. Learned counsel for the respondent, on the other hand, argues 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 (2021) 2 SCC 324. 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 a lot more than the maintenance awarded to her. It is also stated that the petitioner in her cross-examination dated 25.03.2019 conducted in State v. Anish Pramod Patel had deposed falsely and stated under oath that she was not working anywhere, however, the respondent had filed the bank statement of the petitioner wherein it could be seen that she was drawing a monthly salary of about Rs. 84,350/- per month, and based upon such false representations, the orders dated 10.05.2018 and 01.02.2019 granting interim maintenance were passed by learned Trial Court and Sessions Court.
8. It is contended by learned counsel for the respondent that the Honble Apex Court had denied the maintenance for minor daughter of respondent as she was conceived from petitioners previous marriage and the petitioner has already received alimony for her expenses from her previous husband and the Honble Apex Court 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, Honble Apex Court also had denied to grant any relief to the petitioner qua the issue of arrears of maintenance.
9. It is also argued on behalf of respondent that the petitioner had been indulging into forum shopping as she has already moved an Execution Petition bearing no. Ex.Crl.172/2022 titled Kiran Jyot Maini v. Anish Pramod Patel, claiming the same amount of arrears of maintenance against the respondent, which is pending adjudication before learned Trial Court in Delhi. It is also argued that besides that, the petitioner has also filed an application under Section 20(6) of PWDV Act seeking attachment of Bank Accounts of the respondent, which is also pending adjudication. It is further submitted that petitioner had even filed a complaint under Section 31(1) of PWDV Act against the respondent for non-payment of maintenance amount, and therefore, the petitioner has already tried to avail several remedies. It is lastly stated that after the passing of interim order dated 08.05.2023 in this case by this Court vide which the respondent was directed to pay 10% of amount of arrears of maintenance and the learned Trial Court was directed to decide the Execution Petition as per law, nothing survives in the present petition and thus, the same ought to be dismissed.
10. This Court has heard arguments addressed by learned counsel for the petitioner as well as learned Senior counsel for the respondent, and has carefully gone through the material placed on record.
11. In the present case, this Court had earlier passed an interim order dated 08.05.2023 whereby the following observations were made:
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 N. applications/petitions as infructuous. Thus, in any ease, 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.
14. The fact, however, remains that the petitioner was granted maintenance by learned Judicial Magistrate and the same was enhanced by learned Additional Sessions Judge. It is also pertinent to note that the amount so determined by the learned Additional Sessions Judge is only the interim maintenance and not the final amount of maintenance which shall be decided after considering in detail, the evidence led by both the parties. In such circumstances, respondent cannot be allowed to deny his responsibility to pay maintenance to the petitioner i.e. his legally wedded wife.
15. Thus, without going much into the specific details and issues at this stage and in view of the fact that no stay by any Court of law on any of the proceedings exists as on date, and also the fact that amount of Rs.52,95,000/- in terms of order dated 01.02.2019 passed by learned Additional Sessions Judge remains due to towards the petitioner, but keeping in perspective the arguments addressed on behalf of respondent qua non-filing of Affidavit of Disclosure of Assets and Liabilities by petitioner and the issue regarding grant of maintenance to petitioner’s daughter, this Court deems it fit to direct that respondent shall pay 10% (ten per cent) of Rs.52,95,000/- as immediate interim relief to the petitioner within a period of 15 (fifteen) days from today.
16. Moreover, since Execution Petition filed by the petitioner for recovery of same amount i.e. Rs.52,95,000/- is pending adjudication before the learned Trial Court in Delhi, the Court concerned shall make every endeavour to dispose of the same as per law. The parties will be at liberty to to move the learned Trial Court to file an application for modification of order of maintenance and raise all such contentions and pleas as raised before this Court, which will be dealt with as per law.
12. In the present case, this Court notes that the petitioner by way of prayer clause (a) has prayed for directions to respondent to pay the amount of maintenance as directed vide order dated 01.02.2019 including the arrears of maintenance. Further in clause (b), the petitioner prays for attachment of bank account of the respondent and in clause (c), she prays for an alternative relief i.e. directing the learned Trial Court to decide the issue regarding non-payment of interim maintenance without any delay.
13. Firstly, as regards the prayer regarding directing the attachment of bank accounts of the respondent for his failure to pay the amount of interim maintenance, this Court notes that the petitioner has already filed an application under Section 20(6) of PWDV Act seeking attachment of bank accounts of the respondent, which is pending adjudication before the learned Metropolitan Magistrate, Mahila Court, Central District, Tis Hazari Court, in the complaint filed under Section 12 of PWDV Act by the petitioner. Therefore, this Court finds no reason to pass any directions at this stage in a petition filed under Section 482 of Cr.P.C. when the appropriate remedy under Section 20(6) of PWDV Act has already been availed by the petitioner. Secondly, as regards the prayer for directing the respondent to clear the entire arrears of maintenance, this Court is again of the opinion that the petitioner herein has already preferred an Execution Petition bearing no. Ex.Crl.172/2022 before the learned Trial Court in Delhi.
14. However, it is crucial to note that in a connected matter i.e. CRL.REV.P.298/2023, filed by the respondent herein assailing the orders granting interim maintenance to the petitioner, this Court vide judgment dated 01.12.2023 has remanded back the matter to the learned Trial Court in Delhi for deciding afresh the issue of interim maintenance payable to the petitioner herein and her daughter, within a period of 3 months, as per the law and in accordance with guidelines laid down by the Honble Apex Court in case of Rajnesh v. Neha (supra).
15. Therefore, the prayers in the present petition seeking directions to respondent to pay the amount of interim maintenance awarded vide order dated 01.02.2019 and/or directing the learned Trial Court to expeditiously dispose of the pending cases, cannot be allowed at this stage, since the learned Trial Court has now been directed to decide the issue of interim maintenance afresh. It has, however, been made clear in the judgment passed in CRL.REV.P.298/2023 that till the learned Trial Court decides the aforesaid issue afresh, the respondent herein i.e. the husband shall continue to pay Rs.45,000/- per month to the petitioner-wife.
16. Further, considering the overall facts and circumstances of the case and the amount of arrears of maintenance calculated as per the order of learned Sessions Court, Gautam Budh Nagar which was passed in the year 2019, this Court deems it appropriate to direct the respondent herein to pay 20% of the amount of arrears of maintenance i.e. 20% of Rs. 65,00,000/- (approximately) which amounts to Rs. 13,00,000/-, within a period of 20 days from today.
17. It has already been clarified in the judgment passed in CRL.REV.P.298/2023 and is being reiterated here that in case the Trial Court awards interim maintenance which is lesser than the amount of interim maintenance already decided in this case, the amount paid in excess will be adjusted in the future amount of maintenance/interim maintenance to be paid by the respondent herein.
18. Needless to say, the adjudication of Execution Petition bearing no. Ex.Crl.172/2022 as well as the application filed under Section 20(6) of PWDV Act by the petitioner herein and the further proceedings in these cases, shall remain stayed for a period of three months i.e. till the decision of learned Trial Court on the issue of interim maintenance payable under Section 20 read with Section 23 of PWDV Act, and the proceedings thereafter in these petitions/applications shall be contingent upon the amount of interim maintenance payable to the petitioner, if any, determined by the learned Trial Court.
19. With these directions, the present petition stands disposed of, alongwith all pending applications.
20. Copy of this judgment be forwarded to the learned Trial Court i.e. Metropolitan Magistrate, Mahila Court, Central District, Tis Hazari Court where Case No. 691/2022 is pending adjudication, for information and compliance.
21. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
DECEMBER 1, 2023/kd
CRL.M.C. 406/2023 Page 1 of 13