TARON MOHAN  Vs STATE & ANR

CRL.REV.P. 646/2018 Page 1 of 8

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 646/2018

Date of decision: 25th January , 202 1
IN THE MATTER OF:
TARON MOHAN ….. Petitioner
Through Mr. Vishesh Wadhwa, Advocate

versus

STATE & ANR ….. Respon dents
Through Mr. Hirein Sharma, APP for State
Mr. Joel, Advocate for the respondent No.2.

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.
1. This revision petition filed under Section 397/401 Cr .P.C is directed
against the order dat ed 28.04.2018, passed by learned Additional Sessions
Judge, South -East, Saket District Courts, Delhi in Criminal Appeal
No.204157/2016. The petitioner has also challenged the order dated
14.05.2011 passed by the learned Metropolitan Magistrate, Mahila Cou rts,
South East, Saket, Delhi in an application titled as Gyatri Mohan v. Taron
Mohan & Ors. for claiming interim maintenance under Section 23 of the
Domestic Violence Act.
2. Shorn of details, the facts leading to this revision petition are: –
a) The marriage of the petitioner and the respondent was
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solemnised on 15.12.2002 according to Hindu rites and ceremonies.
b) After marriage, the respondent/wife was inducted as a whole
time Director in the company run by the petitioner/husband, namely,
Mobisoft Telesolutions Pvt. Ltd .
c) The respondent/wife started living separately claiming that she
was deserted by the petitioner on 20.01.2009 after which she filed an
application under Section 23 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred a s “The Domestic
Violence Act ”) for seeking interim maintenance.
d) It is stated in the petition that as a Director of Mobisoft
Telesolutions Pvt. Ltd. she was getting a salary of Rs.2 ,00,000 and
after differences arose between the parties, no salary was being paid
to the respondent.
e) It is stated in the petition for interim maintenance that the
respondent was unable to take any job as she was continuing as a
Director in the said company. It is claimed by the petitioner that since
she does not have any job and i s also not getting any salary from the
company she is unable to maintain herself.
f) The learned Metropolitan Magistrate by an order dated
14.05.2011 granted a maintenance of Rs.1,00,000/ – per month to the
respondent from the date of filing of the complaint t ill the disposal of
the case on merits. The said order was challenged in Criminal Appeal
75/11 filed by the petitioner before ASJ -05 South -east Saket Courts,
New Delhi, and the same has been rejected by order dated
04.11.2011.
g) The respondent had approached the Company Law Board for a
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direction that she should be paid salary during the period she served
as a Director of the company . The Company Law Board allowed the
petition and directed the company i.e. Mobisoft Telesolutions Pvt. Ltd
to pay the salary to the respondent from 30.09.2009 to 30.12.2011.
h) The petitioner thereafter moved an application under Section 25
of the Domestic Violence Act seeking for a modification of the order
dated 14.05.2011 claiming that the respondent is not entitled to any
maintena nce from 30.09.2009 to 30.12.2011 for the reason that the
respondent is now getting Rs.2,00,000/ – per month as salary from
30.09.2009 to 30.12.2011 as directed by the Company Law Board.
i) The learned Metropolitan Magistrate by an order dated
29.07.2013 in CC No.426/3 rejected the application for modification
on the ground that the quantum of maintenance to an estranged wife is
decided keeping in mind the standard of life she was used to while
living with her husband since marriage. The learned Metropolitan
Magistrate observed that in the present case what was assessed was as
to whether her earnings alone are sufficient to provide her the same
level of comfort which she was enjoying earlier it was found that
despite her earnings, her lifestyle was substantiall y supported by her
husband while the couple was residing together. The learned
Metropolitan Magistrate has observed that merely because the
respondent has received her salary for the period in question (i.e. from
30.09.2009 to 30.12.2011), it does not automatically disentitle her to
the maintenance from the husband. The learned Metropolitan
Magistrate was of the opinion that while considering an application
for modification under Section 25 of the Domestic Violence Act, the
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two factor s here to be kept in m ind are; firstly, there must be a change
in circumstance and, secondly , the change must be such so as to
require a change in the order . The learned Metropolitan Magistrate
held that though the re was a change in circumstance inasmuch as the
respondent was paid her salary from 30.09.2009 to 30.12.2011 but the
order does not require any modification as the salary stated by the
respondent would not be sufficient to maintain herself.
j) The learned Metropolitan Magistrate found that the Income Tax
Returns o f the petitioner revealed that his gross income was
Rs.64,96,910/ – for assessment year 2010 -2011 and Rs. 52,74,052/ – for
assessment year 2011 -2012 and Rs.45,07,331/ – for assessment year
2012 -2013. After making deductions for the tax paid his earning s
were Rs.45,1 6,908/ -, Rs.37,25,650 and Rs.31,97,912 for the year
2010, 2011,2012 respectively. The learned Metropolitan Magistrate
also noted that after proceedings were initiated between the parties,
the income of the petitioner started decreasing and probably it was an
attempt made by petitioner to hide his real income. The learned
Metropolitan Magistrate therefore rejected the argument of the
petitioner that Rs.2,00,000/ – per month being given as salary to the
respondent from 30.09.2009 to 30.12.2011 would allow her to
maintain the same lifestyle that she was earlier enjoying while living
with her husband.
3. The order of learned Metropolitan Magistrate dated 29.07.2013 was
challenged in Criminal Appeal No.204157/2016. The learned Additional
Sessions Judge dismissed t he appeal holding that on a reading of the order
dated 14.05.2011 it cannot be said that the learned Trial Court had passed
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the order of interim maintenance of Rs.1,00,000/ – per month only because
the petitioner was not paying salary of Rs.2,00,000/ – per m onth to her.
4. By this petition, the petitioner seeks to chal lenge the order dated
28.04.2018 passed by the learned Additional Sessions Judge and also the
order dated 14.05.2011 passed by learned Metropolitan Magistrate for
interim maintenance.
5. Heard Mr.Vi shesh Wadhwa, lea rned counsel for the petitioner,
Mr.Hirein Sharma, learned APP for the State and Mr. Joel, learned counsel
for the respondent No.2.
6. Mr. Vishesh Wadhwa, learned counsel for the petitioner would
contend that the order dated 14.05.2011 had b een obtained by the respondent
concealing material facts. The statement of the respondent that she is not
able to get any work because she has continued as a Director in the Mobisoft
Telesolu tions Pvt. Ltd. is factually incorrect inasmuch as she was a Dir ector
in a company registered under the Companies Act under the name Mira
Exploration s Pvt Ltd. He would therefore contend that since the order dated
14.05.2011 has been obtaine d by concealing material facts, t he order dated
14.05.2011 deserves to be set a side. He further states that once the learned
Metropolitan Magistrate had came to the conclusion that the order of the
Company Law Board directing Mobisoft Teleso lutions Pvt. Ltd to pay the
salary of the respondent from 30.09 .2009 to 30.12.2011 amount s to change
in circumstance then the logical conclusion would be to modify the order of
maintenance to hold that the petitioner is not liable to pay maintenance of
Rs.1,00,000/ – per month to the respondent from 30.09.2009 to 30.12.2011.
7. On the other hand Mr . Joel, learned counsel for the respondent would
state that four courts have upheld the order awarding maintenance of
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Rs.1,00,000/ -. The order dated 14.05.2011 of the learned Metropolitan
Magistrate awarding maintenance of Rs.1,00,000/ – per month has been
upheld by the learned Appellate Court by an order dated 04.1 1.2011. T he
learned Metropolitan Magistrate has refused to modify the order which has
also been upheld by the learned Additional Sessions Judge by the order
impugned herein. He would state that in view of this, the High Court while
exercising its jurisdiction under Section 397/401 CrPC ought not to interfere
with the four orders passed by the courts below . He would state that there is
no perversity in the orders passed by the courts below warranti ng
interference of this court while exercising its revisionary jurisdiction . He
would contend that the contention of the petitioner in the revision petition
that the respondent was a Director in Mira Exploration s Pvt. Ltd and
therefore the order dated 14. 05.2011 needs to be set aside has been taken for
the first time in the present revision petition and therefore the same cannot
be taken into account.
8. The prayer to set aside order dated 14.05.2011 cannot be entertained
by this court in the pending proceed ings for the reason that the said order
was challenged in an appeal filed by the petitioner before the learned
Sessions Court and the said appeal has been dismissed. The order dated
04.11.2011 passed by the Sessions Court in Criminal Appeal No.75/11
uphol ding the order dated 14.05.2011 has not been challenged. After the
appeal having been dismissed, it is now not open to the petitioner to
challenge the very same order in revision.
9. The scope of interference in a revision petition is extremely narrow .
It is well settled that Section 397 CrPC gives the High Courts or the
Sessions Courts jurisdiction to consider the correctness, legality or propriety
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of any finding inter se an order and as to the regularity of the proceedings of
any inferior court. It is also well settled that while considering the legality,
propriety or correctness of a finding or a conclusion, normally the revising
court does not dwell at length upon the facts and evidence of the case. A
court in revision considers the material only to satis fy itself about the
legality and propriety of the findings , sentence and order and refrains from
substituting its own conclusion on an elaborate consideration of evidence.
10. The order dated 14.05. 2011 has been upheld in the Appellate Court.
The application for modification had been rejected by the learned
Metropolitan Magistrate by order dated 29.07.2013 and the same has been
upheld by an order dated 28.04.2018, which is under challenge in the present
revision petition. It cannot be said that all these orde rs are perverse which
warrants interference. The object of Section 397 CrPC is to settle a patent
defect or an error in exercising jurisdiction or if the order is pervers e and no
court would come to such a conclusion. The orders have been passed in an
application for interim maintenance under the Domestic Violence Act.
Matrimonial proceedings are still pending between the parties. The findings
of the learned Metropolitan Magistrate as upheld by the learned Sessions
Court is that the petitioner was not pr oviding adequate maintenance to the
respondent and since the adequate maintenance was not being paid, the
petitioner was directed to pay a sum of Rs.1,00,000/ – towards maintenance.
11. The Company which was being run by the petitioner did not release
her sala ry. The respondent had to move the court and fight for getting her
legitimate salary. It is not in dispute that Mobisoft Telesolutions Pvt. Ltd.
company was being run by the petitioner. After denying the respondent her
salary, the petitioner is now tryin g to take advantage of his own wrong by
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stating that now since the respondent has got her salary and therefore , the
order of maintenance should be modified. Even though the company is
distinct from the petitioner but the company is being run by the petitio ner
and it can be assumed that the salary was not being paid to the respondent
only at the instance of the petitioner.
12. This court does not want to substitute its own conclusion to the one
arrived at by the court below . It is open to the petitioner to rais e all these
contentions in the matrimonial proceedings pending between the husband
and wife while deciding the issue of grant of alimony under Section 25 of
the Hindu Marriage Act.
13. Accordingly, t he petition is dismissed.

SUBRAMONIUM PRASAD, J .
JANUARY 25, 202 1
hsk/rs
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