CM(M) No. 522/2010 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) No. 522/2010 & CM Nos. 7106-07/2010 Date of Decision: April 20, 2010 PUSHPENDER SINGH ..... Petitioner Through: Mr.Suresh Sharma, Advocate. versus SMT. JASBIR KAUR ..... Respondent Through: None. % CORAM: HON’BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. (Oral) CM(M) No. 522/2010 1. Impugned in this petition is the order of the Trial Court dated 9th February, 2010, whereby on an application of the respondent, Trial Court was pleased to award maintenance of Rs.5,000/- per month to her besides litigation expenses of Rs.11,000/-. CM(M) No. 522/2010 Page 2 of 6 2. Grouse of the petitioner is that at the time of grant of anticipatory bail to the petitioner, respondent had compromised the dispute with him. As per the settlement, she agreed to receive a sum of Rs.1,50,000/- from the petitioner. First installment of Rs.50,000/- was payable to respondent by way of a pay order through the Investigating Officer within fifteen days of the anticipatory bail order of the Court dated 13th January, 2006. Another sum of Rs.50,000/- was payable to her at the time of first motion and the remaining amount of Rs.50,000/- was to be paid to her at the time of quashing of FIR. However, after receiving Rs.50,000/- through Investigating Officer, respondent backed out and did not join hands with the petitioner for filing first motion under Section 13B (1) of the Hindu Marriage Act (hereinafter referred to as the „Act‟) nor she joined the petitioner for filing a petition seeking quashing of FIR registered against him. 3. He has argued that matter having been once settled inter se the parties, Trial Court went wrong in awarding maintenance to the respondent under Section 24 of the Act without taking into consideration, the fact that respondent had received Rs.50,000/- through the Investigating Officer. Terms of settlement inter se the parties are reflected in the order of the Additional CM(M) No. 522/2010 Page 3 of 6 Sessions Judge dated 13th January, 2006 whereby petitioner was granted anticipatory bail. Petitioner filed a petition for divorce on 16th April, 2009 i.e. after about three years of the alleged settlement. The said settlement lost its meaning. Fact remains that terms were recorded in an order passed on an application of the petitioner seeking anticipatory bail. While awarding maintenance to the respondent, Court took into consideration income of the petitioner as disclosed by the respondent. Trial Court also noted the defence of the petitioner that he was unemployed or remained sick. Fact remains that nothing was placed before the Court to indicate that petitioner was sick and was not capable of earning anything. 4. During course of arguments when asked, counsel for the petitioner submitted that petitioner being a sick person and suffering from some stone problem in his kidneys is not capable of earning anything and therefore, has no source of income. When asked further as to how petitioner was maintaining himself, it was conceded at the Bar that he was working for gain. Obviously, petitioner has concealed his income from the Court so as to avoid his liability to pay maintenance to his wife. As pointed out above, nothing is placed on record to indicate that petitioner is a sick man and his earning capacity is very low. CM(M) No. 522/2010 Page 4 of 6 5. Court has awarded only Rs.5,000/- per month to respondent/wife as maintenance, which to my mind is reasonable, considering income of the petitioner, as disclosed by the respondent in her application. Petitioner is stated to be running a factory of manufacturing automobiles focus/fog lights as well as doing business at D-48, Sewak Park, Uttam Nagar, New Delhi. This averment of the respondent made in the application has not been specifically refuted by the petitioner. While awarding maintenance, Trial Court in para 9 of its impugned order has observed:- “9. Under the provisions of matrimonial law, the husband has a bounden duty to maintain his wife who is unable to maintain and sustain herself at a similar life style to that of the husband. From the aforesaid discussion, I am of the considered opinion that the respondent is trying to hide his true income so as to wriggle out of his legal obligation to support and pay maintenance to his wife. Therefore, in the absence of any proof of the current income of the respondent, the court has no other alternative but to indulge in guess work to assess the income of the respondent as held in Judgment of the Hon‟ble High Court (Supra). I consider it appropriate to award an Interim Maintenance @ Rs.5,000/- per month (Rupees Five Thousand) to the applicant/respondent /wife w.e.f. date of filing of the present application i.e.14.5.2009 from the litigation expenses of Rs.11,000/-. Any amount payable in any other proceedings to the applicant/ respondent/wife shall be adjustable against the amount awarded as above.” CM(M) No. 522/2010 Page 5 of 6 6. Amount of Rs.50,000/- which was allegedly paid to the respondent through the Investigating Officer cannot be construed as payment of maintenance as the settlement between the parties had failed. It seems that petitioner never brought the factum of settlement between him and his wife and payment of Rs.50,000/- to the knowledge of the Trial Court. Petitioner, therefore, cannot be allowed to raise this issue in this petition. 7. It is submitted that respondent has filed an application under Section 125 Cr.P.C. in which interim maintenance at the rate of Rs.1,200/- per month was fixed and therefore, once maintenance was fixed under Section 125 Cr.P.C., Trial Court went wrong in awarding maintenance at the rate of Rs.5,000/- per month under Section 24 of the Act. 8. I do not find any force in these submissions as different Forums are available to the respondent to claim maintenance for herself. If respondent has chosen to file a petition under Section 125 Cr.P.C. and also an application under Section 24 of the Act, whereby two different quantum of maintenance are fixed, petitioner is liable to pay maintenance fixed on the higher side. Trial Court observed that amount awarded under Section 125 Cr.P.C. be adjusted against CM(M) No. 522/2010 Page 6 of 6 the amount awarded under Section 24 of the Act. Therefore, Trial Court did take into consideration the factum of maintenance awarded to the respondent in proceedings under Section 125 Cr.P.C. 9. I find no reason to interfere in the impugned order of the Trial Court. Petition being without merits is dismissed accordingly. CM Nos. 7106/2010 (for stay) & 7107/2010 (for exemption) 10. With dismissal of the petition, both the applications have become infructuous. They are accordingly disposed of. ARUNA SURESH (JUDGE) APRIL 20, 2010 sb