CrI.M.No. M-6557/2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision:26.7.2010. Sarwan Kumar .....................Petitioner V. Jaya Prajauli ...................... Respondent Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.BB Bagga,Advocate for the petitioner. Mr.Puneet Gupta,Advocate for the respondent. Jaswant Singh.J. Prayer in this petition under Section 482 Cr.PC is for quashing of the order dated 8.2.2010 as well as order of conditional warrant dated 24.2.2010 passed by learned JM1C,Chandigarh. Briefly noticed, the facts leading to the filing of the present petition are that marriage between petitioner husband-Sharwan Kumar, who holds a degree of MA in Music from Panjab University, and respondent wife-Jaya Prajuli was solemnised on 27.4.2002. From this wedlock one female child Manya was born on 15.12.2003, who, unfortunately is suffering from a congenital heart disease for which she CrI.M.No. M-6557/2010 2 is allegedly required to be operated upon. It appears that due to matrimonial discord between the parties, the petitioner allegedly left his matrimonial home, leaving behind respondent wife and ailing daughter to fend for themselves. Thereafter, respondent wife filed an application under Section 125 Cr.PC for interim maintenance. The said application was contested by the petitioner-husband. After hearing both sides learned JMIC Chandigarh vide order dated 16.9.2008 fixed an interim maintenance of Rs.2000/- p.m to the respondent wife, and Rs.4000/- p.m. to their baby girl Manya, from the date of filing of the petition. Aggrieved against this order, petitioner filed a revision petition under Section 397 Cr.PC before the learned Additional Sessions Judge, Chandigarh, which stood dismissed vide order dated 7.2.2009. Still dis-satisfied, the petitioner filed Crl.M.No.M-5675 of 2009 before this Court assailing the orders dated 16.9.2008 passed by learned JMIC as well as order dated 7.2.2009 passed by the Revisional Court. The said petition was dismissed as not being maintainable as also on merits vide order dated 15.7.2009 passed by this Court. Despite all this, petitioner allegedly paid only a sum of Rs.48,000/- against the outstanding arrears of maintenance to the tune of Rs.96,000/- and on this count had also remained in custody for non-compliance of the order. The petitioner moved an application dated nil under Section CrI.M.No. M-6557/2010 3 125(3) Cr.PC before the learned Civil Judge (Junior Division) Chandigarh for directing the respondent-wife to join the company of the petitioner. In the said application it was alleged by the petitioner that he was unemployed and in order to amicably resolve the matrimonial disputes between them was ready to take the respondent wife and their daughter to Mumbai, where he intends to settle. It was further alleged by him that the respondent wife was employed with Reliance Life Insurance Company at Panchkula and her salary should be to the tune of Rs.15,000/- p.m. It was further alleged therein that there was no authoritative medical record to suggest that baby Manya required any treatment and the entire story was concocted one. With these averments prayer was made to direct the respondent wife to accompany the petitioner alongwith their daughter to stay in a shared kholi (slum house) at Boriveli, Mumbai. Upon notice of the application respondent wife filed reply stating therein that the application under Section 125(3) Cr.PC moved by the petitioner was nothing but an effort to frustrate the orders passed by the Court to pay interim maintenance to petitioner's wife and daughter. It was further alleged that the petitioner was earning substantial income by performing at various religious and private functions. Rest of the averments made in the application were denied and a prayer was made to dismiss the said application under Section 125(3) Cr.PC moved by the petitioner husband. The learned Civil Judge, after hearing both sides vide order CrI.M.No. M-6557/2010 4 dated 8.2.2010, dismissed the said application by observing that since maintenance has been upheld upto this Court so at this stage the application was not maintainable. This order was followed by issuance of conditional warrant dated 24.2.2010. Aggrieved against both these orders, petitioner has filed the present petition under Section 482 Cr.PC. Heard learned counsel for the parties and perused the record. It is submitted by the learned counsel for the petitioner that in the absence of any employment, the petitioner is unable to pay interim maintenance as granted by the trial Court and upheld by this Court. However, the petitioner is ready and willing to keep the respondent and their daughter with him at Mumbai, where he intends to settle in order to seek some employment in Music industry. It was then submitted that refusal on the part of the respondent wife to accompany the petitioner is sufficient ground to deny the maintenance. On the other hand learned counsel for the respondent wife has submitted that once the issue regarding payment of maintenance to the respondent and her daughter has already been settled upto this Court, the present application under Section 125(3) Cr.PC was nothing but an attempt on the part of the petitioner husband, to evade the payment of arrears of maintenance/future maintenance. After giving my anxious thoughts to the respective CrI.M.No. M-6557/2010 5 submissions of the learned counsel for the parties, I find no merit in this petition. As regards the income of the petitioner or that of respondent, the matter already stands settled upto this Court. Inspite of that the petitioner has only paid half of the outstanding arrears of maintenance for which he has also remained in custody. The stand of the petitioner that in order to seek job avenues in Music Industry he wants to settle at Mumbai and as such respondent wife and their daughter be directed to accompany him to live in shared kholi is no ground to deny maintenance. The filing of the present application under Section 125(3) Cr.PC. by the petitioner at this stage , in my opinion, lacks bona fides on his part. The order granting interim maintenance was passed by the learned JMIC on 16.9.2008. At that time, or even prior to that petitioner never offered to amicably settle the matter or to keep the respondent wife and their daughter with him. Instead, he filed revision before the learned Additional Sessions Judge and on having remained unsuccessful, filed a petition under Section 482 Cr.PC before this Court, which too was dismissed vide order dated 15.7.2009 passed by this Court. He even did not pay the outstanding arrears of maintenance and remained in custody for that. In such unfortunate circumstances, the prayer made in the application under Section 125(3) Cr.PC to direct the CrI.M.No. M-6557/2010 6 respondent wife to live with him in a shared kholi at Mumbai, smacks of mala fide on his part. Keeping in view the manner in which the petitioner conducted himself so far, the fate of the respondent wife and minor daughter, in case they are directed to accompany the petitioner to Mumbai, would not be a far fetched conclusion. The petitioner is an able bodied man. He has been ordered to pay maintenance to his respondent wife and daughter. Admittedly, he is in arrears of maintenance to be paid to the respondent wife and minor daughter. The stand of the petitioner in such bitter circumstances cannot be accepted. The petitioner has miserably failed to show his bona fides and as such no fault can be found with the orders dated 8.2.2010 and 24.2.2010 passed by the learned trial Court. No merit. Dismissed. 26.7.2010 (Jaswant Singh) joshi Judge