The High Court dismissed the appellant's appeal against the Family Court's order directing 50% deposit of maintenance pending the disposal of his application to set aside an ex-parte order under Section 125 Cr.P.C., holding the direction just and proper.
The appeal is dismissed; the impugned order directing 50% deposit of maintenance is maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~17
% Judgment delivered on: 09.02.2018 + CRL.REV.P. 295/2013 & CRL.M.A. 8002/2013
MANISH KUMAR JAIN ..... Petitioner Through: Mr. Prashant Mendiratta, Advocate and Ms. Malvika, Advocate.
versus
AKANKSHA JAIN & ANR.
..... Respondents Through: Ms. Anu Narula, Advocate for R- l with Respondent No. 1 in person.
CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J (Oral)
List for further arguments on 07.02.2018 ”.
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address at B-38, Green Park, New Delhi, whereas contemporaneously his place of residence was 303, SFS Apartments, Hauz Khas, New Delhi; he was proceeded ex-parte on 26.05.2009 and the ex-parte maintenance amount was granted to the respondent on 25.03.2010; that the alleged service of notice at his mother’s address at B-38, Green Park, New Delhi, is no service because the respondent/applicant had already shifted at his new address at Hauz Khas; that the respondent has no reason to give his previous residential address i.e. his parents’ house, for effecting service of notice. It is also contended that the respondent’s application for grant of maintenance under the Domestic Violence (DV) Act, 2005 was declined in the first instance because she had not given any details about the rental being paid at the SFS Apartments. It is another matter though, that in appeal an amount of Rs.10,000/- was granted as maintenance under the D.V. Act.
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appear in the proceedings; he has resisted payment of any maintenance amount to the respondent – his estranged wife. The story of his new residential address being at 303 SFS Apartments, Hauz Khas, New Delhi, is yet another step in subterfuge to derail the grant and payment of the maintenance amount. It is yet another episode in his relentless pursuit to harass his estranged wife. She contends that other proceedings being under section 24 of the Hindu Marriage (H.M.) Act and under the D.V. Act have nothing to do with the order passed in the application for maintenance under section 125 Cr.P.C.; that under section 24 of the H.M. Act, an amount of Rs.2.00 lakh per month was sought, but the Court granted only an amount of Rs.60,000/- per month which was subsequently reduced to Rs.25,000/- per month and another amount of Rs.10,000/- was granted in the proceedings under D.V. Act.
“17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Acton or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or
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deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellanthusband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court”.
26(2)All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be
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made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper. (emphasis supplied)
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NAJMI WAZIRI, J
FEBRUARY 09, 2018/ RW
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3 issues framed by the court
Whether the High Court can interfere with the Family Court's direction to deposit 50% of the ex-parte maintenance amount before hearing the application to set aside the order under Section 126(2) Cr.P
Whether the ex-parte proceedings under Section 125 Cr.P.C. were erroneous due to alleged improper service of notice.
Whether the wife's employment status defeats the appellant's claim that the maintenance order is not payable.
3 provisions across 2 enactments
MANISH KUMAR JAIN
AKANKSHA JAIN
NAJMI WAZIRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
