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SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
SHALU OJHA – PETITIONER(S)
VERSUS
PRASHANT OJHA – RESPONDENT(S)
SPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016
Decided On : 23-07-2018
Facts of the case:
The petitioner (wife) and the respondent (husband) were married on April 20, 2007 in Delhi, but they stayed together hardly for four months. For almost ten years they are living separately.
The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act. Order dated July 05, 2012 was passed by the Metropolitan Magistrate granting interim maintenance @ Rs.2,50,000/-per month with effect from the date of filing of the complaint as well as compensation of Rs.1,00,000/-. The petitioner filed the execution petition for recovery of the arrears of maintenance. In the meantime, the respondent challenged the order of the Metropolitan Magistrate by filing appeal under Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi which was dismissed on May 07, 2013. No stay was granted by the High Court. The High Court directed the respondent to pay Rs.5,00,000/-on or before September 30, 2013 and another sum of Rs.5,00,000/-on or before October 31, 2013.
As the respondent did not clear the entire arrears of maintenance, he was sent to judicial custody, where he remained till December 22, 2014. During this period, though the respondent had paid certain amounts towards maintenance, but he did not clear the entire outstanding dues.
On February 13, 2015, the ASJ decided the appeal of the respondent reducing the maintenance from Rs.2,50,000/-, as fixed by the Family Court, to Rs.50,000/-per month, from the date of filing of the petition under Section 12 of the DV Act which has attained finality.
Finding of the Court:
Petitioner allowed to file petition u/s 18 of Hindu Adoptions and Maintenance Act, 1956 or u/s 125 of the Code of Criminal Procedure, 1973.
Result: Appeal disposed of.
Based on the provided legal document, here are the key points:
Proceedings under the Domestic Violence (DV) Act, 2005 are summary in nature, and therefore, the amount of maintenance cannot be adjudicated within these proceedings. Instead, a proper petition under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or Section 125 of the Code of Criminal Procedure, 1973 should be filed for a detailed determination based on evidence and cross-examination (!) (!) .
The case involves a marriage between the petitioner (wife) and respondent (husband), which lasted only about four months, with approximately ten years of separation thereafter. The petitioner initially filed for maintenance under the DV Act, resulting in an interim order of Rs.2,50,000 per month, later reduced to Rs.50,000 per month on appeal, which has attained finality (!) (!) (!) .
The petitioner was granted interim maintenance, but the respondent challenged this order through appeals and proceedings that involved multiple courts, including the High Court and Supreme Court, leading to reductions and modifications in the maintenance amount (!) (!) .
The respondent was in judicial custody for failing to pay the maintenance arrears but was released after paying part of the dues. The respondent’s financial condition has been contested, with claims of hardship and inability to pay, as well as allegations of significant assets and income, which the petitioner disputes based on evidence of assets and bank balances (!) (!) (!) (!) .
The petitioner has filed an income affidavit claiming substantial expenses and income, and has provided evidence of assets and income sources, which the respondent disputes, asserting that the petitioner has other income sources and assets, and that her expenditure claims are exaggerated (!) (!) (!) .
The court emphasizes that the veracity and evidential value of the parties’ claims can only be finally determined after evidence is led and tested through cross-examination. Therefore, the appropriate course is to allow the petitioner to initiate a formal maintenance application under the relevant civil or criminal provisions for a comprehensive adjudication (!) (!) .
The court directs that any future maintenance order should not be less than Rs.50,000 per month, as this figure has already attained finality. The respondent is instructed to continue paying this amount until a final decision is made on the proper maintenance amount through appropriate proceedings (!) (!) .
Overall, the proceedings highlight the importance of a detailed, evidence-based approach for determining maintenance, given the summary nature of proceedings under the DV Act and the complex financial disclosures by both parties.
JUDGMENT
A.K. SIKRI, J.
On an earlier occasion, after hearing the petitioner who appeared in person, and the learned counsel for the respondent, we had passed order dated September 4, 2017, thereby disposing of this petition with the following directions:
(a) insofar as domestic violence proceedings before the Family Court are concerned, necessary documents shall be filed by both the parties within four weeks from today and evidence led pursuant thereto. The trial court shall endeavour to decide the case finally, within a period of eight months from today, on the basis of evidence and fix the rate of maintenance finally; and
(b) Crl.MC. No. 850 of 2015, pending before the High Court, shall be taken up for hearing immediately and the High Court shall endeavour to dispose of the same as expeditiously as possible and determine at what rate interim maintenance is to be given, i.e. whether order dated February 13, 2015 passed by the learned ASJ need any modification or not.
2) Thereafter, review petition was filed by the petitioner pointing out that there was apparent error in passing the aforesaid directions inasmuch as matter was remitted to the High Court for presumption that proceedings were pending but the fact is that no such proceedings are pending under the Protection of Women from Domestic Violence Act, 2005 (for short the ‘DV Act’). Realising this error, the review petition was allowed and the Special Leave Petition was restored which has been heard afresh.
3) Notwithstanding the aforesaid factual error which had crept in the order dated September 4, 2017, the other factual details recorded in the said order are a matter of record. Therefore, it would be in the fitness of things to reproduce the same: Though this case has a chequered history, only those facts which are very material are taken note of, eschewing other unnecessary details, in order to avoid burdening this judgment with the facts which may not be relevant.
The petitioner is the respondent’s wife. It is unfortunate that after their marriage on April 20, 2007 in Delhi, they stayed together hardly for four months. Thus, for almost ten years they have parted company and are living separately. It is not necessary to go into the reasons which led to the matrimonial discord as in the present petition this Court is concerned only with the dispute regarding the rate of maintenance.
The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act. In that application, apart from other reliefs, she has claimed maintenance as well. Order dated July 05, 2012 was passed by the learned Metropolitan Magistrate granting interim maintenance @ Rs.2,50,000/-per month with effect from the date of filing of the complaint as well as compensation of Rs.1,00,000/-. Since the respondent did not honour the said order, the petitioner filed the execution petition for recovery of the arrears of maintenance. In the meantime, the respondent challenged the order of the Metropolitan Magistrate granting maintenance, by filing appeal under Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi (for short, the ‘ASJ’). In the said appeal, the learned ASJ issued interim directions dated January 10, 2013 for depositing of the entire arrears of maintenance within two months. As this order was not complied with, the appeal filed by the respondent was dismissed on May 07, 2013. This order of dismissal was challenged by the respondent before the High Court. In those proceedings, order dated July 23, 2013 was passed allowing the appellant herein to file the reply, etc. As no stay was granted, order dated July 23, 2013 was challenged by the respondent in this Court by filing a special leave petition. This Court, however, did not entertain the same. At the same time, while disposing of the special leave petition, observations were made to the effect that if the parties apply for mediation, the matter shall be referred
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