The obligation of the petitioner to maintain his wife and children under Section 125 of Cr.P.C., and the court's power to pass interim orders based on prima facie evidence.

V.K. SHALI, J. (Oral) 1. This is a petition filed by the petitioner under Article 227 of the Constitution of India read with Section 482 Cr.P.C. against the order dated 07.4.2008 passed by Ms.Kiran Bansal, MM, Delhi in M.P. No.372/3/03 u/S 125 of Cr.P.C. directing the petitioner herein to pay an interim maintenance @Rs.4,000/- per month to the respondent no.1 w.e.f. December, 2003 till the disposal of the main petition.

2. Briefly stated the facts leading to the filing of the present petition are not in dispute except the quantum of earnings of the petitioner. It is admitted by the petitioner that the respondent No.1 Smt. Rajesh Yadav is his wife. It is admitted that the marriage took place between the parties on 26.2.1973 and from the said wedlock, they were blessed with two sons namely Sameer Yadav and Goldi Yadav. It is also not in dispute that from 1993 onwards, the respondent no.1 was living separately along with her sons. The respondent no.1 Smt.Rajesh Yadav has made allegations that she was forced to live separately on account of demand of dowry by the petitioner herein and that she does not have any independent source of income and accordingly, chose to file the petition for grant of maintenance under Section 125 of the Cr.P.C. for herself and her two sons. The learned Magistrate as early as on 24.11.2003 has directed the petitioner herein to pay interim maintenance of Rs.4,000/- per month to the respondent till November, 2003. Somehow this resulted in prolonged litigation initiated by the petitioner by way of filing revisions as a consequence of which said order of payment of interim maintenance could not be complied with and only a sum of Rs.1 lac has been paid in these proceedings which has been accepted by the respondent no.1 herein without prejudice to the rights and contentions on 13.5.2009 that is after a lapse of almost six years.

3. The main contention of the learned counsel for the petitioner is that the petitioner has been stated in the impugned order to be an able bodied person and having 42 Killas of land while as his holding of agricultural land is stated to be much less. It has been stated that his income has been taken to be Rs.30,000/- per month from the land in question as against that he is earning only a sum of Rs.1,000/- to 15,000/- per month. The learned counsel for the petitioner has drawn my attention to the report of the Patwari showing his holding to the extent of 34 Kanal 17 Marlas.

4. The second contention of the learned counsel for the petitioner is that the respondent cannot be permitted to take advantage of her wrong inasmuch as she herself has deserted the petitioner way back in 1993 apart from the fact that she herself is a stage artist and is making a good living. Learned counsel has referred to the following authorities contending that notwithstanding the fact that this is an interim order still there is a mis-carriage of justice in calculating the total income which has been taken to be the basis for payment of the interim maintenance to the respondent that is not sustainable in the eyes of law. These authorities are as follows:

Chaturbhuj Vs. Sita Bai 2007 (13) Scale 402

Delhi Lotteries Vs. Rajesh Aggarwal 1997 VI AD (Delhi) 529

Krishnan & Anr. Vs.Krishnaveni & Anr. JT 1997 (1) SC 657

MCD Vs. Sub-Judge & Anr. 66 (1997) DLT 50

5. I have carefully considered the submissions made by counsel for the petitioner. There is no doubt that no revision is permissible under Section 397 (2) of the Cr.P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice. For this purpose, the judgments which have been relied upon by counsel for the petitioner in case of Krishnan & Anr. Vs. Krishnaveni & Anr. & in case titled Delhi Labour Vs. Raj (supra) are