Jetender Kumar @ Rajan vs Kamlesh @ Ganga & Ors. on 10 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 10th November, 2017

+ CRL.REV.P. 675/2015 and Crl.M.A.No. 15597/2015 15599/2015

1. JETENDER KUMAR @ RAJAN ….. Petitioner

Through: Mr. Sudhir Tewatia, Advocate.

versus

1. KAMLESH @ GANGA

2. MASTER HIMINISH

3. BABY VAIBHAVI

….. Respondents

Through: Mr.Probhoo Dyal Tiwari, Mr.Surya
Kumar and Ms.Manisha Tiwari,
Advocates.

CORAM:
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

1. Instant revision petition is preferred by the petitioner- Jetender
Kumar under Section 397 Cr.P.C. read with Section 482 Cr.P.C. to
set-aside/reduce the interim maintenance amount directed to be paid
to the respondent Nos.2 3, i.e. Kamlesh and Master Himinish,
vide impugned order dated 09.03.2015 passed by the learned
Principal Judge, Family Courts, North-East District, Vishwas

Crl.Rev.P. 675/2015 Page 1 of 7
Nagar, Delhi in MT No. 24/14 titled as
Kamlesh Anr. vs.
Jitender.

2. The brief facts stated in the petition for interim maintenance
under
Section 125 Cr.P.C. filed before the Court of Chief
Metropolitan Magistrate, Karkardooma Courts, Delhi by the present
respondents are that the marriage between the petitioner-Jetender
Kumar and the respondent No.1- Smt. Kamlesh was solemnized on
08.12.2003 at New Delhi according to Hindu Rites and Customs.
Out of their wedlock the respondent Nos. 2 3, i.e. Master
Himinish and Baby Vaibhavi, were born on 02.06.2006 and
04.03.2009, respectively who are in custody of the respondent No.1.
It is alleged that the respondent No.1-Smt. Kamlesh., was forced to
leave the matrimonial home on 26.05.2012. Thereupon, a written
complaint was made against the petitioner and his family member
by the respondent No. 1 at Police Station Gokul Puri, Delhi and she
was thereafter, given treatment at GTB Hospital vide MLC No. B-
2325/12. Further it is alleged that the petitioner just to save himself
and his family members filed a petition under
Section 9 of Hindu
Marriage Act, against the respondent No.1. Consequently, a
settlement arrived between the parties on 13.08.2012 in Mediation
Centre, Karkardooma Courts, Delhi and respondent No.1 came back
to her matrimonial home. It is also the allegation of the respondent
No.1 that on 09.04.2013 the petitioner came late in night and started
abusing the respondent No.1 and had beaten the respondents
(including the children respondent Nos 2 3) and kick them out of
the matrimonial home and since 09.04.2013, the respondents are

Crl.Rev.P. 675/2015 Page 2 of 7
residing in the parental home of the respondent No.1. It has been
further alleged that the petitioner as well as his family never looked
after the respondents and even at the time of the delivery of both the
respondent Nos. 2 3 all the expenses incurred were borne by the
mother and brother of the respondent No.1 as the petitioner flatly
refused to bear the expenses of delivery. It was further pointed out
that the respondents are residing with at the maternal home and all
the expenses for the upbringing and education of the respondent
Nos. 2 3 are being borne by their maternal grandparents. The
petitioner is stated to be a man of means and till date he has not
contributed even a single penny for the respondents upkeep
therefore, the present respondents filed the interim maintenance
petition against the present petitioner.

3. Consequently, after hearing the counsels for the parties and after
perusal of the documents placed on record the learned Principal
Judge, Family Courts, North-East District, Vishwas Nagar, Delhi
vide impugned order dated 09.03.2015 in MT No. 24/14 directed
the petitioner to pay an interim maintenance of Rs. 3,000/- per
month each to his children, i.e. respondent no. 2 and 3 from the date
of filing of application, i.e. 15.10.2013, and every month thereafter
regularly till the disposal of main petition.

Hence the present revision petition.

4. The learned counsel for the petitioner has submitted that the
learned Trial Court failed to appreciate the documents on record
filed by the petitioner and the learned Trial Court has itself
presumed the salary of the petitioner as Rs. 15,000/- per month,

Crl.Rev.P. 675/2015 Page 3 of 7
whereas the petitioner had mentioned his salary as Rs. 8,200/- per
month on record and the petitioner is not capable to provide the said
awarded amount to the respondents.

5. It is further submitted by the learned counsel for the petitioner
that the respondent No.1 has concealed her true status of income,
she is a teacher in the same school where the respondents Nos. 2
3 are studying and she is drawing a handsome salary.

6. The learned counsel for the petitioner has further submitted that
the impugned order passed by the learned trial Court is not
sustainable in the eyes of law as the same is based on conjectures
and surmises thus, is liable to be set aside.

7. On the contrary the learned counsel for the respondents has
submitted that the maintenance awarded by the Trial court is for the
minor children as the petitioner has to maintain his minor children
and the petitioner till date has not paid a single penny as
maintenance. It is further submitted that the petitioner is required to
maintain his wife and children and the amount towards the
maintenance is due till date and submits that the present petition is
devoid of any merit and the same is liable to be dismissed.

8. The object of Section 125 Cr.P.C. is to provide speedy remedy
to women and children who are unable to support themselves and
are in distress. It is intended to achieve a social purpose and
maintenance cannot be denied to the children on the premise that
their mother is employed or has enough means to maintain them or
that they are in the custody of their mother.

Crl.Rev.P. 675/2015 Page 4 of 7

9. It is a settled principle of law that both the parents have a legal,
moral and social duty to provide to their child the best education
and standard of living within their means. The mere fact that the
spouse with whom the child is living is having a source of income,
even if sufficient, would in no way absolve the other spouse of his
obligation to make his contribution towards the maintenance and
welfare of the child, even if, the means/income/salary of that spouse
may be less than the means/income/salary of the other spouse.

10. The Apex Court in Noor Khatoon vs. Mohd. Quasim; 1997
Crl. L.J. 3972 has made the observation that a father having
sufficient means has the obligation to maintain his minor children
who are unable to maintain themselves till they attain majority and
in case of females till they get married.

11. It is an admitted fact coming on record that the main
maintenance petition is pending before the Trial Court and the
determination of the maintenance amount will be done by the Trial
Court after leading of evidence by the respective parties and on the
basis of material documents and income affidavits of the parties.

12. Furthermore, in the instant petition it is an admitted case on
record that the children(respondent Nos. 2 3 herein) who are
school going are staying with the mother-respondent No.1 and even
the paternity is not disputed therefore, in the absence of denial of
existence of the marriage and non denial of paternity of the two
minor children, the petitioner cannot shy away from his statutory
obligation of maintaining his legally wedded wife and his two
minor children.

Crl.Rev.P. 675/2015 Page 5 of 7

13. The statutory obligation is paramount to the wish of the father
and he cannot be permitted to limit this claim of the child on flimsy
and baseless grounds. Reliance is placed on the judgment of the
Hon’ble Punjab and Haryana High Court in the case
Dr. R.K. Sood
vs. Usha Rani Sood; 1996 (3) 114 PLR 486 and the relevant
paragraph is reproduced as under:-

“17. Under the Hindu Law father not only has a moral
but even a statutory obligation to maintain his infant
children. The scope of his duty is to be regulated directly
in relation to the money, status, that the father enjoys.
The right of maintenance of a child from his father
cannot be restricted to two meals a day but must be
determined on the basis of the benefit, status and money
that the child would have enjoyed as if he was living with
the family, including his mother and father. Irrespective
of the differences and grievances which each spouse may
have against the other, the endeavour of the Court has to
be to provide the best to the child in the facts and
circumstances of each case and more so keeping the
welfare of the child in mind for all such determinations.
Liability to maintain one’s children is clear from the text
of this statute as well as the various decided cases in this
regard. The statutory obligation is paramount to the wish
of the father and he cannot be permitted to limit this
claim of the child on flimsy and baseless grounds.”

14. In view of the aforesaid discussion, I find no infirmity in the
impugned order dated 09.03.2015 passed by the Family Court.
Consequently, the present revision petition filed by the petitioner is
dismissed.

However, this judgment shall not affect the merits of the case,
as the determination of the maintenance amount will be done by the

Crl.Rev.P. 675/2015 Page 6 of 7
Trial Court after considering the evidence on record and income
affidavits of the parties.

15. The present petition is disposed of in the above terms. The
Trial Court is directed to dispose of the maintenance petition as
soon as possible and preferably within a period of six months from
the date of this judgment.

16. Copy of this judgment be sent to the concerned Court. No order
as to costs.

17. All the pending applications (if any) are also disposed of.

I.S.MEHTA, J
NOVEMBER 10, 2017

Crl.Rev.P. 675/2015 Page 7 of 7

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