Aneesh Ahmad vs Ruhi on 17 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 17th November, 2017

+ CRL.REV.P. 408/2015 and CRL.M.A. 9582/2015

ANEESH AHMAD ….. Petitioner

Through: Mr. R.G. Srivastava, Advocate.

versus

RUHI ….. Respondent

Through: Ms. Maheravish Rein,
Ms.Shamshravish Rein and
Mr.Aldanish Rein, Advocates with the
respondent in person.

CORAM:
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

1. Instant revision petition is preferred by the petitioner- Aneesh
Ahmad under Sections 397 Cr.P.C. for setting aside the orders dated
18.05.2015 and 04.06.2015 passed by the learned Principal Judge,
Family Courts, Karkardooma Courts, Delhi in Execution petition
No. 26/15 arising out of the main petition, i.e. CC No.1257/14,
under Section 125 Cr.P.C in case titled as “Smt. Ruhi vs Sh. Anees
Ahmad”.

Crl.Rev.P. 408/2015 Page 1 of 9

2. The brief facts stated in the application for interim maintenance
under Section 125 Cr.P.C. filed before the Court of Principal Judge,
Karkardooma Courts, Delhi by the present respondent- Ruhi are that
the marriage between the petitioner- Aneesh Ahmad and the
respondent- Ruhi was solemnized on 10.09.2011 according to
Muslim rites and customs. From the said wedlock a male child was
born in the month of December 2013. It is alleged in the said
application that all the in-laws and the petitioner pressurized the
respondent to bring Rs. 5,00,000/- in cash, one house in the name of
petitioner at Delhi and a luxurious car and till the respondent does
not fulfill the above said demand, till then they will not keep the
respondent happily and in consequences of that the in-laws used to
beat the respondent mercilessly. Since the respondent was unable to
fulfill their demands as mentioned above, she was forced to leave
the Matrimonial home by the petitioner. It is further stated in the
application that the respondent have no source of income as she is a
housewife and dependent upon her parents and all the expenses are
being born by her parents. It is further alleged that the petitioner is a
man of means as he is a businessman and is running a business of
Alumax Fabricators Maintenances contractor; having many
property in his name at different places, but the petitioner did not
pay a single penny towards the maintenance nor paid any
compensation or money for rent for residence for the respondent
and the petitioner has no other liabilities except to maintain the
respondent.

Crl.Rev.P. 408/2015 Page 2 of 9

3. It is pertinent to mention here that the marriage between the
respondent and petitioner has been dissolved on 18.08.2014
according to Muslim law by pronouncing Talaak to the respondent
by the petitioner.

4. Consequently, the learned Principal Judge, Family Courts,
Karkardooma Courts, Delhi after hearing the present respondent on
her application seeking interim maintenance vide order dated
13.12.2014 directed the present petitioner to pay a sum of Rs.
15,000/- per month to the present respondent as ad interim
maintenance till the disposal of the application.

5. Aggrieved from the said order the petitioner preferred an
application under Section 126 Cr.P.C. to set aside the ex-parte order
dated 13.12.2014 granting interim maintenance of Rs.15000/- per
month to the respondent.

6. Thereafter, the respondent/Decree Holder moved an Execution
petition against the petitioner/Judgment Debtor being Ex. No. 26/15
before the Court of Principal Judge (Family Courts) Shahdara,
Delhi for an amount of Rs. 1,20,000/- covering a period of 8 months
from June 2014 to January 2015 @ Rs. 15,000/- per month towards
interim maintenance as against the petitioner/Judgment Debtor vide
order dated 13.12.2014.

7. Subsequently, vide order dated 18.05.2015 the Family Courts,
Shahdara District, Karkardooma Courts, Delhi directed the
petitioner to pay Rs. 60,000/- which is 50% of the amount of
Rs.1,20,000/- claimed by the respondent from the date of
application, i.e. June 2014 to January 2015 @ Rs.15,000/- per

Crl.Rev.P. 408/2015 Page 3 of 9
month, towards interim maintenance which will be without
prejudice to the rights and contentions of the petitioner/Judgment
Debtor.

8. Aggrieved from the aforesaid order dated 18.05.2015 the
petitioner filed a petition before this Court being Crl. M.C.
2379/2015 and this Court vide order dated 28.05.2015 disposed of
the same for want of infirmity in the said order.

9. Subsequently, the petitioner filed an application for review of
the order dated 18.05.2015 before the Family Courts, Shahdara
District, Karkardooma Courts, Delhi and vide order dated
04.06.2015 the learned Principal Judge, Family Courts, Shahdara
District/Karkardooma Courts, Delhi in Execution petition No.26/15
after hearing on the said application from both the sides and after
perusal of the earlier order dated 18.05.2015 dismissed the said
application of the petitioner for want of merit.

Hence, the present revision petition.

10. The learned counsel for the petitioner has submitted that the
Family Court illegally exercised the jurisdiction not vested in it and
failed to decide the preliminary issue of jurisdiction before
proceeding further in the matter. It is further submitted that the
Family Court has acted unreasonably, capriciously and adopted
unjudicial approach in passing the impugned order and ahs not
exercised the jurisdiction in accordance with the settled principles
of law.

11. The learned counsel for the petitioner has submitted that the
Family Court ought to have decided the issue of territorial

Crl.Rev.P. 408/2015 Page 4 of 9
jurisdiction before exercising the jurisdiction and passing the
coercive order against the petitioner. Further the order dated
18.05.2015 requires to be reconsidered and recalled in the facts and
circumstances of the case but the Family Court failed to exercise
this jurisdiction in accordance with law. It is further submitted
that the learned Principal Judge did not consider and failed to
appreciate that unless there is failure to pay the amount without
sufficient cause provided under Section 125(3) Cr.P.C there cannot
be any enforcement and execution for payment of any amount.
Therefore, the orders dated 18.05.2015 and 04.06.2015 be set aside
in the interest of justice.

12. The learned counsel for the petitioner has further submitted that
there was no document produced on record before the Family Court
with regard to the income and job of the petitioner and there was no
basis for ordering payment of interim maintenance of Rs. 15,000/-
per month and further stated that the learned Principal Judge did not
considered and failed to appreciate that the there could not be
enforcement and execution of the ex-parte order dated 13.12.2014
thereby directing the petitioner to pay Rs. 15000/- per month as ad
interim maintenance as an interim measure till the disposal of the
application for an interim maintenance. This is contrary to the
substantive and procedural law contained in Section 125/126
Cr.P.C.

13. On the contrary the learned counsel for the respondent has
submitted that submits that the dispute before this Court only
pertains to the interim maintenance. She further submits that it is an

Crl.Rev.P. 408/2015 Page 5 of 9
admitted fact on record that the respondent and her minor child are
not residing at the matrimonial house. She further submits that
initially when the respondent was thrown out of the matrimonial
home, at that point of time she was left with no other option but to
join the house of her father.

14. It is further submitted that the respondent have no source of
income as she is a housewife and is dependent upon her parents and
all her expenses are being born by her parents. It is further
submitted that the petitioner is a businessman and is running a
business (contractor) by the name of Alumax Fabricators
Maintenance and earning Rs. 8-10 Lakh. Furthere he has many
property in his name at different places and is leading best and
luxurious life along with other family members but is not pay a
single penny towards the maintenance or towards rent for alternate
accommodation for the respondent. The petitioner has no other
liabilities except to maintain the respondent.

15. The learned counsel for the respondent has further submitted
that the order under challenge in the present petition is an interim
order and is not the final order. The pleadings of the petitioner in
the present petition are false and the same raises disputed question
of facts which cannot be adjudicated in the writ jurisdiction. The
same are required to be proved in the evidence by the petitioner
before the Trial Court and not before this Court. Hence, the present
petition is meritless and deserves to be dismissed.

16. The learned counsel for the respondent in support of her
contentions has relied upon the judgment of the Hon’ble Supreme

Crl.Rev.P. 408/2015 Page 6 of 9
Court in the case of Shamima Farooqui vs. Shahid Khan;
MANU/SC/0380/2015.

17. In the instant case it is an admitted fact coming on record that
the main maintenance petition under Section 125 Cr.P.C. is pending
before the Trial Court. 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.

18. 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.

19. The Apex Court in Chaturbhuj vs. Sita Bhai; (2008) 2 SCC
316 held that grant of maintenance to wife has been perceived as a
measure of social justice which is reproduced as under:-

“6. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent
vagrancy by compelling those who can provide support
to those who are unable to support themselves and who
have a moral claim to support. The phrase “unable to
maintain herself” in the instant case would mean that
means available to the deserted wife while she was living
with her husband and would not take within itself the
efforts made by the wife after desertion to survive
somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and

Crl.Rev.P. 408/2015 Page 7 of 9
children and as noted by this Court in Captain Ramesh
Chander Kaushal v. Mrs. Veena Kaushal and Ors. falls
within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India. It is meant to
achieve a social purpose. The object is to prevent
vagrancy and destitution. It provides a speedy remedy for
the supply of food, clothing and shelter to the deserted
wife. It gives effect to fundamental rights and natural
duties of a man to maintain his wife, children and parents
when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben
Somabhai Bhatiya v. State of Gujarat and Ors.”

(Underlining supplied)

20. Since the petitioner is under legal obligation to maintain the
respondent and his minor son, the petitioner cannot shy away from
his statutory obligation of maintaining the respondent and has to
render the maintenance amount granted by the Family Court in the
Execution petition which is without prejudice to the rights and
contentions of the parties as the same would be adjusted if is more
in the future period.

21. Furthermore, the plea of the learned counsel for the petitioner
that there was no document produced on record before the Family
Court with regard to the income and job of the petitioner and there
was no basis for ordering payment of interim maintenance of Rs.
15,000/- per month in favour of the respondent and the petitioner is
unable to pay the maintenance amount is a matter of dispute which
will be determined by the Trial Court during the course of trial and
not by this Court at this stage.

Crl.Rev.P. 408/2015 Page 8 of 9

22. However, the order dated 13.12.2014 passed by the Family
Court is an interim maintenance and the determination of the main
maintenance application under Section 125 Cr.P.C. is yet to be
decided. The interim maintenance granted by the trial Court is
without prejudice to the rights and contentions of the parties.

23. Therefore, in view of the aforesaid discussion, I find no
infirmity in the impugned orders dated 04.06.2015 and 18.05.2015
passed by the learned Principal Judge, Family Court, Karkardooma
Courts, Delhi in Ex. No. 26/15. Consequently, the revision petition
filed by the petitioner is dismissed for want of merit.

However, this judgment shall not affect the merits of the case,
as the determination of the maintenance amount will be done by the
Trial Court after considering the evidence on record and income
affidavits of the parties.

24. The present petition is disposed of in the above terms. The
Trial Court is directed to dispose of the maintenance petition under
Section 125 Cr.P.C. filed by the respondent as soon as possible and
preferably within a period of six months from the date of this
judgment.

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

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

I.S.MEHTA, J
NOVEMBER 17, 2017

Crl.Rev.P. 408/2015 Page 9 of 9

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