Omar Abdullah vs Payal Abdullah And Ors. on 1 December, 2017

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 4717/2017, Crl. M. A. 18788/2017 (Stay)
Order Reserved on: 29th November, 2017
Order Pronounced on: 1st December, 2017
OMAR ABDULLAH ….. Petitioner
Through: Ms. Malvika Rajkotia, with Mr.Ramakant
Sharma, Advocates.
versus
PAYAL ABDULLAH ORS. ….. Respondents

Through: Mr. Jayant Sud, Senior Advocate with
Mr.Honey Khanna, Advocate.

CORAM:

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

1. The present petition has been filed by the petitioner under Article
227 of Constitution of India read with
Section 482 of Code of
Criminal Procedure, 1973 (hereinafter referred to as
Cr.P.C.)
challenging the order dated 09.09.2016 passed by the Principal
Judge, Family Court, Patiala House Court, New Delhi in M-
Petition No.111 of 2016 and seeks quashing of the proceedings
under
Section 125 Cr.P.C. against the petitioner.

2. Long and heated arguments were heard.

3. Ms. Malvika Rajkotia, learned Counsel appearing on behalf of the
petitioner contended that the petition under
Section 125 Cr.P.C.
and all the proceedings emanating therefrom against the petitioner
are not maintainable at the very outset for being specifically barred
by the statutory provisions of
Section 125 Cr.P.C.; that the most

CRL.M.C. 4717/2017 Page 1 of 5
important pre-requisite as laid down in the said provision that, the
“claimant” should be unable to maintain herself, is not established
in the present case; that the petitioner filed a divorce petition in the
year 2013 and since then respondent No.1 did not seek any
maintenance as she is an empowered woman and is a Director in
three companies and has sufficient means to sustain herself; that
the respondent No. 2/Zahir Abdullah and respondent No. 3/Zamir
Abdullah are not entitled to any maintenance as respondent
No.2/Zahir Abdullah had already attained majority and respondent
No. 3/Zamir Abdullah has attained majority on 18.01.2017 and
hence the proceedings under
section 125 Cr.P.C. are not
maintainable .

4. During the course of arguments, my attention has been drawn to
the order dated 31.01.2017 which reads as under :-

“xxxx Arguments heard on application filed by
respondent that the petitioner is not maintainable as
well as on the interim application for maintenance,
however, during the course of arguments, Ld. Counsel
for respondent submits that she does not want to press
the application of the maintainability as she already
raised this issue in the written statement filed by the
respondent.

In view of the same, the application for
maintainability of the present petition stands
dismissed as not pressed for
xxxx Put up for arguments on the maintainability of
the petition as well as on the application for interim
maintenance on 27.01.2017 at 12:30 p.m.”

CRL.M.C. 4717/2017 Page 2 of 5

5. It is further argued by the learned Counsel for the petitioner that for
the past nearly one year, the maintainability of the petition is yet to
be decided though the matter has been fixed nine times for hearing
after 31.01.2017.

6. On the other hand, Mr. Jayant Sud, learned Senior Counsel for the
respondent argued that petitioner has given up his right to argue on
the maintainability of the petitioner as recorded in the order dated
31.01.2017.

7. My attention was further drawn to the order dated 09.11.2017,
which reads as under :-

“Ld. Senior Adv. has addressed and completed his
arguments upon the interim application.
On request, put up for arguments on behalf of Ld.
Counsel for the respondent and also arguments by the
Ld. Senior Advocate in rebuttal, if any on 12.12.2017
at 2:00 P.M.”

8. Perusal of the record transpires that as per order dated 31.01.2017,
though the application for maintainability of the petitioner stood
withdrawn as not pressed for, the Principal Judge, Family Court,
Patiala House Court ordered that the matter may be listed for
27.02.2017 at 12:30 p.m. for arguments on maintainability of the
petition as well as on the application for interim maintenance.

9. Maintainability of the petition under Section 125 Cr.P.C and
question of award of interim maintenance are inseparable. In order
to award interim maintenance, the Court concerned shall first
arrive at a finding that whether the husband/petitioner neglected or
refused to give maintenance to his wife/respondent No.1 and that

CRL.M.C. 4717/2017 Page 3 of 5
whether the wife/respondent was unable to maintain herself. The
Court will also necessarily have to determine before awarding the
interim maintenance whether respondents No. 2 and 3 are entitled
for the same as both the respondents have attained majority.
Therefore the question of grant of interim maintenance can be
determined only after the determination of the maintainability of
the petition under
Section 125 Cr.P.C.

10. The only grievance of the petitioner is that the maintainability of
the petition filed by respondent no.1 under
Section 125 Cr.P.C. has
not yet been decided and has taken a considerable time.

11. Perusal of order dated 09.11.2017 of the trial Court reveals that as
the arguments have already been addressed and completed by the
learned Senior counsel for the respondents, the matter has been
fixed for arguments on behalf of the petitioner and rebuttal if any
on behalf of the respondents, for 12.12.2017 at 02:00 p.m. It is
agreed between the parties that they would not seek any
adjournment and without causing delay address arguments in terms
of order dated 31.01.2017 on the next date of hearing i.e.
12.12.2017 before the concerned Court.

12. It is hoped and expected that the learned Principal Judge, Family
Court, Patiala House Court, New Delhi will hear the arguments on
behalf of the parties expeditiously and make every endeavour to
dispose of the petition by end of January, 2018.

13. With above directions, the present petition along with pending
application is disposed of.

CRL.M.C. 4717/2017 Page 4 of 5

14. Copy of this Order be given dasti under the signatures of the Court
Master.

SANGITA DHINGRA SEHGAL, J

DECEMBER 1, 2017//gr

CRL.M.C. 4717/2017 Page 5 of 5

Leave a Comment

Your email address will not be published. Required fields are marked *