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Shamsi Azmi vs Saher Khan on 13 January, 2020

$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 13.01.2020

+ CRL.M.C. 5539/2019 with CRL.M.A. 39257/2019

SHAMSI AZMI ….. Petitioner
Through: Ms. Rebecca M. John, Sr. Adv with
Mr. Aman Sareen, Mr. Santosh
Kumar, Mr. Harmeet Singh, Mr.
Gurpratap Singh and Ms. Pravita,
Advs.
versus
SAHER KHAN ….. Respondent
Through: Mohd. Nizam Pasha, Adv. for
respondent with respondent in person

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T (ORAL)

1. Vide the present, petitioner seeks directions thereby to set aside

directions dated 30.09.2019, whereby the petitioner has been directed to file

his income affidavit in a sealed envelope. The petitioner further prays for

necessary directions to the learned trial Court that the maintainability of the

case bearing MT No. 208/2018 titled as ‘Sheba Khan and Ors. Vs. Shamsi

Azmi and Ors.’ be decided first before proceeding further in the case.

2. The petitioner herein is the father and the respondent is his daughter

CRL.M.C. 5539 /2019 Page 1 of 8
from his first wife. The petitioner married Ms. Sheba Khan (first wife) on

01.03.1996. They were blessed with a girl child, respondent herein, on

19.02.1997. Due to extreme incompatibilities between the petitioner and his

wife, the petitioner divorced her by pronouncing triple talaq on 19.11.1997.

Thereafter, on 24.04.2003, the first wife filed petition under Section 125

Cr.P.C. for grant of maintenance for her as well on behalf of respondent

(Saher Khan) before the Court of Chief Metropolitan Magistrate, Patiala

House Courts, New Delhi. The said Court was pleased to direct the

petitioner herein to pay Rs.8,000/- P.M. to Ms. Sheba Khan for the

maintenance towards respondent herein. In the meanwhile, Ms. Sheba Khan,

petitioner’s first wife also got registered an FIR bearing no. 126/2003, under

Section 498A/406 IPC, against the petitioner and his relatives, with Police

Station – Tilak Marg. Afterwards, with the intervention of friends, relatives

and well wishers of petitioner and Ms. Sheba Khan, a compromise was

arrived between them and in furtherance of which Memorandum of

Understanding (MOU) was signed by them on 29.05.2005. The respondent,

at that point of time, was a minor, aged 8 years and was being represented

by her natural guardian, Ms. Sheba Khan. The MOU contains detailed terms

and conditions with respect to alimony of Ms. Sheba Khan, maintenance to

CRL.M.C. 5539 /2019 Page 2 of 8
be paid to respondent and rights and liabilities of Ms. Sheba Khan towards

the respondent. The terms and conditions relevant to the context of rights

and liabilities of petitioner in regard to maintenance to be paid to respondent

are as follows:-

“That the party no. l has agreed to pay a lump sum
amount of Rs.12 lacs to party no.2. Six lacs for Sheba the
other six lacs for the minor daughter with liberty to Sheba to
use this money as per her wishes without any hindrance
whatsoever. However in case at the time of attaining majority
Saher repudiates the present agreement, Sheba, would be liable
to repay the amount of six lacs along with the benefits to Miss
Sehar. The said amount is being paid to Saher in a lump sum in
full and final settlement of her entire claims of maintenance
(past, present, future) including schooling, higher studies, and
marriage expenses etc and of any other kind against the party
of the First Part and/or his relatives. In case Sheba Khan
purchases any flat/property from the alimony of Rs.12 lacs or
any part thereof the same would be purchased jointly in the
name of Miss. Saher and Sheba Khan.

That the party no. l also has agreed to pay a sum of
Rs.8,000/- per month to Saher for the maintenance till she
attains the age of 21 years or till she gets married whichever is
earlier. Which as per the orders of the court is being deposited
in the account of Sheba Khan for the same. Sheba Khan would
also contribute her share of 1/3rd of maintenance i.e., Rs.4000/-
per month for the welfare of Saher for which Sheba Khan would
be answerable, in case at the time of attaining majority Saher
repudiates the present agreement.”

3. Thereafter, the petitioner preferred petition before this Court, bearing

CRL. M.C. No. 2585 of 2005, under section 482 Cr.P.C. seeking quashing

CRL.M.C. 5539 /2019 Page 3 of 8
of FIR bearing no. 126/2003, u/s 498A/406 IPG, PS. Tilak Marg and the

proceedings emanating therefrom on the ground that compromise has been

arrived at between the Petitioner and Ms. Sheba Khan, which was allowed

vide order dated 31.05.2005.

4. Learned counsel appearing on behalf of petitioner submits that in

order dated 31.05.2005, it was recorded that the parties have amicably

settled the matter and as per the settlement, Rs.12 lakhs was paid in Court by

way of demand draft bearing No. 025852 drawn by UTI Bank Limited in

total, out of which Rs.6 lakhs was meant for Complainant/Wife (Ms. Sheba

Khan) and Rs.6 lakhs for the child Saher (respondent herein) towards her

maintenance. Apart from this, the petitioner shall pay Rs.8000/- per month

towards the maintenance of her child till the age of 21 years.

5. The terms of agreement were recorded in the memorandum. As per

order dated 30.05.2005 passed by this Court, the compromise of payment of

Rs.8000/- per month will be deemed to be order of Metropolitan Magistrate

under Section 125 Cr.P.C. and will be treated as an order under Section 125

Cr.P.C for the purpose of execution.

6. It is not in dispute that the petitioner has been regularly paying

monthly maintenance of Rs.8,000/- in favour of the respondent and there

CRL.M.C. 5539 /2019 Page 4 of 8
have been no pending arrears towards the petitioner.

7. Vide the present petition, the petitioner seeks directions thereby to set

aside the order dated 30.09.2019 passed in the petition filed under Section

125 Cr.P.C. by the respondent herein whereby the petitioner is directed to

file his income affidavit in a sealed envelope.

8. The present petition has been filed on the ground that the pleadings in

the said case are not yet complete in view of the fact that the application for

dismissal of the said case on the ground of maintainability has been filed by

the petitioner on 07.09.2019 and is pending till date. The application strikes

the very basis of the case filed by the respondent and therefore, the interest

of justice demands that the application for dismissal may be decided at the

outset before deciding the application for grant of interim maintenance. As

the interim maintenance can now only be demanded by a major daughter

like Respondent herein only when she satisfies the conditions enumerated in

Section 125(1)(c) Cr.P.C., however, the entire application filed by her on the

face of it does not satisfy any of the grounds. Despite the same, the learned

trial Court pleased to fix the matter for hearing of arguments on

maintainability on 04.11.2019 and directed the petitioner to file Income

Affidavit on the said date itself in sealed envelope. Thus, the said order is

CRL.M.C. 5539 /2019 Page 5 of 8
erroneous as the respondent being a major is now covered under Section 125

(1) (c) Cr.P.C and therefore, prima facie, the said fact whether she is unable

to maintain herself owing to some physical or mental abnormality has to

ascertained prima facie firstly and foremostly before directing the petitioner

to file his Income Affidavit.

9. This Court interacted with the petitioner and respondent who are

personally present in Court. This Court specifically asked the petitioner his

monthly income, as on date. He replied that he is working as an employee

with M/s ST Microelectronics Ltd. and earning a monthly salary of

Rs.4,50,000/- plus and he has one daughter from his second (present) wife,

who is a house maker and old widow mother. He does not have any other

income, rental or from other sources. However, he has one dwelling unit,

which is his self acquired property, wherein he is staying with his family.

10. The respondent, who is daughter of his first wife, is pursuing her

fashion designing course from Raffles Designing Institute, to which the

Government of India has withdrawn the affiliation. Thus, she has to

complete her course from the campus, which is now in Singapore.

Respondent states that she spent huge amount on her schooling and the

college education, which was born by her maternal grandfather, who is

CRL.M.C. 5539 /2019 Page 6 of 8
retired from the Government of India. She submits that if her father

(petitioner herein) pays a lumpsum amount of Rs.25 lakhs as maintenance

for the past, present and future and also for the expenses of her marriage and

education, then she would withdraw the petition filed under Section 127

Cr.P.C. pending before the trial Court.

11. The petitioner who is personally present has agreed thereto, with lot

of deliberation and counselling advanced by this Court and Ms. Rebecca M.

John, Senior Advocate, who is appearing on behalf of the petitioner. He has

agreed to pay an amount of Rs.30 lakhs on or before 24.02.2020 in her

savings bank account bearing No. 50035468488 (IFSC – ALLA0212185),

Allahabad Bank, Sector – 44, Noida – 201303 for all type of maintenance

for present, past and future.

12. I hereby make it clear that both the parties shall be bound by the

statements made before this Court, failing which legal action shall be taken

against the defaulting party.

13. Petition is accordingly disposed of with the aforementioned

directions. Pending application also stands disposed of.

14. The petition filed by the respondent under Section 127 Cr.P.C. stands

CRL.M.C. 5539 /2019 Page 7 of 8
closed.

Order dasti under signatures of the Court Master.

(SURESH KUMAR KAIT)
JUDGE

JANUARY 13, 2020
PB

CRL.M.C. 5539 /2019 Page 8 of 8

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