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Sudhir Gupta vs Manisha Kumari @ Manisha Gupta on 14 June, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th JUNE, 2021

+ CRL.M.C. 1117/2021 CRL.M.A. 5684/2021(stay)
SUDHIR GUPTA ….. Petitioner
Through Mr. Gaurav Gupta, Advocate

versus

MANISHA KUMARI @ MANISHA GUPTA ….. Respondent
Through None

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. The present petition under Section 482 Cr.P.C is directed against the
order dated 28.02.2020, passed by the Additional Sessions Judge-03, West
District, Tis Hazari Courts, Delhi in Criminal Appeal No. 55/2/19, affirming
the order dated 31.08.2019 passed by the Metropolitan Magistrate, Mahila
Court in an application under
Section 23 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”)
directing the petitioner herein to pay a sum of Rs.16,500/- as interim
maintenance to the respondent herein/wife.

2. The facts, in brief, leading to the instant petition are as under:

a) The petitioner and the respondent got married on 01.12.2014
according to Hindu rites and ceremonies. A child was born out of the
wedlock but unfortunately the child expired. Differences arose
between the petitioner and the respondent. It is stated that the

CRL.M.C. 1117/2021 Page 1 of 7
respondent herein left the matrimonial home on 22.02.2016. It is
stated that the respondent filed a petition under
Section 12 of the DV
Act praying for direction to the petitioner herein to let the respondent
herein reside in the shared household, granting injunction against the
family members of the petitioner herein including his father, mother,
sisters and their husbands, from repeating any acts of violence
mentioned in the complaint and for grant of compensation of
Rs.50,000/-. The respondent herein also filed an application under
Section 23 of the DV Act for grant of maintenance of Rs.60,000/- per
month.

b) Affidavits of income were filed by the petitioner and the
respondent. In her affidavit, the respondent herein stated that she is a
graduate and has done diploma course in fashion designing but after
marriage she left her job. She also stated that the petitioner herein is
working in a private firm and he is also running business and he is
earning Rs.1,00,000/- per month. It is also stated that the petitioner
herein is having credit cards and also has a car. It was contended by
the respondent herein that the petitioner herein has concealed his
income. The petitioner herein filed a reply denying all the allegations
against him.

c) The learned Metropolitan Magistrate vide order dated
16.01.2018 declined to grant interim maintenance to the respondent
herein on the ground that the respondent herein was working and that
she, being a well qualified spouse, is not entitled to interim
maintenance.

d) Against the order of the learned Metropolitan Magistrate, an

CRL.M.C. 1117/2021 Page 2 of 7
appeal, being Criminal Appeal No. 56/2018, was filed by the
respondent herein before the learned Additional Session Judge. The
learned Additional Session Judge after relying on the judgment of the
Supreme Court in
Sunita Kachwaha v. Anil Kachwaha, (2014) 16
SCC 715, held that merely because the wife is qualified and has a
potential for earning, cannot be a ground to reject her claim of
maintenance. The order of the learned Metropolitan Magistrate was
set aside and the matter was remanded back. On remand, the learned
Metropolitan Magistrate analysed the bank statements of the
petitioner herein. The learned Metropolitan Magistrate held that the
statement of bank account of the petitioner herein shows that various
transactions are being made in his account on a regular basis which
he has failed to explain satisfactorily. The learned Metropolitan
Magistrate also held that the income affidavit of the petitioner herein
shows that he earns Rs.7,500/- per month, however, he is living in his
own house and having FDRs to the tune of Rs.4 lakhs, he owns a
motorcycle and a car. The learned Metropolitan Magistrate refused to
accept the Income Tax Returns of the petitioner as his true income on
the ground that normally businessmen conceal their actual income in
order to evade tax. After perusing the material on record the learned
Metropolitan Magistrate directed the petitioner herein to pay a sum
of Rs.16,500/- per month, from the date of the petition till the
disposal of the case, to the respondent herein as interim maintenance.

e) The said order was challenged by the petitioner herein by filing
an appeal being Criminal Appeal No. 55/2/19, before the Additional
Sessions Judge. The learned Additional Sessions Judge vide order

CRL.M.C. 1117/2021 Page 3 of 7
dated 28.02.2020, once again after analysing the facts, upheld the
order dated 31.08.2019, passed by the learned Metropolitan
Magistrate.

f) It is this order which has been challenged in the instant petition.

3. Heard Mr. Gaurav Gupta, learned counsel for the petitioner and
perused the material on record.

4. The learned counsel for the petitioner vehemently contends that the
respondent has given contradictory statements in various forums and
litigations between the same parties. He further states that the petitioner has
passed only 12th standard and was earning a meagre amount of Rs.22,500/-
per month whereas the respondent herein, who was pursuing post-graduate
from IGNOU, has got a Diploma in Apparel Manufacturing Technology
from ATDC Gurgaon and she is much more educated and capable of earning
substantial amount of money. The learned counsel for the petitioner
contends that the respondent herein is not working only to harass the
petitioner. He contends that the Courts below erred in not going through the
Income Tax Returns of the petitioner herein. He states that the observation
of the learned Metropolitan Magistrate, that the petitioner herein is earning
at least Rs.50,000/- per month, is only on the basis of conjectures and
surmises.

5. Having gone through the records of the case, the conclusion drawn by
the Courts below that the petitioner has not been able to explain the
transactions in his bank accounts cannot be found fault with. It has not been
denied that the petitioner has got fixed deposit, he owns a motorcycle, car
and has also got credit cards. The fact that the respondent herein is more
qualified than the petitioner and the fact that she was working as a

CRL.M.C. 1117/2021 Page 4 of 7
Merchandiser with Richa Group and was getting salary is no ground to deny
maintenance to her as at present she is not earning any income.

6. The Supreme Court in Manish Jain v. Akanksha Jain, (2017) 15 SCC
801, has observed as under:

“16. An order for maintenance pendente lite or for
costs of the proceedings is conditional on the
circumstance that the wife or husband who makes a
claim for the same has no independent income
sufficient for her or his support or to meet the
necessary expenses of the proceeding. It is no answer
to a claim of maintenance that the wife is educated
and could support herself. Likewise, the financial
position of the wife’s parents is also immaterial…..”

(emphasis supplied)

7. The reasoning of the learned Metropolitan Magistrate, as affirmed by
the learned Additional Session Judge, does not call for any interference. The
reliance placed by the petitioner on the deposition of the respondent herein
in proceedings initiated by her under
Section 9 of the Hindu Marriage Act
for Restitution of Conjugal Rights vide HMA No. 1459/2018 does not help
the petitioner in rejecting the claim of the respondent herein for
maintenance. It cannot be said that the findings of the Courts below are so
perverse that it requires any interference by the High Court under Section
482 Cr.P.C.

8. The scope of revision under Section 397/401 Cr.P.C read with Section
482 Cr.P.C is narrow. Courts do not go into excruciating details on facts
and unless the judgments of the courts below are so perverse High Court
does not interfere with concurrent findings.

9. The Supreme Court in State of Kerala v. Puttumana Illath Jathavedan
Namboodiri reported as (1999) 2 SCC 452 has observed as under:-

CRL.M.C. 1117/2021 Page 5 of 7

“5. Having examined the impugned judgment of the
High Court and bearing in mind the contentions raised
by the learned counsel for the parties, we have no
hesitation to come to the conclusion that in the case in
hand, the High Court has exceeded its revisional
jurisdiction. In its revisional jurisdiction, the High
Court can call for and examine the record of any
proceedings for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding,
sentence or order. In other words, the jurisdiction is
one of supervisory jurisdiction exercised by the High
Court for correcting miscarriage of justice. But the
said revisional power cannot be equated with the
power of an appellate court nor can it be treated even
as a second appellate jurisdiction. Ordinarily,
therefore, it would not be appropriate for the High
Court to reappreciate the evidence and come to its own
conclusion on the same when the evidence has already
been appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of
justice……”

10. In State v. Manimaran reported as (2019) 13 SCC 670 the Supreme
Court has observed as under:-

“16. As held in State of Kerala v. Puttumana Illath
Jathavedan Namboodiri [State of
Kerala v. Puttumana Illath Jathavedan Namboodiri,
(1999) 2 SCC 452 : 1999 SCC (Cri) 275] , ordinarily it
would not be appropriate for the High Court to
reappreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as
by the Sessions Court in appeal. When the courts
below recorded the concurrent findings of fact, in our
view, the High Court was not right in interfering with

CRL.M.C. 1117/2021 Page 6 of 7
the concurrent findings of fact arrived at by the
courts below and the impugned order cannot be
sustained” (emphasis supplied)

11. The learned Metropolitan Magistrate and the learned Additional
Sessions Judge have analysed the facts and the law in the correct
perspective. The judgements are well reasoned. It cannot be said that the
conclusions drawn by the Courts below are perverse or are based on nil
evidence. The judgments of the Courts below do not warrant any
interference.

12. Needless to state that the learned Metropolitan Magistrate has granted
only interim maintenance to the respondent herein and the final maintenance
is subject to the outcome of the proceedings.

13. Accordingly, the petition is dismissed along with the pending
application.

SUBRAMONIUM PRASAD, J
JUNE 14, 2021
Rahul

CRL.M.C. 1117/2021 Page 7 of 7

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