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Urvashi Aggarwal & Ors vs Inderpaul Aggarwal on 14 June, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th JUNE, 2021
IN THE MATTER OF:
+ CRL.REV.P. 549/2018 CRL.M.A. 11791/2018 (Stay)
URVASHI AGGARWAL ORS. ….. Petitioners
Through Mr. Praveen Suri and Ms. Komal
Chibber, Advocates
versus

INDERPAUL AGGARWAL ….. Respondent
Through Mr. Digvijay Rai and Mr. Aman
Yadav, Advocates

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. The present revision petition is directed against the order dated
21.04.2018, passed by the Additional Principal Judge, Family court, Tis
Hazari, Delhi, declining maintenance to the petitioner No.1/wife and
granting maintenance only to the petitioner Nos.2 and 3 herein.

2. The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on
11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2
and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent
herein. Petitioner No.1/wife filed a petition under
Section 125 Cr.P.C
for grant of maintenance.

CRL REV PET 549/2018 Page 1 of 12

c) The respondent/husband instituted a suit for divorce.

d) During the pendency of the divorce petition, the petitioner No.1
filed a petition under
Section 24 of the Hindu Marriage Act, 1955
seeking maintenance. The Family Court declined maintenance to the
petitioner No.1 and granted maintenance of Rs.7,000/- per month to
the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging
the decree of divorce, which is pending before this Court. This Court
vide order dated 25.03.2015 directed the respondent to pay
maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the
second marriage.

h) A perusal of the material on record shows that the petitioner
No.1 and the respondent are both Government employees. The
petitioner No.1, at the time when the impugned order was passed, was
working as an Upper Divisional Clerk in Delhi Municipal Corporation
and the respondent is working as a Joint General Manager (HR) with
the Airports Authority of India. The monthly income of the petitioner
No.1, in the affidavit filed by her in the year 2016, is shown as
Rs.43,792/- per month and she has stated that her monthly
expenditure is Rs.75,000/-. She also stated that her net income is
Rs.37,762/- per month. On the other hand, according to the affidavit
dated 06.02.2016, filed by the respondent, he was earning a gross
salary of Rs.96,089/- per month.

CRL REV PET 549/2018 Page 2 of 12

i) The petitioner No.1 moved an application for grant of interim
maintenance claiming a sum of Rs.40,000/- per month. The learned
Family Court after considering various factors came to the conclusion
that since the petitioner No.1 is earning sufficiently for herself, she is
not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are
concerned, the learned Family Court apportioned the income of the
respondent into 4 shares, out of which two shares have been given to
the respondent and one share each i.e. 25% has been given to the two
children. Out of 25% for each children, as directed by the Family
Court, the respondent had to pay 12.5% to each of the child out of his
gross income less minimum statutory deductions which were to be
computed by the employer of the respondent. The learned Family
Court has said that the petitioner No.2 i.e. the son of the parties would
be entitled for maintenance till he attains the age of majority and the
petitioner No.3 i.e. the daughter would be entitled for the maintenance
till she gets employment or gets married whichever is earlier. The
learned Family Court further said that since the respondent has to
maintain his son, born from his second marriage, it was directed that
from the date of birth of his son from the second marriage, the share
of the respondent shall be 10% each for 2 kids, from the wedlock with
the petitioner No.1, as his entire salary was apportioned to five shares
(two for the respondent, one each for the three kids). It has been held
that since the second wife of the respondent herein is also working,
she has the liability to bear 50% of the cost of her son, thereby
making the share of the respondent herein as 10% towards the child

CRL REV PET 549/2018 Page 3 of 12
from the second marriage. The order dated 21.04.2018, reads as
under:

“8. Interim maintenance to petitioner no. 1 is declined at
this stage as she is able bodied and earning sufficiently
for herself and as regards the standard of living behoving
with the status of the respondent, the same are questions
of fact and triable issues and would be looked into when
it would be decided finally after trial whether petitioner
no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 23 are concerned, the
income of the respondent has to be apportioned in four
shares @25% i.e. two for himself and one each for the
children and from that 25% share for each kid 50%
thereof has to be contributed by the respondent for each
kid. So the respondent is liable to pay 12.5% each to both
the children as his share out of his gross income minus
minimum statutory deductions which would be computed
by the employer of the respondent However, amount of
reimbursement obtained by the respondent for which he
has spent from his own pocket will not be calculated for
the purposes of apportionment of the share in favour of
the children. The petitioner no. 2 and 3 would be entitled
to 12.5 % each per month as share of the respondent in
the aforesaid manner from the date of application till the
pendency of the case. The son of the parties shall be
entitled for the maintenance till he attains the age of
majority and the daughter till she gets employment or
gets married whichever is earlier. The respondent has no
liability to maintain his mother-in-law and sister-in- law
being under no such legal obligation. The mother of the
respondent being pensioner as father of the respondent
was a government employee, the respondent has no
obligation to maintain her financially.

10. Since the respondent in this case has the liability to

CRL REV PET 549/2018 Page 4 of 12
maintain his son born from his present wedlock it is
ordered that from the date of birth of his son from second
wedlock the share of the respondent shall be 10% each
for 2 kids from the wedlock with the petitioner as his
entire salary in the above terms needs to be apportioned
to five shares (two for the respondent, one each for the
three kids). Each shares comes to 20%. The second wife
of the respondent being also working has the liability to
bear 50% for son thereby making the share of the
respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision
petition.

k) It is pertinent to mention here that a number of petitions have
been filed by the parties against each other. This Court is not dwelling
into the details of those petitions since they are not relevant for the
present proceedings.

3. The learned counsel for the respondent has taken the primary
objection stating that the present application is not maintainable and is
barred under
Section 397(2) Cr.P.C inasmuch as the order granting interim
maintenance is an interlocutory order. The said argument has been rebutted
by the learned counsel for the petitioners.

4. The learned counsel for the petitioners places reliance on the
judgment of this Court in
Manish Aggarwal v. Seema Aggarwal, 2012 SCC
OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under
Section 125 Cr. P.C. and the issue arose whether a
revision petition could be preferred against that order, as
it was alleged to be interlocutory in nature. It was held
that the order of interim maintenance was an

CRL REV PET 549/2018 Page 5 of 12
intermediate or quasi final order. Analogy was drawn
from
Section 397(2) of the Cr. P.C. and the
pronouncement of the Supreme Court
in Amarnath v. State of Haryana, (1977) 4 SCC
137 : AIR 1977 SC 2185 qua the said provision was
relied upon. Thus, an order which substantially affects
the rights of an accused and decides certain rights of the
parties was held not to be an interlocutory order so as to
bar revision. However, orders summoning witnesses,
adjourning cases, passing orders for bail, calling for
reports and such other steps in the aid of pending
proceedings would amount to interlocutory orders
against which no revision would be maintainable under
Section 397(2) of the Cr. P.C. On the contrary, those
orders which decide matters of moment and which affect
or adjudicate the rights of the accused, or a particular
aspect of trial could not be labeled as interlocutory
orders. The Madhya Pradesh High Court held that an
application for interim maintenance is a separate
proceeding, to be disposed of much earlier than the final
order in the main case. Qua the said issue the matter is
finally decided by the order passed by reference to the
second proviso to
Section 125(1) of the Cr. P.C. Such
orders were, thus, intermediate or quasi final orders.
Thus, if an order does not put an end to the main dispute,
but conclusively decides the point in issue it can certainly
not be said to be an interlocutory order. The judgement
drew strength also from the observations of the Supreme
Court in
Madhu Limaye v. State of Maharashtra, (1977)
4 SCC 551 : AIR 1978 SC 47, where the Supreme Court
held that ordinarily and generally the expression
“interlocutory order” has been understood and taken to
mean as a converse of the term final order. But the
interpretation, and the universal application of the
principle that what is not a “final order” must be an
“interlocutory order” is neither warranted
nor justified.
In V.C. Shukla v. State, 1980 (2) SCR 380

CRL REV PET 549/2018 Page 6 of 12
the Supreme Court held that the term “interlocutory
order” used in the Cr. P.C. has to be given very liberal
construction in favour of the accused in order to ensure
complete fairness of trial, and revisional power could be
attracted if the order was not purely interlocutory but
intermediate or quasi final.

*****

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections
24 to 27 of the HM Act appeals would lie under
Section 19(1) of the said Act to the Division Bench of
this Court in view of the provisions of sub-section (6)
of
Section 19 of the said Act, such orders being in the
nature of intermediate orders. It must be noted that
sub-section (6) of
Section 19 of the said Act is
applicable only in respect of sub-section (1) and not
sub-section (4) of
Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of
the said Act qua proceedings under Chapter 9 of the
Cr. P.C. (
Sections 125 to 128) in view of the mandate
of sub-section (2) of
Section 19 of the said Act.

(iii). The remedy of criminal revision would be
available qua both the interim and final order under
Sections 125 to 128 of the Cr. P.C. under sub-section
(4) of
Section 19 of the said Act.

(iv). As a measure of abundant caution we clarify
that all orders as may be passed by the Family Court
in exercise of its jurisdiction under
Section 7 of the
said Act, which have a character of an intermediate
order, and are not merely interlocutory orders, would
be amenable to the appellate jurisdiction under sub-

CRL REV PET 549/2018 Page 7 of 12

section (1) of Section 19 of the said Act.”

(emphasis supplied)
In view of the above, this issue is no longer Res Integra and stands covered
fully in favour of the petitioners and the revision petition is maintainable.

5. It is contended by the learned counsel for the petitioners that after
holding that each of the child is entitled to 25% of the amount of the income
of the respondent, the learned Family Court ought not to have further
apportioned the amount and limited the liability of the respondent only to
12.5% of the amount of the salary earned by the respondent. It is contended
by the learned counsel for the petitioners that each of the child is entitled to
full 25% of the amount of the salary earned by the respondent. It is further
contended by the learned counsel for the petitioners that the learned Family
Court has also erred in limiting the maintenance to be given to the petitioner
No.2/son till he attains the age of the majority. It is contended by the learned
counsel for the petitioners that
Section 125 Cr.P.C has to be interpreted in
such a manner that the object of
Section 125 Cr.P.C is achieved. It is further
contended by the learned counsel for the petitioners that the responsibility of
a father to take care of his child does not cease after the child attains
majority if the child is not able to sustain himself.

6. Per contra, the learned counsel for the respondent contends that there
is no infirmity in the order of the learned Family Court and that it is a well
reasoned order. It is contended by the learned counsel for the respondent that
the total amount paid by the respondent to the petitioner Nos.2 and 3 till date
is about Rs. 29,25,825/- which is much more than the amount which has
been directed by the learned Family Court. It is also submitted by the

CRL REV PET 549/2018 Page 8 of 12
learned counsel for the respondent that apart from the salary, the petitioner
No.1 has got several properties and has got income from other sources and is
not only confined to her salary.

7. Heard Mr. Praveen Suri, learned counsel for the petitioners and
Mr. Digvijay Rai, learned counsel for the respondent and perused the
material on record.

8. The purpose of Section 125 Cr.P.C has been laid down by the
Supreme Court in several judgments. The object of
Section 125 Cr.P.C is to
prevent vagrancy and destitution of a deserted wife by providing her for the
food, clothing and shelter by a speedy remedy. The object of Section 125
Cr.P.C is to bring down the agony and financial suffering of a women who
left her matrimonial home so that some arrangements could be made to
enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai,
(2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC

353).

9. Since the purpose of granting interim maintenance is to ensure that
the wife and the children are not put to starvation, the Courts while fixing
interim maintenance are not expected to dwell into minute and excruciating
details and facts which have to be proved by the parties.

10. The contention of the learned counsel for the petitioners that after
recording that both the children are entitled to 25% each of the amount of
the salary earned by the respondent, the learned Family Court ought not to
have further apportioned the amount and limited the liability of the
respondent only to 12.5% of the amount of the salary earned by the
respondent, cannot be accepted. The balance has to be taken care of by the

CRL REV PET 549/2018 Page 9 of 12
wife i.e. the petitioner No.1 herein, who is also earning and is equally
responsible for the child. The respondent has married again and has a child
from the second marriage. This Court cannot shut its eyes to the fact that the
respondent has equal responsibility towards the child from the second
marriage. The further reduction of the amount after the birth of the child
from the second marriage of the respondent also cannot be found fault with
and the reasoning given by the Family Court does not warrant any
interference at this juncture.

11. The learned Family Court refused to grant maintenance to the
petitioner No.1 herein on the ground that the petitioner No.1 is working as
an Upper Division Clerk in Delhi Municipal Corporation and is earning
sufficiently for herself. The learned Family Court further held that as regards
the standard of living which was being enjoyed by the petitioners when the
marriage subsided is a question of fact and would be looked into when the
case is decided finally after both the parties lead evidence.

12. The petitioner No.1 is working as an Upper Division Clerk in Delhi
Municipal Corporation, earning about Rs.60,000/- per month. The records
indicate that the respondent has filed his salary certificate which shows that
his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two
children are living with the mother. After attaining the age of majority, the
entire expenditure of the petitioner No.2 is now being borne by the petitioner
No.1. The petitioner No.1 has to take care of the entire expenditure of the
Petitioner No.2 who has now attained majority but is not earning because he
is still studying. The learned Family Court, therefore, failed to appreciate the
fact that since no contribution is being made by the respondent herein

CRL REV PET 549/2018 Page 10 of 12
towards the petitioner No.2, the salary earned by the petitioner No.1 would
not be sufficient for the petitioner No.1 to maintain herself. This Court
cannot shut its eyes to the fact that at the age of 18 the education of
petitioner No.2 is not yet over and the petitioner No.2 cannot sustain
himself. The petitioner No.2 would have barely passed his 12th Standard on
completing 18 years of age and therefore the petitioner No.1 has to look
after the petitioner No.2 and bear his entire expenses. It cannot be said that
the obligation of a father would come to an end when his son reaches 18
years of age and the entire burden of his education and other expenses would
fall only on the mother. The amount earned by the mother has to be spent on
her and on her children without any contribution by the father because the
son has attained majority. The Court cannot shut its eyes to the rising cost of
living. It is not reasonable to expect that the mother alone would bear the
entire burden for herself and for the son with the small amount of
maintenance given by the respondent herein towards the maintenance of his
daughter. The amount earned by the petitioner No.1 will not be sufficient for
the family of three, i.e. the mother and two children to sustain themselves.
The amount spent on the petitioner No.2 will not be available for the
petitioner No.1. This Court is therefore inclined to grant a sum of
Rs.15,000/- per month as interim maintenance to the petitioner No.1 from
the date of petitioner No.2 attaining the age of majority till he completes his
graduation or starts earning whichever is earlier. The instant petition was
filed in the year 2008. The learned Family is directed to dispose of the
petition as expeditiously as possible, preferably within 12 months of the
receipt of a copy of this order.

CRL REV PET 549/2018 Page 11 of 12

13. Accordingly, the revision petition is allowed in part and disposed of
along with the pending application.

SUBRAMONIUM PRASAD, J.

JUNE 14, 2021
Rahul

CRL REV PET 549/2018 Page 12 of 12

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