Sunday, May 26, 2013

All's fair in love & maintenance! On divorce wife gets 40% of your pension,EVEN gets retrospective revisions! Delhi HC-20-may-'13

All's fair in love & maintenance! On divorce wife gets 40% of your pension, she can EVEN get retrospective revisions! Delhi HC - 20-may-'13


Crl. Rev. P. No. 478 of 2010


IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.REV.P. 478/2010 & Crl. M.A. No. 1548/2012

Reserved on: 16 th May, 2013

Decided on: 2 0 th May, 2013

RAMDEO PANDEY..... Petitioner
Through : Mr. Arvind Mishra a nd Ms. Aastha Dhawan, Adv ocates.

versus

SAVITRI PANDEY..... Respondent
Through : Mr. A.K. Trivedi and Mr. A.K. Thakur, Adv ocates.

CORAM : HON'BLE MS. JUSTICE MUKTA GUPTA

1. The Petitioner assails the judgment dated 19 th July 2010 whereby the appl ication of the Respondent under Section 1 2 7 Cr.P.C. for enhancement of the maintenance amount was allowed by the learned Additional Principal Judge, Family Courts, Rohini, Delhi.

2. Learned counsel for the Petitioner primarily assails this order on the gr ound that the same was in violation of the settlement arrived at between the parties in the Mediation Cell, Tis Hazari on 18 th April, 2006 and subsequently endorsed by the Hon'ble Supreme Court in Transfer Petition (Civil) No. 157 of 2005. The learned Tri al Court failed to appreciate that a consent order cannot be altered or reviewed. There was no material before the learned Trial Court to come to the conclusion that the Petitioner ha d suppressed material facts. In any case the learned Trial Court could not have revised the maintenance for the period even prior to the date of filing the application under Section 127 Cr.P.C. It is further contended that besides the maintenance amount agreed upon between the parties, the Petitioner had deposited a sum of R s. 50,000/-at the time of anticipatory bail in lieu of streedhan items in favour of the Respondent on which s he was earning the interest and also has a house to live in.

3. Learned counsel for the Respondent on the other hand contends that the Petitione r concealed facts and stated that he was getting a sum of Rs.2,328/-per month as pension only, in the reply to the application for maintenance before the learned Trial Court. In view thereof the learned Mediator came to the conclusion that a sum of Rs. 8 00/-per month would be a fair amount as maintenance to the Respondent as agreed upon between the parties. Later the Respondent came to know that the Petitioner was in fact getting a sum of Rs. 5, 183/-in August, 2005 and a sum of Rs.7,326/-from the mont h of March, 2008. He had additional income from agriculture and in view of these facts the learned Trial Court committed no error in enhancing the maintenance.

4. I have heard learned counsel for the parties.

5. The brief facts giving rise to the filing of this petition are that the Respondent filed a petition under Section 125 Cr.P.C. for grant of maintenance from 21 st September, 2004 and in the said petition the Petitioner claimed that he was getting a sum of Rs. 2,328/-per month as pension. In the m eantime, the Petitioner filed a petition for dissolution of marriage at Bhagalpur District on which the Respondent filed a petition for transfer before the Hon'ble Supreme Court to the Courts at Delhi. On 17 th April, 2006 the Hon'ble Supreme Court was ple ased to refer the matter to the Mediation Centre, Tis Hazari Courts. The learned Mediator with the consent of the parties fixed a sum of Rs. 800/-per month as maintenance to be increased to Rs. 1,000/-per month w.e.f. 1 st January, 2008. The Respondent later came to know that the Petitioner was getting a sum of Rs. 5, 183/-in March, 2005 and a sum of Rs. 7,326/-from March, 2008 in addition to the agricultural income.

It is in the light of these averments the learned Trial Court modified the maintenance and directed that the Respondent was entitled to 40% of the amount drawn by the Petitioner and thus directed the Petitioner to pay a sum of Rs. 2,130/-from August, 2005; Rs. 2,300/-from April, 2006; Rs. 2,630/-from January, 2007; Rs. 2,950/-from March, 2008; Rs. 3,250/-from September, 2009; Rs. 4,200/-from January, 2010 per month.

6. The moot question is whether an application under Section 127 Cr.P.C. would lie even in a case where the maintenance is settled between the parties by the process of m ediation. Learned counsel for the Petitioner states that a settlement arrived at mediation proceedings is final and binding in view of the amendment under Section 89 of the CPC. There is no dispute to this proposition. However, it is also well acknowled ge d that even during the process of mediation, specially for arriving at maintenance etc. the financial position of the parties has to be considered and in a case where one party reaps the benefit by playing fraud and concealing material facts, he would no t be entitled to claim that the settlement arrived at in the mediation would be binding for all times to come. Further Section 127 Cr.P.C. itself contemplates that on proof of change in the circumstance, the Magistrate may make such alteration as he think fit in the allowance for the maintenance or the interim maintenance to any person receiving monthly allowance for maintenance or interim maintenance under Section 125 C r. P. C. The provisions under Section s 125 and 127 Cr.P.C. are equitable provisions so a s to ensure that dependents, who have no sufficient means to maintain themselves, are maintained by the person who is legally bound to do it. Thus in view of the concealment of material facts by the Petitioner, the learned Trial Court committed no error in modifying the maintenance in accordance with the income of the Petitioner.

7. This brings me to the last issue as to whether the modification could be granted even prior to the date of application under Section 127 Cr.P.C., that is, 2 nd August, 2008. I n the present case by way of an application under Section 127 Cr.P.C. the Respondent brought to the notice of the Family Court that the Petitioner had concealed material facts and thus played a fraud with the Court when he filed the response to the application of the Respondent in the first instance. In a case of subsequent change the Claimant will be entitled to maintenance only from the date of application however, in a case where in the earlier proceedings facts were concealed, the Family Court is not d issuaded in granting appropriate maintenance from the date the Claimant is entitled to.

8. In view of the aforesaid discussion, I find no infirmity in the impugned order. Petition and the application are dismissed. The Petitioner will pay the balance arr ears to the Respondent within six months from the date of passing of this order.

(MUKTA GUPTA) JUDGE

MAY 20, 2013

'vn'


souce
http://lobis.nic.in/dhc/MUG/judgement/22-05-2013/MUG20052013CRLR4782010.pdf