CRL.REV.P./688/2016 of OM PARKASH MEHTA Vs SMT VEENA MEHTA

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 07.08.2024

+CRL.REV.P. 688/2016 & CRL.M.A.s 16563-65/2016

OM PRAKASH MEHTA..... PetitionerThrough:Mr. Pawan Kumar Sharma, Advocate.Through:Mr. Pawan Kumar Sharma, Advocate.

versus

SMT VEENA MEHTA..... RespondentThrough:Mr.NirmalKumarAgarwal,Advocate along with R-2 in person.

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J.

1.The instant criminal revision petition has been filed under sections397 and 399 of the Criminal Procedure Code 1973 (hereinafter “Cr.P.C.”)read with Section 19 of the Family Courts Act, 1984. By the way of presentpetition the petitioner assails the order dated 07.05.2016 passed by thelearned Principal Judge, Family Court, (West), Delhi in M.P. 432/2014,wherebytheamountofmaintenancewasenhancedandthehusband/revisionist herein was directed to pay an amount of Rs.15,000/- permonth as enhanced maintenance along with the litigation expenses of Rs.11,000/- to the respondent/wife.

2.The brief facts of the case are as follows:

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(i)The marriage between the revisionist and the respondent wassolemnized on 16.11.1978 as per Hindu rites and ceremonies at Delhi.No issue was born out of the said wedlock.

(ii)After differences having arisen between the parties, therespondent/wife filed petition for grant of maintenance under Section125 Cr.P.C and vide order dated 28.01.1994, the husband was directedto pay sum of Rs.350/- per month to the wife, which wassubsequently enhanced to Rs.450/- vide order dated 25.03.1998 passedby the Ld. ASJ, Delhi in revision petition preferred by theRespondent/wife.

(iii)It is also important to note that on 30.01.1985 the wife filed apetition under section 18 of Hindu Adoption & Maintenance Act and inthe said petition the Hon’ble Court passed an order directing thehusband to pay maintenance to the wife at the rate of Rs. 2000/- permonth. The wife had filed the execution petition in that suit also andthe same is also stated to be pending.

(iv)Subsequently, with the passage of time in the year 2007 i.e. on07.08.2007, the wife preferred petition under section 127 Cr.P.Cbefore the learned Family Court for enhancement of maintenance onthe ground that she is residing with her brother who is trying to evicther from his house and she had to arrange for rental premises to live asshe had no other shelter to reside. Further, the wife being unemployedwassufferingfromvariousailmentsandduetochangeincircumstances and the inflation rate she was unable to maintain herself.It was also the contention of the wife that the husband has handfulincome of Rs.60,000/- as he is running chemist shop in the name of

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MEDAID and apart from the Chemist work the husband is doingbusiness in the name of “Medaid & Mehta Property Dealer” and fromthere he is earning Rs.35,000/- per month. Further during thesubsistence of marriage the husband had also illegally re-married in1984 by changing his religion from Hindu to Muslim and ismaintaining the other wife and children born out from the saidwedlock.

(v)It was also the case of the respondent that the revisionist hasrefused and neglected to maintain her and he himself is leading aluxurious life and is having all the facilities including car, house,servant etc. at his disposal. The respondent had prayed for enhancementof maintenance to Rs.25,000/- per month and Rs.11,000/- as litigationexpenses by way of an application under section 127 Cr.P.C. forenhancement of maintenance filed before the learned Family Court.

(vi)In reply to the application filed by the wife, the husband(revisionist herein) in his reply stated that the modification applicationwas filed without any cause of action and against an improper person asthe wife had not included his name i.e. Omar Pasha in the array ofparties. Further, there was no change in circumstances so theapplication was not maintainable. In fact, the circumstances havechanged in his favour as he was now without any job and was also notrunning the chemist shop, rather he was intending to move anapplication with prayer to reduce the maintenance to be paid by himto the wife.

(vii)In his reply to the application, the husband admitted that he wasworking as an accountant and was also running Chemist’s Shop but

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had stated that the said Chemist work was partnership businessconsisting of four partners and he was getting share of Rs.600-700/-Per Month. He further stated that he had to leave his Accountant jobdue to the respondent. He also denied doing any property dealingbusiness under the name and style of Medaid & Mehta Property Dealerwith the income of Rs.35,000/- P.M. It was also denied by therespondent that he has remarried illegally. Further, submission wasalso made that the complaint case filed by the wife under section 494IPC also stands dismissed; hence, the allegation made by the wifeagainst him is irrelevant and wrong. The husband in his reply alsostated that he is an old and aged and is suffering from BP, Ulcer andother old age diseases and this fact was well within the knowledge ofthe wife but only to harass him the wife has filed the application.

(viii)It was also averred by the husband that the wife runs day carecentre and tuition centre by employing Ayas and is also having abeauty parlour and is residing separately in house purchased by her.

3.After considering and examining the case of both the parties, thelearned Family Court passed the order dated 07.05.2016 which has beenimpugned before this Court.

4.The petitioner has impugned the aforesaid order before this court onthe ground that the learned Family Court has failed to appreciate that theapplication for enhancement of maintenance was filed in the year 2007 i.e.after span of 10 years of the disposal of the main maintenance petition andthat the petitioner is not having any source of income. Further, the petitioneris old and infirm and has to look after his family also. It is the case of thepetitioner that the learned Principal Judge, Family Court failed to appreciate

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the fact that the claim of wife for enhancement of maintenance is withoutany supporting evidence.

5.It is also the case of the petitioner that another case filed by therespondent under section 494 IPC has been dismissed. It is stated that thelearned Family Court did not appreciate that the petitioner has categoricallyand specifically stated in his evidence that the business of chemist shopunder the name of M/s Mediads, 21, Central Market, situated at Naraina,New Delhi was closed way back in the year 1996 and the said shop hadalready been sold.

6.It is further stated that the Ld. Trial Court adopted pick and chooseformula for appreciation of evidence/material on record while passing theimpugned judgment.

7.Learned Counsel for the respondent on the other hand, has argued thatthere is no infirmity in the order of the learned Family Court as it is adetailed and well reasoned order. It is stated that the enhancement ofmaintenance is also warranted in the present case since the respondent isliving alone and is old and needs money to maintain herself. Further thepetition under section 127 Cr.P.C. was filed in the year 2007 i.e., after alapse of 10 years.

8.He contends that the petitioner has been spending for maintaining hisother wife and bringing up two children from his unaccounted income whichipso facto suggest that he was earning handsomely to maintain self and threeothers.

9.I have heard the learned counsel for the petitioner, as well as, learnedcounsel for the respondent and have gone through material on record.

10.It is not in dispute that an amount of Rs.350/- per month was the

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maintenance amount that was awarded by the learned MetropolitanMagistrate under Section 125 Cr.P.C. vide order dated 28.01.1994 andsubsequently the said amount was enhanced to Rs.450/- vide order dated25.03.1998 passed by the learned ASJ in revision preferred by therespondent.

11.The petition under Section 127 Cr.P.C. seeking enhancement ofmaintenance came to be filed by the respondent after about 09 years and 05months, i.e., on 07.08.2007. Vide impugned order dated 07.05.2016 thepetition of the respondent under Section 127 Cr.P.C. was allowed and therespondent was granted Rs.15,000/- per month as enhanced maintenancefrom the date of filing of the petition under Section 127 Cr.P.C.

12.The submission of the learned counsel for the petitioner is that in theyear 2007, when the respondent filed the petition under Section 127 Cr.P.C.seeking enhancement of maintenance, the petitioner at that stage was alsoold and infirm and was not having any income of his own. In fact, none ofthe parties have brought on record any documentary evidence proving themonthly income of the other party.

13.Incidentally, when the petition for enhancement of maintenance wasfiled, i.e. in the year 2007, neither there was any judgment of this Court or ofthe Hon’ble Supreme Court making it obligatory on part of the parties to filetheir respective income affidavits nor any such procedure was resorted to bythe learned Trial Court.

14.It is perhaps in the backdrop of aforesaid legal position which wasthen prevailing, the learned Trial Court did not ask the parties to file theirrespective affidavits of assets, income and expenditure. However, after thedecision of the Hon’ble Supreme Court in Rajnesh vs. Neha: (2021) 2 SCC

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324, it is now mandatory to file affidavit of income and assets.

15.One of the course available to this Court is to set aside the impugnedorder and remand the matter to the learned Trial Court with direction to theparties to file their affidavit of assets, income and expenditure as prescribedin the aforesaid judgment and to direct the learned Trial Court to make freshassessment of the monthly income of the parties and to decide the aspect ofmaintenance. However, considering the fact that the matter remainedpending before the learned Trial Court for 09 long years and thereafter thepresent petition has been pending before this Court since the year 2016 andfurther regard being had to the advanced age of the parties, it is not deemedappropriate to remand the matter to the learned Trial Court for de novoassessment of income of the parties and to decide the quantum ofmaintenance.

16.Accordingly, this Court proceeds to decide the present petition on thebasis of the material available on record and considered by the Trial Court.At this stage, it is thus, apt to refer to the relevant part of the impugnedjudgment where the evidence has been discussed by the Trial Court, whichreads thus:

“21. The petitioner has sought to prove her case by examining herselfonly. In her cross-examination the petitioner has admitted that shewas teacher prior to marriage and was working for two/three yearswith Sarawati Vidya Mandir prior to her marriage and left itimmediately after marriage but she does not remember as to howmuch she was earning as salary. She stated that the respondent gaveher severe beatings on 03.07.1979 and left her at 2 AM at herparental home and she treated herself at home only. She admitted inher cross-examination that the respondent was working as Accountantwith Catholic Hospital Association, Gole Market, New Delhi and hiscarry home salary was Rs. 1000/- which he used to give to his motheronly. In her cross-examination the petitioner has admitted that shewas teacher prior to marriage and was working for two/three yearswith Sarawati Vidya Mandir prior to her marriage and left itimmediately after marriage but she does not remember as to howmuch she was earning as salary. She stated that the respondent gaveher severe beatings on 03.07.1979 and left her at 2 AM at herparental home and she treated herself at home only. She admitted inher cross-examination that the respondent was working as Accountantwith Catholic Hospital Association, Gole Market, New Delhi and hiscarry home salary was Rs. 1000/- which he used to give to his mother

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and therefore this fact was in knowledge of the petitioner. She furtherstated that the respondent had wholesale and retail business ofmedicines at Narayana. She admitted that she had not seen anydocument that the respondent was the owner of the chemist shop.She stated in her cross-examination that she does not know whenthe respondent left his Accountant job and added that since themedicine business of the respondent was flourishing and prosperousthe respondent might have left the job of accountant. She admittedthat she does not have any documentary proof to corroborate herclaim that the respondent was earning Rs. 60,000/- per month fromthe medicine shop.She volunteered that the respondent wasearning more than Rs. 60,000/- PM from the said business. On 16-04-2013 during her cross-examination the petitioner admitted thatshe had been to the shop of the respondent about two years backwhen she noticed the respondent sitting on his shop and thepetitioner had also seen one Pharmacist and one servant working atthe shop.

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23. She has added that since the day of passing the order therebygranting Rs. 2000/- as maintenance in case u/s 18 of Adoption andMaintenance Act the income of the respondent has increased manyfolds as the respondent is running the business of Chemist in the nameand style of M/s Medaids and Mehta Property Dealer and the same isgoing on prior to the decision of the case u/s 18 of A&M Act. Sheremained firm in her stand that the respondent is the owner of thechemist shop being run by him. She admitted that she has not filedany documentary proof to substantiate her claim that the respondentis the owner of the two businesses. She has also admitted that shehas not filed any document to support her claim that the saidbusinesses of the respondent are still going on.However, shevoluntarily added that 6/7 months prior to her deposition dated 17-10-2013, she had visited the firm (of the respondent) and found thatthe M/s Medaid was working and the respondent alongwith apharmacist and 2-3 helpers were there and many buyers were there.No specific suggestion in rebuttal on this volunteered portion hasbeen given to the petitioner. She has denied the suggestion that therespondent is jobless nowadays due to his ill health, old age and he

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is suffering from many old age diseases. She also stated that therespondent owns Santro Car which she had seen in the year 1997.She denied the suggestion that the respondent is leading poor lifeand does not have sufficient means to support himself. She also deniedthe suggestion that the respondent does not own house in his ownname. She admitted in her cross-examination conducted on 17-10-2013 that she is MA (Sanskrit) and was working as Teacher beforemarriage. considerable part of her cross-examination is solelyrelated to the house of his brother in which she is residing which isnot relevant and material to be discussed in the present judgment.

24. She has further denied that suggestion in her cross-examinationthat the medical documents filed by her regarding her illnessalongwith the affidavit are false and fabricated and the same areprocured by her fraudulently. She denied the suggestion that since theincome of the respondent has decreased, the respondent is unable topay the maintenance to her. She denied the suggestion that she is ablebodied and is gainfully employed and in position to maintainherself. She denied that the business of the firm M/s Medaids stoodclosed in 1996 and that the respondent had no concern with the firmM/s Mehta Property Dealer.

25. In his cross-examination conducted on 24-03-2015 the respondenthas admitted that he had filed divorce petition seeking divorce fromhis wife and the same has since been dismissed and therefore thepetitioner is still his legally wedded wife. He has volunteered to addthat the couple was staying separately from each other for the lastapproximately 35 years. He has admitted his second marriage in1984 with Ms Natasha formerly known as Veena Kapoor and birthof two children from the second wedlock. His elder daughter is 29years and younger son is 25 years on the date of his deposition (viz.24-03-2015).

26. In his cross-examination the respondent was directed to furnishthe name, address and particulars of his daughter and son fromsecond wife in closed envelope for the perusal of this court. He hassince furnished the same. The birth of two children from the 2ndwife during the subsistence of his marriage with the petitioner is anadmitted fact.

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27. In his further cross-examination conducted on 24-03-2015 therespondent denied the suggestions that he is not disclosing the nameof the school of his two children from the second wedlock for thereason that he does not want to disclose the fact that his two childrenhave completed their schooling from private school. He hasvolunteered to add that he has not given the particulars for the reasonthat he has an apprehension that both the children will be traced andhumiliated. He stated that his daughter completed her graduation(Physics Hons.) almost 10 years back from the Hindu College, DelhiUniversity whereas she did her schooling from Govt School and hisson did graduation BCA from Venkateshwar College and that hisdaughter is married and son is staying with his uncle at Faridabad.He stated that after death of his brother, his house on 85 sq yds.devolved upon his legal heirs (the respondent and his three brothersand one sister) but it is he who is residing there. All his brothers areat Faridabad and sister has expired. He has denied the suggestionthat he has an illegal second marriage and he has committed anoffense by doing so. He has stated in his cross-examination that he isresiding with his wife as his daughter is now married and son isstaying with his uncle at Faridabad.

28.He has admitted in his cross-examination that at the time of hismarriage with the petitioner he was working as an Accountant andalso running chemist shop wherein he was partner and that afterone and half year of marriage he left the said job of Accountant buthe denied the suggestion that he left the job because his chemistbusiness was giving him huge profits. He stated that he left hisaccountant's job for the reason that the petitioner alongwith hermother used to come to his office and meet his superiors which causedhumiliation to him. He stated that the shop of chemist was being run

by him in partnership with Mrs Suman Mehta (Wife of brother ofthe respondent Sh JP Mehta), Sh Rajeev Mehta Respondent'snephew) and Mr Jatinder Mehta (respondent's younger brother)and the said shop was closed and sold in the year 1996. He furtheradded that he has no document to show that the shop was sold outor was closed or the license to run the said shop was surrendered.

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29. The respondent has admitted in his cross-examination that hehas taken the services of private advocate and not Legal AidCounsel. He has further stated that his average electricity bill for hisresidence is Rs. 650/- PM and Rs. 200/- PM for water supply. Hehas denied the suggestion that he is having an income of Rs.60,000/- PM and is deposing falsely to avoid paying maintenance tothe petitioner.

30. In his cross-examination conducted on 6-07-2015 the respondenthas placed on record copies of electricity bills in respect of hisresidence at Old Rajinder Nagar for the months of December, 2014 toApril, 2015. the respondent did not bring the electricity bills for themonths of May to September, 2014. The respondent denied thesuggestion that he has not brought the said bills as due to the use ofAC during those months the electricity bills for those months wouldhave been hefty and the respondent is deliberately withholding thesame. He denied the suggestion that he is deposing falsely with anintention to avoid the payment of maintenance to the petitioner.

17.The learned Trial Court after considering the evidence on recordarrived at conclusion that the income of the petitioner cannot be less thanRs.50,000/- per month and accordingly the respondent was held entitled toRs.15,000/- per month as enhanced maintenance.The relevant findings of thelearned Trial Court read thus:

31. In the present case, the respondent has remarried whichmarriage is illegitimate and he has two illegitimate children fromthe said wedlock. He had been maintaining his second wife and twochildren but not paying sufficiently on his own for the maintenanceof the petitioner who is his legally wedded wife and the respondent isbound to maintain her as per Law. It does not lie in his mouth nowto say that he has changed circumstances because of which he isunable to pay maintenance to the petitioner and he sought his righttomoveappropriately.The respondentwasworkingasanAccountant at the time of marriage and was also running chemist'sshop. Because of his past profile and because of his concealment ofmaterial facts from the court that he has remarried and has twomarriage is illegitimate and he has two illegitimate children fromthe said wedlock. He had been maintaining his second wife and twochildren but not paying sufficiently on his own for the maintenanceof the petitioner who is his legally wedded wife and the respondent isbound to maintain her as per Law. It does not lie in his mouth nowto say that he has changed circumstances because of which he isunable to pay maintenance to the petitioner and he sought his righttomoveappropriately.The respondentwasworkingasanAccountant at the time of marriage and was also running chemist'sshop. Because of his past profile and because of his concealment ofmaterial facts from the court that he has remarried and has two

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children from his illegitimate marriage, he does not deserve anyleniency from this court. In para 9 of his written statement, on merits,he has denied that he had remarried illegally in 1984. He denied thathe got the name of his wife registered in the Municipal record asHindus. He dared to declare that the complaint u/s 494 IPC againsthim was dismissed by the competent court of Law.

32. Under Section 127 CrPC, the change of circumstances isrequired to be established by the party seeking the relief. The lapseof time itself is one of the changed circumstances. In this case, thepetitioner got the relief of maintenance in her 125 CrPC petition byway of paltry sum of Rs. 350/- vide order dated 28-01-1994 of Ld.MM Sh. NK Kaushik which was enhanced in revision to Rs. 450/- PM.In her HAM case vide order dated 21-05-1997, petitioner wasawarded Rs. 2000/- PM. The present petition was filed after lapseof 10 years. All along these years, the respondent had been spendingfor maintaining his illegal wife and two children from illegalmarriage which ipso facto suggests that he was earning handsomelyfor maintaining self and three others.The portion of maintenancewhich he was to spend on the petitioner herein, he was spending onthree persons supra. The complaint u/s 494 IPC of the petitionerherein, was dismissed for technical reasons whatsoever. However, itgave the courage and strength to the respondent to even come out injudicial proceeding before this court in cross-examination to admithis illegal marriage and birth of two children therefrom whereas inhis written statement he has categorically denied his marriageduring the subsistence of his marriage with the petitioner. It showsthe lack of respect on the part of the respondent in abiding the law.He has disobeyed the law. He appears to have not challenged thedismissal of his divorce petition. He deserves to be not believed on hisclaim of suffering from ailment or incapacity to earn. He has notadduced any evidence to establish his claim that the petitioner isrunning day care centre and tuition centre and beauty parlour andis earning sufficiently.

33. From 2007 we are not in 2016. The order of Rs. 2000/- in HAMwas passed in 1997. The inflation has increased manifolds since1997. Keeping in view the position explained above, in 2007 thedaughter of the respondent was about 22 years whereas his son was

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about 18 years.The petitioner has testified that she saw therespondent managing and conducting his chemist shop about 6/7months prior to her deposition in the court on 17-10-2013. Therespondent has not adduced any documents to discredit thepetitioner to reflect that he had sold the shop or surrendered thelicense on notional basis. Therefore, the income of the respondent isconstrued as not less than Rs. 50,000/- PM from the chemist shop.Moreover, the respondent has the capacity and capability to run thebusiness. The petitioner is held entitled to Rs. 15000/- PM asenhanced maintenance from the date of filing the 127 Cr PCpetition.

34. In view of the obtaining facts and circumstances the respondent isdirected to pay an amount of Rs. 15000/- PM to the petitioner fromthe date of filing of this petition till her life time as per Law alongwithlitigation expenses of Rs. 11,000/-. The maintenance already received/ to be received in other case, as well as in this case is liable to beadjusted. The respondent shall clear the arrears in twelve equalmonthly installment.”

18.A perusal of the impugned order reveals that the Trial Court hasreturned findings with regard to the second marriage of the petitioner basedon the admission of the petitioner/husband during cross-examination.Further, the petitioner has also admitted in his cross-examination that twochildren born from the second marriage of the petitioner have already turnedmajor - the daughter has completed her graduation from Hindu College,Delhi University whereas the son has also completed his graduation fromVenkateshwar College and the daughter has also been married. This clearlydemonstrates that the petitioner must have possessed substantial amount ofincome and means to accomplish all his obligations as father besidesmaintaining himself and three other members of his family from the secondmarriage.

19.Notably the respondent in her evidence had stated that the petitioner

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was running chemist shop, which fact has also not been disputed by thepetitioner. However, the stand taken by the petitioner in his evidence is thatthe shop was sold and the business of chemist was closed long ago but nomaterial was placed on record to support the said contention. It is in thisbackdrop the learned Trial Court observed that the income of the petitioneris to be construed as Rs.50,000/- PM from the chemist shop.

20.Section 127 of the Cr.P.C. addresses the adjustment of the monthlymaintenance allowance in response to change in the circumstances of theparties at the time an application is made to modify the original maintenanceorder. At this stage apt it would be to refer to the decision of this court inVishal vs Sonia 2024 SCC Online Del 1544, where it was observed asunder:

“27. It is pertinent to note that while seeking any kind ofmodificationwhetherforenhancementorreductionofmaintenance it must be shown that there has been changein circumstances of either the husband or of the wife.”

21.The term ‘change in circumstances’ as referred to in Section 127(1)not only include change in the financial circumstances of the husband butmay also include other circumstantial changes in the husband or wife's lifewhich may have taken place since the time maintenance was first awarded.The quantum of maintenance fixed by court does not become unalterablein perpetuity. The same may be altered and is subject to increase orreduction by the courts, pursuant to an alteration in the circumstances ofeither party.

22.The trial court has acknowledged that lapse of 10 years is itself achange in circumstance since inflation has increased manifolds since 1997and premised on that ground the maintenance awarded to the respondent has

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been enhanced.

23.This court cannot be unmindful of the fact that the respondent is alegally wedded wife of the petitioner and the respondent has not been able toestablish that the respondent has any other source of income. It is trite lawthat the husband is duty bound to maintain his wife and children and hecannot shirk his responsibility to maintain his wife who is unable tomaintain herself.[1]

24.Insofar as the contention of the learned counsel for the petitioner thatthe petitioner/husband is not having any income is concerned, suffice it tosay such plea ipso facto does not absolve the petitioner from his moral andlegal duty to maintain his wife if he is able bodied person and haseducational qualifications.[2]The statement that the petitioner is old andinfirm having no source of income, is only self serving statement.Therefore, the contention of the learned counsel for the petitioner deservesto be rejected.

25.In light of the evidence discussed by the Trial Court, I don’t find anyillegality, infirmity or perversity in findings of the Trial Court. Accordingly,no ground for interference is made out and the present revision petitiondeserves to be and is dismissed, leaving the parties to bear their own costs.26.The petition along with pending applications is disposed of.

VIKAS MAHAJAN, J.

AUGUST 07, 2024/N.S.ASWAL

1Swarn Singh v. Raj Kour 2005 SCC OnLine J&K 28

2 Rajnesh vs. Neha, (2021) 2 SCC 324

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