Crl.A. 163 of 2002 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 163 of 2002

NANDU    ..... APPELLANT

VERSUS

 RAKESH    .....   RESPONDENT

O R D E R

1. This appeal is directed against the judgment of  

the High Court dated 5th July, 2001, whereby the appeal  

filed by the respondent herein has been partly allowed  

and the direction that  the sum of ` 500/- per month to  

be paid as maintenance under Section 125 Cr.P.C. to the  

appellant and to the child from the marriage has been  

modified to the extent that the maintenance would be  

payable only to the child.  When this matter came up  

before  this  Court  on  the  28th January,  2002,  the  

following order was passed:

“No  one  appears  on  behalf  of  the  respondent  despite  the  fact  that  service is complete. Leave granted. Maintenance  be  made  available  to  the  petitioner  in  terms  of  the  order  of  the Family Court.”

2. Today Mrs. Qamaruddin, the learned counsel for the

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appellant has informed us that despite the order of the  

High Court being stayed, the respondent had not paid a  

penny towards the maintenance to the appellant-wife or  

to the child.  The learned counsel for the respondent  

Mr. Dushyant Parashar has, however, pointed out (and has  

produced certain documents as well before us in Court)  

that  the  respondent  was  a  schizophrenic  and  was,  

therefore, not capable of understanding the consequences  

of the legal issues that had been raised and was not in  

a capacity to understand and implement the directions of  

the   Court.   The  fact  that  the  respondent  is  a  

schizophrenic has been disputed by the learned counsel  

for the appellant.   

3. There  are  a  certain  facts  which  need  to  be  

highlighted  herein.   The  Family  Court  rendered  its  

judgment  on the 4th October, 2000 allowing maintenance  

of  `500/- per month to the appellant and to the child.  

The High Court modified the order of the Family Court  

vide the impugned order dated 5th July, 2001.  The order  

of the High Court was stayed by this Court on the 28th  

January, 2002.  It is also the case of the respondent  

that  as  he  was  mentally  challenged  he  was  unable  to  

comply with the directions of the Court.  We, however,  

find  some doubt about this assertion in the light of  

the  statement  made  by  the  learned  counsel  for  the

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respondent that the respondent had contracted a second  

marriage  some  time  in  the  year  2004  or  2005.   We,  

therefore,  feel  that  it  would  be  appropriate  in  the  

circumstances that the respondent has not paid a penny  

so far towards the maintenance either to the wife or to  

his child despite the stay order granted by this Court  

that the appeal needs  to be allowed and the matter  

remitted  to  the  Executing  Court  for  appropriate  

proceedings.  The Executing Court will, however, permit  

the respondent to raise the plea of insanity but will  

give a positive finding that this plea was relatable to  

the  date  28th January,  2002,  or  nearabouts  when  this  

Court had granted a stay and would not relate it to the  

current mental status of the respondent.

4. The appeal is allowed in the above terms.

..............................J [HARJIT SINGH BEDI]

..............................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI MARCH 15, 2011.