NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016

SHALU OJHA .....PETITIONER(S)

VERSUS

PRASHANT OJHA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

On  an  earlier  occasion,  after  hearing  the  petitioner  who

appeared in person, and the learned counsel for the respondent,

we  had  passed  order  dated  September  4,  2017,  thereby

disposing of this petition with the following directions:

(a) insofar as domestic violence proceedings before the Family

Court are concerned, necessary documents shall be filed by

both the parties within four weeks from today and evidence

led  pursuant  thereto.   The  trial  court  shall  endeavour  to

decide the case finally, within a period of eight months from

today,  on  the  basis  of  evidence  and  fix  the  rate  of

maintenance finally; and

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(b) Crl.MC. No. 850 of 2015, pending before the High Court,

shall  be  taken  up  for  hearing  immediately  and  the  High

Court  shall  endeavour  to  dispose  of  the  same  as

expeditiously as possible and determine at what rate interim

maintenance  is  to  be  given,  i.e.  whether  order  dated

February 13,  2015 passed by the learned ASJ need any

modification or not.

2) Thereafter, review petition was filed by the petitioner pointing out

that there was apparent error in passing the aforesaid directions

inasmuch  as  matter  was  remitted  to  the  High  Court  for

presumption that proceedings were pending but the fact is that no

such proceedings are pending under the Protection of  Women

from  Domestic  Violence  Act,  2005  (for  short  the  ‘DV  Act’).

Realising  this  error,  the  review  petition  was  allowed  and  the

Special  Leave  Petition  was  restored  which  has  been  heard

afresh.

3) Notwithstanding the aforesaid factual error which had crept in the

order dated September 4, 2017, the other factual details recorded

in the said order are a matter of record.  Therefore, it would be in

the fitness of things to reproduce the same:

Though this case has a chequered history, only those facts

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which  are  very  material  are  taken  note  of,  eschewing  other

unnecessary details,  in order to avoid burdening this  judgment

with the facts which may not be relevant.   

The petitioner is the respondent’s wife.  It is unfortunate that

after  their  marriage  on  April  20,  2007  in  Delhi,  they  stayed

together hardly for four months.  Thus, for almost ten years they

have  parted  company  and  are  living  separately.   It  is  not

necessary to go into the reasons which led to the matrimonial

discord as in the present petition this Court is concerned only with

the dispute regarding the rate of maintenance.

The petitioner  had filed  an application  sometime in  June

2009 claiming maintenance under the provisions of Section 12 of

the DV Act.  In that application, apart from other reliefs, she has

claimed maintenance as well.   Order dated July 05, 2012 was

passed by the learned Metropolitan Magistrate granting interim

maintenance @ Rs.2,50,000/- per month with effect from the date

of  filing  of  the  complaint  as  well  as  compensation  of

Rs.1,00,000/-.   Since  the  respondent  did  not  honour  the  said

order, the petitioner filed the execution petition for recovery of the

arrears  of  maintenance.   In  the  meantime,  the  respondent

challenged  the  order  of  the  Metropolitan  Magistrate  granting

maintenance, by filing appeal under Section 29 of the DV Act, in

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the  Court  of  Additional  Sessions  Judge,  Delhi  (for  short,  the

‘ASJ’).   In  the  said  appeal,  the  learned  ASJ  issued  interim

directions  dated  January  10,  2013 for  depositing  of  the  entire

arrears of maintenance within two months.  As this order was not

complied with, the appeal filed by the respondent was dismissed

on May 07, 2013.  This order of dismissal was challenged by the

respondent before the High Court.  In those proceedings, order

dated July 23, 2013 was passed allowing the appellant herein to

file the reply, etc.   As no stay was granted, order dated July 23,

2013 was challenged by the respondent in this Court by filing a

special leave petition.  This Court, however, did not entertain the

same.  At  the same time, while disposing of  the special  leave

petition, observations were made to the effect that if the parties

apply for mediation, the matter shall be referred to the Delhi High

Court Mediation and Conciliation Centre at the earliest.  Keeping

in view these observations, the High Court referred the dispute to

the Mediation Centre at the Delhi High Court and also stayed the

execution proceedings in the meantime.  Mediation proceedings

failed.  As a result, the High Court took up the matter on merits

and  passed  orders  dated  September  10,  2013  directing  the

respondent  to  pay  Rs.5,00,000/-  on  or  before  September  30,

2013 and another sum of Rs.5,00,000/- on or before October 31,

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2013.  The petitioner filed an application seeking modification of

these orders and prayed for the directions to the respondent to

pay entire arrears of maintenance as per the order of the Family

Court in domestic violence proceedings.   In the said application

only notice was issued and since interim stay on the execution

proceedings continued, the petitioner filed special leave petition in

this Court for vacation of the interim order passed by the High

Court in the execution proceedings.    This special leave petition

was converted into appeal on grant of leave, in which judgment

was delivered on September 18, 2014 allowing the said appeal.

Operative portion of the said judgment reads as under:

“31.  The issue before the High Court in Crl.MC. No. 1975 of 2013 is limited i.e. whether the sessions court could have dismissed the respondent’s appeal only on the  ground  that  respondent  did  not  discharge  the obligation arising out of the conditional interim order passed by the sessions court.  Necessarily the High Court  will  have to  go into  the question whether  the sessions court has the power to grant interim stay of the execution of the order under appeal before it.

32.  In a matter arising under a legislation meant for protecting  the  rights  of  the  women,  the  High  Court should  have  been  slow  in  granting  interim  orders, interfering  with  the  orders  by  which  maintenance is granted  to  the  appellant.   No  doubt,  such  interim orders are now vacated.  In the process the appellant is still  awaiting the fruits of  maintenance order even after 2 years of the order.

33.   We  find  it  difficult  to  accept  that  in  a  highly contested  matter  like  this  the  appellant  would  have instructed  her  counsel  not  to  press  her  claim  for maintenance.  In our view, the High Court ought not to

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have accepted the statement of  the counsel  without verification.  The impugned order is set aside.   

34.   We are  of  the  opinion  that  the  conduct  of  the respondent is a gross abuse of the judicial  process. We  do  not  see  any  reason  why  the  respondent’s petition  Crl.MC  No.  1975  of  2013  should  be  kept pending.  Whatever be the decision of the High Court, one  of  the  parties  will  (we  are  sure)  approach  this Court  again  thereby  delaying  the  conclusion  of  the litigation.   The  interests  of  justice  would  be  better served if the respondent’s appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of the  appellate  Court  to  grant  interim  orders  or  the legality  of  the  decision  of  the  Sessions  Court  to dismiss  the  appeal  only  on  the  ground  of  the  non- compliance by the respondent with the conditions of the interim order.  The Criminal Appeal No. 23/2012 stands restored to the file of the Sessions Court.

35.  We also direct that the maintenance order passed by the magistrate be executed forthwith in accordance with  law.   The executing court  should  complete  the process within 8 weeks and report compliance in the High Court.  We make it clear that such hearing of the Sessions Court should only be after the execution of the order of maintenance passed by the Magistrate.

36.  In the event of the respondent’s success in the appeal, either in full  or part, the Sessions Court can make appropriate orders regarding the payments due to  be  made  by  the  respondent  in  the  execution proceedings.”

 Notwithstanding the aforesaid judgment, as the respondent

did not clear the entire arrears of maintenance, he was sent to

judicial custody, where he remained till December 22, 2014.  A

miscellaneous  application  was  filed  by  the  respondent  in  this

Court in the afore-mentioned disposed of appeal stating that he

was  in  judicial  custody  due  to  his  inability  to  pay  the  entire

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maintenance  and  requested  that  his  matter  be  heard  by  the

Sessions Court on merits.  In this application this Court passed

orders dated December 18, 2014 directing the Sessions Court to

decide  the  appeal  of  the  respondent  within  six  weeks.   He

remained in  judicial  custody till  December  22,  2014,  on which

date he was released.  During this period, though the respondent

had paid certain amounts towards maintenance, but he did not

clear the entire outstanding dues.

Thereafter, on February 13, 2015, the learned ASJ decided

the  appeal  of  the  respondent  reducing  the  maintenance  from

Rs.2,50,000/-, as fixed by the Family Court,  to Rs.50,000/- per

month, from the date of filing of the petition under Section 12 of

the DV Act.   This order was challenged by the appellant by filing

a petition (Crl.MC. No. 850 of 2015) before the High Court under

Section  482  read  with  Section  482  of  the  Code  of  Criminal

Procedure, 1973 (for short, ‘Cr.P.C.’).

It  will  also be of  interest to note that the maintenance of

Rs.50,000/-,  as fixed by the learned ASJ,  even when reduced

significantly  from Rs.2,50,000/-,  was still  not  acceptable  to  the

respondent either.  Seeking further reduction in the maintenance,

the respondent also challenged this order before the High Court

by filing petition under Section 482 Cr.P.C.  However, his petition

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was dismissed by the High Court vide order dated April 06, 2015.

The special leave petition filed by the respondent there against

was  also  dismissed  by  this  Court  on  May  11,  2015.   In  this

manner, insofar as maintenance granted by the learned ASJ @

Rs.50,000/-  per  month  is  concerned,  this  order  has  attained

finality  qua  the  respondent.   The  question,  therefore,  is  as  to

whether the petitioner is entitled to enhancement and whether the

learned ASJ rightly reduced the amount of maintenance.

Though, the petitioner has filed a petition under Section 482

Cr.P.C.,  which  is  registered  as  Crl.MC.  No.  850  of  2015,  as

pointed out above, and the same is still pending. Notwithstanding,

the petitioner has chosen to file the instant special leave petition

challenging the order  dated February  13,  2015 passed by the

ASJ.

Normally, when the proceedings are still pending before the

High Court, where same order dated February 13, 2015 passed

by the ASJ is challenged, this Court should not have entertained

the instant petition from the very beginning.  However, notice was

issued in this petition,  keeping in mind the consideration as to

whether  the  dispute  can  be  resolved  amicably,  suitably  and

appropriately by this Court.  For this purpose, matter was taken

up from time to time.  Attempts were even made that the parties

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settle all their disputes amicably.  We even called the parties to

the  Chambers  and  had  discussions  with  them.   However,

amicable solution to the problem, acceptable to both the parties,

could not be achieved.

The petitioner, who appears in person, has submitted that

there were no valid reasons for the learned ASJ to reduce the

maintenance.  In order to prove that the respondent is a man of

means  who  is  running  number  of  businesses  either  as  the

proprietor or partner of firm(s) or shareholder/director in certain

companies and possesses various assets and is also enjoying

the life of affluence, she has produced plethora of documents in

support.   The  respondent  has  refuted  the  authenticity  or  the

relevance  of  those  documents  and  his  submission  is  that  his

stakes in all these businesses are no longer there.  According to

him,  some of  the companies/firms mentioned by the petitioner

never  took  off  and  started  any  business  and  in  some  other

companies he no longer enjoys any stakes.  Picture painted by

the respondent is that he is undergoing very hard times and his

financial condition is pathetic.  It is also stated that he had to even

go behind bars and remain in custody for more than fifty days

because of his inability to pay the arrears.   

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4) We may point  out  that  during arguments,  it  was contended by

learned counsel for the respondent that apart from the monthly

maintenance  amount  which  the  respondent  was  giving  to  the

petitioner every month, the petitioner had some other source of

income as well.  This submission was based on the premise that

the  amount  of  maintenance  so  far  received  by  the  petitioner,

which was to the tune of Rs.49 lakhs, was kept by the petitioner

in the fixed deposits accounts in the banks.  According to him, it

proves that the petitioner had other source of income and she

was  employed/self-employed  and  from  that  income,  she  was

meeting her  day to day needs.   We accordingly passed order

dated January 29, 2018 directing the petitioner to file an affidavit

of her income which would be in the fomat as prescribed in the

judgment of Delhi High Court in the case of  Kusum Sharma  v.

Mahinder Kumar Sharma decided on January 14, 2015 (FAO

No. 309/1996).   Respondent was also given opportunity to file

additional  documents along with affidavit.   Such an affidavit  of

income was, therefore, filed by the petitioner.  Respondent also

filed reply to the said income affidavit to which petitioner filed her

rejoinder.

5) In  the income affidavit  filed  by the petitioner  in  the prescribed

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format, she has, inter alia, mentioned that she is staying with her

parents in their house in Mansarovar Garden.  The petitioner has

also mentioned about monthly expenditure.  Col. 11 and Col. 16

of Part I being relevant are reproduced below:

Sl. No. Description Particulars

11. Monthly  expenditure  (as mentioned in S. No. 60)

Rs. 1.5 lac approx. spent jointly by parents and self.  My share in the above expenditure is around Rs. 1 lac per month.

16. If  not staying at Matrimonial home,  relationship  and income  of  the  person  with whom you are staying?

Staying with my parents in House in which my brother has a sizable share.  Income Rs. 1.5 lac p.m.

6) It is not understood as to how petitioner’s share of expenditure is

Rs. 1 lakh per month out of Rs.1.5 lakhs monthly expenditure.

Likewise, it is not explained in Col. 16 as to in what form, income

of Rs. 1.5 lakhs per month is generated and who is earning that

income.  Of course, the petitioner has otherwise maintained that

she is not having any other source of income except the amount

of maintenance given to her by the respondent.  The petitioner

has also stated that she is compelled to live in her parents house

as the maintenance amount is not sufficient even to pay monthly

rent of an aparment.   

7) In  Part  II  of  the  affidavit,  the  petitioner  has  made  averments

relating to respondent.   The petitioner  says that  respondent  is

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earning about Rs.20 lakhs per month.  She has given the details

of  certain  business  ventures/restaurants  owned  by  the

respondent in which he is having his share.  The petitioner has

also  given  particulars  of  assets  allegedly  owned  by  the

respondent.  The petitioner has annexed photocopies of various

documents in support of her assertions.   

8) In the reply affidavit filed by the respondent, it is averred that the

petitioner is maintaining four bank accounts and the total amount

lying in these accounts is  Rs.8,36,610/-.  It is also stated that the

petitioner is having fixed deposits in the banks for a total sum of

Rs. 35,75,000/-.   In this manner, the total bank balance of the

petitioner is Rs.44,11,610/-.  As against this, the respondent has

paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to

July, 2017. Thus, in the last eight years, against a sum of Rs.49

lakhs paid by the respondent to the petitioner, the petitioner is still

having  bank  balance  of  Rs.44  lakhs.   According  to  the

respondent, it  would be inconceivable that petitioner has spent

only Rs.5 lakhs of rupees (or little more if interest earned by the

petitioner on the aforesaid Rs.49 lakhs is added) in eight years

and that  shows that  she has other sources of  income as well.

Other  averments  in  the  petitioner’s  affidavit  was  also  denied

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including her share of expenditure in the neighbourhood of Rs.1

lakh per  month or  that  respondent  is  earning Rs.20 lakhs per

month.  In respect of the particulars given by the petitioner about

the businesses of the respondent, the respondent has denied the

same and submits that, at present, there is no Restaurant or Bar

anywhere in India in which respondent has any share or interest.

He has his own explanation and has given alleged circumstances

in which he had to give up his share in certain businesses.  The

petitioner  has  controverted  his  averments  in  her  rejoinder

affidavit.   During  arguments,  the  petitioner  also  tried  to

demonstrate, by referring to certain documents filed by her, that

the respondent was indulging in falsehood.   

9) We have given a glimpse of the respective cases set up by both

the  parties,  without  giving  details  thereof,  as  asserted  by  the

petitioner and the manner in which the respondent has refuted

the same.   

10) After  giving  conscious  and  objective  consideration  to  the

documents placed on record by both the sides, we are of the view

that it  is only after the evidence is led by both the parties, the

veracity  and  evidential  value  of  such  material  can  be  finally

adjudged,  more  particularly,  when  the  said  material  and

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assertions  of  the  parties  would  be  tested  with  their  cross-

examination.   

11) The present proceedings arise out of the petition which was filed

by the petitioner under Section 12 of the DV Act.   The trial court

had arrived at a figure of maintenance on the basis of affidavits

filed by both the parties along with their respective documents.

Same exercise is undertaken by the learned ASJ in the impugned

order while adjudging the correctness of the order passed by the

trial  court  and,  in  the process,  reducing the maintenance from

Rs.2.50  lakhs  to  Rs.50,000/-  per  month.   This  obviously

happened as the proceedings under the DV Act are of summary

nature.   

12) In these circumstances, the appropriate course of action would be

to allow the petitioner to file an application for maintenance under

the Hindu Adoptions and Maintenance Act, 1956 or under Section

125 of  the Code of  Criminal  Procedure,  1973 so that  in these

proceedings,  both  the parties  lead  their  documentary  and oral

evidence and on the basis of such material, appropriate view is

taken by the said Court.   

13) We accordingly dispose of this petition by granting liberty to the

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petitioner  to  move appropriate  application  for  maintenance,  as

indicated above.  Once such application is moved, same shall be

decided by the concerned Court most expeditiously having regard

to the fact that the petitioner is fighting for her maintenance for

last number of years and these proceedings should attain finality

at the earliest.  We also make it clear that any maintenance fixed

shall not, in any case, be less than Rs.50,000/- per month which

figure of maintenance has already attained finality.   

14) As a sequel, the respondent shall continue to pay Rs.50,000/- per

month to the petitioner in the meanwhile.  The present petition

stands disposed of accordingly.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; JULY 23, 2018.

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