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CHEQUE BOUNS CASE

DVC. It is a matter of record that the petitioner-husband agreed to pay the maintenance before the trial court and the dispute is only with regard to the quantum of amount. The trial court having taken note of deposit of Rs.40,00,000/- in the name of the wife deposited by the 1st husband of the wife, proceeded to grant maintenance @ Rs.10,000/- per month. The appellate court has not taken into consideration the amount of Rs.40,00,000/- which the wife has got through her first husband. When the amount is standing to the credit of the wife from whatsoever source, it is required to be considered while awarding monthly maintenance. It is also to be taken note of that the wife is getting Rs.20,000/- towards monthly maintenance pursuant to the interim order granted in F.C.A.M.P.No.72 of 2011, dated 6.6.2011. In the given facts and circumstances, the appellate court has committed serious error in enhancing the monthly maintenance from Rs.10,000/- to Rs.25,000/- to the wife.

Skyline of Malkajgiri, Hyderabad, India

Skyline of Malkajgiri, Hyderabad, India (Photo credit: Wikipedia)

 

 

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

 

 

CRIMINAL REVISION CASE NO.186 OF 2012

 

 

Date: 13.02.2012

 

Between:

 

Rajiv Sawhani

 

…..Petitioner

 

And

 

Smt.Divya Sahani and others

 

…..Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE COURT MADE THE FOLLOWING:

 

 

             


THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

 

CRIMINAL REVISION CASE NO.186 OF 2012

 

ORDER:

 

          The revision is directed against the order, dated 20.12.2011, passed in Crl.A.No.62 of 2009 by the court of the Additional Metropolitan Sessions Judge, Cyberabad, N.T.R. Nagar, Hyderabad (for short, “appellate court”), whereby and whereunder the learned Metropolitan Sessions Judge enhanced the interim maintenance from Rs.10,000/- to Rs.25,000/- per month to the first respondent-wife.

 

2.      Heard learned counsel appearing for the petitioner and learned counsel appearing for the first respondent.

 

3.      The facts of the case in brief are as follows:

          The first respondent is the wife of the petitioner.  Their marriage was performed on 11.2.2004 at Bowenpally Sub-Registrar’s office under Special Marriage Act.  The petitioner-husband filed O.P.No.275 of 2008 on the file of the Family Court, Secunderabad.  The said O.P. came to be allowed dissolving the marriage and directing the husband to pay an amount of Rs.40,00,000/- to the wife towards permanent alimony.  Pending payment of permanent alimony, the husband was directed to pay Rs.40,000/- per month towards maintenance.  Assailing the order passed in O.P.No.275 of 2008, the husband filed F.C.A.No.43 of 2011 before this court and moved F.C.A.M.P.No.72 of 2011 seeking interim stay.  A Division Bench of this court passed the interim order as follows:

“None appears for the petitioner.

Learned counsel appearing for the respondent-wife submits that by grant of interim stay on 15.3.2011, the wife is unable to get any amount towards maintenance.  Though the court below granted lumpsum payment of Rs.40,00,000/- and a monthly maintenance @ Rs.40,000/-, the husband has not paid any amount.

 

        Having regard to the facts and circumstances of the case, we modify the order granted by this court on 15.3.2011 granting interim stay subject to payment of Rs.20,000/- per month from 10.1.2011 and the arrears shall be paid within four weeks from today.  Further, the monthly maintenance payable from the month of June, 2011 shall be paid by 10th of every succeeding month, failing which, interim stay stands vacated.  On such deposit, the respondent-wife is permitted to withdraw the same.

 

        Post for counter after three weeks.”

 

4.      The wife filed D.V.C.No.6 of 2007 under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 before the court of the X Metropolitan Magistrate, Cyberabad at Malkajgiri (for short, “trial court”).  The husband contested the DVC by filing counter.  On behalf of the wife, she got herself examined as P.W.1 and on behalf of the husband, he got himself examined as R.W.1 and examined his father as R.W.2. 

 

5.      The trial court on considering the evidence brought on record and on hearing the counsel appearing for the parties, proceeded to grant maintenance @ Rs.10,000/- per month to the wife.  For better appreciation, the relevant portion of the order reads as follows:

        “….. the evidence of P.W.1 and R.W.1 has to be taken into consideration.  As per the contention of the petitioner the respondent is having properties worth crores and they were receiving rents worth lakhs every month and she is suffering with diabetes.  She prayed to grant monthly maintenance from respondent No.1 as per the standard of her living.  On the other hand the contention of the respondent is that the petitioner received an amount of Rs.40,00,000/- towards permanent alimony from her first husband at the time of settlement and the said amount is deposited in the bank in her name and she is receiving around Rs.35,000/- per month interest and the said amount is sufficient to meet her expenses and moreover the respondent No.1 is an unemployee, but during the course of arguments the learned counsel for the respondents submitted that the respondent No.1 is ready to pay some amount towards maintenance of the petitioner being his legally wedded wife.  As per the evidence of P.W.1 she categorically admitted in cross-examination that she received Rs.40,00,000/- from her first husband towards permanent alimony and the said amount is deposited in her name.  The above admission of P.W.1 clearly goes to show that she is having Rs.40,00,000/- deposited in her name and she is receiving the interest arrived from the said amount.  In order to grant the monthly maintenance, capacity of the parties have to be taken into consideration and main purpose of granting maintenance for the livelihood of the aggrieved person as she is staying from the husband.  In the present case, as can be seen from the record, the petitioner is having Rs.40,00,000/- deposited in her name and she is receiving interest from the bank and as such she is having sufficient sources of income to maintain herself.  Considering the fact that the respondents agreed to pay monthly maintenance to the petitioner during the course of arguments, I am of the opinion that, in order to meet the ends of justice it is expedient to award a monthly maintenance of Rs.10,000/- to the petitioner from the respondent No.1 from the date of this order.  The respondent No.1 is directed to pay the said monthly maintenance on or before 5th of every month.”

 

6.     Challenging the order in D.V.C.No.6 of 2007, the wife filed Crl.A.No.62 of 2009 on the file of the appellate court.  The appellate court on re-appreciation of the evidences brought on record enhanced the monthly maintenance from Rs.10,000/- to Rs.25,000/- by its judgment dated 20.12.2011.  Hence, the husband filed this revision.

 

7.     Learned counsel appearing for the petitioner-husband submits that the appellate court without considering the fact of the wife receiving interest on Rs.40,00,000/- deposited by the 1st husband, proceeded to enhance the maintenance from Rs.10,000/- to Rs.25,000/- and therefore the order by the appellate court is to be set aside and the order passed by the trial court is to be restored.  A further contention has been advanced that the wife, apart from receiving monthly maintenance of Rs.10,000/- as ordered in D.V.C.No.6 of 2007, is also receiving maintenance of Rs.20,000/- pursuant to the interim order dated 6.6.2011 passed in F.C.A.M.P.No.72 of 2011 in F.C.A.No.43 of 2011 and if both the amounts are taken together, she is receiving maintenance at the rate of Rs.30,000/- per month as on this day.

 

8.     Per contra, learned counsel appearing for the first respondent-wife submits that the amount which has been paid by the first husband cannot be taken into consideration and therefore the order passed by the appellate court is legal and proper and the same is not required to be interfered with by this court in exercise of powers under Section 397 and 401 of Criminal Procedure Code, 1973.

 

9.     It is a matter of record that the petitioner-husband agreed to pay the maintenance before the trial court and the dispute is only with regard to the quantum of amount.  The trial court having taken note of deposit of Rs.40,00,000/- in the name of the wife deposited by the 1st husband of the wife, proceeded to grant maintenance @ Rs.10,000/- per month.  The appellate court has not taken into consideration the amount of Rs.40,00,000/- which the wife has got through her first husband.  When the amount is standing to the credit of the wife from whatsoever source, it is required to be considered while awarding monthly maintenance.  It is also to be taken note of that the wife is getting Rs.20,000/- towards monthly maintenance pursuant to the interim order granted in F.C.A.M.P.No.72 of 2011, dated 6.6.2011.  In the given facts and circumstances, the appellate court has committed serious error in enhancing the monthly maintenance from Rs.10,000/- to Rs.25,000/- to the wife.

 

10.     Hence, this revision is allowed setting aside the order, dated 20.12.2011, passed in Crl.A.No.62 of 2009 by the court of the Additional Metropolitan Sessions Judge, Cyberabad, N.T.R. Nagar, Hyderabad and restoring the order, dated 17.4.2009, passed in D.V.C.No.6 of 2007 by the court of the X Metropolitan Magistrate, Cyberabad at Malkajgiri.

 

 

____________________________

B.SESHASAYANA REDDY, J

13th  February, 2012

TJMR

 

 

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMINAL REVISION CASE NO.186 OF 2012

 

 

 

 

 

 

 

 

Date: 13.02.2012

 

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