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Raj (law)     30 August 2015

Whether arrears under 125 (3) to be deposited for the period

Sir,
My brother was asked to pay interim maintenance at the rate of 30,000 per month to hsi estarnged wife. The interim order was paased in November 2013 but his wife has filed the excution application u/s 128 crpc only in August 2015
On the Application u/s 128 crpc, the magaigstrate issued directions
"He is directed to clear the arrears of interim maintenance on the next date of hearing." which is 15 september 2015

125 (3) crpc defines that arreas of the mainatenance cannot be enforced for more than period of 1 year

My query is
1 Whether he needs to clear the arreas of interim maintenance only for period of 1 year ?
2 Order is silent up to how many months he has to clear the arreas of mainteance, it means that magistrate can execute the order without clarifying the order?
3 In default of payment for more than period of 1 year whether he can send my brother to jail (without exhausting the remedy of penalty of leying fine as per define under 421 crpc)??
4 If he asked to pay the remaining mainteance whether in that case revsions is maintainable??

please guide us



Learning

 2 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     01 September 2015

 

Delhi High Court
Ruchika Gupta vs Nitin Gupta on 27 April, 2012
Author: M. L. Mehta
   *              THE HIGH COURT OF DELHI AT NEW DELHI
                                                     Date of Decision:27.04.2012
+CRL.M.C. 3240/2009 with
Crl. M.A. 10964/2009 and 5753/2011

NITIN GUPTA                                                         ..... Petitioner
                              Through:          Mr. Jai Bansal, Adv. with
                                                petitioner in person.

            Versus
RUCHIKA GUPTA                                                   ..... Respondent
                 Through:                       Ms Suruchi Aggarwal, Adv. with
                                                respondent in person.

+CONT.CAS(C) 106/2012

RUCHIKA GUPTA                                                        ..... Petitioner
                              Through:          Ms Suruchi Aggarwal, Adv. with
                                                petitioner in person.
                      Versus
NITIN GUPTA                                                     ..... Respondent
                              Through:          Mr. Jai Bansal, Adv. with
                                                respondent in person.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The petitioner Nitin Gupta has filed his petition being Crl.M.C. 3240/2009 assailing the order dated 21.5.2008 of the learned ASJ, whereby the maintenance of Rs. 8000/- per month granted to his wife Ruchika Gupta by the M.M. vide order dated 3.3.2008 was enhanced to Rs. 15,000/- per month.

2. In the petition filed by Nitin Gupta, an order was passed by this Court on 2.12.2011, directing him to pay a sum of Rs. 2 lakhs without prejudice and subject to adjustment in two installments of Rs. 1 lakh each to Ruchika Gupta. On Nitin Gupta having failed to comply with the said order, his wife Ruchika Gupta has filed the instant Contempt Petition No. 106/2012 against him. Both these petitions are being disposed of by this common order.

3. The brief facts necessitating the disposal of the present petition are that marriage between Nitin and Ruchika was solemnized on 16.01.2005 and a son was born out of the wedlock. The relations between the parties were not cordial as a result of which Ruchika filed a complaint against Nitin under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "DV Act") in the Court of learned MM on 25.06.2007. Thereafter, she filed a petition under Section 125 CrPC before the MM claiming maintenance from her husband. The learned MM vide order dated 03.03.2008 awarded interim maintenance to the tune of Rs. 8000/- per month to Ruchika from the date of filing of the petition. A revision was filed before the learned ASJ by the Ruchika Gupta seeking enhancement of the maintenance amount awarded. The learned ASJ vide order dated 21.05.2008, enhanced the interim maintenance amount to Rs. 15000/- per month. Later, on the failure of Nitin Gupta to pay the interim maintenance amount, the learned MM vide order dated 14.08.2008 sentenced Nitin Gupta to 1 month civil imprisonment. Ruchika Gupta filed a petition for dissolution of marriage in the year 2008. Nitin Gupta preferred the petition being Crl M.C. 3240/2009, assailing the order of the learned MM dated 03.03.2008 awarding maintenance of Rs. 8000/- and further enhancement of the amount to Rs. 15000/- by the learned ASJ vide order dated 21.05.2008. This Court in Crl M.C No. 3240/2009 vide order dated 02.12.2011, directed Nitin Gupta to pay Ruchika Gupta Rs. 2 lacs in 2 equal monthly instalments towards the arrears of maintenance. Nitin Gupta failed to comply with this order of this Court. Thereafter, Ruchika Gupta has preferred a contempt petition, being Cont. Cas. No. 106/2012.

4. The learned counsel for petitioner Nitin Gupta in Crl.M.C.3240/09 submitted that Ruchika Gupta has not shown any documentary proof which could substantiate her averments with regard to the income of Nitin Gupta. It is submitted that Ruchika Gupta has not been able to show any proof with regard to her standard of living in the matrimonial home and also having given a Honda City car. It is further submitted that though these facts have been duly recorded by the learned MM as well as the learned ASJ in their orders dated 03.03.2008 and 21.05.2009 respectively, however they have erred in considering the same at the time of passing the orders. It is submitted that the learned MM and the learned ASJ failed to take into consideration the paying capacity of Nitin Gupta at the time of granting interim maintenance to Ruchika Gupta . It is contended that Nitin Gupta is currently working in Meerut at Marwari Bhoj (UP) and gets a salary of Rs. 3510/- per month and is thus unable to pay the amounts as fixed by the learned ASJ. It is further submitted that Nitin Gupta has already undergone civil imprisonment from 14.08.2008 to 03.09.2008 due to his inability to pay the interim maintenance amount.

5. Per Contra, the learned counsel for Ruchika Gupta submitted that Nitin Gupta has deposits to the tune of Rs.21.00 lacs. It is submitted that Nitin Gupta failed to comply the order of this Court dated 02.12.2011, whereby he was directed to pay to Ruchika Gupta Rs.2.00 lacs, without prejudice to his rights and also subject to adjustments, as towards arrears of interim maintenance, in two equal monthly installments and this amounts to contempt of this Court.

6. I have heard learned counsel for the parties and perused the records.

7. This Court has in Rajeev Preenja v. Sarika & Ors 159 (2009) DLT 616 reiterated the guidelines as laid down in the decision of Gaurav Sondhi v. Diya Sondhi 120 (2005) DLT 426 in the context of an application for interim maintenance under Section 125 CrPC. The relevant guidelines read as under:

"The matrimonial courts should follow the following procedure while granting interim maintenance:

(i)Whenever maintenance/interim maintenance is ordered, the Court will direct that it will be paid on or before 10th day of every month unless the Court finds that the nature of the employment of the husband and his manner of income makes such monthly payments impractical. In such a situation appropriate orders may be passed which shall take into account the circumstances of the husband which warrant departure from the time bound monthly payment directions contained in this order.

(ii) whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank account every month before the 10th day of the month.

(iii) The payment shall be made to the wife/child and in case of any difficulty in receiving or tendering the payment, it should be made through counsel. The order of deposit in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court's registry. If for good reasons upon finding difficulty in payment to a wife and her Counsel the deposits in Court are made such deposits should be in the name of the wife by a draft/crossed cheques, which may be retained on the court file for retrieval by the wife without the time consuming process of deposit in the Court account and subsequent withdrawal by the recipient;

(iv) In case there is first default for payment of maintenance, the Court may condone it. However, in case of second default without justification, it will be open to the Court to impose a penalty up to 25% of the amount of monthly maintenance awarded;

(v) In case there is third or fourth default, the penalty may go up to 50% of the monthly amount of maintenance upon the court finding that the default was not condonable or contumacious in nature.

(vi) The Court must ensure that the orders of maintenance are not a mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the chilearned

(vii) In case interim maintenance is being paid and adequate litigation expenses have been awarded to the wife, it should be ensured that the written statement/reply is filed within a reasonable time.

(viii) However, in judging the nature of default the relative affluence of the husband and the regular nature of his occupation and income will be taken into account. Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally.

The above directions are reiterated and it is expected that the learned MMs dealing with applications under Section 125 CrPC will ensue their compliance".

8. Further in the case of in Rajeev Preenja (Supra), it was held that, "19. Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it."

9. In the present case, Nitin Gupta has even failed to deposit a sum of Rs. 2.00 lacs even without prejudice to his rights and subject to adjustment as towards arrears of maintenance as directed by this Court and further has tried to show his inability to pay the same. This order came to be passed in the backdrop of the fact that Ruchika Gupta had filed as many as nine execution petitions against Nitin Gupta for recovery of maintenance. Nitin Gupta unjustifiably did not comply the said order of payment of Rs. 2.00 lacs despite the extension of time granted by this Court. There was no dispute that arrears of maintenance due from Nitin Gupta, and for which Ruchika Gupta was made to file nine execution petitions, were much more than Rs. 2.00 lacs. The non-payment of the arrears due and even the amount of Rs. 2.00 lacs by Nitin Gupta was nothing, but an open disobedience to the authority of law. The contentions of Nitin Gupta have been duly dealt with by the learned MM and the learned ASJ while disposing the petition of Ruchika Gupta for interim maintenance. This Court under its inherent powers ought not to dwell into these issues, as they are disputes over facts and have already been dealt with by the learned MM and the learned ASJ. I find no infirmity in the order of the learned ASJ or learned MM.

10.In view of the facts and circumstances of the case and the fact that Nitin Gupta failed to comply with the orders of this Court, directing him to pay Rs. 2.00 lacs towards arrears of maintenance to his wife Ruchika Gupta, I am not inclined to entertain his petition being Crl M.C. 3240/2009. The same is hereby dismissed. The Contempt petition filed by Ruchika Gupta being Cont. Cas.(C) No. 106/2012 is also dismissed with the liberty to Ruchika Gupta to pursue her execution petitions.

11.The petitions are disposed accordingly.

M.L. MEHTA, J.

APRIL 27, 2012 awan

T. Kalaiselvan, Advocate (Advocate)     06 September 2015

Mr. Raj, you have misread the provision of the law you are referring here, you may go through the law once again properly which is reproduced below for your information

(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

The highlighted portion will explain your question.

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