Argument of Interim Maintenance not under jurisdiction of 482 CrPC: Delhi HC

The Delhi High Court on 22nd February 2021 decided a case of matrimonial maintenance filed by way of appeal under Sec. 482 of Cr.P.C.


The present case arose due to an application filed before the Metropolitan Magistrate (Mahila Court), Delhi by the current respondent, Poonam, against her husband, Bharat, (current petitioner), under Secs.12, 18, 19, 20, 22, 23 of the Protection of Women from Domestic Violence Act, 2005.

         The Metropolitan Magistrate passed an order in 2019 stating Bharat had not disputed the marriage between the parties and the fact that they had two children from it, now in Poonam’s custody. He had also not disputed voluntarily paying Rs.10, 000 as ad-interim maintenance to the wife and was thus directed to do the same. Aggrieved, the husband filed an appeal in the Sessions Court.

Sessions Court:

Bharat denied that he had volunteered to pay the said amount. Since there was no such voluntary agreement on his part, the Metropolitan Magistrate should have conducted an inquiry on whether he had the means to pay such an amount and whether the wife was in necessity of it. He also stated that Poonam was getting a good amount of rent from four properties which in her possession, purchased by him in her name.  

The birth of two children from the wedlock was not disputed by either party. Poonam stated that her husband had voluntarily offered to pay the amount during the course of the hearing and it was due to this that the Magistrate passed the order. The husband was simply trying to wriggle out of his oral undertaking given in court. The Additional Sessions Judge dismissed the appeal stating there was no error in the order given by the Metropolitan Magistrate.

It was against this order that the current appeal was filed by the petitioner under Sec.482 of Cr.P.C.

Proceedings before the Court:

         The court had earlier directed the petitioner to file a written submission. In it, he questioned the trial court’s noting of admission and understanding of the maintenance by asking questions like who’s submission, mode of submission, capacity to pay, etc. He also stated there was no document showing his earnings. He questioned the court’s justification without evaluating income, expenditure and assets of both the parties. It failed to appreciate that the FIR is against the wife and not the husband, and that the wife had thrown him out of the matrimonial home.  The short question which arose for consideration before the court was:

Whether the order of the Metropolitan Magistrate, passed on the basis of the undertaking given by the petitioner to pay maintenance, affirmed by the Additional Session Judge, required the interference of the HC while exercising its jurisdiction under Section 482 Cr.P.C?

Decision of the court:

The Hon’ble Justice Subramonium Prasad stated that if the petitioner had not given any undertaking then he should have approached the same court and filed an application for the recall of the order by contending that he had not given any undertaking. The bar under Section 362 Cr.P.C would not be attracted in such a case.

There was no point in bringing the submission to the HC when the wife had stated before the additional sessions judge about his voluntary undertaking. There was no infirmity in the order of the Additional Session Judge. Once the petitioner has given an undertaking to pay, there was no necessity to ascertain whether the petitioner had the capacity to pay it per month. The petitioner had stated that the respondent gets rent from the properties purchased by him in her name. This admission was sufficient for the Court to conclude he had the means and was capable of paying per month as maintenance to his wife and two children.

Further, the FIR was not relevant to the current case. Also, the amount directed by the Metropolitan Magistrate was that of interim maintenance and the final amount would be determined after getting evidence on both sides. 

Click to Read/Download Judgment

Story by Sai Kulkarni-Intern

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