Shalu Ojha vs Prashant Ojha

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016

SHALU OJHA .....APPELLANT(S)

VERSUS

PRASHANT OJHA .....RESPONDENT(S)

JUDGMENT

A.K. SIKRI, J.

Though this case has a chequered history, only those facts

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.

2) 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 Signature Not Verified Digitally signed by BALA PARVATHI Date: 2017.09.04 17:53:22 IST

present petition this Court is concerned only with the dispute Reason:

regarding the rate of maintenance.

SLP (Crl.) No. 3935 of 2016 Page 1 of 10

3) The petitioner had filed an application sometime in June 2009

claiming maintenance under the provisions of Section 12 of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as 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 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,

SLP (Crl.) No. 3935 of 2016 Page 2 of 10 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,

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

SLP (Crl.) No. 3935 of 2016 Page 3 of 10 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 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.

SLP (Crl.) No. 3935 of 2016 Page 4 of 10

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.”

4) 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

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.

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

SLP (Crl.) No. 3935 of 2016 Page 5 of 10 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.’).

6) 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

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.

SLP (Crl.) No. 3935 of 2016 Page 6 of 10

7) 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.

8) 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

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.

9) The petitioner, who appears in person, has submitted that there

were no valid reasons for the learned ASJ to reduce the

SLP (Crl.) No. 3935 of 2016 Page 7 of 10 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. We are not giving the

details of the properties and businesses as mentioned by the

petitioner or the response thereto as given by him. It is because

of the reason that after going through these documents, we find

that final view thereupon can be taken only after evidence is led

by both the parties and the veracity of their respective stands is

tested with their cross-examination in the light of material which

both the parties want to produce.

SLP (Crl.) No. 3935 of 2016 Page 8 of 10

10) We, therefore, dispose 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

(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.

No costs.

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

.............................................J. (ASHOK BHUSHAN) NEW DELHI;

SEPTEMBER 4, 2017.

SLP (Crl.) No. 3935 of 2016 Page 9 of 10

ITEM NO.1502 COURT NO.6 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)No(s).3935/2016

(Arising out of impugned final judgment and order dated 13-02-2015 in CA No. 75/2014 passed by the Additional Session Judge Delhi)

SHALU OJHA Petitioner(s)

VERSUS

PRASHANT OJHA Respondent(s)

([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])

Date : 04-09-2017 This matter was called on for pronouncement of JUDGMENT today.

For Petitioner(s) Petitioner-in-person

For Respondent(s) Mr. Baij Nath Patel, Adv. T. V. S. Raghavendra Sreyas, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Ashok Bhushan and His Lordship.

The petition is disposed of in terms of signed Reportable Judgment.

Pending applications, if any, stand disposed of.

(B.PARVATHI) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)

SLP (Crl.) No. 3935 of 2016 Page 10 of 10