Court No. - 49
Case :- APPLICATION U/S 482 No. - 38306 of 2018 Applicant :- Sumit Bathla Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shiva Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Jayant Banerji,J.
Heard Sri Shiva Tripathi, learned counsel for the applicant.
Vakalatnama of Sri Ranjeet Saxena, Advocate on behalf of opposite party no.2 has been filed by Sri Amit Kumar Asthana who holds his brief. Learned A.G.A. appears for the State.
By means of this application, the applicant seeks quashing of the order dated 19.1.2018 and 28.8.2018, passed by the Principal Judge, Family Court, Ghaziabad in Case No. 731 of 2017 (Sheetal Bathla Vs. Sumit Bathla), under Section 125 Cr.P.C. as well as the entire proceedings of Case No. 731 of 2017.
The contention of the learned counsel for the applicant is that an amount of Rs. 50,000/ per month was fixed by the court below as interim maintenance by means of an order dated 19.1.2018, which is enclosed as Annexure-1 to the affidavit filed in support of the application. However, learned counsel for the applicant contends that on the second page of the certified copy of the order appearing at page 17-C of the affidavit, it has wrongly been transcribed as 19.1.2017.
It is contended by the learned counsel for the applicant that by means of order dated 28.8.2018, the application for setting aside the ex-parte order of maintenance dated 19.1.2018 was rejected. It is the contention of learned counsel for the applicant that the amount of Rs. 50,000/ as interim maintenance is highly excessive and beyond the means of income of the applicant. In support of his contention, income tax return of the applicant has been filed in Annexure-10 to the affidavit, which encloses income tax return for the assessment year 2015-16 (page 142), 2016-18 ( page 136) and 2017-18 (page 139). It is further contended that due to loss in the business, the income of the applicant has severely been affected and he is not in a position to make the aforesaid payment.
It has been contended on behalf of the opposite party no.2 that the opposite party no.2 and her daughter are residing separately due to misbehaviour of the applicant towards her and the applicant has also instituted a proceeding under Section 13 of Hindu Marriage Act for divorce. It is contended that the opposite party no.2 is without any source of income.
Learned counsel for the applicant himself admits that the provisions under Section 127 Cr.P.C. is available for alteration in allowance payable to the opposite party no.2 but in view of the stringent nature of the order passed by the court below imposing a high amount as interim maintenance on the applicant, this Court may interfere in the matter.
However, in view of the facts and circumstances, I am not inclined to interfere in the matter to the extent of the right of opposite party no.2 to receive interim maintenance. However, the amount that has been awarded as interim maintenance prima facie, given the income tax returns filed before this Court, appears to be excessive.
In view of this, it would be appropriate that the amount of interim maintenance be fixed at Rs. 30,000/ per month pending disposal of the application under Section 125 Cr.P.C. The outstanding amount at the rate of Rs. 30,000/ per month shall be deposited by the applicant before the court below within a period of two months from today and the monthly amount of Rs. 30,000/ shall be paid as and when it falls due.
It is being made clear that this court has not adjudicated the matter on its merits and the court below shall independently apply its mind while granting maintenance to the opposite party no.2.
With the aforesaid observations, this application is disposed of.
Order Date :- 27.10.2018 sfa/ (Jayant Banerji, J)