Delhi District Court
Bhaskarnand vs Geeta on 11 July, 2022
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Appeal No. 06/2022
Bhaskarnand
S/o Late Shri Chitamani
R/o H. No. 17, Gali No.3,
A-Block, Himgiri Enclave,
Sant Nagar, Burari,
Delhi-110084 ....Appellant
Versus
Geeta
W/o Shri Bhaskarnand
D/O Sh. Shanti Prasad Mamgoi
R/o H. No. 14/10, Flat No. 6,
Second Floor, Gali No. 32,
AZ Block, Chandan Vihar,
Sant Nagar, Burari,
Delhi-110084 ...Respondent
Preferred on : 14.01.2022
Reserved on : 07.07.2022
Pronounced on : 11.07.2022
JUDGMENT
This appeal has been preferred by the appellant against the order dated 16.10.2021 passed by the learned Metropolitian Magistrate, (Mahila Court), Central District, Tis Hazari Courts, Delhi, in Complaint Case No. 6346/2019, titled as "Smt. Gita v. Bhaskaranand" whereby application for interim maintenance under section 23 of the Protection of Women from Domestic Violence Act, 2005 (In short 'DV Act') moved by the respondent was allowed and interim maintenance at rate of rupees 11,144/- in favour of the complaint and rupees 11,144/- each per month in C.A.No. 06/2022 Bhaskarnand v. Geeta 1 favour of the two children, in total of rupees 33,432/-was granted from the date of filing of petition till their entitlement.
Grounds of Appeal
2. The grounds taken in appeal are:
(i) While granting maintence, the family income includes therein, the income of both the spouses i.e. wife and husband, whereas the Trial Court has taken into account only the income of the appellant and not the income of the respondent, which is rupees 10,709/-per month.
(ii) The Trial Court has failed to appreciate that at the stage of granting interim maintenance only the necessary expenditure done by the respondent can be taken into account and the interim maintenance cannot be over and above the expenditure stated to have been incurred by the respondent.
(iii) Admittedly, the total expenditure as claimed by the respondent is rupees 26,600/- as per his income affidavit dated 04.06.2019 and affidavit dated 07.08.2019. Further, there is no explanation of enhancement of the expenditure in the year 2020 for a sum of rupees 5,000/-, therefore, at the most even if it is considered to be true, though denied, the total expenditure of the appellant is only rupees 26,600/- and after deduction of rupees 9,709/-, it comes to rupees 16,891/- and further after deduction of rupees 10,709/- it comes to rupees 15,891/-, therefore, there was no occasion to grant the interim maintenance for a sum of rupees 33,432/-.
(iv) Grant of amount of rupees 33,432/- as interim maintenance, tantamounts to grant of maintenace finally and by granting the C.A.No. 06/2022 Bhaskarnand v. Geeta 2 said amount, the learned Trial Court has finally adjudicated the petition of the respondent, which is not permissible in law.
(v) The Trial Court has not done any calculation, for the purpose of awarding maintenace which is also not permissible in law in as much as it is settled law that to grant maintenace, the court should apply its mind and grant maintenance only after necessary calculation.
(vi) The Trial Court has taken the whole amount of rupees 55,722/- of the income of the appellant, for the purpose of grant of maintenance, without taking into account the fact that carry home salary of the appellant is only rupees 27,306/-.
(vii) The Trial Court should have deducted the amount of LIC Policies for an amount of rupees 16,911/- which are necessary to be paid by the appellant, otherwise the same will lapse and as such the said amount of rupees 16,911/- cannot be taken into account for granting maintenance. The Trial Court has failed to appreciate that after making payment of rupees 33,432/- the appellant would not be able to pay the premium amount of LIC policies and the same will lapse.
(viii) The Trial Court has further failed to appreciate that the interest amount accrued on the bank deposit/FD, accumulated into the FD only and the same is not available to the appellant for expenditure, therefore, the said amount of rupees 11,505/- towards interest cannot be considered for granting maintenance. Further, the said income of interest, is not permanent income and the same depend upon the amount of FD and has such cannot be taken into account for determining the maintenance amount.
C.A.No. 06/2022 Bhaskarnand v. Geeta 3(ix) The appellant has purchased one property for a sum of rupees 5 lakhs in the year 2021. Further, a sum of rupees 10.50 lakhs has been spent on the construction of the said property, till date. It is to submit herein that thereafter, the interest, as accrued, on the FD has been reduced from rupees 11,505/- to rupees 5,600/- approximately during the year 2021-22. As such, the total gross income of the appellant after inclusion of the interest income, has also been reduced from rupees 55,722/- to 49,817/-.
(x) The Trial Court has further failed to appreciate that the widowed mother of the appellant is also dependent upon the appellant and the appellant countributes rupees 10,000/- approximately towards her mother, despite the fact that she is receiving rupees 7,000/- per month and as such the Trial Court should have also taken into consideration while granting maintenance. It is meager sum of rupees 7,000/- being received by the mother of the appellant as pension which is not sufficient for her survival.
(xi) The Trial Court as per the impugned order has divided the income of the appellant in five parts, two parts for the appellant, one part for the respondent, one part each for children, however, no part has been maintained for the mother of the appellant. As per settled law, the mother of the appellant is also a family member and one part is also to be attributed for mother, which the Trial Court has miserably failed.
(xii) The Trial Court has further failed to appreciate that the daughter has become major in November, 2021 and further, she has not filed any separate petition seeking maintenance from the appellant, therefore, the maintenance could not be granted to the C.A.No. 06/2022 Bhaskarnand v. Geeta 4 daughter after she turned major. However, the Trial Court has not observed in the impugned order in this respect, despite the fact that the same has been specifically intimated and is also mentioned in the written arguments submitted on behalf of the appellant.
Submissions of Appellant
3. Mr. Sudhir Gupta, learned counsel appearing for the appellant contended that respondent is earning rupees 9,709/- per month. While granting the interim maintenance, learned Trial Court did not take into consideration the earing/income of respondent. The maintenance which is granted is more than the requirement of respondent as per own affidavit.
4. Mr. Gupta further submitted that the appellant is earning rupees 55,722/- per month. As per income affidavit filed by respondent her total expenditure comes to rupees 26,600/- per month whereas in third affidavit she has shown her expenditure as rupees 31,600/- by enhancing her grocery expenses from rupees 10,000/- to 15,000/- without any basis and the same cannot be seen at the stage of granting interim maintenance as at the time of granting intrim maintenance only the first affidavit is to be seen. After adjusting the income of the respondent the requirement of the respondent comes to rupees 16,891/-.
5. Mr. Gupta further submitted that the petition under DV Act has been filed only by respondent who is wife of the appellant and not by the two children. Out of two children, one child who is daughter has attained majority in November 2021 and therefore, children are not entitled to any monetory relief.
C.A.No. 06/2022 Bhaskarnand v. Geeta 56. Mr.Gupta further submitted that learned Trial Court has failed to appreciate that respondent herself left the house of appellant and accordingly is not entitled for any maintenance.
7. Mr. Gupta further submitted that learned Trial Court has failed to appreciate that the maintenance can be granted only from the disposal income of the appellant and not from the gross income. Moreover, learned Trial Court has failed to consider the outgoings and liabilities of the appellant while passing interim maintenance order. Learned Counsel has failed to appreicate that the appeallant-husband has all rights to invest in LIC, amount of which shall be utilized only for the benefit of children in future and while passing interim maintenance order, that investment amount is to be deducted from the gross income to arrive at the disposable income. The appellant is having old aged widow mother who is receiving pension of rupees 7,000/- per month. Learned Trial Court has failed to keep any amount for the widow mother of appellant despite the fact that she being aged requires more attention.
8. Mr. Gupta has further submitted that learned Trial Court granted maintenance to the children till their entitlement whereas as per Section 20 of the DV Act, the children are entitled for the maintenance till they attain majority. Section 2(b) of the DV Act clearly shows that the maintenance can be awarded to a child only till the age of 18 years and not after the child attains majority and hence, the female child who has just attained the majority in November 2021 can be awarded maintenance till that period and not thereafter. Learned counsel in support of his contention has relied on decisions passed in cases of Annurita C.A.No. 06/2022 Bhaskarnand v. Geeta 6 Vohra v. Sandeep Vohra, 2004 (3) RCR (Civil) 362; Abhilasha v. Parkash & Ors., 2020 AIR(SC) 4355; Omar Abdullah v. Payal Abdullah & Ors., 2017 LAWPACK (Del) 62997; Harish Chander v. Santosh Kumari, 1984 LAWPACK (Del) 7829; Monica Malik v. Amit Malik, 2014 LAWPACK (Del) 54751; Sushma Khanna v. Suresh Khanna, 1981 LAWPACK (Del) 6565; Sayali Phatak v. Vasant Pathak, 2004 LAWPACK (Del) 26557 and Surinder Singh v. Tejinder Kaur, 1986 LAWPACK (Del) 9253.
Submissions of Respondent
9. Per contra Mr. Dharmender Sharma, learned counsel appearing for respondent opposed the appeal on the grounds that the appellant never disclosed true facts before the learned Metropolitan Magistrate regarding his different sources of income in his first income affidavit filed in March 2020. It was only when the respondent disclosed the details of fixed deposits worth of rupees 32 lakhs of the appellant, the appellant filed another income affidavit admitting his Fixed Diposits and his interest income. The conduct of appellant even before the court clearly indicates that the appellant is concealing his true income and financial assets, so that he can avoid maintenance payment to his wife and children.
10. Mr. Sharma further submitted that the appellant even in his pleadings before the learned Metropolitan Magistrate never came forward with fact that the mother of appellant is pensioner. The respondent brings out the facts that mother of appellant is not dependent on him, living separately in her own house in Vasundhara, Ghaziabad and is pensioner. It was only then that the C.A.No. 06/2022 Bhaskarnand v. Geeta 7 appellant admitted for the first time that her mother is pensioner. These facts clearly indicates that the appellant is trying its level best to conceal his true income and assets and is falsifying his expenses to avoid maintenance to respondent and children without having any fear of perjury, which can never be allowed in the court of law.
11. Mr. Sharma submitted also that the appellant has ill intention towards his wife and children is further indicated by the fact that appellant despite being aware of extreme situation in aftermath of lock down due to Corona pandemic, never came forward to help respondent and children. It is really inhuman that the appellant has not even given details of family mediclaim policies as granted by the government. The appellant is so greedy and unsympathetic that despite being aware of paralysis attack on half part of respondent's body in December 2021, he never came forward to help them in any way. Such conduct of appellant towards his wife and children even in such extreme situation itself, clearly indicates that the appellant is an extremely selfish person, who is solely interested in saving his money and is concerned only with his vices alone. The respondent still has to go for physiotherapy as she is still not recovered fully from paralytic attack till date.
12. Mr. Sharma submitted also that in order to falsely enhance his expenses with sole intention to avoid maintenance to respondent and children, the appellant strangely started LIC policy having yearly premium of rupees 2 lakhs in 2019-20. As the respondent filed criminal complaint in June 2019 and in order to reduce his in hand income, appellant has come forward with C.A.No. 06/2022 Bhaskarnand v. Geeta 8 all these tactics. But the learned Metropolitan Magistrate being aware of all the facts on record, has correctly passed order dated 16.12.2021 taking into account all the relevant facts and circumstances of the present case.
13. Mr. Sharma submitted also that the appellant for the first time in the present appeal has disclosed that he has purchased another property worth of rupees 5 lakhs and has further spent rupees 10.5 lakhs on its construction. The appellant has not only concealed all these facts from trial court but his conduct itself indicates that he is enjoying a lavish life style, having enough money to purchase new properties, but is reluctant to pay interim maintenance of rupees 33,432/- p.m. for his wife and two children.
14. Mr. Sharma further submitted that thae appellant is earning handsomely, admittedly receiving pension of rupees 19,217/- from Army salary, rupees 25000/- from Delhi State, having admitted Fixed Deposits of rupees 32 lakhs having interest income of rupees 11,505/-, admittedly living in house whose worth rupees 22 lakh. He has further purchased another property and spent rupees 15 lakhs on it in 2021. Furthermore, the appellant has not disclosed his properties in Dehradun and also agricultural land in his village Chalkuria, Pokra Pauri Garwal till date.
15. Mr. Sharma submitted also that the respondent is an Aganwari worker having fixed salary of rupees 9709/-p.m., which is still not received on regular basis and very often salary is paid after 2-4 months with arrears. The respondent is compelled to take financial assistance from her father to maintain C.A.No. 06/2022 Bhaskarnand v. Geeta 9 expenses of her two children on regular basis. The respondent has practically no assets, no bank deposits, no immovable properties and has to take care of her two children educational and living expenses all alone. He relying upon Poonam Sethi v. Sanjay Sethi, 2022 LAWPACK (Del) 85970 submitted that ; He has also relied upon decision passed in case of Jasbir Kaur Sehgal v. The District Judge Dehradun & Ors, decided by Hon'ble Supreme Court on 27.08.1997 and Smt. Sneh Prabha v. Ravinder Kumar, AIR 1995 SC 2170.
Analysis and Conclusions
16. In Shamima Farooqui v. Shahid Khan, [Criminal Appeal Nos.564-565 OF 2015], Hon'ble Supreme Court on 06.04.2015, observed in para no. 15:
"15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2,000/-. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs. 2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain himself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 C.A.No. 06/2022 Bhaskarnand v. Geeta 10 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right. While................"
17. The respondent herein, a wife of appellant herein, has filed application under section 12 of the DV Act against the appellant herein before learned Metropolitan Magistrate wherein she alleged several acts of domestic violence being committed by the appellant against her. It is admitted that the marriage between appellant and respondent was solemnized on 18.11.2002 and out of their wedlock two children are born. It is also admitted that the respondetn herein is working as an Anganwari worker with the salary of rupees 9709/- per month, whereas the appellant is earning total rupees 55,722/- per month. It is also admitted by the appellant that her mother is getting pension of rupees 7,000/- per month. Hence, the appellant is earning rupees 55,722/- per month whereas the respondent only rupees 9709/- per month.
18. I am not agree with the submission of learned counsel appearing for the appellant that the petition/application under DV Act has been filed only by his wife and not by the two children and female child has attained majority in November 2021 and therefore, no maintenance can be granted to the children without C.A.No. 06/2022 Bhaskarnand v. Geeta 11 filing application under DV Act particularly by the daughter who became major during pendency of the said application of DV Act which is moved only by respondent herein who is wife of the applellant. As per section 20 of the DV Act the monetary relief can be granted not only to the aggrieved person but any child of the aggrieved person also. It is admitted that two child of the parties are residing with the respondent herein. It is correct that child means any person below the age of eighteen years as defined under section 2(b) of the DV Act. At the time of presenting application under section 12 of the DV Act the female child (daughter of the parties) was below eighteen years and therefore, her mother had rightly filed application under section 12 of the DV Act in the year 2019 for herself and for two children as both children were below eighteen years at that time. There is no provision/judgment shown to me by learned counsel for the appellant that if daughter at the time of presenting application under section 12 of the DV Act by her mother was below eighteen years and during pendency of said application she became eighteen years then she is required to present/file fresh application under section 12 of the DV Act for claiming maintenance. The Abhilasha (supra) relied upon by learned counsel for the appellant pertains to maintenance under section 125 of the Cr.P.C. and under section 20 of the Hindu Adoptions and Maintenance Act, 1956 and not pertains to DV Act. In Abhilasha (supra), Hon'ble Supreme Court observed/held that maintenance under section 125 of Cr.P.C can be granted to major unmarried daughter, where she, by reason of any physical or mental abnormality or injury unable to maintain herself; that under section 20 of the Hindu Adoptions and Maintenance Act, C.A.No. 06/2022 Bhaskarnand v. Geeta 12 the unmarried major daughter can claim maintenance from her father in so far she (unmarried major daughter) is unable to maintain herself out of her own earnings or other property. Under DV Act daughter may also be an aggrieved person in view of definition of aggrieved person as enumerated in its section 2 (a) and she, whether major or minor, is also entitled to monetary relief under section 20 of the DV Act. It is pertinent to mention here that an application under section 12 of the DV Act seeking one or more reliefs under same Act can be presented to the Magistrate not only by an aggrieved person but also by a Protection Officer or any other person on behalf of the aggrieved person and therefore, it is not necessary to present the application under section 12 of the DV Act to Magistrate by the aggrieved person herself only.
19. I do not find force also to the submissions of learned counsel for the appellant that respondent herself left the house of appellant and therefore, she is not entitled to any maintenance. Reason for this is allegations by the respondent in her application under section 12 of the DV Act that despite settlement the appellant did not mend his way and used to harass the respondent and he threatened her to vacate the premises and thereafter, the respondent left the matrimonial house and started living at her parental house. Hence, there are avernments in the application that the respondent was constrained/compelled to leave the matrimonial home.
20. The submissions of learned counsel for the appellant regarding failure of the Trial Court to keep any amount for C.A.No. 06/2022 Bhaskarnand v. Geeta 13 widow mother of the appellant is meritless because admittedly, she is receiving pension of rupees 7,000/- per month.
21. The grounds of appeal/submissions of Mr. Gupta are also that learned Trial Court has failed to appreciate that the maintenance can be granted only from the disposal income of the appellant and not from the gross income; that the appellant has all rights to invest in LIC, amount of which shall be utilized only for the benefit of children in future and while passing interim maintenance order, that investment amount is to be deducted from the gross income to arrive at the disposable income; that the Trial Court has taken the whole amount of rupees 55,722/- of the income of the appellant, for the purpose of grant of maintenance, without taking into account the fact that carry home salary of the appellant is only rupees 27,306/-; that the Trial Court should have deducted the amount of LIC Policies for an amount of rupees 16,911/-. The appellant has purchased LIC Policy only after filing the application under section 12 of the DV Act by the respondent herein before learned Metropolitan Magistrate and therefore, I am agree with the submissions of learned counsel for the respondent herein that in order to falsely enhance his expenses with sole intention to avoid maintenance to respondent and children, the appellant strangely started LIC policy having yearly premium of rupees 2 lakhs in 2019-20. It is also pertinent to mention here that the appellant has purchased one property for a sum of rupees 5 lakhs in the year 2021 and a sum of rupees 10.50 lakhs has been spent on the construction of the said property, and all this expenditure has been made by him during pendency of the application before learned Metropolitan Magistrate. In this regard learned counsel for the respondent C.A.No. 06/2022 Bhaskarnand v. Geeta 14 herein has rightly submitted that the appellant is enjoying a lavish life style, having enough money to purchase new properties, but is reluctant to pay interim maintenance of rupees 33,432/- p.m. for his wife and two children. Furthermore, there are allegations of respondent herein that the appellant has not disclosed his properties in Dehradun and also agricultural land in his village Chalkuria, Pokra Pauri Garwal till date.
22. The other ground of appeal is that as per income affidavit filed by respondent her total expenditure comes to rupees 26,600/- per month whereas in third affidavit she has shown her expenditure as rupees 31,600/- by enhancing her grocery expenses from rupees 10,000/- to 15,000/- without any basis and after adjusting the income of the respondent the requirement of the respondent comes to rupees 16,891/-. This ground is also meritless because as per section 20(2) of the DV Act the monetary relief granted shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. Further, the section 20(3) gives power to Magistrate to grant an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In Shamima Farooqui (supra) it is held that as per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband, and that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one; As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. This observation is with regard to C.A.No. 06/2022 Bhaskarnand v. Geeta 15 maintenance under section 125 of the Cr.P.C. but same principle is applicable to the maintenance under the DV Act.
23. Insofar as the submission of learned counsel appearing for the appellant regarding failure of learned Metropolitan Magistrate in taking into consideration the earing/income of respondent, is concerned, I find force in this submissions because there is no indication in the impugned order that the income of respondent herein was taken into consideration while granting maintenance. Admittedly, the monthly income of the respondent is rupees 9,709/- which was required to be taken while granting the maintenance but it appears same has not been taken into consideration. Hence, this income is required to be deducted from the maintenance awarded by the learned Metropolitan Magistrate.
24. In view of above discussion, the maintenance awarded by learned Metropolitan Magistrate is reduced from rupees 11,144/- to rupees 8,000/- per month each to respondent herein and two children (total maintenance reduced from rupees 33,432/- to rupees 24,000/-per month). Hence, appeal is allowed partly, accordingly. Digitally signed by SANJEEV SANJEEV KUMAR Dated: 11.07.2022 KUMAR Date: 2022.07.11 12:39:58 +0530 (Sanjeev Kumar-II) Special Judge, (NDPS)-02, Central District, Tis Hazari Courts, Delhi C.A.No. 06/2022 Bhaskarnand v. Geeta 16