Delhi District Court
Address In Document vs Smt. Niti Ahuja on 6 April, 2019
IN THE COURT OF SH. GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Appeal No.29/2019
CNR No.DLWT010011892019
In re:
Sh. Parminder Singh Ahuja,
S/o Sh. Satnam Singh Ahuja,
Presently residing at
E86, Jhilmil Colony,
Delhi110095.
Address in document
87B, Shivam Enclave,
Jhilmil Shahdara,
Delhi. .........Appellant
Versus
Smt. Niti Ahuja,
W/o Sh. Parminder Singh Ahuja,
D/o Sh. Harinder Pal Singh,
R/o BL53, 2nd Floor,
Anand Vihar, Jail Road,
Hari Nagar, Delhi110064. .......Respondent
C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.1/16
Date of filing of appeal : 13.02.2019
Date of hearing final arguments : 06.04.2019
Date of pronouncement of judgment : 06.04.2019
JUDGMENT:
1. This appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') is filed against the order dated 07.01.2019 passed by the Ld. M. M. (Mahila Court)02, West in complaint case under Section 12 of the Act whereby the application under Section 23 of the Act for interim maintenance preferred by the respondent/wife was disposed off and the appellant/husband was directed to pay interim maintenance to the tune of Rs.4325/ each per month to the respondent/wife and the minor child from the date of the filing of the application till further orders. It was also directed the the said amount shall include rent and all the ancillary expenses.
2. The brief background relevant for the disposal of the appeal is as follows:
2.1 On 27.06.2018, the respondent/wife filed the complaint under Section 12 of the Act against the husband (i.e. the appellant C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.2/16 herein), parents in law, sisters in law and brothers in law wherein she levelled allegations of domestic violence against them and claimed different reliefs under the Act. Alongwith the complaint, she also preferred an application under Section 23 of Act for grant of interim reliefs towards maintenance. 2.2 The Ld. Trial Court has summoned the appellant herein and the respondents no.2 & 3 i.e. the parents in law of the respondent and did not summon the respondents no.4 to 7 as the same are not living in the same house. On 25.10.2018, the appellant/husband has filed reply alongwith some documents wherein he denied the allegations levelled against him. On the same day, the Ld. Trial Court directed both the parties to file their income affidavits alongwith all the supporting documents.
On 03.11.2018, the appellant/husband has filed his income affidavit alongwith documents. During the course of proceedings, the respondent/wife has also filed replication alongwith documents. On 17.12.2018, the arguments on the application under Section 23 of the Act were heard by the Ld. Trial Court.
2.3 After considering the pleadings of both the parties and the affidavits qua their income and status filed by them, vide the impugned order Ld. M.M. directed the appellant to pay C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.3/16 Rs.4,325/ per month each towards the maintenance of the respondent/wife and the minor child from the date of the application till further orders. It was directed that the same shall also include rent and all the ancillary expenses. Aggrieved therefrom, the appellant/husband has approached this court by way of this appeal.
3. The counsel for the appellant/husband has contended that while deciding the application under Section 23 of the Act, the Ld. Trial Court did not consider the facts and documents on record and the impugned order is totally based on presumptions and assumptions. He further contended that the Ld. Trial Court did not consider the fact that the respondent is a qualified lady and was working earlier but now she is receiving rent of Rs.50,000/ pm from half portion of shop No.J1/161, Main Market, Rajouri Garden, New Delhi and in half portion of the property, she is running her boutique and the appellant is residing on rent at E 86, Jhilmil Colony, Delhi and is paying Rs.5000/ per month for the same. He argued that the Ld. Trial Court failed to appreciate that the appellant is also having the responsibility of old aged ailing parents and the impugned order has been passed in a hurried manner. He argued that since the trial court erred in C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.4/16 granting the interim maintenance to the respondent/wife and the minor child as Rs.4325/ per month each without any basis, order dated 07.01.2019 is liable to be set aside.
4. The appeal is also accompanying with an application under Section 5 of the Limitation Act.
5. The notice of the appeal and the accompanying application was issued to the respondent/wife. The respondent/wife put the appearance through her counsel and strongly opposed the appeal. The counsel for the respondent/wife submitted that the impugned order does not suffer from any illegality and therefore, no interference is called for. He further argued that since the appeal is being barred by limitation, it deserves to be dismissed.
6. I have heard the counsel for both the parties. Trial court record has also been perused.
7. Before disposing off the appeal, I propose to adjudicate upon the application of the petitioner under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.5/16 counsel for the appellant has submitted that there is a delay of seven days in filing the appeal which had been caused in respect of obtaining certified copy of the impugned order. A perusal of the record shows that the submission made by the appellant is correct. In view of the same, the application is allowed and the delay in filing the appeal is hereby condoned.
8. While deciding the issue of claim of maintenance, the Hon'ble Delhi High Court noted several factors to be taken into consideration in the judgment reported as 140 (2007) DLT 16 titled Sh. Bharat Hegde Vs. Saroj Hegde which are as below:
(i) Status of the parties.
(ii) Reasonable wants of the claimant.
(iii) The independent income and property of the claimant.
(iv) The number of persons, the non applicant has to maintain.
(v) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
(vi) Nonapplicant's liabilities, if any.
(vii) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
(viii) Payment capacity of the nonapplicant.
(ix) Some guess work is not ruled out while estimating the C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.6/16 income of the non applicant when all the sources or correct sources are not disclosed.
(x) The non applicant to defray the cost of litigation.
9. Before adverting to the facts of the case, it would be appropriate to refer to Section 23 of the Protection of Women from Domestic Violence Act which is as under: "23. Power to grant interim and ex parte orders - (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, sector21 or, as the case may be, section 22 against the respondent.
10. Section 23 of the Act empowers the court to pass various interim orders under the Act including an order of maintenance C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.7/16 that is consistent with the standard of living to which the aggrieved person is accustomed. In order to be entitled to the grant of interim maintenance, the aggrieved person/wife must satisfy the court on two accounts. Firstly, that she is unable to maintain herself either because she has no source of income or her income is not sufficient to meet the requirements, and secondly, that the husband has neglected or refused to maintain her despite having sufficient means.
11. In Annurita Vohra Vs. Sandeep Vohra 110 (2004) DLT 546, it has been held that the family income should be divided equally between all the family members entitled to maintenance with one extra share being allotted to the earning spouse since extra expenses would necessarily occur.
12. Coming on to the quantum of maintenance in Dr. Kulbhushan Kumar Vs. Raj Kumari & Others reported in (1970) 3 SCC 129, the Hon'ble Apex Court was pleased to observe that monthly maintenance of 25% of the husband's net income is reasonable.
In Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others reported in AIR 1997 Supreme Court C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.8/16 3397, the Hon'ble Apex Court was pleased to observe as under;
"No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions."
13. No specific reasons are required to be given for granting maintenance from the date of the order as the Hon'ble Supreme Court of India in case titled as Bhuwan Mohan Singh Vs. Meena & Others, AIR 2014 Supreme Court 2875 has dealt with this aspect and has been pleased to observe as under;
"Para No.15. While dealing with the relevant date of grant of maintenance, in Shail Kumari Devi and another v. Krishan Bhagwal Pathak alias Kishun B. Pathak, the Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001) and came to C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.9/16 hold that even after the amendment of 2001, an order for payment of maintenance can be paid by a court either from the date of order or when express order is made to pay maintenance from the date of application, then the amount of maintenance may be paid from that date, i.e. from the date of application. The Court referred to the decision in Krishna Jain v. Dharam Raj Jain wherein it has been stated that to hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the subsection which the legislature never intended. The High Court had observed that it was unable to read in subsection (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception. The High Court had also opined that whether maintenance is granted from the date of the order or from the date of application, the Court is required to record reasons as required under SubSection (6) of Section 354 of the Code. After referring to the decision C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.10/16 in Krishna Jain (supra), the Court adverted to the decision of the High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. The view of the learned Single Judge of the High Court of Andhra Pradesh stating that it is a normal rule that the Magistrate would grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this Court. Eventually, the Court ruled thus:
"43. We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.11/16 be recorded by the court. In our judgment, no such requirement can be read in subsection (1) of Section 125 of the Code in absence of express provision to that effect"."
14. It is well settled law that where the direct evidence is available before the court, the court must consider the same. The direct evidence should not be discarded merely on the basis of presumption. The court may draw the presumption in the cases where the parties are not able to produce the direct evidence regarding the existence of a certain facts. In the absence of any documentary evidence to establish the income of husband, a logical and reasonable approach would be adopted to award interim maintenance considering the status of parties, their earning capacity and the minimum income of the husband which can be reasonably inferred would be as per the Minimum Wages Act.
15. From the pleadings of the parties, the following admitted facts emerge:
(i) that the marriage between the parties was solemnized on 17.02.2011 according to Hindu rites and ceremonies;C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.12/16
(ii) that from the wedlock of the parties, one girl child was born on 23.02.2012 which is in the care and custody of respondent;
(iii) that both the parties are residing separately.
16. In her application under Section 23 of the Act, the respondent/wife claimed interim maintenance to the tune of Rs.80,000/ per month towards the maintenance of herself and her minor by averring that she is a house wife and is dependent upon her father for her sustenance. She has further stated that her daughter is School going and her monthly educational expenses are about Rs.20000/ per month. Qua the income of the appellant/husband, she alleged that the respondent is a BCA and is running business of building construction at his house i.e. 87B, Shivam Enclave, Karkardooma, Delhi. She further alleged that the appellant/husband is also doing the business of Guru Nanak Motor, Rishabh Vihar, Near Karkardooma Metro Station, Delhi. She alleged that the appellant/husband is earning Rs.2 lacs per from and is also maintaining Honda City Car and two scooties. She stated that the appellant/husband has no other liability except to maintain his wife and minor daughter. In support of her submission, the respondent/wife has also placed C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.13/16 on record certain documents.
On the other hand, the appellant/husband in his income affidavit mentioned that he is doing a job and is earning Rs.19,500/ per month. He stated that the respondent/wife is running a boutique and is also getting rental income.
17. In the present case, the appellant has not filed any document from which the income of the respondent/wife could be assessed. On the other hand, the respondent/wife has filed certain documents claiming that the appellant/husband is a partner in M/s. Ahuja Construction but from the said photographs it can not be gathered that the appellant is a partner in the said company. It is a matter of record that the appellant in his income affidavit filed before the Ld. Trial Court has mentioned his earning as Rs.19,500/ per month. Keeping in view the monthly income of the appellant/husband, the Ld. Trial Court appears to have rightly awarded the interim maintenance to the wife and the minor child.
18. It may be mentioned that awarding of an interim maintenance under Section 23 of the DV Act at this stage is not the final decision of the court on the maintenance to be awarded to the C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.14/16 aggrieved wife and the minor child. A final decision of course would rest upon the evidence which both the parties would lead in the trial. Coming to the facts of the present case, it is not in dispute that the appellant/husband is earning Rs.19,500/ per month and no document/evidence towards the income of the respondent/wife has been placed on record. Notwithstanding, the plea taken by the husband in response to the application under Section 23 of the Act, the aggrieved wife cannot be left by him high and dry for want of sufficient amount to cater to her daily needs. The husband cannot escape his responsibility of providing the minimum financial assistance to his wife and child for the sustenance. Therefore, award of interim maintenance of Rs.4,325/ each per month to the respondent/wife and the minor child from the date of the application till further orders considering the material on record is justified.
19. Applying the above principle in the facts and circumstances of the case, the impugned order by which the Ld. trial court has directed the appellant/husband to pay Rs.4325/ each per month from the date of filing of the application till further orders to the respondent/wife and the minor child does not appear on higher C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.15/16 side. For the foregoing reasons, I find no merit in the appeal and the same is, accordingly, dismissed.
20. Trial court record be sent back alongwith the copy of the judgment. Appeal file be consigned to the record room.
Digitally signed by Gorakh Gorakh Nath Nath Pandey
Pandey Date: 2019.04.10 17:14:12
+0530
Announced in the open court (Gorakh Nath Pandey)
on 06.04.2019 Addl. Sessions Judge (West)
Tis Hazari Courts, Delhi.
C.A No.29/2019 Parminder Singh Ahuja vs. Niti Ahuja Page No.16/16