Delhi District Court
Sh Gaurav Ohri vs Smt Manjali Ohri on 13 April, 2023
IN THE COURT OF SH. DHARMENDER RANA
ASJ/SPECIAL JUDGE, NDPS ACT (CENTRAL):
TIS HAZARI COURTS: DELHI
Criminal Appeal no.04/2021
CNR NO. DLCT01-000777-2021
In the matter of:-
Sh Gaurav Ohri
S/o Late Sh Rajesh Kumar Ohri
R/o E-2/102, Chhoti Gali No.3,
Shastri Nagar, Delhi-110052.
2. Smt Asha Ohri
W/o Late Sh Rajesh Kumar Ohri,
R/o E-2/102, Chhoti Gali No.3,
Shastri Nagar, Delhi-110052. ......Appellants
Versus
Smt Manjali Ohri
W/o Sh Gaurav Ohri,
D/o Sh. Krishan Munjal,
F-175/4, West Vinod Nagar,
Delhi-110092. .......Respondent
(Arising out of C.C. No.13006/2018 titled as Smt Majali Ohri
Vs Sh Gaurav Ohri & Ors.)
Date of institution of appeal : 18.01.2021
Date of arguments : 01.04.2023
Date of Judgment/Order : 13.04.2023
Final Order : Dismissed
JUDGMENT
1. Sh Gaurav Ohri (appellant / husband herein) is involved in a matrimonial dispute with respondent Manjali Ohri(respondent/ wife). In a DV Act petition filed by the respondent, Ld.Trial Court CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.1/8 upon an application filed under Section 23 Act by the respondent, directed that Rs.15,000/- per month be paid by appellant/husband towards the maintenance of minor child of the litigant parties herein. Additionally, Ld. Trial Court also directed that Rs.10,000/- per month be also paid by appellant/husband to the respondent/wife in lieu of rent of an alternative accommodation.
2. Aggrieved by aforesaid impugned order passed by Ld. Trial Court, appellant has filed the present appeal under Section 29 of The Protection of Women From Domestic Violence Act, 2005.
3. Arguments advanced by Ld. Counsel for appellant as well as Ld. Counsel for respondent were heard and I have perused the record carefully.
4. At the very outset, the appellant has fairly conceded that he has no grievance regarding Rs.15,000/- towards the maintenance and upkeep of his minor child and he is restraining his appeal only to the extent of Rs.10,000/- directed to be paid by him as rent to the respondent/wife.
5. It is forcefully argued that the respondent has failed to disclose her true income before the Ld. Trial Court. It is submitted that she is earning a handsome monthly income of Rs.79,156/- as salary from High Commission of Canada. It is submitted that since respondent herein is capable and competent lady earning a handsome salary therefore, Ld. Trial Court grossly erred in awarding sum of Rs.10,000/- in lieu of rent. It is submitted that respondent is living with her parents and she has failed to prove CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.2/8 any receipts on record to support that she is incurring any expenditure on account of rent. It is submitted that once the Ld. Trial Court has concluded that the income of the respondent/wife is enough to take care of expenditure/ other needs, Ld. Trial Court could not have awarded any sum to the respondent in lieu of rents. Ld. Counsel for appellant has placed reliance upon case titled as :-
(1). Adil & Ors Vs State & Anr.: Crl.M.C. No.4159/2009/Crl M.A. No.14141/2009 DOD 20.09.2010( Hon'ble High Court of Delhi);
(2). Smt Ranjana Gupta vs Rajnesh Gupta: Crl Rev Petition No.637/2013 DOD 11.02.2014 (Hon'ble High Court of Delhi).
6. On the contrary, it is submitted by Ld. Counsel for respondent/wife that the Ld. Trial Court has passed a very well reasoned and detailed order. It is submitted that right of respondent/wife is an independent right flowing from Section 19(1)(f) of DV Act. It is submitted that the respondent herein is residing with her parents and she is not the responsibility of her parents and appellant is duty bound under Section 19(1)(f) to provide her suitable accommodation. It is thus prayed that the appeal deserves to be dismissed.
7. Before adverting to the appeal at hand, it would be apt to briefly recapitulate the facts as set out before the Ld. Trial Court in the petition filed on behalf of the complainant/wife.
The complainant Smt Manjali Ohri filed a D.V. Act petition before the Ld. Trial Court contending that complainant Smt Manjali Ohri got married to appellant Gaurav Ohri on 27.11.2015 and out of the said wedlock, one girl child namely Avya was born CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.3/8 on 08.02.2017. After the marriage, the matrimonial relationship between the parties got strained and the respondent/wife accordingly approached the Ld. Trial Court by filing a petition under the provisions of DV Act, wherein upon an application under Section 23 of the DV Act, Ld. Trial Court while rejecting the claim for maintenance for the respondent awarded a sum of Rs.10,000/- per month to the respondent in lieu of rent. A sum of Rs.15,000/- per month was also awarded towards the maintenance of the minor child.
The appellant filed a written statement before the Ld. Trial Court wherein appellant has admitted factum of his marriage with the complainant/wife and paternity of girl child namely Avya Ohri is also not disputed. The appellant denied all allegations of cruelty and harassment raised by the complainant/wife. Appellant further claimed that respondent/wife is doing private job in Canada High Commission and earning a handsome amount of Rs.80,000/- per month. He has stated in his income affidavit that he is employed at a monthly salary of Rs. 54,200/-.
8. Vide impugned order dated 21.12.2020, interim application under Section 23 of Protection of Women From Domestic Violence Act 2005, filed by complainant/wife was partly allowed and the appellant was directed to pay a monthly maintenance amount of Rs.10,000/- towards an alternative accommodation and Rs.15,000/- towards the maintenance of his minor child namely Avya Ohri. The prayer for maintenance of the respondent was rejected by the Ld. Trial Court. Hence, the present appeal.
8. In the case at hand, the interim maintenance directed to be CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.4/8 paid to the minor child is not in dispute. The appellant is only aggrieved by the directions regarding the payment of Rs.10,000/- per month towards of right of residence.
The main plank of the appellant's contention is that since the financial position of the parties are more or less the same, Ld. Trial Court, while rejecting the claim of maintenance of the respondent, has erred in granting a sum of Rs.10,000/- per month to the respondent in lieu of rent.
However, I am of the considered opinion that the 'Right of Maintenance' and 'Right of Residence' are two independent rights statutorily recognized separately under Section 20(d) and Section 19(f) of the DV Act. In my considered opinion, the right to residence is not dependent upon the right to maintenance. The law recognizes the obligation of the husband to provide accommodation to the wife. After marriage, wife is the moral and legal responsibility of her husband and not her parents. The court cannot loose sight of the fact that it is extremely difficult for a married lady to live in her parental home instead of her matrimonial home. I cannot but disagree with the Counsel for the appellant that the appellant is relieved of his duty to provide residence because the wife has courageously groomed herself to take care of herself. The right to residence is not dependent upon the right to claim maintenance. I am fortified in my opinion by the judgment of Hon'ble Apex Court in the matter of Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel and Ors. Appeal (civil) 2003 of 2008 DOD 14 March, 2008, wherein it has been observed herein as under:-
"27. The Domestic Violence Act provides for a higher right in favour of a wife. She CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.5/8 not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right."
Consequently, I do not find any merits in the appeal. Even the judgments relied upon by the appellant can be distinguished on facts. In the matter of Adil & Ors.(Supra), the observation of the Hon'ble High Court of Delhi to the effect that Domestic Violence Act can only be resorted when there is urgent requirement of wife to be maintained and provided residence when because of Domestic Violence she had been rendered homeless and she had lost source of maintenance cannot be read in isolation. Hon'ble Delhi High Court in the matter of Adil & ors. (Supra), was seized with the question that whether the Ld. Trial Court without recording any evidence regarding the existence of any domestic relationships between the parties can enforce property rights or not. The Hon'ble High Court of Delhi was neither seized with the issue nor it decided that only in case if maintenance is awarded to the aggrieved wife only in such situation right to residence can be enforced. Similarly, in the matter of Ranjana Gupta(Supra), the residence order was declined as the wife therein, being a government servant, was drawing HRA from her department, which is not the case herein. Upon specific inquiry by this Court, respondent/wife has specifically claimed that she is not drawing any HRA. Appellant has failed to point out any contradictory material available on record to discredit the claim of the respondent. Furthermore,one should not lose sight of the fact that this is an interim order and the parties can always approach the courts for redressal of their grievances if they come across any CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.6/8 contradictory material.
It would be axiomatic to observe that besides money, it requires time, energy and a considerable effort to raise a child. The wife not only requires residence for herself but she also requires a residence for her minor child. The valuable intangible contribution of the mother in terms of time, energy, love and care remains unaccounted for. In my considered opinion, the same cannot be ignored merely because it cannot be quantified in monetary terms. It would be extremely unfortunate if we ignore the contribution of the mother in raising the child merely because it cannot be quantified in tangible monetary terms. The misogynist approach of considering the contribution of the mother in raising the child for granted and the services rendered by her 'begar' and the time invested by her as futile, needs to be deprecated in all possible ways. There are umpteen number of miscellaneous expenses required to be borne by the mother on almost a daily basis to raise a child alone. The situation for the mother becomes all the more onerous when she is also required to work to earn her livelihood.
I concur with the Ld.Counsel for the appellant that both the parents should equally contribute for the maintenance of the minor child and one parent alone cannot be saddled with the onerous responsibility to takecare of the minor child. Admittedly, the appellant herein is investing only in monetary terms therefore, it would not be unjust if his money contribution is a little more than the mother,who is also additionally contributing in terms of invaluable time,energy,care and attention. In the matter of Rajnesh Vs Neha&Anr.:(2021)2 SCC324, it has been observed by the Hon'ble Apex Court that the obligation of the CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.7/8 husband to provide maintenance stands on a higher pedestal than the wife. Thus, I do not find any fault in the approach of the Ld. Trial Court that the appellant needs to pay an additional sum of Rs. 10,000/- per month towards the right to residence.
Moreover, the impugned order passed by Ld. Trial Court is an interim order and is not a final order. The final order will be passed by Ld. Trial Court on the basis of evidence led by the parties during trial. On the basis of material available on record, Ld. MM has decided the application filed by wife for interim maintenance restricting the claim only towards the maintenance for her minor child and has rejected the claim of wife qua her own maintenance. The sum awarded to the female minor child by the Ld Trial Court comes out to be barely 21% of the admitted income of the appellant(Rs.15,000/- to the minor child out of total Rs.69,500/-). Keeping in view the high cost of living in a city like Delhi and other material facts and circumstances of present case, I am of the considered view that the amount given by Ld. MM/Trial Court is neither unjust nor exorbitant.
9. In view of aforesaid facts, circumstances and discussion made hereinabove, I find no merits in the present appeal filed by appellant/husband. The same is hereby dismissed and disposed of accordingly. Digitally signed by DHARMENDER DHARMENDER RANA RANA Date: 2023.04.15 Announced in Open Court 15:52:24 +0530 on 13th April 2023 (Dharmender Rana) ASJ/Spl. Judge, NDPS, Central, Tis Hazari Courts: Delhi CA No.04/2021 Gaurav Ohri & Anr. Vs Manjali Ohri Page No.8/8