Delhi District Court
Sushma Sahai And Ors vs Rajnish Kumar on 10 January, 2025
CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar
IN THE COURT OF MANU GOEL KHARB:
SPECIAL JUDGE (NDPS-02) SOUTH WEST DISTRICT
DWARKA COURTS:NEW DELHI
CA no. 83/2020
CNR No.DLSW01-002026-2020
In the Matter of :
1. Sushma Sahai
W/o Sh. Rajnish Kumar
2. Ms. Monika Sahai
D/o Sh. Rajnish Kumar
Both R/o B-23, Plot no. 3,
Ayudh Vihar Apartments,
Sector-13, Dwarka,
New Delhi.
....Appellants
Versus
Sh. Rajnish Kumar
S/o Late Sh. Bhola Nath Srivastava
(i) Lucknow Flat no. 104, Radha Rani Kunj,
Lekhraj Market, Police Chowki, Shakti Nagar,
Indra Nagar, Lucknow, Uttar Pradesh-22015
Also At:
(ii) Bangalow 6, New Ram Nagar,
Adhartal, Jabalpur,
Madhaya Pradesh:482004
Also At:
(iii) Flat no. B-23, (Ayudh Vihar Apartment),
Plot no. 3, Sector-13, Dwarka, New Delhi-110075
....Respondent
Date of Institution of the revision : 18.02.2020
Date of Arguments : 10.01.2025
Date of Judgment : 10.01.2025
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CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar
JUDGMENT:
1. This is an appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as 'Act'), against the order dated 18.01.2020 passed by Ld Metropolitan Magistrate (Mahila Court)-03, South-West District, Dwarka Courts, in the matter titled as Sushma Sahai & Anr Vs Rajnish Kumar bearing MCC no. 4996003/2016, filed under provisions of Act.
2. Brief facts leading to the present appeal are that a petition under Section 12 of PWDV Act was filed by the appellants herein before the Ld. MM, (Mahila Court)-03, South West, Dwarka Courts, New Delhi. The petitioner averred and was able to prove her case of domestic violence and economic abuse before the Ld. Mahila Court by leading cogent evidence. Appellant no. 1 examined herself as CW-1, appellant no. 2 examined herself as CW-2 and one Ajay Kumar Rao was examined as CW-3 who proved the amount of pension being received by the respondent.
3. After the ex-parte CE, Ld. Trial Court heard the final arguments and vide impugned ex-parte judgment dated 18.01.2020 granted an amount of Rs. 25,000/- per month towards maintenance in favour of the appellant no. 1. and Page no. 2 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar vide the same order, the Trial Court also gave the finding that appellant no. 2 was major and as such no orders qua her maintenance were passed.
4. Aggrieved by the said order, appellant has filed the present appeal. Initially, the relief sought in the present appeal was to set aside/quash the impugned judgment dated 18.01.2020 of the Ld. Trial Court. Later on, an application for amendment was moved by the counsel for appellants wherein it is stated that the relief mentioned in the prayer clause of the appeal is to set aside/quash the impugned judgment which is contrary to the actual relief desired/sought by the appellants. Ld. counsel for the appellants accordingly prayed that the appeal be amended and the amount of maintenance granted by the Ld. Trial Court in favor of appellant no.1 be enhanced. Ld. Counsel further submitted that Ld. Trial Court has denied maintenance to appellant no. 2 (who is the daughter of the respondent) on the ground that she has attained majority and it was prayed that maintenance be granted to appellant no.2 as she does not have the capacity to earn because she suffers from depression and other psychological issues. It is further submitted by Ld. counsel that the amount of maintenance granted by the Trial Court is on a much lower side and same may be decided afresh, keeping in view the paying capacity of the respondent.
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5. During final arguments on the appeal, an application under Section 391 Cr.P.C. was filed by the ld. counsel for the appellant for leading additional evidence. It is stated that the appellants want to submit additional documents which were not earlier filed before the Ld. Trial Court at the stage of evidence. It is stated that the additional documents which are sought to be produced before the Ld. Trial Court are the medical prescriptions and medical documents of appellant no. 2 showing that she is unable to work due to her medical/ mental condition. It is further stated that the respondent is a man of means and has various immovable properties at Jabalpur (M.P.) and in Lucknow(Uttar Pradesh) apart from the house in which the appellants are residing. It is further stated that the respondent is maintaining various bank accounts in Jabalpur, Nagpur and Kanpur and is also having a joint account with his sister at Jabalpur which has come to the knowledge of appellant now at the stage of appeal.
6. Notice of the appeal, notice of the application for amendment as well as notice of the application under Section 391 Cr.P.C. for leading additional evidence was sent to the respondent but same has been returned unserved. TCR was summoned by the court which reveals that the respondent was not even appearing before the Ld. Page no. 4 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar Trial Court and was accordingly proceeded Ex-parte vide order dated 13.04.2017.
7. I have heard the arguments and gone through the documents filed by the appellants. I have also perused the Trial Court Record.
8. Appellant has filed the appeal on twin grounds:
(i) For granting maintenance to appellant no. 2.
(ii) For increasing the amount of maintenance granted to appellant no. 1.
9. So far as ground no. 1 is concerned, no maintenance has been granted by the Trial Court in favor of the appellant no. 2 on the ground that she is major and can maintain herself. In the case of Abhilasha v. Parkash, 2020 SCC OnLine SC 736, it was observed by the Hon'ble Supreme Court that a Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 and grant monetary relief to meet expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established. Conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including Page no. 5 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act irrespective of the fact whether she is a major or minor and there is no limitation on the age of the daughter for claiming maintenance under the DV Act.
10. Recently, Allahabad High court in the case of Naimullah Sheikh And Another vs State Of U.P. And 3 Others, 2024:AHC:4853 also dealt with the issue of major daughters' right to maintenance from their father and it was held as under:-
"6.Under the aforesaid Act of 2005, any aggrieved person may apply to the Magistrate for seeking one or more relief under the Act. Broadly the reliefs available under the Act are titled as "Right to reside in a shared household under section 17, Protection orders under section 18, Residence orders under section 19, Monetary reliefs under section 20, Custody orders under section 21 and Compensation orders under section 22 Section 20 under which monetary relief may be granted to an aggrieved person has been worded as below:-
(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to--
(a)the loss of earnings;
(b) the medical expenses;
(c)the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
Page no. 6 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
7. Perusal of the above provision demonstrates that any aggrieved person including any child of the aggrieved person, who has been subjected to domestic violence, may claim monetary relief to meet the expenses incurred and losses suffered as a result of domestic violence and also monetary relief for such incidental matters like monetary relief for loss of earnings, medical expenses, loss of any property and also for maintenance. This provision of law further provides that such reliefs of monetary nature can also be claimed which do not fall under the categories enumerated above as the provisions clearly lay down that reliefs need not be limited to reliefs as described under section 20(1) Section 20 (1) (a), 20 (1) (b), 20(1) (c) and 20(1) (d). Section 20(1) (d) of the DV Act further expands the scope of monetary relief for maintenance. For better understanding I am reproducing Section 20 (1) (d) again as below:-
"(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force."
Page no. 7 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar This part of the provision of law says that not only the aggrieved persons but also her children, if any, may claim maintenance 'under' and 'in addition' to order of maintenance under section 125 Cr.P.C. And further that the maintenance can be claimed under or in addition to any other law for the time being in force. The way provision has been worded, gives a clear indication that section 12 of the DV Act is essentially a procedural law, which can be resorted to by any aggrieved person, who draws a substantive right for maintenance from any other law, whether under section 125 Cr.P.C. or personal law applicable to the parties or any other law for the time being in force. Thus law is quite clear to the extent that maintenance can be claimed under any law which provides for the same. Further that even if maintenance has already been granted under one law, the aggrieved person can ask for monetary relief for maintenance under any other law in addition, under the provisions of the DV Act. Thus this law seeks to avoid multiplicity of proceedings. Now a question may arise that when rights have been provided for elsewhere, why such enactment was needed at all? In my opinion the legislature has, keeping up with the objective of this enactment, has cut down the procedural formalities and facilitated grant of quicker reliefs.
Section 20(2) of the DV Act says that the monetary relief granted under this section shall be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The scope for grant of particular kind of monetary relief that is "maintenance" is further widened in section 20(3) of the DV Act which says that an appropriate lump-sum may be ordered to be paid as maintenance in the nature of circumstances of a particular case. In my opinion, if the provisions of section 20 (1) (d) of the DV Act are interpreted in harmony with rights given to an aggrieved person under any other law, it appears that the substantive right to receive maintenance may emanate from other laws, however quick and shorter procedure to obtain the same, has been provided in the the DV Act 2005. The rights which the parties may have under other laws whether civil or criminal, have been given a cutting edge by the Act. In my view, this explains the use of words "more effective protection to women" in the foreword which described the reasons behind this enactment.
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8. Having said that, now I come to some other provisions in the D V Act which strengthen and fortify the above view regarding giving more effective protection to women. Section 2(a) of the DV Act defines "aggrieved person" as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The woman who has been in domestic relationship with the respondent and who has been subjected to any domestic violence, is entitled for relief under the Act, irrespective of her minority or majority. The rights of an aggrieved person flow from the fact that she has been subjected to violence which may be of physical, mental, sexual, verbal and emotional nature and may even in the nature of the economic abuse. The other essential requirement is that the aggrieved person has been living in a shared household or had, at any point of time lived together in a shared household with the respondent, who is related to her by marriage, adoption, consanguinity or living together, in a joint family as a family member.
11. The High Court of Andhra Pradesh, in the case of Menti Trinadha Venkata Ramana vs. Menti Lakshmi and Others; 2021 SCC Online AP 2860, also recognized the right of unmarried major daughter to claim maintenance and observed in para no. 5 as below:-
"5. However, it may be apposite to note that the Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 (for short, 'the DV Act') and grant monetary relief i.e., to meet the expenses incurred and losses suffered by an aggrieved person under section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established. A conjoint reading of section 2 (a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under section 2(a) of the DV Act irrespective of the fact whether she is a minor or major. In the present case, the relationship between the parties as father and daughter is Page no. 9 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar admitted and they had stayed together in a shared household. In view of the fact that the petitioner neglected to maintain the 1st respondent-wife and 2nd respondent- daughter, proceedings under section 125 Cr.P.C. came to be instituted and maintenance was awarded to respondents including to the 2nd respondent. As the award was not paid, the learned Magistrate issued the impugned order, dated 14.03.2012, directing recovery of maintenance to the tune of Rs. 22,000/- for a period of 11 months from 17.12.2009 to 16.11.2010. In the aforesaid facts, the order of learned Magistrate may be traced to his powers to grant monetary relief under the D V Act and by a combined reading of the provisions of Section 125 of Cr.P.C. and Section 20 of the DV Act, the said order cannot be said to be illegal on the mere ground that the 2nd respondent had become a major. I am further fortified to arrive at such finding as the relief under the D V Act can be granted in addition to other reliefs available to the aggrieved person as envisaged under Section 26 (2) of the DV Act."
12. Adverting to the case in hand, there is no dispute that the appellant no. 2 is the daughter of the respondent and they both had stayed together in a shared household. Although appellant no. 2 is of the age of majority but she cannot be denied relief merely on the ground that she has attained majority. It is clear from the above discussion that an unmarried daughter has a right to obtain maintenance, irrespective of her age. Moreover, appellant no. 2 is specifically claiming the relief on the ground that she is unable to work owing to her medical issues. She has filed various medical prescriptions of doctors before the trial court, in order to show that she is a patient of depression, anxiety and other such related psychological issues which are a hindrance for her to get an employment. It is Page no. 10 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar apparent from the impugned judgment that the medical documents filed on record by the appellant have neither been considered nor any finding has been given as to how the Trial Court came to the conclusion that the appellant no. 2 can maintain herself. In the present case, the claim for maintenance of appellant no.2 cannot be decided merely on the basis of her age but a finding also needs to be given considering her capacity/ incapacity to work whereas the Trial Court gave the plain finding that appellant no. 2 was able to maintain herself without giving any reasons as to what is the basis of the said opinion.
13. The order of Trial Court is arbitrary and against the settled principal of law.
14. The second ground taken by Ld. Counsel for the appellant is that the amount of maintenance granted to the appellant no.1 has been mechanically given without taking into account the financial capacity of the respondent, status of the parties and their needs.
15. From a perusal of the para 11 of the impugned judgment read alongside the testimony of CW-3, it becomes evident that the trial court has assessed the income of respondent as Rs. 91,000/- per month, by only considering the pension amount as his monthly income.
Page no. 11 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar Perusal of testimony of CW-1 shows that she relied upon certain other documents also to prove the paying capacity of respondent e.g. she filed the details regarding property bearing no. 6, New Ramnagar, Adhartal, Madhya Pradesh, Copies of FDRs in the name of respondent mark B (Colly) but there is no whisper about the same in the impugned judgment. It is true that the photograph of a name plate showing an address is not sufficient to show a person as an owner of a specific property but Trial Court could have summoned the record of the said property from the concerned Revenue authorities to bring out the truth as to whether the said property belonged to the respondent or not. Similarly, both the appellants filed numerous medical prescriptions and bills showing that the both appellants suffer from several ailments and are under regular and continuous medications for the treatment of those ailments but same has not been considered by the Ld. Trial Court.
16. Similarly, appellant no. 2 has filed various documents to show that she is suffering from depression, anxiety and other related issues but same has not been considered by the Trial Court.
17. In the present appeal, appellant has further filed an application under Section 391 CrPC to place on record additional evidence/documents to show that the Page no. 12 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar respondents has multiple sources of income. In the case of Brig. Sukhjeet Singh (Retd), Mvc vs The State of Uttar Pradesh, Criminal Appeal No. 148/2019 (arising out of SLP (Criminal) No. 1120/2017) dated 25.01.2019, Hon'ble Supreme Court of India discussed the law related to Section 391 Cr.P.C and it was held as under :-
"12. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 Cr.P.C. empowers the Appellate Court to take further evidence or direct it to be taken. Section 391 is as follows:-
"391. Appellate court may take further evidence or direct it to be taken.--(1) In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
13. The key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of Appellate Court are contained in Section 386. In an appeal from a conviction, an Appellate Court can exercise power under Section 386(b), which is to the following effect:-
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or Page no. 13 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
14. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:-
"8. .....................................Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to Page no. 14 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise..............................."
18. Coming to the application under Section 391 Cr.P.C., filed by the appellant, it is evident that many of the documents filed alongwith the application were not produced before the Ld. Trial Court at the stage of evidence, for example, passbook of various bank accounts of the respondent of UCO Bank, Jabalpur and Kanpur and State Bank of India, Nagpur, pension account of respondent with State Bank of India, Jabalpur, details of immovable properties of the respondent at Lucknow and Jabalpur. Furthermore, all the medical documents and prescriptions of appellant no. 1 and 2 were also not filed by the appellants before the Ld. Trial Court to show that appellant no. 1 was under continuous medication for her age related issues and appellant no.2 was under treatment for depression, warranting additional funds for their medical needs. This court is of the opinion that the above mentioned documents are very relevant to be considered for properly deciding the amount of maintenance to be granted in favour of the appellants.
19. In light of the judgment of Brig. Sukhjeet Singh (Supra), the court is of the opinion that all the documents filed by the counsel for appellant alongwith application Page no. 15 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar under Section 391 Cr.P.C. are necessary to be considered to secure the ends of justice and as they would have a direct bearing on the amount of maintenance to be decided by the court.
20. It is also noted that the medical prescriptions relied upon by the appellant were within her reach earlier also and could have been produced during the trial by moving a proper application, but as already discussed above, the relief sought by the appellants is enhancement of maintenance for appellant no. 1 and maintenance in favor of appellant no. 2 for which the relevant documents are necessary to be considered, therefore, application under section 391 Cr.P.C. needs to be allowed.
21. As the respondent has chosen not to appear, court does not feel the necessity to impose any cost upon the appellant to compensate the respondent for any inconvenience that he might have faced because of the present application. Hence, no order as to costs is made while allowing the application under Section 391 CrPC.
22. Accordingly, the application under Section 391 Cr.P.C., as well as the present appeal is allowed. The matter is remanded back to the court of Ld. MM (Mahila Court)- 03 with directions to decide the issue of Page no. 16 of 17 CA no. 83/2020 Sushma Sahai Vs Rajnish Kumar maintenance of appellant no.2 in light of the above observations and to consider the documents filed by the appellants by granting her one opportunity to lead further evidence on the date and time as fixed by the Ld. Trial Court.
23. With above said directions, the appeal is hereby disposed off.
24. Trial court record be sent back to the Ld. Trial Court/Successor court alongwith a copy of this judgment.
25. Appeal file be consigned to Record Room after due compliance.
MANU Digitally signed by MANU GOEL KHARB GOEL Date:
KHARB 2025.01.10 Announced in the open Court today 17:11:42 +0530 i.e. 10.01.2025 (Manu Goel Kharb) Special. Judge (NDPS-02) Dwarka Courts, New Delhi Page no. 17 of 17