Delhi District Court
Sh. Sandeep vs Smt. Lalita on 29 April, 2019
IN THE COURT OF SH. GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Appeal No.70/18
CNR No.DLWT010016742018
In re:
Sh. Sandeep
S/o Late Sh. Gulshan Kumar
R/o D1/193, Sector20, Near Mother Dairy,
Rohini, Delhi110085 .........Appellant
Versus
Smt. Lalita,
W/o Sh. Sandeep,
D/o Sh. Hari Kishan,
R/o 2151/9A9, New Patel Nagar,
Naraina Road, New Delhi. .......Respondent
Date of filing of appeal : 22.02.2018
Date of hearing final arguments : 29.04.2019
Date of pronouncement of judgment : 29.04.2019
JUDGMENT:
1. This appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') is filed against order dated 08.01.2018 passed by the Ld. M. M. (Mahila C.A. No.70/18 Sandeep Vs. Lalita Page No.1/ 12 Court)04, West in complaint No.220/2017 under Section 12 of the Act whereby the application of the respondent/wife for interim maintenance was allowed and the appellant was directed to pay Rs.5,000/ per month as interim maintenance towards food, clothing, household expenses, alternate accommodation/rent etc. from the date of filing of the petition till the disposal of the case.
2. The brief background relevant for the disposal of the appeal is as follows:
2.1 The respondent/wife filed the complaint under Section 12 of the Act against the husband (i.e. the appellant herein), alongwith motherinlaw wherein she levelled allegations of domestic violence against them and claimed different reliefs under the Act.
The petitioner is the legally wedded wife of the respondent and the marriage was solemnized between them on 22.01.2015 but no issue was born, out of the wedlock. The petitioner/respondent leveled various allegations regarding harassment and dowry demand and accordingly the petition was filed.
The respondent/husband denied the allegations of the C.A. No.70/18 Sandeep Vs. Lalita Page No.2/ 12 petitioner alleged in the petition.
After consideration of the documents on record and assessment of the income of the parties, the Ld. Trial court vide impugned order dated 08.01.2018, awarded interim maintenance @5,000/ per month in favour of the petitioner/wife and the income of the appellant/husband was assessed @16,182/ per month i.e. as per the Minimum Wages at the relevant time. Aggrieved therefrom, the appellant/husband has approached this court by way of this appeal.
3. The present appeal has been filed on the ground that the impugned order dated 08.01.2018 is not sustainable in law and is contrary to record; the appellant is unemployed; the wife has sufficient income from FDRs and she is not entitled for any maintenance; the impugned order is passed without application of judicial mind.
4. The notice of the appeal was issued to the respondent. The respondent put the appearance through her counsel and strongly opposed the appeal. The counsel for the respondent submitted that the impugned order does not suffer from any illegality/infirmity and therefore, no interference is called for.
C.A. No.70/18 Sandeep Vs. Lalita Page No.3/ 125. I have heard the counsel for both the parties. The trial court record has also been perused.
6. Section 23 of the Act empowers the court to pass various interim orders under the Act including an order of maintenance 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.
7. 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 C.A. No.70/18 Sandeep Vs. Lalita Page No.4/ 12 logical and reasonable approach would be adopted to award interim maintenance considered 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.
8. 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.
9. 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 3397, the Hon'ble Apex Court was pleased to observe as under;
"No set formula can be laid for fixing the amount of C.A. No.70/18 Sandeep Vs. Lalita Page No.5/ 12 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."
10. 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 hold that even after the amendment of 2001, an order for payment of maintenance can be C.A. No.70/18 Sandeep Vs. Lalita Page No.6/ 12 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 in Krishna Jain (supra), the C.A. No.70/18 Sandeep Vs. Lalita Page No.7/ 12 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 C.A. No.70/18 Sandeep Vs. Lalita Page No.8/ 12 reasons, however, are required to 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"."
11. From the pleadings of the parties, the following admitted facts emerge:
(i) that the marriage between the parties was solemnized on 22.11.2015;
(ii) That no child was born from the said wedlock
(iii) that both the parties are residing separately since 07.09.2016 as the petitioner/wife is residing in her parental home
(iv) The various allegations leveled by the petitioner against the appellant in the petition is a matter of trial.
12. In this case, the respondent/wife has asserted that she is unemployed/housewife and has no regular source of income; whereas the appellant is earning being franchise of Patanjali Shop and other rental income. The petitioner's wife is claimed interim maintenance @ Rs.40,000/ per month.
The appellant on the other hand denied the averments on the C.A. No.70/18 Sandeep Vs. Lalita Page No.9/ 12 ground that he is unemployed and has not source of income but appellant admitted that he is 12th passed and diploma holder in the Multi media/web designing.
13. As the petitioner's wife is residing separately, the appellant did not provide her maintenance and residence and he is under legal obligations to maintain his wife. The appellant has further did not show any liability upon him. It is observed that none of the parties has placed on record any specific documentary proof of their income or the income of the opposite party. It is also noted that the appellant is under obligation to maintain the respondent/wife. In view of the absence of income proof of the parties, the Ld. Trial Judge assessed the income of the appellant @ minimum wages at the relevant time and this court does not find any legality or infirmity in the assessment of the income of the appellant on the basis of minimum wages.
14. 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 aggrieved wife. A final decision of course would rest upon the evidence which both the parties would lead in the trial. Coming C.A. No.70/18 Sandeep Vs. Lalita Page No.10/ 12 to the facts of the present case, it is not in dispute that the respondent is neither doing any service nor any business. 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 for the sustenance. Moreover, he failed to show any other liability and appellant is under obligation to maintain the respondent/wife. Therefore, award of interim maintenance of Rs.5000/ to the wife considering the income, financial status and social strata to which the parties belongs is justified and does not appear to be exorbitant.
15. 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.5000/ per month to the respondent/wife towards interim maintenance from the date of filing of the petition till final disposal of the case does not appear on higher side. For the foregoing reasons, I find no merit in the appeal and the same is, accordingly, dismissed.
C.A. No.70/18 Sandeep Vs. Lalita Page No.11/ 1216. Trial court record be sent back alongwith the copy of the judgment. Appeal file be consigned to the record room.
Digitally signed by Gorakh Nath Gorakh Nath Pandey Pandey Date: 2019.05.02 16:18:22 +0530 Announced in the open court (Gorakh Nath Pandey) on 29.04.2019 Addl. Sessions Judge (West) Tis Hazari Courts, Delhi. C.A. No.70/18 Sandeep Vs. Lalita Page No.12/ 12