Delhi District Court
Also At vs The State (Govt. Nct Of Delhi) on 16 January, 2023
IN THE COURT OF SHRI CHANDER MOHAN,
ADDITIONAL SESSIONS JUDGE07, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 43/2021
IN THE MATTER OF:
Neha Aggarwal
(for herself and her minor daughter Navya)
W/o Sh. Aditya Aggarwal
D/o Sh. Subhash Chand Gupta
R/o D31. Garonda Apartments
Shreshta Vihar, Delhi110092
ALSO AT:
H. No. 458B/2B,
Ward No. 3, Mehrauli,
New Delhi110030 .............Appellant
Versus
1. The State (Govt. NCT of Delhi)
2. Aditya Aggarwal
S/o Sh. Ashok Aggarwal
H. No. 73F, First floor
R/o D31. Garonda Apartments
Shreshta Vihar, Delhi110092 ................Respondent
CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 1 of 12
CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal AND CRIMINAL APPEAL NO. 03/2021 IN THE MATTER OF:
1. Aditya Aggarwal S/o Sh. Ashok Aggarwal H. No. 73F, First floor R/o D31. Garonda Apartments Shreshta Vihar, Delhi110092
2. Ashok Kumar Aggarwal S/o Lt. Lajpat Rai
3. Shashi Bala Aggarwal W/o Ashok Kumar Aggarwal Both R/o C28, Gharonda Apartment, Shreshta Vihar, Delhi110092 ............Appellants Versus Neha Aggarwal (for herself and her minor daughter Navya) W/o Sh. Aditya Aggarwal D/o Sh. Subhash Chand Gupta R/o D31. Garonda Apartments Shreshta Vihar, Delhi110092 ALSO AT:CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 2 of 12
CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal H. No. 458B/2B, Ward No. 3, Mehrauli, New Delhi110030 ...........Respondent Instituted on : 10.03.2021 Reserved on : 10.01.2023 Pronounced on : 16.01.2023 Judgment For the purpose of convenience, the parties shall be referred to as per the rank and status before the Trial Court I.e, wife shall be referred to as Aggrieved/complainant and husband shall be referred as respondent no. 1
1. Vide impugned order dt. 28.11.2020, husband (who shall be referred to as respondent no. 1) has been ordered to pay an interim maintenance 3000/ per month towards maintenance of aggrieved/wife and he has also been further directed to pay a sum of Rs. 3000 per month for the maintenance of minor daughter from the date of filing the appeal till pendancy of trial.
2. Both the parties i.e., aggrieved and respondent no. 1 have come in appeal against the said order: aggrieved seeks enhancement and husband seeks to altogether set aside the impugned interim order dt. 28.11.2020. Both the appeals are taken together and shall be disposed of by this consolidated order.CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 3 of 12
CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal
3. Before adverting to the grounds taken by both the parties in their respective appeals, it shall be opposite to briefly refer to the facts necessary and relevant for decision of both the appeals.
4. A compliant U/s 12 of DV Act was filed by the aggrieved /complainant against her husband and inlaws on 20.07.2019 before the concerned Mahila Court. As per the averments mentioned by the aggrieved in the said complaint, she was married to respondent no.1 on 17.11.2010 according to Hindu rights and ceremonies at Vaishali, Ghaziabad and on 22.07.2012 a female child namely Navya Aggarwal was born out of this wedlock. The complainant further mentions about the allegations of taunts regarding insufficient dowry by respondent no. 2 and 3 (fatherinlaw and motherinlaw), physical and mental torture with a view to force her to arrange a car, beatings given to her by respondent no. 1 and supported by respondent no. 2 and 3, abuses, harassment etc. It is also averred in the complaint that she was working prior to her marriage but in January, 2021 she was forced by the respondents to leave her job and do household chores. Further, there are also allegations regarding physical and mental torture resulting in her miscarriage, beatings and pushing her by respondent no. 1 resulting in her premature delivery and also abusing her for giving birth to a daughter, beatings etc. It is also alleged that respondent no. 1 was having illicit relations with other woman etc. Further, an FIR bearing no.
344/19 has also been registered U/s 498A/406/34 IPC against the respondents on her complaint.
5. The Ld. Trial Court issued the summons to respondent no. 1 on the above complaint U/s 12 DV Act and after perusal of the DIR report, CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 4 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal summons were also issued to respondent no. 2 & 3. In the reply filed by the respondents, all the allegations were denied and it was alleged that it was rather the attitude and behavior of the aggrieved towards the respondents that amounted to cruelty. Thereafter, both the parties filed their respective income and expenditure affidavits in terms of the judgment of Hon'ble High Court in Kusum Sharma Vs. Mahinder Kumar Sharma(dt 06.08.2020) in the prescribed format.
6. In his income affidavit filed by the respondent no. 1, he declared his educational/professional qualification as MBA and his occupation to be working as a volunteer at an NGO as a computer operator and drawing a monthly stipend of Rs. 10,000/. He however admitted that at the time of marriage, he was having an income of Rs. 25,000/ and at the time of separation his income was Rs. 40,000/. He further stated in the said affidavit that he was not assessed to income tax. In the column of family members etc, he mentions that his father and mother,both aged about 71 years are retired pensioners and both his sisters are married and working as Assistant Professor at SSCBS, Rohini and Associate Professor, AIIMS, Delhi respectively.
7. After taking into account all the facts and circumstances of the case, pleadings and documents relied upon by the parties including their respective income and expenditure affidavits and hearing the parties, the Ld. Trial Court directed respondent no. 1 to pay a sum of Rs. 3,000/ towards the maintenance of aggrieved and a further sum of Rs. 3,000/ per month for the maintenance of minor daughter from the date of filing the petition till the pendancy of the trial.
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8. The above order has been challenged by both the parties vide separate appeals.
9. Summary of grounds of appeal of Respondent no. 1 (husband).
The primary ground on which the respondent no. 1 has sought exemption from payment of the interim maintenance is that he is patient of bipolar disorder which is a mental illness and also a disability due to which he is not in a position to be gainfully employed as per his qualification and experience. Further, as per the respondent no. 1, he could not procure documents pertaining to the present status of his mental disability and severity because of the corona pandemic. It is further averred that the Ld. Trial Court failed to appreciate the medical records of psychiatry wards of AIIMS, Delhi from where he is taking the treatment for the last 2 years; further that the Ld. MM failed to appreciate that he could not produce his resignation letter regarding his previous employment as it would be in custody of his employer; that his own liabilities have been overlooked and finally that he is earning meagre sum of Rs. 9,000/ and on the other hand his aggrieved has been teaching since before marriage and presently working as a Math Teacher at Green Field School, Vivek Vihar.
10. Summary of the grounds of appeal of the aggrieved.
As per the aggrieved, despite observation by the Trial Court that bipolar disorder by itself does not mean that a person is incapacitated and also despite taking note of the fact in the impugned order that respondent no. 1 failed to file any medical certificate to show the extent of CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 6 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal his bipolar disorder, the Ld. Trial Court gave weightage to the assertion of respondent no. 1 that he was suffering from bipolar disorder and accordingly, made an assessment of the income of respondent no. 1 only to the tune of Rs. 18,000/ by taking into account the minimum wages received by a graduate, which was very less and even going by the said assessment as per the ratio of various judgments passed by Hon'ble High Court and Supreme Court, the appellant should have been granted atleast 2/3rd portion of the said income. It is further averred that the trial Court completely overlooked the admissions of respondent no. 1 in his income affidavit that at the time of separation he was getting salary of Rs.40,000/ and also failed to notice that he resigned from the said post just after separation; that it was also completely overlooked that he had no liability except to maintain the appellant and his daughter; that the quarterly school fees of minor excluding other expenses is Rs. 13,000/ and no separate provision has been made for the same.
11. I have heard both the parties and perused the record.
12. The marriage between the parties is not disputed. It is also not disputed that aggrieved and respondent no. 1 were residing together in the shared household. That one daughter was born on 22.07.2012 and is currently in the custody of aggrieved is also not disputed.
13. The primary grievance of respondent no. 1 is that despite the fact that he had produced medical documents to show that he was suffering from bipolar disorder, he has been burdened with maintenance of his wife and minor daughter vide the impugned order and on the other hand the CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 7 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal main grievance of aggrieved is that the medical documents furnished by respondent no. 1 were insufficient to draw any conclusion that he was suffering from bipolar disorder and the Ld.Trial Court has wrongly been influenced by such documents while determining the quantum of maintenance. I have carefully gone through the medical documents placed on the Trial Court record by the respondent no. 1 to make out a case of bipolar disorder. Majority of these documents are prescription slips prescribing certain medicines for respondent no. 1 except one slip dated 10.11.2018, which appears to be an OPD slip issued from Department of Emergency Medicine, AIIMS, New Delhi wherein on the backside bipolar disorder has been referred. However, there is no document wherein such diagnoses have been specifically made out not to speak of the extent or severity of the disorder. In the absence of any such clear medical diagnoses as well as medical certificate clearly mentioning the extent and degree of the disability, the Ld. Trial Court was justified not to completely take such defence/assertion on its face value but at the same time the Trial Court has also not completely ignored the said medical documents while fixing the quantum of maintenance awarded. At the stage of granting interim maintenance, only prima facie case has to be seen and material placed before the court is primarily the voluntary declarations of the parties and perusal of the impugned order would show that court has duly taken note of all the aspects before assessing the income of the respondent no. 1. The following extract of the impugned order would make the picture clear.
"At the same time, it must be noted that bipolar disorder by itself does not mean that a person is incapacitated to work. Respondent no. 1 has not filed any Medical Certificate to show the extent of his bipolar disorder and whether he has capacity to work or not. Moreover, he has CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 8 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal also not brought any material on record to show that he had resigned from his earlier job due to his suffering from bipolar disorder. He has withheld his resignation letter from the Court. There is also nothing on record to show that respondent no. 1 tried to find another better paying job but did not succeed. Thus, respondent no. 1 has not disclosed complete facts to court which were in his personal knowledge.
14. Hence, it can be seen that the Ld. Trial Court has tried to strike a balance between the rights of both the parties which under the circumstances appears to be justified. The law does not rule out some guess work at the stage of grant of interim maintenance.
15. Ld. Counsel for respondent no. 1 has also resisted the payment of interim maintenance on the ground that aggrieved is not only capable of working but is also actually working and currently employed as a Maths teacher in New Green Field School, Vivek Vihar. No doubt, a specific averment to this effect has been made in para 12 of the appeal but no document has been placed on record by the respondent no. 1 to substantiate this claim and therefore, it only remains a hoax and no weightage can be given to such oral assertion. Accordingly, I do not find any fault in the conclusion of the Ld. Trial Court that there is nothing on record to show that aggrieved is working at present.
16. On the other hand, It is argued by counsel for the aggrieved that even if it is assumed that the respondent no. 1 is earning 18,000/, as has been assessed by Ld. Trial Court, still 2/3rd portion of the said income would have been given to the aggrieved and his minor daughter. This court CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 9 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal is of the opinion that there is no hard and fast rule regarding the division of the income in such proportion. The court is required to take into consideration all the facts and circumstances of the case. As already observed, the Trial Court has given some consideration to the mental disease of the respondent no. 1 and therefore, while making division of the income some weightage may have been given by the Trial Court to the fact that respondent no. 1 may have to make some expenses for his treatment.
17. The following observation of the Hon'ble High Court of Delhi provide the guidance for assessing quantum of maintenance. The Hon'ble High Court in Bharat Hegde Vs. Saroj Hegde (AIR 2007 Delhi 197) observed as under.
6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to betaken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.
7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings.CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 10 of 12
CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal On the other hand maintenance should not be so low so as to make the order meaningless.
18. If the amount of Rs 3000/ per month towards the maintenance of aggrieved and Rs. 3000/ per month for the maintenance of her minor daughter awarded by the Ld. Trial Court is seen in the light of principles of the aforequoted judgment then it appears to be just, fair and reasonable.
19. Finally, it should not be lost sight of the fact that both the appeals are against an interim order only which has been granted U/s 23 of Protection of Women against Domestic Violence Act. Jurisdiction of appellate court U/s 29 of the PW DV Act with respect to an order passed U/s 23 of the PW DV Act is limited to ascertaining if the Trial Court has committed any irregularity or perversity in reaching the finding. This view regarding scope of appeal U/s 29 PW DV Act with respect to orders passed U/s 24 of PW DV Act was taken by the Hon'ble Bombay High Court in Abhijeet Bhikaseth Auti Vs. State of Maharashtra & Anr. Reported as 2009 Crl. Law Journal 889. Relevant portion of the judgment is extracted here in below: "24..... Thus, the conclusion which can be summarized are as under :
(i) ......
(ii).......
(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the Ld. Magistrate. However, while dealing with an appeal against the order passed U/s 23 of the said Act, the Appellate Court will usually not interfere with the exercise of CA No. 43/2021 Neha Aggarwal Vs. State and Anr Page 11 of 12 CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal discretion by the Ld. Magistrate. The Appellate Court will interfere exercised only if it is found that the discretion has been arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.
20. Accordingly, both the appeals bearing no 3/2021 and 43/2021 filed by aggrieved and respondent no.1 respectively are dismissed and order of the Ld. Trial Court dated 28.11.2020 is upheld. Nothing contain in present order shall amount to be an expression on merits of case.
21. TCR be sent back to Ld. Trial Court alongwith copy of this judgment. Appeal files be consigned to Record Room after due compliance as per rules.
Pronounced in the open (CHANDER MOHAN)
Court on 16th January, 2023 Additional Sessions Judge07,
South, Saket Courts, New Delhi
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CA No. 03/2021 Aditya Aggarwal and Others Vs. Neha Aggarwal