Delhi District Court
Sh. Nikhil Aggarwal vs Smt. Priya Aggarwal on 4 April, 2019
IN THE COURT OF SH. GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Appeal No.186/2018
CNR No.DLWT010086702018
In re:
Sh. Nikhil Aggarwal,
S/o Sh. Narender Aggarwal,
R/o P260, CIT Road,
Scheme6M, Kankurgachi,
Kolkata700054,
West Bengal. .........Appellant
Versus
Smt. Priya Aggarwal,
W/o Sh. Nikhil Aggarwal,
D/o Sh. Madan Lal Gupta,
R/o B2/130, Paschim Vihar,
Delhi110063. .......Respondent
Date of filing of appeal : 19.09.2018
Date of hearing final arguments : 04.04.2019
Date of pronouncement of judgment : 04.04.2019
JUDGMENT:
1. This appeal under Section 29 of the Protection of Women from C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.1/ 14 Domestic Violence Act, 2005 (for short, 'the Act') is filed against order dated 18.08.2018 and 24.08.2018 passed by the Ld. M. M. (Mahila Court)02, West in complaint No.50/1/16 under Section 12 of the Act whereby directed the appellant/husband to pay interim maintenance to the tune of Rs.20,000/ each per month to the respondent/wife and both the minor children from the date of application till further orders. It was also directed that 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 29.02.2016, the respondent/wife filed the complaint under Section 12 of the Act against the husband (i.e. the appellant herein), parents in law and sister in law wherein she levelled allegations of domestic violence against them and claimed different reliefs under the Act.
In her affidavit of assets, expenditure and liabilities, the respondent stated that she studied upto B.Com B.Ed (TTC) and has also done PrePrimary Teacher Training Course. She stated that she is unemployed having no source of income except some interest on deposits in KVP, NSC and PPF. She C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.2/ 14 stated that she has no immovable property in her name. She stated that she has two minor children to maintain. It is further stated by the respondent/wife that she is not even able to make the ends meet for her day to day survival and she is totally dependent upon her brother and old aged father. She alleged that the appellant has share in several ancestral properties. It is further alleged that appellant/husband has a qualification of B.Com, C.A. and is engaged in the business of trading of sarees and is earning Rs.50/ to Rs.60/ lacs per annum. It is therefore, prayed by the respondent/wife that interim maintenance be granted to her and the minor children.
2.2 On 27.09.2016, the appellant/husband and the remaining respondents filed reply wherein the allegations of domestic violence were denied. The appellant/husband contested the claim of the respondent/wife towards maintenance and stated that the respondent/wife was earing Rs.20,000/ per month, working as a School teacher. It is stated by the appellant/husband that he is engaged in business and is earing Rs.10,000/ per month.
2.3 After considering the pleadings of both the parties and the affidavits filed by them qua their income, assets and expenditure, Ld. M. M. vide impugned order dated 18.08.2018 C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.3/ 14 assessed the income of the appellant/husband not less than Rs.1 lac and directed him to pay Rs.20,000/ each per month to the respondent/wife and both the minor children as interim maintenance from the date of filing of the application till further orders. Vide order dated 24.08.2018, an application seeking clarification of the order was disposed off by the Ld. Trial Court by clarifying that Rs.20,000/ per month have been awarded towards maintenance to the respondent/wife and Rs.20,000/ per month towards the maintenance of both the children. Aggrieved therefrom, the appellant/husband has approached this court by way of this appeal.
3. Though no ground for filing this appeal has been mentioned in the memorandum of appeal, the Ld. counsel for the appellant vehemently argued that the Ld. Trial Court has failed to consider the fact that the respondent/wife herself has been earning Rs.20000/ per month; she can earn being well qualified than the appellant herein and the appellant is not the owner of any of the property as contended by the respondent/wife; the interim maintenance awarded to the respondent/wife @ 20,000/ per month each for the maintenance of the respondent/wife and two minor children is without any basis and orders dated C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.4/ 14 18.08.2018 and 24.08.2018 are liable to be set aside. In support of his submissions, the Ld. counsel for the appellant has also drawn the attention of the court to the judgments i.e. Crl. M. C. No.3106/2008 titled Ravi Dutta and Ors. v. Kiran Dutta and Ors. passed by Hon'ble High Court of Delhi; SLP (Crl.) 2600 2601/2016 titled Sangita Saha v. Abhijit Saha & Ors. passed by Hon;ble Apex Court; CRR No.3104/2014 titled Abhijit Saha & Ors. v. Sangita Saha passed by Calcutta High Court and SLP (Crl.) No.3935/2016 titled Shalu Ojha v. Prashant Ojha passed by Hon'ble Apex Court.
4. The notice of the appeal was issued to the respondent. The respondent put the appearance through her counsel and strongly opposed the appeal. During the pendency of the appeal, in compliance of order dated 07.12.2018, the respondent/wife has also filed on record the copy of passbook for the period 07.05.2005 to 18.10.2018 in respect of account held by her with Oriental Bank of Commerce, DAV School, Paschim Vihar, Delhi. The counsel for the respondent submitted that the impugned orders do not suffer from any illegality and therefore, no interference is called for.
C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.5/ 145. 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 logical and reasonable approach would be adopted to award C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.6/ 14 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 maintenance. It has, in very nature of things, to depend C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.7/ 14 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 paid by a court either from the date of order or when C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.8/ 14 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 Court adverted to the decision of the High Court of C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.9/ 14 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 be recorded by the C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.10/ 14 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 17.04.2008;
(ii) that two children were born from the said wedlock which are in the care and custody of respondent;
(iii) that both the parties are residing separately.
12. In this case, the respondent/wife has asserted that she is unemployed and has no regular source of income; have no immovable property in her name; is unable to maintain two minor children and is dependent upon her brother and father; she is residing with her parents and claimed that the appellant is engaged in business and earing Rs.50 to Rs.60 lacs per year.
The appellant on the other hand claimed the respondent/wife is earning Rs.20,000/ per month being school C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.11/ 14 teacher and he claimed that he is earing Rs.10,000/ per month being engaged in the business.
13. 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. The appellant admitted that he is engaged in the business of sarees. It is also noted that the appellant is under obligation to maintain the respondent/wife and both the children. It is also observed and noted by the Ld. Trial Court that the appellant/husband has transferred his rights in the property in the name of his mother; he has also availed the loan from the bank and paying EMIs and therefore, the claim of income @ Rs.10000/ per month by the appellant appears to have no substance. The impression of the Ld. Trial Judge of under valuation of the income by the appellant appears to have merit.
The Ld. Trial Judge assessed the income of the appellant @ Rs.1 lac per month and awarded the interim maintenance including rent and all the ancillary expenses. It is admitted that the income proof is not filed on behalf of both the sides on record and in view of the absence of any income proof, the Ld. Trial Judge have calculated the income of the appellant C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.12/ 14 as Rs.1 lac per month considering the properties and home loan availed by the appellant. In view of non existence of any document regarding income and concealment of income by the appellant and as per the pleadings, the Ld. Trial Court was justified to draw the presumption of the income of the appellant/husband @ Rs.1 lac per month on the basis of the financial status and social strata to which the parties belong.
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 and the minor children. 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 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 C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.13/ 14 under obligation to maintain the respondent/wife and minor children. Therefore, award of interim maintenance of Rs.20000/ each to the wife and the minor children considering the income, financial status and social strata to which the parties belongs is justified and does not appear to be exorbitant. The appellant can not be permitted to deprive the children of their share in the property.
15. Applying the above principle in the facts and circumstances of the case, the impugned orders by which the Ld. Trial Court has directed the appellant/husband to pay Rs.20000/ per month each to the respondent/wife and minor children towards interim maintenance from the date of application till further orders does not appear on higher side. For the foregoing reasons, I find no merit in the appeal and the same is, accordingly, dismissed.
16. 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: 2019.04.11 16:51:51
+0530
Announced in the open court (Gorakh Nath Pandey)
on 04.04.2019 Addl. Sessions Judge (West)
Tis Hazari Courts, Delhi.
C.A. No.186/2018 Nikhil Aggarwal v. Priya Aggarwal Page No.14/ 14