Delhi District Court
Mohd Aslam And Ors vs Smt. Anjum Kaushar And Anr on 24 April, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 224/2023
CNR No. : DLST01-007949-2023
DATE OF INSTITUTION- 19.08.2023
Ajab Alam @ Rihan
S/o Sh. Mohd. Aslam
R/o H. No. C-159, Ground Floor,
Near Tayyab Masjid
Abul Fazal Enclave Part-II
Shaheen Bagh, Jamia Nagar
Okhla, New Delhi-110025 .......... APPELLANT
VERSUS
(1) Smt. Anjum Kaushar
W/o Sh. Ajab Alam @ Rihan
(2) Baby Humaira
D/o Sh. Ajab Alam @ Rihan
Through guadian/mother
Smt. Anjum Kausar
Both R/o H. No. B-90, Shiv Park
Khanpur, New Delhi-110080
Also at-A-176, Durga Vihar
New Delhi-110080 ........... RESPONDENTS
&
Digitally signed
by
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK
Date:
2024.04.24
17:45:26 +0530
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 1 of 22
CRL. APPEAL No. 278/2023
CNR No. : DLST01-010164-2023
DATE OF INSTITUTION- 03.10.2023
(1) Smt. Anjum Kaushar
W/o Sh. Ajab Alam @ Rihan
(2) Baby Humaira
D/o Sh. Ajab Alam @ Rihan
Through guadian/mother
Smt. Anjum Kausar
Both R/o H. No. B-90, Shiv Park
Khanpur, New Delhi-110080
Also at-A-176, Durga Vihar
New Delhi-110080 ........... APPELLANTS
VERSUS
(1) Ajab Alam @ Rihan S/o Sh. Mohd. Aslam
(2) Aslam (Father in law)
(3) Afsari (Mother in law) W/o Aslam
(4) Tarannum (Sister in law) W/o Kafeel
(5) Kafeel (Brother in law) H/o Tarannum
(6) Gulnaz (Sister in law) D/o Aslam
All are the resident of:-
R/o H. No. C-159, Ground Floor,
Near Tayyab Masjid
Abul Fazal Enclave Part-II
Shaheen Bagh, Jamia Nagar
Okhla, New Delhi-110025
(7) Shahreen W/o Moinuddin
R/o Jasola village, New Delhi .......... RESPONDENTS
Digitally signed
& by
PURSHOTTAM PURSHOTTAM
PATHAK PATHAK
Date: 2024.04.24
17:45:43 +0530
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 2 of 22
CRL. APPEAL No. 225/2023
CNR No. : DLST01-007950-2023
DATE OF INSTITUTION-19.08.2023
1. Mohd. Aslam (Senior Citizen)
S/o Sh. Modh. Yamen
2. Smt. Afsari
W/o Sh. Mohd. Aslam
3. Ms. Gulnaz
D/o Sh. Mohd. Aslam
R/o H. No. C-159, First Floor,
Near Tayyab Masjid
Abdul Fazal Enclave Part II
Shaheen Bagh, Jamia Nagar,
Okhla, New Delhi-110025
4. Smt. Tarannum
W/o Sh. Kafeel Ahmed
5. Kafeel Ahmed
S/o Sh. Raisuddin
Both R/o H. No. C-225
Abul Fazal Enclave Part-2,
Shaheen Bagh, new Friends Colony
Jamia Nagar, Okhla
New Delhi-110025
6. Smt. Shreen Saifi
W/o Sh. Mohd.Moinuddin
R/o Old Address at Jasola Village
New Address: Jaitpur Ext. Part II,
PO Badarpur, New Delhi-110044 ...... APPELLANTS
Vs.
1. Smt. Anjum Kaushar Digitally signed
by
PURSHOTTAM
W/o Sh. Ajab Alam @ Rihan PURSHOTTAM
PATHAK
PATHAK
Date:
2024.04.24
17:45:48 +0530
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 3 of 22
2. Baby Humaria
D/o Sh. Ajab Alam @ Rihan
Through guardian/ mother
Smt. Anjum Kausar
Both R/o H. No. B-90, Shiv Park,
Khanpur, New Delhi-110080
Also at - A-176, Durga Vihar
New Delhi-110080 .......... RESPONDENTS
ARGUMENTS HEARD ON : 13.03.2024
DATE OF JUDGMENT : 24.04.2024
JUDGMENT
1. Vide these common judgments I shall dispose of instant three appeals, wherein appeal bearing CA No. 224/2023, titled as Ajab Alam @ Rihan Vs. Smt. Anjum Kaushar & Ors. and appeal bearing CA no. 278/2023 (CT No. 1596/2021) titled as Anjum Kaushar Vs. Ajab Alam and Ors. are cross appeals, filed under provisions of Domestic Violence Act by the parties challenging the order dated 11.07.2023, passed by the learned Metropolitan Magistrate-01, Mahila Court, South District, Saket Courts, New Delhi, whereby husband was directed to pay an interim maintenance of Rs.10,000/- per month towards the wife/ complainant and her daughter from the date of filing of the application till further orders.
2. Third appeal bearing CA no. 225/2023 titled as Mohd.
Aslam and Ors. Vs. Smt. Anjum Kaushar and Ors. has been filed by the appellants (father-in-law, mother-in-law, CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 4 of 22 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.24 17:45:56 +0530 sisters-in-laws and brother-in-law) assailing the same order dated 11.07.2023 vide which their application for discharge was dismissed.
3. Along with the appeal bearing CA no. 278/2023 (CT No. 1596/2021) titled as Anjum Kaushar Vs. Ajab Alam and Ors an application for condonation of delay has been filed. The delay is of few days and if the same is not condoned, the very purpose of filing appeal would get defeated. I do not find any deliberate attempt on part of the appellant in avoiding the filing of appeal. The condonation application is allowed and delay stands condoned.
4. The facts preceding these appeals are that a complaint under section 12 of Domestic Violence Act was filed by wife Anjum Kaushar against the husband and his family members along with an application under Section 23 DV Act with the averments that marriage of respondent/ wife was solemnized with appellant on 10.03.2018 at Delhi. After marriage, she started residing in matrimonial house. One child was born out of said wedlock. As per wife, she was subjected to domestic violence by the husband and his family members. As per wife, she has been sustaining herself with great hardships and thus, she claimed interim relief of maintenance from appellant.
5. Vide impugned order, Ld Trial Court while deciding the application for interim relief, observed as follows:-
"The aggrieved has not furnished any proof of the income of respondent no.1 earning Rs. 2 lakhs per month. Respondent no.1 has relied upon the income certificate obtained from revenue department of NCT of Delhi, South East wherein it has been stated that his Digitally signed CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 5 of 22 PURSHOTTAM by PURSHOTTAM PATHAK PATHAK Date: 2024.04.24 17:46:09 +0530 family income from all sources is declared by him as Rs. 85,000/- per annum. He has also annexed his bank account statements and the same are also not reflecting any regular substantial income, but small entries of credit. It is therefore, apparent that the respondent no. 1 is evasive about his income. However, at the same time, aggrieved has also not been able to adduce any sufficient material to show that he is having a handsome income of Rs. 2 lakhs. Accordingly, the court without having a sufficient material to adjudge the income of the respondent no.1, it is presumed that he must be earning at least equivalent to income of a skilled labourer in NCT of Delhi which is Rs. 20,903/- per month w.e.f 01.04.2023.
Considering all the facts and circumstances, this court deems it fit to grant interim maintenance to the aggrieved in the sum of Rs. 10,000/- per month for herself and her minor daughter from the date of filing of the application till further orders.
The respondent is directed to deposit the amount of maintenance in the bank account of the aggrieved by 10th of every month. The amount shall be payable from the date of filing of the application. The arrears are directed to be cleared within a period of one year......"
6. The wife has filed the appeal number bearing CA No. 278/2023 seeking enhancement of interim maintenance assailing the impugned order on various grounds which can be summarized as under:-
i. that the Ld. Trial Court failed to consider that the respondent/ husband is working as a contractor of fabrication of Iron, steel, wooden work and aluminum with his brother in law, from which he is earning approx Rs. 50,000/- per month.
ii. that the Trial Court has also failed to appreciate that the respondent/ husband is running a junk food corner from which he is earning around Rs. 70,000/- per month.
iii. that Ld. Trial Court also failed to consider that the accused no. 1 is doing acting and modeling and Digitally signed by CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAMPage 6 of 22 PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:46:16 +0530 had tie ups with the studios from which he is fetching approximately Rs. 1,00,000/- per month.
iv. that Ld. Trial Court has failed to note and consider the fact that the respondent/ husband is also getting rent of approximately Rs. 3,20,000/- by letting out his properties.
v. that Ld. Trial Court has failed to note that the in-laws of the respondent are also working and are earning a handsome amount.
vi. that the Ld. Trial Court has failed to consider that in the income affidavit of respondent/ husband, he has deliberately left the column of property blank just to hide his income from all sources.
vii. that Ld. Trial Court failed to note and consider that through income certificate issued by GNCTD, the respondent/ husband has shown his monthly income to be Rs.7,084/- but in the income certificate it is not mentioned as to what kind of work he is doing from which he is earning the alleged income.
viii. that Ld. Trial Court also failed to note that the alleged income certificate of respondent /husband issued by the GNCTD was valid only for six months from the date of its issuance and before issuance of the said certificate the concerned department had not done any kind of verification.
Digitally
signed by
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 7 of 22
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.04.24
17:46:20
+0530
7. On the other hand, the husband has preferred appeal bearing CA no. 224/2023 seeking setting aside the impugned order on following grounds:-
i. that the Ld. Trial Court has passed the impugned order mechanically and without appreciating the materials on record in its proper perspective.
ii. that the Ld. Trial Court has no territorial jurisdiction to try and decide the case as neither the husband nor the wife was living within the jurisdiction of Ld. Trial court.
iii. that the Ld. Trial Court has committed grave error by passing the summoning order relying on the DIR.
iv. that the Ld. Trial court has wrongly mentioned the qualification of wife as 10th pass, although she has mentioned her qualification as B.A (Graduate) in her income affidavit.
v. that the Ld. Trial Court has ignored that the respondent/ wife has not placed on record any material to support that the husband/ appellant is earning a handsome amount and passed the order without considering the status of the husband who is a daily wage labourer.
vi. that the Ld. Trial Court has not considered the written submissions filed by the appellant / husband Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 2024.04.24 Page 8 of 22
17:46:28 +0530 and has wrongly assessed the monthly income of appellant as Rs.20,903/- per month.
8. I have heard Ld counsel for both the parties and perused the record.
9. Ld. Counsel for the husband argued on the similar line of grounds as taken in the instant appeal. It was forcefully argued that the impugned order is not sustainable in the eyes of law as Ld. Trial Court wrongly assessed the income of respondent/husband @ Rs.20,903/- per month as a skilled labour in NCT of Delhi. It was further argued that appellant is working as daily wage labouror under a carpenter and earning Rs.7,084/- per month. It was argued that he has liability of his parents and two dependents who are unmarried (one sister aged about 20 years and one brother aged about 17 years, who is mentally sick since his birth), and totally dependent upon him. It was further argued that the Ld Trial Court failed to consider the fact that complainant/wife has not approached the court with clean hands rather concealed and suppressed material facts. It was further argued that the wife is well educated and is capable of earning more than the husband. It is urged that complainant/wife herself has committed various acts of cruelty upon the appellant and as such, respondent/husband is not liable to pay maintenance to her.
He also argued that the wife has never been subjected to domestic violence. On the strength of these arguments, husband/respondent seeks setting aside of impugned order.
Digitally
signed by
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 2024.04.24 Page 9 of 22
17:46:35
+0530
10. On the other hand, Ld. counsel for the wife argued that the Ld. Trial Court after considering all the facts and circumstances has wrongly awarded the maintenance of Rs.10,000/- per month to her and her daughter. He submitted that the husband/ respondent has given false declaration that he is having annual income of Rs. 85,000/- per annum. He also argued that the husband respondent has various sources of income and is earning more than Rs.2,00,000/- per month. He argued that the husband respondent is paying around Rs.4,000/- on electricity bill which itself shows that his income is not around Rs.7,000/- per month but more than that.
11. At the outset, I may observe that the factum of marriage has not been disputed by the parties. The complainant/ wife alleged that she was subjected to domestic violence by the respondent/ husband and his family members. However, the same has been denied by the appellant. It is a settled law that serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during the course of trial after parties lead their respective evidence. Since, the respondent/wife has made allegations of she being subjected to domestic violence by appellant, a prima facie case for domestic violence is made out in the instant case. Therefore, the observation of Ld Trial Court on this count cannot be faulted with. Therefore, the said plea of appellant/husband stands rejected without being any merit.
Digitally
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 signed by
PURSHOTTAM Page 10 of 22
PURSHOTTAM PATHAK
PATHAK Date:
2024.04.24
17:46:40
+0530
12. The other contention of appellant is that the wife is now residing at her parental house i.e. B-90, Shiv Park, Khanpur, New Delhi and thus, the Trial Court has no jurisdiction to try and decide the case as neither the husband nor the wife lives within the jurisdiction of the Trial Court. The record reveals that the Ld. Trial Court had called for a domestic incident report (DIR) from the concern protection officer which forms part of the Trial Court record. The report reveals the present address of the complainant/wife as C-159, Taiyyab Lane, Shaheen Bagh, New Delhi and also at 176, Durga Vihar, New Delhi. This is a disputed question of fact requiring evidence and cannot be decided by this court at this stage. Thus, the Trial Court has rightly observed that it has the territorial jurisdiction to entertain the petition filed by complainant/wife. It is a settled law that though a magistrate is not obliged to call for and consider the DIR before issuing notice to the respondent, however, if the DIR has been submitted then that should be considered in view of the proviso of Section 12 (1) Act. Reliance is placed upon the judgment of Hon'ble High Court of Delhi in case Shambhu Prasad Singh Vs. Manjari Crl MC 3083/2011.
13. Now the legality of award of interim maintenance @ Rs.10,000/- per month by impugned order shall be decided by this court. Before considering contentions of appellant/husband, I may mention here that while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the Digitally signed by CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAM Page 11 of 22 PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:46:44 +0530 respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial. It is also pertinent to note here that as per the dictionary meaning of the word 'maintenance', it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes. For computing the maintenance, the following tests have been laid down by Hon'ble Apex Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. 1997 (7) SCC 7, wherein it has been observed that:-
"No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
14. Further, Hon'ble Apex Court in case titled as Rajnesh Vs Neha & Anr, Crl. Appeal No. 730/2020 (arising out of SLP (Crl) No. 9503/2018, dated 04.11.2020 has held as under :
Digitally signed by PURSHOTTAM CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAM PATHAK Page 12 of 22 PATHAK Date:
2024.04.24 17:46:51 +0530 "Criteria for determining quantum of maintenance (i) The objective of granting interim / permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non working wife."
15. In Manish Jain v Akanksha Jain, this Court held that "the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. (ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
Digitally
signed by
PURSHOTTAM
CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAM PATHAK Page 13 of 22
PATHAK Date:
2024.04.24
17:46:55
+0530
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meager that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort"
16. Further, the Delhi High Court in Bharat Hegde v Smt. Saroj Hegde, 140 (2007) DLT 16, laid down the following factors to be considered for determining maintenance :
1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.
10. The non applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act.
17. Having discussed the principle of law, I shall now examine whether Ld. Trial Court erred in law (as contended by both the parties) by assessing the income of appellant to the tune of Rs.20903/- per month (as per minimum wages applicable for NCT of Delhi) and awarding monthly interim maintenance @ Rs.5000/- for Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PATHAK Date:
2024.04.24 Page 14 of 22 17:47:00 +0530 the complainant and Rs. 5000/- for the child ) based thereon or the impugned order is justified in the facts and circumstances of the present case.
18. One of the grounds on which appellant seeks setting aside of impugned order, is that the complainant/wife is qualified and is capable of working. It was forcefully argued on behalf of respondent/ husband that being qualified, complainant /wife is capable of earning and therefore, no maintenance could be awarded to her. This issue is no more 'res integra' in view of the settled position of law. Hon'ble High Court of Delhi in case titled as Kanupriya Sharma Vs State & Anr, Crl. Rev. Pet. 849/2018, Crl. M.A. No. 33234/2018, has observed as under :-
"28. Further, it may be seen that a claim of maintenance by a wife under section 125 Cr.P.C. is qualified by the expression 'unable to maintain herself'.
29. There are no such qualifying words under the DV Act. Under section 12 of DV Act, an aggrieved person can approach the Magistrate seeking one or more of the reliefs under the DV Act. Under section 20 DV Act, the magistrate has powers to direct 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 inter alia include 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 Cr.P.C. or any other law for the time being in force. Under section 20(2) the monetary relief granted has to be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
30. The grant of maintenance under the DV Act has not been made dependent upon the expression 'unable to maintain herself'. Further, the expression ''unable to maintain herself' does not mean capable of earning.
In the present case, whether Petitioner is actually earning or qualified and capable of earning are again two different things. As Digitally CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 signed by PURSHOTTAM Page 15 of 22 PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:47:04 +0530 noticed above, no material has been produced by Respondent no. 2 to show that the Petitioner is gainfully employed or receiving any salary and actually earning. The pleas raised by the Respondent no. 2 would be required to be established at trial. Till Respondent no. 2 establishes by leading cogent evidence that Petitioner is gainfully employed and receiving salary, there is no justification to deny maintenance to the Petitioner-wife."
19. In view of aforesaid legal position, plea of appellant/husband that complainant/wife is capable of earning is without any merit.
20. Now coming to the last plea i.e. legality of interim maintenance: Perusal of Trial Court record reveals that complainant/wife had filed an income affidavit in which she claims to be a housewife having no income and dependent upon her family members. Income affidavit of respondent/husband also came to be filed on 07.12.2022, wherein he claimed that he is working as a daily wage labourer under a carpenter and having monthly income of Rs.7,084/- per month. He further claims in his income affidavit that his parents, one sister aged about 20 years and one brother aged about 17 years (who is mentally sick since his birth) are dependent upon him. Further, perusal of reply filed by respondent/husband to the application of complainant/wife before Ld Trial Court shows that he has claimed that he is not running any business or having any rental income as alleged by the complainant/ wife.
21. On the other hand, the complainant/wife claimed that respondent/husband is earning more than Rs.3,20,000/- from his rental income, from junk food corner, modeling and also from the work of fabrication of Iron/ steel and aluminum items. Though the complainant claims that Digitally signed CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 by Page 16 of 22 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:47:09 +0530 monthly income of respondent is more than Rs. 2,00,000/- however, no credible evidence has been brought on record in support of said averments except some electricity bills.
22. However, as rightly observed by Ld Trial Court, both the parties failed to bring on record any document in support of their respective contentions. Ld Trial Court keeping in view the fact that appellant/husband is evasive about his income and that he must be earning at least equal to income of a skilled labour in NCT of Delhi, assumed the income of appellant/husband as per Minimum Wages Act @ Rs.20,903/- per month under category of skilled labour. The husband respondent had filed the income certificate issued by Revenue Department, Govt. of NCT of Delhi, showing his income as Rs.85,000/- per annum. However, it appears that the certificate has been issued by the authorities on the self declaration made by the husband/ respondent and no inquiry qua same has been done by the issuing authority before issuing this certificate. In my considered view, the said approach thereby assessing the monthly income of appellant/husband as per Minimum Wages Act i.e. @ Rs. 20,903/- per month applicable in NCT of Delhi, cannot be faulted with. Reliance is placed upon judgment of Hon'ble High Court in case Khem Chand Vs Bhagwati, Crl M.C. No.812/2016, Crl. M.A No. 3423/2016 dated 22.01.2019, wherein it was held as under :-
"5. The petitioner claims that he is non-matriculate and has no source of income, he having been engaged in earning his livelihood as a driver of three wheeler scooter (TSR) till 2006, cannot be acted Digitally signed by CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAM Page 17 of 22 PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:47:15 +0530 upon. He has not disclosed as to how he has been surviving all along. It cannot be believed that a person who was capable of supporting a family by getting married and raising a child would all of a sudden become devoid of all sources of income.
6. It is clear and is evident from the order of the sessions that the petitioner is concealing facts, intentionally withholding information about his income. It is noted that the Metropolitan Magistrate faced with a situation wherein respondents were also unable to muster clear proof, has assumed the income notionally on the basis of minimum wages and on such basis has passed the order of interim maintenance. The approach of the Metropolitan Magistrate in these circumstances cannot be faulted."
23. Once the monthly income of appellant/husband is assessed @ Rs.20,903/- per month (as per minimum wages) the principles of apportionment is to be applied to the family resource cake i.e. income of appellant @ Rs. 20,903/-per month. The parents of respondent/ husband and his siblings cannot be said to be dependant upon the husband as the claim of husband that he is earning only Rs. 7,084/- per month, itself shows that his parents must have independent source of income as it cannot be believed that from meager amount of Rs.7,084/- he is taking care of his wife, children, parents and siblings. The award of interim maintenance @ Rs.10,000/-, can by no stretch of imagination said to be unjustifiable or exorbitant keeping in view the 'principle of apportionment' as laid down by Hon'ble Delhi High Court in "Annurita Vohra vs. Sandeep Vohra", 110, (2004) DLT 546 and followed in "Nitin Sharma v. Sunita Sharma", 2021 SCC OnLine Del
694.
24. In view of the above observation, the appeal bearing no. 224/2023 and 278/2023 are accordingly dismissed.
Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PATHAK Date: Page 18 of 22 2024.04.24 17:47:20 +0530
25. Another appeal bearing CA No. 225/2023 has been filed by the appellants assailing the same impugned order dated 11.07.2023, vide which the application filed by the applicants u/s 258 Cr.P.C. with prayer to discharge them from said proceedings was dismissed.
26. The Ld. MM vide impugned order dated 11.07.2023 dismissed the said application with following observations:-
"6. It is to be kept in mind that this court is a criminal court and cannot review its own order and thus taking of such ground that the earlier order had illegality is of no use. The order of summoning could have been challenged before the appellate court within the prescribed time, however, the same has not been done.
7. The only way which had been provided in the act there by this court can revoke or modify its own order is that if there is a change of circumstances as has been provided in Section 25 of the Act. It has not been submitted before the court that since the time when the summoning order was passed and these applications were moved, there has been change of circumstances which had necessitated a revocation of the order passed. Since there is no change of circumstances which has been prayed on behalf of applicants/ respondents this court cannot revoke its own order.
8. In the humble opinion of this court, since this forum is a criminal court, an earlier order passed in these proceedings can only be revoked / modified within the purview of Section 25 of the Act and not beyond it, since this court does not have the power to review its own order. Moreover, the grounds which have been raised by the respondent are matter of trial and cannot be summarily decided at this stage. 9. In view of the same reasons as discussed above, that this court cannot review/ revoke its own order beyond the purview of Section 25 of the Act, the application moved on behalf of respondent no. 1, 2 to 6 and 8 for dismissal / deletion of their names from the array of parties are disposed off as dismissed."
27. The impugned order has been challenged by the appellants on following grounds:-
i. that the impugned order dated 11.07.2023 suffers from serious irregularity and has been passed Digitally signed by PURSHOTTAM CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PURSHOTTAM PATHAK Page 19 of 22 PATHAK Date:
2024.04.24 17:47:24 +0530 mechanically without appreciating the materials on record in their proper perspective.
ii. that there was no domestic relationship between the appellants and the husband and wife as they have been residing separately since their marriage in the year 2015.
iii. that the Trial Court has passed the order without hearing the arguments and without considering the written submissions filed by the appellants.
iv. that as per allegations the incident took place at Shaheen Bagh, Jamia Nagar, Okhla, Delhi therefore, this court has no jurisdiction to take cognizance of alleged offence.
v. that the allegations of dowry and cruelty are vague and have been labeled only to settle scores with the husband and his family members.
28. Ld. counsel for the appellants could not explain under which provision he had sought the discharge of appellants from the DV Act proceedings in the complaint filed by the respondent/wife under Section 12 of DV Act.
29. The various reliefs that the magistrate can grant are stipulated in chapter IV of the DV Act. Under Section 12 an application can be made to the magistrate by the aggrieved person or protection officer or any other person on behalf of the aggrieved person. Under Section 18 the magistrate can pass a protection order and section 19 of Digitally signed CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 by Page 20 of 22 PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.04.24 17:47:29 +0530 DV Act empower him to pass residence order. Monetary reliefs can be granted under Section 20 of DV Act and custody can be decided under Section 21. Section 22 empowers the magistrate to grant compensation and damages. Under Section 23, a magistrate can grant an interim Ex-parte order.
30. In the proceedings before Magistrate in complaint under Section 12 of DV Act, the respondent is not an accused and it is only section 31 (2) of the act which alludes the term accused, only when an offence i.e. breach of protection or interim protection order has alleged to have been committed by respondent under Section 31 (1) D. V. Act. Criminality attached under Section 31 is only to a breach of protection order under Section 18 or to an interim protection order under Section 23, or under Section 33 for failure of a protection officer to discharge their duties without sufficient cause.
31. The procedure to be followed by a magistrate in dealing with an application for reliefs under chapter IV is set-out in section 28 of the Act. A complaint under Rule 2(b) of DV rules is defined as an allegation made orally or in writing by any person to a protection officer. Hence, an application under Section 12 not being a complaint as defined under Section 2 (d) Cr.P.C., the procedure for cognizance set-out in Cr.P.C. have no application to proceedings under DV Act. As the magistrate is not taking cognizance of any offence, the issuance of process under Section 204 Cr.P.C. also has no application. Hence, the Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 PATHAK Date:
Page 21 of 222024.04.24 17:47:33 +0530 requirement of framing of charge against the respondent, who is not an accused, does not arise.
32. The proceedings before the Ld. Magistrate are seeking certain relief which are available under the act and not for any offence. When there is no offence, the requirement of framing of charge or the question of discharge does not arise. The only remedy available to the appellants was to challenge the summoning order however, they have not challenged it and the same cannot be dealt in present proceedings as being not prayed and also being barred by limitation.
33. Accordingly, this appeal bearing no. 225/2023 stands dismissed.
34. All the three appeals are disposed of in terms of aforesaid observations.
35. All the appeal files be consigned to record room after due compliance. One copy of judgment under signature of undersigned be placed in CA No. 278/2023 and digitally signed copies be placed in the other appeals.
36. TCR be sent back to Ld Trial Court along with a copy of this judgment.
37. Copy of this judgment be given dasti to parties.
38. All the appeal files be consigned to record room after Digitally signed by due compliance. PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.04.24 17:47:45 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 24th DAY OF APRIL, 2024 SAKET COURTS: N.D (This judgment contains total 22 signed pages) CA No. 224/2023 , CA No. 278/2023 and CA No. 225/2023 Page 22 of 22