Delhi District Court
Present Address vs Dr. Kakali Roy on 19 July, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 133 of 2020(RBT 120/2022)
IN THE MATTER OF:
Dr. Prabir Maji,
S/o Sh. Tapan Maji
R/o Village Dharampur,
P.O. Rani Simulia, Police Station Ghatal,
District Paschim Midnapore,
West Bengal-721212
Present Address:
Specialist Doctor, Department of
Pediatrics, Tata Main Hospital,
C-Road West,Northern Town, Bistupur,
Jamshedpur, Jharkhand-831001 .......Appellant
Versus
Dr. Kakali Roy
D/o Mr. Pankaj Kumar Roy,
R/o Masjid Moth AIIMS,
Hostel No.14, Room No. 329,
New Delhi-110049
Also At:
Dr. Kakali Roy,
D/o Mr. Pankaj Kumar Roy,
Kalitala, PO Laskarpur, P.S. Sonarpur,
CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 1/10
South 24 Parganas,
Kolkata West Bengal-700153
........Respondent
Instituted on : 14.12.2020
Reserved on : 06.07.2023
Pronounced on : 19.07.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) preferred by Dr. Prabir Maji against the order dated 21.11.2020 of Ld. MM-02 (Mahila Court), South District in CT No. 26334/2019 titled as "Dr. Kakali Roy Vs. Dr. Prabir Maji & Ors." whereby he was directed to pay Rs.22,000/- per month as interim maintenance for the minor child and Rs.8,000/- towards the monthly rent for the respondent with effect from the filing of application u/s 23 of the D.V. Act.
2. Briefly stated the facts as per record are as under:-
The respondent filed an application under Section 12 of the Act before Ld. Magistrate on 22.08.2019 against Dr. Prabir Maji (husband), Mr. Tapan Maji (father- in-law), Ms. Basanti Kala (sister-in-law), Ms. Chandana Kongar (sister-in-law), Ms. Bandana Mondal (sister-in-law), Ms. Latika Maji (sister-in-law), Mr. Shakti Kala (brother-in-law), Mr. Srimanta Kongar (brother-in-law), Mr. Ashok Patar (husband of paternal Aunt/ Fufa), Mr. Abhijit Patar (cousin of Prabir), Ms. Labanya Kala (Niece of Prabir) and Ms. Deboshmita Mondal (Niece of Prabir). After considering the Domestic Incident Report filed by the Protection Officer alongwith record, notice was issued to Dr. Prabir Maji and same was declined qua his relatives vide order dated CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 2/10
03.09.2019. Thereafter, an application under Section 23 of the Act moved on behalf of the respondent praying for interim maintenance was disposed of (after hearing both the parties) by Ld. Trial Court vide order dated 21.11.2020. Vide said order, the appellant was directed to pay Rs.22,000/- per month as interim maintenance for the child and Rs.8,000/- towards the monthly rent for the respondent with effect from the filing of application u/s 23 of the D.V. Act. That order is being challenged in these proceedings.
3. Arguments heard.
4. Ld. Counsel for appellant has argued that the impugned order has been passed by Ld. Trial Court without properly appreciating the facts and the law applicable thereupon. It has been submitted that Ms. Saloni Singh, Ld. MM had heard the arguments on the application u/s 23 of the Act filed on behalf of respondent on 15.10.2020 and 09.11.2020. The matter was fixed for order on 21.11.2020, however before that she was transferred from that Court in terms of order no. 71/DHC/Gaz./G- 7/VI.E.2(a)/2020 dated 18.11.2020 of Hon'ble Delhi High Court with immediate effect. It has been submitted that the impugned order passed on 21.11.2020 was without jurisdiction and appeal deserves to be allowed on this ground alone. On merits, it has been argued that the finding of Ld. Trial Court to the effect that the respondent would be spending not less than Rs.35,000/- to Rs.40,000/- on the living expenses of the child was erroneous as said figure has been arrived at by Ld. Court for a child less than 02 years of age, without proof. It was submitted that the respondent herself was a doctor so there were no medical expenses qua the child. It was further submitted that no current salary slip was filed on behalf of respondent so she was not entitled to maintenance. It was also submitted that the respondent was not entitled for monthly rent as she was getting HRA from her department. Prayer has been made for setting aside the impugned order. Reliance has been placed on following judgment:-
CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 3/10(i) Smt. Ranjana Gupta Vs. Rajnesh Gupta & Ors, Crl. Rev. P. 637/2013 Delhi High Court.
5. Ld. Counsel for respondent on the other hand has argued that there is no illegality in the impugned order. It was argued that Ld. Magistrate was justified in passing the impugned order despite transfer order dated 18.11.2020 of Hon'ble Delhi High Court as she had heard the arguments and had reserved the matter for order. It was submitted that the monthly expenses of the child have been rightly estimated by Ld. Magistrate as the respondent was a working woman and she requires a care giver for the child. It was also submitted that medical expenses of the child cannot be treated as nil because the consumables are not free even for the respondent. It was also submitted that Ld. Trial Court has drawn adverse inference against her for not filing the current salary slip. He has prayed for dismissal of appeal. She has relied upon following judgments:-
(i) Annurita Vohra Vs. Sandeep Vohra 2004 (3) RCR 362 (Delhi HC)
(ii) Karan Vs. State NCT of Delhi, Crl. Appeal 352/2020 & 353/2020 (Delhi HC).
(iii) Bharti Arora Vs. State of Haryana, 2010 SCC Online P&H 10661 (P&H HC).
6. I have considered the rival submissions alongwith record.
7. For properly appreciating the rival contentions, relevant portion of the impugned order is being reproduced below:-
"The complainant being a working woman would need assistance of a domestic help to especially take care of her minor child and for which she seems to be spending a hefty sum. Further, keeping in mind the standard of living of the parties, the complainant would be spending not less than Rs.35,000/- to Rs.40,000/- on the living expenses of the CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 4/10 child and for which it is the responsibility of both the parties to contribute. Therefore, the respondent no.1 is directed to pay total of Rs.22,000/- per month as interim maintenance for the child and Rs.8000/- towards the monthly rent for the complainant with effect from the filing of this application under Section 23 of the D.V. Act till the disposal of the case and said amount is to be deposited in the bank account of the complainant on a monthly basis on or before every 7th day of English Calender month failing which the default would be viewed in light of the judgment of the Hon'ble High Court of Delhi in Gaurav Sondhi V. Diya Sondhi., 120 DLT (2005) 426."
8. Main ground taken by the appellant to challenge the impugned order is that Ld. Magistrate was not having jurisdiction to pass the order in question as she was transferred before that by order of Hon'ble High Court bearing no. 71/DHC/Gaz./G- 7/VI.E.2(a)/2020 dated 18.11.2020 with immediate effect. There is no dispute to the fact that Ms. Saloni Singh, Ld. Magistrate who passed the impugned order was transferred from the Court of MM(Mahila Court)-02, South District, Saket to the Court of MM-1, Shahdara, Karkardooma vide aforementioned order of Hon'ble High Court dated 18.11.2020 and that said order was effective immediately. Ms. Anuradha Prasad was posted as MM(Mahila Court)-02, South District, Saket vide same order of Hon'ble High Court. Meaning thereby, Ms. Saloni Singh was not the Presiding Officer of Court of MM-02/Mahila Court/South on 21.11.2020 when the impugned order was so pronounced by her successor. It seems that this case is squarely covered by the full bench judgment of Hon'ble Delhi High Court in Karan Vs. State of NCT of Delhi, Crl. Appeal No. 352/2020 and 353/2020. In that case, the facts were that Ld. ASJ at Karkardooma Courts had heard the arguments in a case for the offence u/s 302/34 IPC and had reserved the judgment for a particular date. Before the judgment could be pronounced on that date, he got transferred to Rohini Courts and he pronounced the judgment from his new posting later on. Said judgment was challenged before Hon'ble Delhi High Court on the ground that Ld. ASJ ceased to CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 5/10 have jurisdiction in respect of matter pertaining to Karkardooma Courts on being transferred with immediate effect to Rohini Courts. It is to be noted that in that case, transfer order in question was having a note appended to it which empowered the transferred judicial officers to pronounce the judgment/order in respect of the reserved matters within a period of 2-3 weeks after transfer took effect notwithstanding such posting/ transfer.
9. Admittedly, the facts in hand are different on this particular aspect as no such note was appended to the transfer order dated 18.11.2020 issued by Hon'ble Delhi High Court. After going through various judgments including the judgment of Hon'ble Apex Court in Gullapalli Nageshwra Rao Vs. APSRTC, AIR 1959 SC 308, wherein a principle was laid down to the effect that he who hears must decide by Hon'ble Apex Court and the judgment in Gokraju Rangaraju Vs. State of Andra Pradesh 1981 (3) SCC 132 wherein Hon'ble Supreme Court upheld the validity of judgments/orders passed by Sessions Judges whose appointments were subsequently quashed by Hon'ble Apex Court by applying de facto doctrine alongwith the provision as contained in Section 462 Cr.P.C. which provides that no finding, sentence or order shall be set aside merely on the ground that inquiry, trial or other proceedings took place in the wrong jurisdiction unless there has been failure of justice, Hon'ble Delhi High Court rejected the challenge to the impugned judgment on the ground of lack of jurisdiction.
10. It is to be noted that in this case also, the arguments were heard at length by Ms. Saloni Singh, Ld. Magistrate before her transfer and matter was reserved for order. There is no dispute to said factual position. So, applying the principle that he who hears must decide as laid down by Hon'ble Apex Court in Gullapalli Nageshwra Rao Vs. APSRTC (Supra) alongwith section 462 Cr.P.C., this Court is of the view that no failure of justice has occurred in this matter. Ld. Counsel for CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 6/10 appellant has also failed to point out any such thing. So, the impugned order can not be faulted with on this ground alone.
11. Coming on merits, one of the objections taken by Ld. Counsel for appellant is that the respondent was not entitled for monthly rent as she was getting HRA from her department. Record shows that the respondent in her Income Affidavit dated 03.02.2020 has mentioned that she was living in a rented accommodation and was paying monthly rent of Rs. 22,000/- to one Sh. Natun Pandey. She has also stated that the rent being paid by her is so reflected in her bank account statement. Perusal of her bank statement on record shows that payment of a sum of Rs. 21,000/- has been reflected therein towards rent on 17.08.2019, however no further details as to whom such a payment has been made is reflected there. Thereafter, next payment towards rent as reflected in the statement is dated 04.10.2019 amounting to Rs.21,400/- made to one Sh. Natun Pandey(same is being treated as payment towards rent on the basis of Income Affidavit of the respondent). Further, payments to Sh. Natun Pandey have been so made on 02.11.2019, 05.12.2019 and 03.01.2020, all amounting to Rs. 22,000/- each. Admittedly, the latest salary/pay slip of the respondent did not come on record so it is not clear as to whether the respondent was getting any HRA from her employer or not, and if she was getting the same what was the exact amount thereof. Ld. Counsel for appellant has also assailed the impugned order on the aspect that respondent has not placed on record on her latest salary slip after mentioning in the Income Affidavit that she had resigned from her job on 09.01.2020 but still Ld. Trial Court granted her relief. It is to be noted that Ld. Trial Court has mentioned this fact in the impugned order and has also observed that same might have been done by the respondent to conceal her current income. Having said that, it is to be noted that the respondent has not been granted interim maintenance for herself so this aspect of concealment by respondent has been taken care of (even the respondent did not press for interim maintenance for herself before Ld. Trial Court). Coming back to the point of amount granted as monthly rent by Ld. Magistrate vide impugned order, as CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 7/10 mentioned earlier, there are certain payments allegedly made to the landlord Sh. Natun Pandey towards rent for the accommodation in which the respondent was allegedly residing. Admittedly, no rent agreement has come on record. The exact address of the tenanted premises has also not come on record. There is another point worth noting. As stated earlier, the earliest payment towards rent as mentioned/reflected in the bank account statement is dated 17.08.2019 which amounts to Rs. 21,000/-. Thereafter, it seems that no payment has been made towards rent in the month of September, 2019. The next payment has been made in October, 2019 amounting to Rs. 21,400/-. Thereafter, next three payments are amounting to Rs.22,000/- per month each. It is not clear as to how the alleged rent paid in August, 2019, October,2019 and November,2019 are varying. It is also not clear as to why no payment was made towards rent in September, 2019. These facts alongwith admitted fact that the respondent has not placed on recod her current salary slip makes it extremely doubtful as to whether the respondent was in fact living in a rented accommodation or not. Accordingly, this Court is of the view that Ld. Trial Court committed an error in granting a sum of Rs.8,000/- to the respondent towards monthly rent as mere averment to that effect in the Income Affidavit without placing on record supporting evidence of any nature which could have been relied upon by Ld.Trial Court to grant said sum, is not sufficient.
12. Last challenge of the appellant is to the interim maintenance of Rs. 22,000/- per month awarded to the child. It was argued that the sum awarded was on higher side considering that the child was only around 2 years of age at that time. It was also submitted that there were no monthly medical expenses of the child as the respondent herself is a child specialist. On the other hand, Ld. Counsel for respondent has submitted that the sum awarded was reasonable and same has been justified by Ld. Trial Court in the impugned order. It was also submitted that in any case, even child of a doctor will have to spend on medical consumables. Perusal of Income Affidavit filed on behalf of respondent shows that she has mentioned expenditure on the child CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 8/10 as Rs.70,000/- per month including sum of Rs. 18,000/- per month for a full time maid for baby care. Ld. Magistrate in the impugned order has clearly mentioned that the respondent has failed to file any documentary proof to support her claim of Rs. 70,000/- per month towards expenses of the minor child however, after taking into account the fact that complainant being a working woman would need assistance of a domestic help for taking care of her minor child came to conclusion that she would be spending not less than Rs.35,000/- to Rs.40,000/- as living expenses of child. This Court is not convinced with the arguments of Ld. Counsel for appellant on the aspect that the living expenses determined by Ld. Magistrate are on the higher side and that same are not justified for this reason. Though, the figure so arrived at may seem to be on higher side at first glance however it is to be noted that there cannot be any straight jacket formula for arriving at living expenses of a child and some guess work would be required to do that. Same shall vary from case to case depending on several factors including standard of living of parents of the child. Admittedly, in this case, both the parties are doctors so considering their standard of living, the expenses to the tune of Rs.35,000/- to Rs.40,000/- on the child on a monthly basis which includes the salary of a full time domestic help to manage the child in the absence of working mother can not be said to be unreasonable. This Court agrees with the submission of Ld. Counsel for respondent to the effect that even if the respondent herself is a child specialist, the medical consumables would not be free. In these facts, the appellant has rightly been directed to pay sum of Rs.22,000/- per month as interim maintenance for the child after relying upon the judgment of Hon'ble Apex Court in Rajnesh Vs. Neha, Crl. Appeal No.730/2020 in which, it has been held by Hon'ble Apex Court that the expenses pertaining to a child may be shared proportionately between the parties where the wife is working and earning sufficiently.
13. Considering the above discussion, the impugned order dated 21.11.2020 is set aside as far as same directs the appellant Dr. Prabir Maji to pay Rs.8,000/- per month to the respondent Dr. Kakali Roy towards monthly rent. He shall CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 9/10 continue to pay Rs.22,000/- per month as interim maintenance for the child in terms of said order. The amount paid towards rent till date by the appellant in compliance of said order, if any, be adjusted in the payments to be made in future.
Appeal stands disposed of in said terms.
Announced in the open (Sunil Gupta)
Court on 19.07.2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
CA 133/2020 Dr. Prabir Maji Vs. Dr. Kakali Roy Page 10/10