Delhi District Court
Smt. Roopa Dastidar vs Dr. Nilanjan Dastidar on 11 April, 2022
IN THE COURT OF SHRI GAGANDEEP SINGH : SPECIAL JUDGE (NDPS):
NORTH DISTRICT: ROHINI COURTS : DELHI
CRIMINAL APPEAL No. 134/2018 (DLNT01-010064872018)
1. Smt. Roopa Dastidar
W/o Dr. Nilanjan Dastidar
2. Nishita Dastidar (Date of birth - 16.09.2009)
(Through Appellant no.1 who is the mother and natural guardian)
D/o Dr. Nilanjan Dastidar
Both Resident of
B-8 Oriental Apartments
Sector-9, Rohini,
Delhi -110085. ...Appellants
VERSUS
1. Dr. Nilanjan Dastidar
S/o Narayan Dastidar
2. Smt. Namita Dastidar (since expired)
W/o Narayan Dastidar
3. Sh. Narayan Dastidar (since expired)
S/o (not mentioned in the memo of parties)
Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 1/13
4. Ms. Nabanita Dastidar
D/o Sh. Narayan Dastidar
All R/o Bidhan Palli, P.O & PS Madhyagram,
District-North 24 Paragons
Kolkata-700129
West Bengal. ....Respondents.
Date of Institution : 13.07.2018
Arguments Heard On : 25.03.2022.
Judgment Passed On : 11.04.2022.
JUDGEMENT
1. This is an appeal preferred by the appellants ( complainants before the Ld. Trial Court) against the impugned order dated 22.06.2018 passed by the court of Ld. Metropolitan Magistrate (Mahila Court -01), North District, Rohini Courts in Complaint Case No. 606/2017 titled as 'Roopa Dastidar & Anrs. V. Dr. Nilanjan Dastidar & Ors.' preferred u/s 12 of PWDV Act, by which the application of appellants for grant of interim maintenance has been decided.
2. The facts in brief of the appeal as pleaded are that the appellant no.1 got married with respondent no.1 as per Hindu Rites and Ceremonies on 03.02.2006 and out of the said wedlock, appellant no.2 was born on 16.09.2009. The present appeal has been filed by appellant no.1 for her and on behalf of appellant no.2 who is a minor and she being her mother / natural guardian. The respondent no.1 is the husband of appellant no.1 and father of appellant no.2. Respondent no.2 is mother-in-law, respondent no.3 is Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 2/13 the father-in-law and respondent no.4. is the sister-in-law of appellant no.1. The appellant has filed the domestic violence complaint under Section 12 of PWDV Act narrating about the various instances of domestic violence by the respondents. Appellant no.1 was so much harassed by the respondents that she was compelled to leave the matrimonial home in Kolkata alongwith appellant no.2 on 02.01.2012. Since then, she has been residing with her father at her parental home in Rohini, Delhi.
2.1 The appellant filed the complaint/application under Section 12 of PWDV Act on 02.05.2016 and respondents were summoned by the Ld. Trial Court. The Ld. Trial Court was pleased to grant them exparte ad-interim maintenance at the rate of 15,000/- per month for maintenance of Appellant no.2 from the date of filing till disposal of the application. The respondent no.1 after appearance and after much delay filed his income affidavit after being directed to do so by the Ld. Trial Court on several occasions and cost being imposed. But, still the respondent no.1 has not furnished till date the complete details as directed by the Hon'ble Delhi High Court in Kusum Sharma V. Mahender Kumar Sharma, Delhi High Court, FAO 369/1996 Dated 06.08.2020. Accordingly, the appellants have been constrained to file the application under Section 340 Cr.P.C which is pending consideration before the Ld. Trial Court. The interim application of the appellants under Section 23 of the D.V Act was decided by the Ld. Trial Court vide the impugned order dated 22.06.2018.
3. The said impugned order has been challenged by the appellant primarily on the following grounds:
(i) The impugned order passed by the Ld. Trial Court is bad, arbitrary and against the facts on record. The Ld. Trial Court has failed to appreciate the facts and circumstances as well as the documentary evidence on record.
Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 3/13
(ii) The Ld. Trial Court has failed to appreciate the fact that the parents of
respondent no.1 i.e respondent no.2 and 3 are not at all "dependent" upon the respondent no.1. They both retired from a decent govt. job and are getting handsome pension. The respondent no.2 has retired as Head-
Mistress from Govt. School of West Bengal and Respondent no.3 is retired from Kolkatta Corporation as Assistant Legal officer. The said fact has not been denied by Respondent no.1 at all in the entire written statement/reply, but still the Ld. Trial Court has held respondent no. 2 and 3 as dependents upon respondent no.1. In the paragraphs 28, 29 and 30 of their application under Section 12 of the D.V Act, the appellants have categorically mentioned about the said fact of respondent no. 2 and 3 being not dependents which has simply been baldly denied by the respondents without giving any details about their employment or manner in which they are dependent upon respondent no. 1.
(iii) The Ld. Trial court further failed to appreciate the fact that the income of the respondent no.1 is much more than Rs.80 thousand which has been assessed.
(iv) The Ld. Trial has further failed to appreciate the fact that besides the monthly income, the job of Assistant Chief Medical Officer of Delhi with Govt of West Bengal, respondent no.1 is having huge rental income from his two properties which are let out. One is the Flat No. 1-C First Floor, Modern Enclave- and second property is owned by him near to his residence which is the private house approximately 200 square feet which is also having two shops and residential accommodation. The said properties have been let out. The rental income of the same has not been disclosed by the respondent no.1. Apart from that, respondent no.1 is also having a lot Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 4/13 of savings and income from investment which he has not deliberately disclosed before the ld. Trial Court. Apart from that, the respondent no. 1 is also having income benefits from his Govt. Job i.e driver, govt vehicle which too has been ignored by the Ld. Trial. The respondent no.2 and 3 never appeared before the Ld. Trial Court and hence, it is apparent that they are deliberately concealing the material facts.
(v) The Ld. Trial court further failed to appreciate the fact that the respondent no.1 is not having any source of income since April, 2015 as she was forced to leave her teaching job with school due to her medical problems as she is suffering from Calcaneus Spur (Left Feet), varicose veins and various other problems including piles since September, 2009. As a result of this, she is unable to continue with her job as the job teaching requires her to stand for long working hours which she is unable to do so due to the underlying above discussed medical issues. Apart from that, the father of the appellant no. 1 is aged about 78 years and is suffering from various medical problems and is thus, unable to sustain himself alone.
(vi) The Ld. Trial Court has also failed to consider the fact that the age of the appellant is now about 40 years and at this age, she is unable to find any decent job of teacher in school at Delhi as the school in Delhi hire young and vibrant teachers. Thus, the Ld. Trial Court has failed to appreciate that the appellants have no source of income and are totally dependent upon the father of appellant no.1.
4. Ld. Counsel for the appellant, in support of his said grounds of appeal, has further argued that he has only challenged the quantum of interim maintenance as well as directions qua appellant no.1 that she is entitled to get interim maintenance for period Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 5/13 of one year from the date of impugned order. It is argued that as far as appellant no.1 is concerned, they have in detail discussed the reasons which led to (appellant no.1) leaving the job in March, 2015 from Mount Abu School. It was primarily due to her perennial medical problems as well as her family conditions. It is also not expected that she can maintain her family i.e the minor child and her father aged about 80 years and still continue with her school job which is quite demanding.
5. It is further argued that as far as the question of respondent no.1 and 3 being dependent upon respondent no.1 is concerned, the said fact has clearly been misinterpreted by the Ld. Trial Court as is apparent from the pleadings as well as reply of the respondents. Even otherwise, the said issue is not res integra as both of them expired after the passing the impugned order. Therefore, the prayer is made for enhancing the maintenance and setting aside the condition of one year. The reliance has been placed on following judgments :
a. Simar Gulati Vs Hitendra Gulati in CA No. 121/17 passed by Sh. Sandeep Yadav, Ld. ASJ-02, South East District, Saket Court, New Delhi ;
b. Ruchi Rai Sehmbey Vs Simon Jason Sahmbey, C.M. Appl 2452/2013 decided on 20.11.2013 by the Hon'ble Delhi High Court ;
c. Sunita Kachwaha Vs Anil Kachwaha in Crl Appeal no. 2310 of 2014 decided on 28.10.2014 passed by the Hon'ble Supreme Court of India ;
d. Shailja & Ors Vs Khobbanna in Crl Appeal no. 125-126 of 207 decided on 18.01.2017 passed by the Hon'ble Supreme Court of India ;
e.Vikaas Ahluwalia Vs Simran Ahluwalia, C.M. No. 4725/13 decided on 20.12.2013 by the Hon'ble Delhi High Court ;
Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 6/13 f. Rohit Sharma Vs Mrs Sonia Sharma, CM Appl 12214/13 decided on 21.10.2013 by the Hon'ble Delhi High Court ;
g. Farzana Ansari Vs Abid Ali Ansari, I (2015) DMC 3 (CN) (Bom.) passed by the Hon'ble Bombay High Court ;
h. Sujit Kumar Vs Vandana, MAT. APP (F.C.) 35/2015 passed by the Hon'ble Delhi High Court ;
6. Per contra, Ld. Counsel for respondent argued that the appellant no. 1 left the matrimonial home on her own without their being any dispute. They are still ready to take her back and if she returns back to the matrimonial home, she will be provided with all the facilities as well as the standard of living as per the parties status. Further, it is argued that the school job which the appellant no.1 was doing was not at all temporary. She deliberately, in order to sit idle and extract maintenance from respondent no.1 left the job just prior to the filing of the present petition.
7. As far as the medical issues / grounds taken by the appellant no.1 in her complaint for quitting the job are normal medical issues which do occur in day-to-day life and this cannot be reason for leaving the job. Hence, it is argued that there is no legal infirmity in the impugned order and the appeal is liable to be set aside. The reliance has been placed on following judgments :
a. Jasbir Kaur Sehgal (Smt.) Vs District Judge, Dehradun & Ors., (1997) 7 Supreme Court Cases 7 and ;
b.Annurita Vohra Vs Sandeep Vohra, 110 (2004) DLT 546 ; 2004 (3) AD 252.
8. Heard and considered the record as well as contentions of the parties.
Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 7/13
9. There are certain facts in the present case which are not disputed and are admitted. It is not dispute that the marriage between the parties took place on 03.02.2006; out of the said wedlock, appellant no.2 was born on 16.09.2009. It is also not in dispute that due to matrimonial dispute, the appellant no.1 left her matrimonial home on 2.1.2012 and since then she alongwith her daughter (appellant no. 2) are residing with her father at his house in Rohini, Delhi. It is also not in dispute that prior to the marriage, the appellant no.1 was not working though she was well-qualified. It is also not in dispute that after the marriage only, in the year,2011, she gained her professional qualification i.e B.Ed. It is also apparent from the record, after leaving the matrimonial home, in order to gain financial independence and instead of demanding financial assistance from the respondent no.1, the appellant no.1 got a job in a private school i.e Ryan International School, in September, 2012. She shifted to Mount Abu School in October, 2013 and worked there till March, 2015. It is her case that she was forced to leave the job due to perennial medical issues faced by her which are given in detail in para-28,29 & 30 of her complaint. She has specifically pleaded in para-26 of her complaint that in September, 2012, she got a temporary job at Ryan International School where she worked for certain period and thereafter shifted to Mount Abu School in October, 2013 after remaining jobless for about eight months.
10. In para-27, she has given the details about the medical issues faced by her due to long standing hours as a teacher which is a well known fact. Para-27 of the same is reproduced hereunder:
"27. That complainant 1 worked at Mount Abu School till March 2015. Due to long standing hours, as no chairs for teachers and no sitting allowed by school authority, the Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 8/13 complainant 1 started having severe pain her left foot. On visiting the doctor the complainant 1 was informed that she has callicus spar under her left foot due to which complainant is unable to stand for long. Having no other alternative complainant 1 had to resign and since then complainant is not working anywhere. Now again, complainant is completely dependent upon her father who is an old man about 75 years and surviving on his small income in need of regular medical care."
11. In reply to the said averments regarding reasons for her leaving the job, the respondents have pleaded in the Written Statement as under:
"27) That the Para 27 of the complaint is neither denied or accepted by the respondents."
12. It is thus, apparent from the said reply given on behalf of the respondents that they have not categorically denied the averment with respect to reasons for appellant no.1 leaving the job. Therefore, the arguments now advanced on behalf of the respondents that the medical issues faced by her are normal and she deliberately left the job is misinterpretation of the facts as well as their own stand as reflected from the reply filed before the Ld. Trial Court as discussed above. It is only an evasive denial.
13. In the said backdrop, the legal issue which requires to be considered as to whether the Ld. Trial Court was justified in awarding the interim period for a period of one year only to appellant no.1 with the hope that she will get herself employed being a professionally qualified woman. In this regard, the judgment of Hon'ble Delhi High Court in case titled as Binita Dass V. Uttam Kumar, Crl. Revision Petition No. 659/2017 Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 9/13 and Cr. M.A No. 14463/2017 is relevant . The relevant proposition of law is reproduced hereunder for the sake of convenience:
"6. It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning. The Supreme Court in Shailja & Anr. Vs.Khobbanna (2018) 12 SCC 199 has held that whether the wife is capable of earning or whether she is actually earning are two different requirements.
7. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income."
14. In the light of the said well-settled proposition of law, the issue of employability and employment are not to be mixed or misunderstood as has been done in the present case. It is not in dispute that the appellant no.1 is a well qualified woman who out of her circumstances due to matrimonial dispute was forced to take up the employment after she having left the matrimonial home in January, 2012. Prior to that, admittedly, she was not working despite being well qualified. It is also not dispute from pleadings of the parties on record that she has left the job in March, 2015 i.e around more than one year from the date of filing of the present petition before the Ld. Trial Court. So, no malafides can be imputed upon the appellant no. 1 for deliberately leaving the job just in order to gain maintenance from the respondent no.1 herein.
15. It is also not in dispute that she is a single mother having the responsibility of her minor daughter (appellant no. 2) as well as her aged father who is now aged about Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 10/13 80 years. The medical documents of her own illness, as well as her father illness have been filed on record in compliance of the order of Ld. Predecessor dated 21.10.2020 and at this stage, there is no reason to discard the said averments. In these circumstances, it has to be held that the Ld. Trial Court was not justified in directing the complainant/appellant no.1 herein to get herself employed within one year of passing of the impugned order.
16. Now, coming to the second ground of present appeal which is the issue of respondent no.2 and 3 being held to be held to be 'dependent' upon respondent no.1. Even though, the said issue not res integra in view of subsequent developments since the passing of the impugned order as both of them have since expired. Still, in order to decide the present appeal, the said issue is being discussed herein.
17. The appellants herein in their complaint under Section 12 of D.V Act in para 28,29 and 30 specifically discussed about the said issue and in specific terms pleaded about the issue of dependency. It has been specifically pleaded that both respondent no.2 and 3 are financially independent being retired govt officials. Respondent no.2 having retired as Head Mistress from Govt. School from the State of West Bengal and respondent no.3 having retired from Kolkota Municipal Corporation as Legal Officer. It is also pleaded that they both were receiving sufficient pension on account of services rendered as discussed above. In response, the respondents in their Written Statement replied as under:
"28) That Para 28,29, 30 of the complaint are not accepted or denied by the respondent and put the complainant to substantiate the contentions."
18. It is, thus, apparent from the said reply that apart from a simplictor bald denial, respondents remained silent about their employment and the fact of them Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 11/13 receiving pension from their respective employers. Thus, it is apparent that it is only a vague denial and it has to be held that both the said parents were not at all dependent at that point of time upon respondent no.1 being pensioners. The Ld. Trial Court had committed error in holding contrary and giving the said finding that they were dependent and accordingly proportioning the amount of maintenance for them.
19. Lastly, the issue of adequacy of interim maintenance awarded is taken up and basis for the same. As far as the monthly income of respondent no.1 is concerned, there appears to be no ground or documentary evidence on record which reflects that the monthly income of respondent no.1 to be more than Rs. 80 thousand which has been assessed by the Ld. Trial Court. The salary slip of the respondent no.1 has been filed on record before the Ld. Trial Court and apart from that he is having certain FDRs and its interest income has been added by the Ld. Trial Court. The averments made in the present appeal that the respondent no.1 is also fetching certain rental income from two properties out of which details of none of the properties mentioned, is only a vague plea based on surmises and conjectures only. It has been rightly discarded by the Ld. Trial Court. Therefore, the monthly income assessed by the Ld. Trial Court of the respondent no.1 is rightly stated to be Rs.80,000/- per month at the time of the impugned order.
20. In the light of the above-discussed reasons, I am of the considered opinion the said impugned order awarding interim maintenance needs to be enhanced qua appellant no.1 in view of the wrong finding qua dependency of parents of Respondent no.
1. As far as appellant no.2 is concerned, she has already been awarded interim maintenance of Rs.16,000/- per month which is the sufficient amount keeping in view the expenses pertaining to school and her personal needs. As far as appellant no.1 is concerned, she has been awarded Rs.13,000/- per month that too for one year from the said order. The said amount is on the lower side in view of the discussion above and by wrongly placing the parents of Respondent no.1 as dependent upon him. Therefore, the Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 12/13 interim maintenance of appellant no. 1 is enhanced from Rs. 13,000/- to Rs. 20,000/- per months. As far as the second condition in the impugned order for being entitled to interim maintenance for a period of one year from the date of order is also liable to be set aside being against the settled proposition of law as discussed above in case titled Binita Dass V. Uttam Kumar (supra) case. The other judgments relied upon on behalf of respondent are distinguishable on facts in the present case. Accordingly, the said condition is set aside. It is made clear that the both the parties shall remain at liberty to move the Ld. Trial Court for alteration of the said interim maintenance order due subsequent developments, if any, in future.
21. Accordingly, the appeal is allowed and disposed of accordingly.
22. TCR be sent back with a copy of this order.
23. Appeal file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
On 11.04.2022. Special Judge (NDPS):
North, Rohini Courts, Delhi
Roopa Dastidar & Anr Vs Dr Nilanjan Dastidar & Ors. 13/13