Delhi District Court
Kashish Sachdeva vs Dr Priyanka Arora on 17 November, 2023
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSION JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET01-001500-2023
CA No:- 15/2023
Kashish Sachdeva
S/o Sh. Kewal Sachdeva
R/o House No. 370, Vinoba Basti
Near Ramesh Chowk
Sriganga Nagar-335001
....... Appellant
Versus
Dr. Priyanka Arora
W/o Sh. Kashish Sachdeva
D/o Sh. Vinod Kumar Dang
R/o H. No. 155, Geeta Apartment
Geeta Colony, Delhi-110031
....... Respondent
Date of Institution : 03.02.2023
Date of Reserving Judgment : 06.10.2023
Date of Decision : 17.11.2023
JUDGMENT
1. The present appeal has been preferred by Sh. Kashish Sachdeva (hereinafter referred to as 'appellant') assailing the order dated 05.01.2023 passed by the court of Ld. MM (Mahila Courts-01/East District, Karkardooma Courts, Delhi) in CT Case no. 311/2021 titled as Dr. Priyanka Arora Vs Kashish Sachdeva & Ors. filed under the provisions of Protection AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:32:45 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 1 of 11 of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') whereby appellant/ husband was directed to pay Rs.15,000/- per month to Dr. Priyanka Arora (hereinafter referred to as 'respondent'), towards interim maintenance for herself from the date of filing of petition in question till disposal of the case.
Factual Matrix
2. Succinctly stated, a complaint under Section 12, 18, 19, 20 and 22 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') was filed by the respondent/wife against the appellant/husband and his family members. The respondent averred in her petition that she got married to the appellant on 19.02.2019 according to Hindu rites and customs at Sriganganagar, Rajasthan and her parents had spent around Rs. 40,00,000/- in the said marriage. It was averred that respondent disclosed the factum of her first marriage to the appellant in their first meeting on 05.11.2017 and that the said marriage was lawfully dissolved on 18.04.2015. It was alleged by the respondent that soon after marriage, she was subjected to taunts from the family members of the appellant for bringing insufficient dowry. The respondent/wife further levelled allegations of being abused and threatened by the appellant/husband and his family members on various occasions, owing to which she had to be rescued from her matrimonial home in Delhi on 06.08.2020 with the help of police and she was constrained to file the petition under relevant provisions of DV Act. AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:32:53 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 2 of 11
3. During pendency of the said petition, the application of respondent/wife seeking interim maintenance was disposed by Ld. Trial Court vide impugned order dated 05.01.2023 with the following observations as under:-
".... 6. I have heard the rival submissions at length and have perused the record thoroughly.
7. It is the moral duty of the husband to maintain his wife and children, one that respondent cannot wriggle out of. However, in case where both the parties are equally well qualified, it does not seem appropriate to burden one party with the liability of maintaining the other, especially in the circumstances of the present case when the parties do not have any children. In a matrimonial litigation, it regrettably becomes the practice of litigating parties to conceal their true income and exaggerate their true expenses. Coming to the facts of the present case, no justification has been provided for the employment status of the petitioner. It is not the case of the petitioner that she cannot hold a job or secure employment due to a particular reason. It appears that the petitioner has intentionally not secured a job for herself in order to obtain maintenance from the respondent. Such conduct does not have the support of this court. It appears that the petitioner has intentionally attempted to take undue advantage of a legislation which was made with a social welfare intention, in order to safeguard the rights of a woman truly in distress. This court would be remiss in its duties if it did not advice the petitioner to look for a job and maintain herself, in light of being well qualified. However, since the petitioner is currently unemployed and keeping in mind that it would require some time for the petitioner to secure any gainful employment in consonance with her abilities and education, out of the income of the respondent, I deem it fit to grant Rs. 15,000/- per month to be paid to the petitioner by the respondent from the date of filing of present petition till the disposal of the present case. The said amount is directed to be deposited into the bank account of the petitioner before 15th day of every month. Respondent is directed to clear the arrears of the maintenance within 6 months of this order....."
AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:32:59 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 3 of 11 Grounds of Appeal
4. Being aggrieved of the abovesaid order, the appellant has assailed the same on primarily following grounds:-
(i) That impugned order passed by Ld. MM is based on surmises and conjectures which are contrary to the record;
(ii) That Ld. Trial Court failed to appreciate that the appellant is suffering from 70% hearing loss in his left ear and 20% hearing loss in his right ear and the mother of appellant has been suffering from arthritis and appellant is also burdened with liability to pay EMIs towards car loan and personal loan;
(iii) That Ld. Trial Court failed to appreciate that appellant is residing in a rented accommodation and paying rent of Rs. 24,000/- per month;
(iv) That Ld. Trial Court did not consider the fact that respondent is a well-qualified lady who concealed the fact that at the time of disposal of interim application for maintenance, she was already running her dental clinic under the name and style of 'Miles of Smiles' at Block-7, Geeta Colony, Delhi;
(v) That Ld. Trial Court did not consider the actual financial status /income of appellant and ignored the earning / financial status of respondent.
5. A reply was filed by the respondent/wife in response to the present appeal wherein it is averred that the order passed by Ld. Trial Court was just and reasonable and needs no interfer- ence by this Court. It is averred that after marriage, respondent started her own clinic by investing huge money taken from her parents at Gurugram, Haryana but the same was forcibly shut down by the appellant and his family members. It is averred by the respondent that since the day, she left her matrimonial home in the year 2019, she became jobless and was not able to main- tain herself and was totally dependent upon her parent's mercy. It is further averred that during the proceedings of the case and be-
AKASH Digitally signed by AKASH JAIN CA No:- 15/23 JAIN Date: 2023.11.17 17:33:06 +0530 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 4 of 11 fore disposal of the interim maintenance application, owing to acute financial crunch, she discussed her problem with her senior Mr. Kalia who offered her to work in his clinic as 'On call con- sultant' and thereafter she started working with him at his clinic. It is averred that the income affidavit and documents pertaining to her income were filed by her prior to joining the aforesaid clinic as such, there was no occasion to incorporate the said fact in the affidavit. While denying the averments and grounds raised in the appeal, the respondent prayed for dismissal of the present appeal.
6. Arguments heard on behalf of both the parties and record perused carefully.
7. Suffice it to say, the factum of marriage between both the parties is not in dispute. It is also not in dispute that both appellant and respondent resided together in a shared household post marriage. While, respondent/wife has made allegations that she was subjected to domestic violence by appellant and his family, same has been categorically denied by the appellant. It is well settled that serious disputed questions of facts which require evidence cannot be gone into at the stage of deciding an application for grant of interim maintenance as the same can only be decided during course of trial after leading of evidence. Since, the respondent has made allegations of being subjected to domestic violence by appellant, a prima-facie case of domestic violence is made out in the instant case.
AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:33:14 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 5 of 11
8. In the case of Rajnesh v. Neha & Anr, (2021) 2 SCC 324, Hon'ble Supreme Court of India was pleased to consider a wide gamut of issues arising out of matrimonial disputes which interalia included issues relating to payment of interim compensation and criterias for computing the same. The relevant excerpts from the judgment are reproduced for ready reference:-
".... (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.
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 AKASH Digitally signed by AKASH JAIN CA No:- 15/23 JAIN Date: 2023.11.17 17:33:24 +0530 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 6 of 11 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 spiraling 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.
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...."
9. In the backdrop of aforesaid legal proposition, the short question to be decided in present appeal is essentially quantum of interim maintenance fixed by Ld. Trial Court in favour of respondent and against the appellant. It is no longer res integra that the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the AKASH Digitally signed by AKASH JAIN CA No:- 15/23 JAIN Date: 2023.11.17 17:33:32 +0530 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 7 of 11 husband to conceal his actual income.
10. In the affidavit filed before Ld. Trial Court, the respondent/ wife stated that she was residing at her parental home and was unemployed having no independent source of income. The appellant/ husband denied the said averments and claimed that respondent/ wife was employed and earning Rs.80,000/- per month. In the absence of any material on record with respect to the status of employment of respondent/ wife, Ld. Trial Court granted maintenance to the tune of Rs. 15,000/- per month to be given by appellant/ husband to the respondent/ wife.
11. Now, it is argued by Ld. Counsel for appellant that the respondent/ wife deliberately concealed the fact that during the pendency of proceedings for grant of interim maintenance before Ld. Trial Court, she was running her dental clinic under the name and style of 'Miles of Smiles' at Geeta Colony, Delhi. In support of his arguments, Ld. Counsel for appellant placed on record photograph of board of the dental clinic where name of the respondent finds mention. Ld. Counsel for appellant further placed on record copy of prescription of a patient visiting the said clinic on 10.09.2022 as signed by respondent, copy of Paytm receipt vide which Rs. 150/-was paid by said patient to the respondent and photograph of online website reviews given by patients of respondent. It is argued by Ld. Counsel for appellant that the fact that respondent/ wife was running her dental clinic had been brought to the notice of Ld. Trial Court by the appellant by way of an application under Section 340 r/w Section 195 Digitally signed AKASH by AKASH JAIN JAIN Date: 2023.11.17 17:33:40 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 8 of 11 Cr.P.C. moved on 29.10.2022, however, Ld. Trial Court proceeded to dispose the application for interim maintenance without considering the facts, concealment by respondent/ wife and change in circumstances brought on record by the appellant.
12. While, Ld. Counsel for respondent/ wife fairly conceded during the course of arguments of present appeal that prior to disposal of interim application for maintenance, the respondent started working in the aforesaid clinic i.e. 'Miles of Smiles', however, it is argued that the said clinic does not belong to the respondent and that she was merely working there as 'on call consultant' and was not earning Rs. 80,000/- per month as alleged by the appellant. It is further stated that since the income affidavit and connected documents therewith were filed by respondent prior to joining the aforesaid clinic, the factum of change in circumstances in her income could not be brought on record by her.
13. Be that as it may, the interim compensation in the present case in favour of respondent/ wife had been primarily fixed by the Ld. Trial Court on account of her being allegedly unemployed having no source of income. Ld. Trial Court rather went on to observe that respondent apparently did not secure a job/ employment in order to obtain maintenance from the appellant and that such conduct of the respondent has no support of the Court.
14. Now, it is admitted position of facts that at the time AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:33:46 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 9 of 11 of disposal of application for grant of interim maintenance, the respondent/ wife had been working as dental surgeon at Dental clinic namely, 'Miles of Smiles', Geeta Colony. The parties though are at loggerheads regarding income of the respondent from the said clinic and the designation/ position of the respondent at the said clinic.
15. Keeping in view the fact that change in circumstances regarding income of the respondent/ wife was not brought on record by the respondent at the time of disposal of application for grant of interim maintenance and considering the fact that the interim compensation to the tune of Rs. 15,000/- was essentially fixed by Ld. Trial Court in favour of the respondent owing to her being allegedly unemployed, this Court deems it expedient to set aside the impugned order dated 05.01.2023. The matter is accordingly remanded back to the Ld. Trial Court for fresh adjudication of interim application for maintenance after conducting appropriate inquiry/ taking fresh affidavit of respondent qua her nature of employment, period of commencement of employment/ job and income at the aforesaid dental clinic.
16. Nothing stated herein shall tantamount to the expression of an opinion on the merits of the case.
17. Appeal is accordingly disposed of in aforesaid terms. Trial Court Record be sent back to Ld. Trial Court along with copy of this judgment. Parties are directed to appear before AKASH Digitally signed by AKASH JAIN JAIN Date: 2023.11.17 17:33:53 +0530 CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 10 of 11 Ld. Trial Court on 29.11.2023.
18. File be consigned to record room after due compliance. Digitally signed by AKASH JAIN AKASH Date:
JAIN 2023.11.17
17:34:01
+0530
ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 17.11.2023 ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
This judgment contains 11 pages and each paper is signed by me. Digitally signed by AKASH JAIN AKASH Date:
JAIN 2023.11.17
17:34:08
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
CA No:- 15/23 Kashish Sachdeva v. Dr. Priyanka Arora Page No:- 11 of 11