Delhi District Court
Himanshu vs Smt. Chitra on 28 September, 2022
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTHWEST
DISTRICT, ROHINI COURTS, DELHI
Crl. Appeal No. 32/2021
CNR No.DLNW010022462021
Himanshu
S/o Sh. Ram Krishan
at H. No. PVT380, GF
Rohini, Opposite Flat No. 334
Sector2, Pocket5
Rohini, Delhi110085
Also Posted at :
54 Battalion C.R.P.F.
Force No. 115084573 CTSK
Sri Nagar, J & K
C/O 56 A.P.O.
.... Appellant
Versus
Smt. Chitra
W/o Sh. Himanshu
D/o Rajesh Kumar
R/o C8/94, Sector5
Rohini, Delhi
Also at :
Office At: Rohini Suzuki
137/H, 34, Rohni, Sector3
Delhi110085
(Near Vishram Chowk)
......Respondent
Date of Filing : 08.03.2021
Date of Arguments : 21.09.2022
Date of Judgment : 28.09.2022
Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 1 of 11
JUDGMENT
1. The appellant has filed this criminal appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as "said Act") against an order dated 06.01.2021 (hereinafter referred as "impugned order") passed by Ld. MM (Mahila Court01), NorthWest District, Rohini, Delhi in a complaint case bearing CT No.9644/2017 titled 'Chitra V. Himanshu & Ors.', whereby the Ld. MM, while disposing off the application u/s 23 (2) of the said Act of the respondentherein/complainanttherein, directed the respondent No.1therein/appellantherein to pay Rs.6,000/ per month as interim maintenance to complainanttherein/respondent herein from the date of the said application till she is legally entitled to receive the same as per law. Vide the impugned order dt. 06.01.2021, the Ld. MM also ordered the respondent No.1 therein/husband to pay Rs.2,000/ as rent per month to the petitioner therein/wife in lieu of accommodation of the petitioner, subject to placing on record the rent agreement and rent receipt.
2. The brief facts, as set out in the present appeal, are that marriage between appellantherein and respondentherein was solemnized on 13.04.2015 according to Hindu rites and ceremonies and there was no child from the said wedlock. The respondent herein/wife filed a complaint u/s 12 of said Act seeking grant of relief(s) provided u/s 18, 19, 20 and 22 of the said Act along with an application u/s 23 (2) of the said Act against the appellant herein/husband and his family members on the grounds of domestic Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 2 of 11 violence. In the said complaint case, the Ld. MM passed the impugned order dt.06.01.2021.
3. Aggrieved by the said impugned order, the appellant has preferred the present appeal on the grounds among others that the Ld. MM has grossly erred in relying the material placed on record and financial condition/status of both the parties as well as the detailed income assets affidavit filed by both the parties. The application u/s 23 of the said Act was disposed off without hearing the arguments of appellant/husband counsel. The respondent/wife tried to play a fraud with the court to obtain favourable order by concealment and did not even file her bank account statement of other bank accounts, which later on came in the knowledge of the court and court observed it to be false. The respondent/wife is well qualified/graduate and Computer Diploma holder working woman and she is working in Rohini Suzuki Showroom, Sector03, Rohini, Delhi as Computer Operator and she is getting salary of Rs.15,000 to Rs.20,000/ pm and she has no other liabilities except to maintain herself. The respondent/wife was working prior to the marriage with appellant/husband. The respondent/wife has not filed true and correct income & asset affidavit before the Ld. MM. The appellant's mother is a senior citizen and suffering from various old age ailments and she is totally dependent upon the appellant being sole bread earner. The sister of the appellant is also dependent on the appellant. The respondent/wife is residing with her family members and she is not residing at rented accommodation. She has also not placed any document/proof that she Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 3 of 11 is residing at rented house. The respondent/wife has not mentioned her all bank account/income details in her income affidavit and she also did not file any documents regarding her expenditure. In this regard, the appellant has filed an application u/s 340 CrPC before the Ld. MM and without disposing of the said application the Ld. MM disposed of the interim maintenance application u/s 23 of the said Act. Previous counsel of the appellant did not appear before the Ld. MM on 56 dates and not argued on the interim application. Ld. MM did not issue any court notice to the appellant/husband before disposing off the interim maintenance application. In this regard the appellant has referred the judgments in the cases of Rafiq and Anr. Versus Munshilal & Anr. AIR 1981 SC 140 and Smt. Lachi and Ors. Versus Director of Land Records and Ors. AIR 1984 SC 41. The appellant has prayed to set aside the impugned order dt.06.01.2021.
4. The respondent has filed reply to the present appeal and raised the preliminary objections that the present appeal is barred by law. The appeal has been filed with mala fide intentions and there is nowhere mentioned in the appeal as to how the impugned order is bad in the eyes of law. In reply to the grounds of the appeal on merits, it is stated that Ld. MM has applied his judicial mind to the facts and the case laws on record and passed the impugned order dt.06.01.2021 according to law. The appellant has made a false cause of action in order to harass the respondent. The Ld. MM has applied his judicial mind to the facts and the case laws on record and according to law passed the impugned order dt.06.01.2021. The appellantherein is Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 4 of 11 giving bald and vague submissions without any substance. The mother of the appellant received a pension from NDMC and his sister already got married, so the appellant is not having any responsibility except to maintain the respondent/wife. The impugned order dt. 06.01.2021 is not bad under the law. The reply to the application u/s 340 CrPC has already been filed by the respondent/wife. The appellant had already having the knowledge of the proceedings of the trial court and deliberately/intentionally avoiding the process of law. In order to make false grounds of appeal, the appellantherein is giving bald and vague submissions without any substance. The other averments made in the present appeal against the respondent have been denied by the respondent in her reply to the appeal.
5. I have heard the Ld. Counsel for the appellant and Ld. Counsel for the respondent and I have also gone through the written arguments filed on behalf of the parties, the judgments referred and relied upon by the Ld. Counsel for the parties and impugned order as well as the materials available on record.
6. Ld. Counsel for the appellant argued that the appellant is posted in Kashmir as Safai Karmchari in CRPF, so he is not in a position to appear in the court on each date. Without reply and arguments on behalf of the appellant the impugned order was passed. Opportunity of being heard was not given to the appellant. The marriage between the parties was solemnized on 13.04.2015 and the complaint u/s 12 of the said Act was filed on 27.07.2017. The respondent/wife has concealed her income and did not disclose details Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 5 of 11 of her all bank accounts. The respondent/wife is Graduate and Computer Diploma holder. She is working as Manager in Rohini Suzuki Showroom, Sector03, Rohini, Delhi and getting salary of Rs.15,000 to Rs.20,000/ pm. During arguments, Ld. Counsel for the appellant stated that the photograph of the respondent/wife doing her job is placed at page No. 44 of this appeal file. She has not filed her bank statement and ITR. There is no child from the wedlock of the parties. The respondent/wife has also no other liability except to maintain herself. The mother of the appellant is a senior citizen and suffering from cancer. His sister is a divorcee and she along with his mother is dependent upon the appellant being sole bread earner. The respondent/wife is not residing at rented accommodation and even she has not placed any document/proof or rent receipt till date that she is residing in a rented house. She is residing in her parental property. The party/litigant should not suffer due to mistake of the advocate. Ld. MM also did not issue any court notice to the appellant/husband before disposing off the interim maintenance application. In written arguments, the Ld. Counsel for the appellant has referred the judgment in the case of Rafiq & Anr. V. Munshilal & Anr. AIR 1981 SC 140 and Smt. Lachi and Ors. V. Director of Land records and Ors. AIR 1984 SC 41.
7. Ld. Counsel for the respondent argued that the appellant has no liability except to maintain the respondent/wife. The respondent/wife has no source of income and it is the duty of the appellant to make provision for maintenance and residence of his Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 6 of 11 legally wedded wife but he is escaping from his liability. There is no date and time on the alleged photograph placed by the appellant. The copy of bank statement of the respondent has already been filed but she has not filed ITR. The respondent/wife is not earning. The mother of the appellant receives a pension of Rs.7,000/ to Rs.8,000/ pm from NDMC and his sister is already got remarried. The appellant is employed with CRPF and getting salary of Rs.26,000/ pm. The medical expenses can be borne from CRPF. The appellant/husband was intentionally avoiding the proceedings before the Ld. MM and he was having the knowledge of the proceedings of the trial court. In support of his arguments, Ld. Counsel for the respondent has relied upon the judgments in the cases of Jaiveer Singh V. Sunita Chaudhary in Crl. Rev. P. 820/2018 & Crl. M.A. 32656/2018 decided by Hon'ble High Court of Delhi on 05.04.2021 and Kanupriya Sharma V. State & Anr. in Crl. Rev. Pet. 849/2018 & Crl.M.A. 33234/2018 decided by Hon'ble High Court of Delhi on 31.05.2019.
8. Perusal of record reveals that there is no dispute about the marriage, relationship of husband and wife between the parties. The counsel for the petitionertherein/wife pressed for interim maintenance for the petitionertherein @ Rs.15,000/ pm and rent @ Rs.5,000/ pm in lieu of accommodation. The appellant / husband is duty bound to maintain his wife for her day to day and the medical expenses and to provide residence as per his status, if the respondent / wife is neither working nor earning any amount. In the case of Bhuwan Mohan Singh Vs. Meena & Ors. 2014 AIR (SC) 2875, it Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 7 of 11 was held by the Hon'ble Supreme Court on the concept of sustenance and obligation of husband that "the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs that field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds. No fault found with award of maintenance from the date of application".
9. In the present appeal, the appellant has assailed the order of interim maintenance of Rs.6,000/ pm and rent @ Rs.2000/ pm. The appellant/husband pleaded that the impugned order was passed in the absence of his counsel and no opportunity of being heard was Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 8 of 11 given to him. On nonappearances of the appellant/husband, a notice was issued to him vide order dt. 27.10.2020 and thereafter counsel for the respondent No.1/husband appeared before the Ld. MM on 25.11.2020 but again on 14.12.2020 the matter was called twice but no one appeared on behalf of the respondent No.1/husband before the Ld. MM and right of the respondent to advance arguments on interim application stood closed by the Ld. Trial Court. No steps were taken by the appellantherein against the said order dt.14.12.2020. It is pertinent to mention here that the counsel for the petitionertherein addressed his arguments on the interim application on 24.09.2020. Further, the Ld. MM while passing the impugned order dt.06.01.2021 gone through the income affidavits of the parties Meaning thereby, opportunities of being heard were given to the respondent No.1/husband to address arguments on the interim maintenance application but it was not availed on behalf of the appellant/husband.
10. In view of the facts and circumstances of the present case, detailed income affidavits of the parties, documents, impugned order dt. 06.01.2021, materials on record and also the above judgment of the Hon'ble Supreme Court, I am of the considered opinion that the plea of the appellant/husband that the respondent/wife is earning handsome income by doing job in Rohini Suzuki Showroom and also doing part time beauty parlour is denied by the respondent/wife stating that she is unemployed and has no source of income. In support of his submission that respondent/wife is doing job in Rohini Suzuki Showroom, the appellant/husband filed certain alleged photographs.
Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 9 of 11 The said alleged photographs does not show that the respondent/wife is employed in the said showroom or as to in which year the said photographs were clicked. Even, the alleged income of the respondent/wife is yet to be proved as the appellant has not filed any document in this regard except the said alleged photographs which are not sufficient evidence at this stage to demonstrate that the respondent/wife is actually working and earning presently. In his detailed income affidavit, the appellant admitted that he is earning about Rs.26,000/ pm after mandatory deductions and placed the copies of his salary slips from October 2017 to May 2018 issued by Directorate General Central Reserve Police Force. Detailed income affidavit of the partiesherein have also been perused by this court. The appellant has pleaded that he has also the liability of his old aged mother and one sister. However, in the columns of details of dependent in the detailed income affidavit of the appellant/husband, he has not shown his mother and sister as dependent upon him. The respondent/wife also denied the alleged dependency stating that mother of the appellant receives pension from NDMC and his sister is already remarried, so the appellant has no liability except to maintain the respondent/wife. Considering the above discussions, day to day expenses, the living standard and also the admitted net income of Rs.26,000/ per month of the appellant/husband, the interim maintenance of Rs.6,000/ pm awarded to the respondentherein/wife is just, fair and reasonable amount, which needs no interference by this court. As far as the amount of Rs.2,000/ pm as rent is concerned, Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 10 of 11 the Ld. MM has clearly ordered that the said amount of Rs.2000/ pm in lieu of accommodation of the petitionertherein/wife would be subject to placing on record the rent agreement and rent receipt. Ld. MM also clarified that as there was no rent receipt on record, the said amount shall be granted as future rent. The aforesaid judgments referred by the Ld. Counsel for the appellant in the present appeal are distinguishable from the facts and circumstances of the present case. Therefore, this appeal is devoid of any merits and the same is accordingly dismissed. Nothing expressed hereinabove shall tantamount to an expression of opinion on the merits of the case. Trial Court record along with the copy of this Judgment be sent back to the Ld. Trial Court. Appeal file be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2022.09.28
20:22:17 +0530
Announced in the open court (YASHWANT KUMAR)
today on 28th September 2022 Principal District & Sessions Judge
NorthWest, Rohini Courts, Delhi
Crl. Appeal No. 32/2021 Himanshu V. Chitra Page No. 11 of 11