Delhi District Court
Mukesh Joshi vs Smt. Suman Pant @ Monika on 3 September, 2015
Criminal Appeal No.14/15
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 14/2015
Under Section : 12 of Protection of Women From
Domestic Violence Act, 2005.
Police Station : Shahdara
Case No. : V-42/14
Unique I.D. No. : 02402R0190422015
In the matter of :-
MUKESH JOSHI
S/o. Sh. Indermohan Joshi,
R/o. H.No.A-24, Near Commander Chowk,
Suraksha Vihar, Vikas Nagar,
Uttam Nagar, Delhi ..............Appellant
VERSUS
SMT. SUMAN PANT @ MONIKA
W/o. Sh. Mukesh Joshi,
D/o. Sh. Daveshwar Prasad Pant,
R/o. A-85/F-4, Gali No.5,
East Nathu Colony, Delhi.
..............Respondent
Date of Institution : 30.05.2015
Date of receiving the case in this court : 01.06.2015
Date of reserving order : 27.08.2015
Date of pronouncement : 03.09.2015
Decision : Appeal is allowed.
JUDGMENT
1. This is an appeal preferred against the order dated 18.04.2015, passed by trial court in a case titled as Suman Pant @ Monika v. Mukesh Joshi, bearing case no.V-42/14, under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide impugned order, the trial court directed appellant herein to pay Rs.
Page 1 of 7 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 11,000/- per month as interim maintenance to respondent herein, from the date of filing of petition. The trial court also directed that in case of default of monthly payment, respondent shall be liable to enhanced payment @ 10% in case of first default and 20% in case of second default.
2. Briefly stated, the relevant facts giving rise to this appeal are that respondent herein had filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband/appellant and his family members for seeking relief inter alia maintenance of Rs.20,000/- per month. Respondent made several allegations against her husband and in-laws regarding demand of dowry coupled with threats, harassment and abusing at her matrimonial house. She also alleged about cruel behaviour of her husband during the holy journey to Vaishno Devi as well as on other occasions.
3. The trial court called for DIR and issued notice of this application to the alleged persons. Appellant herein contested the aforesaid application, by filing a common written statement along with other family members. He denied the allegations of the respondent and alleged that respondent had deserted him.
4. The trial court passed impugned order and directed the appellant to pay Rs.11,000/- per month as interim maintenance to the respondent.
5. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :-
● That the trial court did not appreciate that the gross income of the appellant was around Rs.18,000/- at the time of filing of written Page 2 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 statement and same was subsequently increased to Rs.22,866/-. The appellant was working as Guest Service Attendant in Taj Palace Hotel, New Delhi and said income includes tips, which vary from month to month. The tips come around Rs.3,000/- to Rs. 6,000/- per month.
● That without prejudice to the rights and contentions of the appellant herein, it is well settled law that while awarding maintenance allowance, 1/3rd of the salary of the appellant ought to be considered by the trial court, which in any case comes between Rs. 6,500/- to Rs.7,000/- and therefore, there was no occasion/reason to direct the appellant to pay Rs.11,000/- per month, which is very exorbitant and without any basis. Hence, the impugned order is liable to be quashed.
● That the trial court did not appreciate that respondent herein herself left her matrimonial home and had taken away her entire jewelery and belongings, clothes etc. in the presence of witnesses and she had also executed receipt of the goods. At that time, appellant had made videography of the same, which itself proves that no incident of beating, as alleged by the respondent in her petition, ever took place. Hence, the impugned order is liable to be set aside.
● That the trial court did not appreciate that apart from petition under D.V. Act, the respondent also filed a petition under Section 125 Cr.P.C against the appellant, which is presently pending in the Court of Sh. B.R. Kedia, Family Court, KKD, Delhi. The respondent had also filed a complaint with CAW Cell, which was culminated into FIR No.695/2014 under Section 498-A/406/354-A IPC and under Section 4 of Dowry Prohibition Act. That on 21.10.2014, Page 3 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 when appellant appeared in the office of CAW Cell, Seemapuri, Delhi, the respondent, her mother and her friends gave merciless beatings to the appellant and broken the specs of the appellant and threatened to eliminate him. When brother of the appellant tried to intervene in the matter, respondent got implicated the appellant and his brother in a false and frivolous case under Section 323/341/34 IPC with PS Seemapuri, Delhi thereby leveling false and frivolous allegations with a view to harass and humiliate the appellant and his family members.
6. On the other hand, respondent contested this appeal and filed her reply thereby supporting the order passed by the trial court. She pleaded that appeal was not maintainable being barred by limitation. She further pleaded that the appellant did not place his latest salary slip before the trial court and appellant is delaying the payment of maintenance in order to harass her. Findings-
7. The objection of limitation does not hold ground because I find that copy of impugned order was not supplied to the parties by the trial court, as required under Section 24 of the Act. Appellant received certified copy of this order on 28.05.2015 and this appeal was filed on 30.05.2015. Section 29 of the Act provides for a month to prefer appeal from the date of delivery of order upon the party. Hence, this plea of respondent is not sustainable.
8. Thus, limited question involved in this appeal is in respect of the quantum of maintenance granted by the trial court. During argument, ld. counsel for appellant challenged the quantum on the grounds that it was exorbitant and was not based on constant salary of the appellant. Counsel for respondent did not appear to Page 4 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 make any submissions.
9. As far as factual disputes and the allegations made by both parties against each other are concerned, this is not the stage to return any finding on the same. Even the trial court was supposed to only frame a prima facie view of the case, in order to pass an interim order regarding maintenance. Admittedly, both parties are in domestic relationship being husband and wife. It is not in dispute that apart from proceeding under DV Act, respondent also filed application under Section 125 Cr.P.C for interim maintenance. A person cannot be asked to pay double maintenance and, therefore, trial court should have made it clear that interim maintenance being granted in favour of respondent, would not be in addition to any other interim maintenance granted to her. (Ref. :- Rachna Kathuria v. Ramesh Kathuria, 2010 (118) DRJ 630). The impugned order is lacking in this respect.
10. The appellant had mentioned his monthly earning as Rs.22,866/- in his affidavit and the trial court granted almost 50% of this amount as interim maintenance in favour of the respondent. Such proportion on the face of it appears to be exorbitant. As per settled norm, out of total take home money, two portions are to be left for the earning spouse and one portion is to be allocated as maintenance for each dependent family member. (Ref. :- Annurita Vohra v. Sandeep Vohra, 110 (2004) DLT 546). In the present case, since there are no other dependent family members, the appellant was entitled to be allocated 2/3rd of the take home salary and 1/3rd of his salary should have been granted as maintenance to the respondent.
11. The other relevant criteria has to be in respect of the ingredients of Page 5 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 the salary of the appellant. From the trial court record, I find that appellant had furnished pay slip for the month of February 2014. The trial court should have asked for his latest pay slip, as the order was passed in the year 2015. Before this court, appellant filed his pay slip for January 2015 along with the pay slips of previous months. From the comparison of all these pay slips, I could find that the income of appellant has two ingredients. One part is under the head of must salary and other part is his total earnings including the variable part of income. The variable part of income includes tips, incentive and holiday allowance etc. The variable part of the salary cannot be considered while deciding the income of appellant for the purpose of maintenance, as it depends upon his extra work and benevolence/generosity of the customers of the hotel. Apart from that, the necessary deductions have to be ignored, until or unless it appears that the deductions are on account of deliberate action of the appellant. From the salary slip of January 2015, as well as previous months, I do not find the deductions to be on account of some deliberate act of the appellant. There are deductions, which are standard deductions in the form of contribution to provident fund, labour welfare fund, income tax, meal charge and death relief fund. The gross earning of appellant is Rs.19,874/- exclusive of standard deductions and his take away home salary would be around Rs.18,000/-. The respondent would be entitled for 1/3rd portion of this take away home salary and in that situation she would be entitled for Rs. 6,000/- per month.
12. Thus, I do find that the quantum of interim maintenance fixed by the trial court is not based on the settled norm and it is exorbitant.
Page 6 of 7 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.14/15 At the same time, the additional burden in the form of fixed penalty for default in making payment of maintenance, is not based on equity. There may be variable circumstances, under which the appellant may commit default. One of such situation may be not getting salary on time. Therefore, every case of default should be dealt with on the basis of reasons offered by the appellant and any decision regarding genuineness of the reasons should be taken accordingly.
13. In view of my foregoing discussions, I do find that the impugned order suffers from infirmity. Hence, same is modified and it is directed that the appellant shall pay monthly interim maintenance to the respondent @ Rs.6,000/-. He shall deposit such amount in the bank account of the respondent. Any amount granted to the respondent as interim maintenance in any other proceeding shall be adjustable to the aforesaid amount.
14. Other conditions regarding due date of payment and effective date of such liability i.e. from the date of filing of petition, would remain same as directed by the trial court.
15. Copy of this judgment be sent to the trial court with TCR, to be placed in the file of case no.V-42/14.
File be consigned to record room, as per rules.
Announced in the open court PULASTYA PRAMACHALA) today on 03.09.2015 Additional Sessions Judge (Shahdara) (This order contains 7 pages) Karkardooma Courts, Delhi Page 7 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi