Delhi District Court
Sher Singh vs Yashwant Kaur on 24 March, 2009
1
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - V,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
Criminal Appeal No.09/08
in Complaint Case No.650/03
Police Station : Saraswati Vihar
Sher Singh
S/o. Sh. Dewan Singh
R/o. WZ-H-53-C,
Sant Nagar Extension,
New Delhi. ............Appellant
VERSUS
Yashwant Kaur
D/o. Sh. Bhagat Singh,
R/o. G-82, Shakurpur,
Delhi. ...........Respondent
Date of Institution : 22.01.08
Date of institution in this Court : 22.11.08
Arguments heard On : 18.03.09
Order Announced On : 24.03.09
JUDGMENT :
1. The present appeal under section 29 of the Protection of Women from Domestic Violence Act, 2005 preferred by appellant Sher Singh against the impugned order dated 18.12.07 passed by learned M.M. Sh. A.K. Chaturvedi.
Contin...pg. 2 2
2. In brief the facts are that respondent filed a complaint before learned M.M. under section 17 of Protection of Women from Domestic Violence Act, 2005. Respondent alleged against the appellant that she was maltreated as well as mentally abused, therefore, forced to leave matrimonial home. She has been living with her parents since 09th September, 2006.
3. In this case she sought maintenance from the appellant and right of residence at matrimonial home at WZ-53/C, Sant Nagar Extension, Tilak Nagar, Delhi. Appellant contested the complaint and stated that respondent has not been of good character. She has been having adulterous relations with one Aman and a divorce petition is pending between them. Appellant has also denied the parentage of daughter. Appellant has further stated that residence WZ-53/C, Sant Nagar Extension, Tilak Nagar is also not belonged to him.
4. Learned M.M. on the basis of pleadings of the parties and after hearing the arguments passed the impugned order dated 18.12.07 wherein granted Rs.4,500/- p.m. consolidated maintenance.
Contin...pg. 3 3
5. The appellant is aggrieved with this order and the appellant ground taken are that impugned order is contrary to law and the facts of the case. It is stated that learned trial court exceeded its jurisdiction while granting relief as respondent claimed the same relief under section 24, Hindu Marriage Act application. The learned trial court erred in fixing the maintenance without looking at the earning capacity of the appellant who is a driver and getting salary of Rs.3,500/- plus tips from customers ranging from 1000-1500/-, therefore, the appeal may be allowed and impugned order may be set aside.
6. Respondent contested the appeal and filed the detailed reply. It is stated that appellant always neglected the appellant and earning handsomely Rs.35,000/- per month. It is stated that respondent always believe to live in a joint family. It is stated that order of the trial court is legally justified therefore, appeal may be dismissed.
7. The law is well settled that the court can decide the appeal in the absence of non-assistance of appellant or any other party. My view is supported by the judgment passed by the Supreme Court in case titled Banni Prasad & others Vs. State of U.P. - 1996 Crl. Law Journal 3491 (1) Supreme Court - Three Contin...pg. 4 4 Judges - Full Bench. Hence in this case, appellant failed to assist the court therefore, his appeal is being decided on merits as per judicial record.
8. In the impugned order the first direction regarding providing matrimonial home to the respondent is based upon the documentary evidence filed by appellant before the trial court. The appellant has filed Delhi Police, Service/Tenant Verification Form wherein address of respondent is WZ-283/62/A, Gali No. 3, Vishnu Garden Extension, New Delhi-110088. Rent agreement also filed on record in the name of Sher Singh. The husband is under legal obligation to provide place of living to his wife. Therefore, I find no illegality or incorrectness in respect of providing the right of resident at the said address by the learned trial court. The learned trial court further provided the direction which command of law.
9. The learned trial court also granted consolidated maintenance of Rs.4,500/- p.m. to the minor daughter of the respondent wife. The appellant who is working as driver with Jasleen Travels, Gurudawara Road, Mohan Garden, Uttam Nagar, New Delhi clearly shows that he is working as driver. In the reply he himself mentioned regarding the salary of Rs.3,500/- and extra Contin...pg. 5 5 income from the tips. The appellant is a able body person and under legal obligation to maintain her as a wife and minor children. The pendency of petition under section 12 HMA does not affect the right of respondent and minor children. Hence, I do not find any impropriety, illegality or incorrectness in the order of ld. trial court dated 18.12.07. On the basis of above observations and discussion, appeal is dismissed.
10. Trial court record shall be sent back. Parties are directed to appear before the ld. trial court on the date fixed 01.04.09. File be consigned to record room. Announced in the open court today (SANJAY KUMAR) 24.03.08. Addl. Sessions Judge-V North-West, Rohini, Delhi.
Contin...pg.