Delhi District Court
Kunwar Pal vs State on 6 March, 2023
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-
WEST DISTRICT, ROHINI COURTS, DELHI
Crl. Appeal No. 11/2023
CNR No. DLNW01-000365-2023
Kunwar Pal
S/o Sh. Som Pal
R/o H. No. A-790, Main Market
Mangolpuri, Block-A
Delhi-110083
......... Appellant
Versus
1. State
2. Shakila Bano
D/o Not known
R/o H. No. 325, House of Kishan Pal
Gali No. 10, Part-2
Karn Vihar (Kirari), Delhi
...... Respondents
Date of filing : 11.01.2023
Date of arguments : 01.03.2023
Date of Judgment : 06.03.2023
JUDGMENT
1. The appellant has filed this criminal appeal u/s 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to the said Act) against the order dt.02.07.2022 (hereinafter referred to the impugned order) passed by Ld. MM (Mahila Court-02), North-West, Rohini Courts, Delhi in a complaint case bearing CT No. 5338/2017 titled 'Smt. Shakila Bano V. Sh. Kunwar Pal', whereby, the Ld. MM directed the respondent No.1-therein/appellant-herein to pay ad interim maintenance of Rs.3,000/- pm to the petitioner-therein/respondent No.2-herein from the date of filing of the said case till the disposal of interim maintenance application.
Crl. Appeal No. 11/2023 Kunwar Pal Vs. State & Anr. Page No. 1 of 52. The brief facts, as set out in the present appeal, are that the respondent No.2-herein filed a complaint u/s 12 the said Act along with interim maintenance application u/s 23(2) of the said Act against the appellant-herein. In the said complaint case, the Ld. MM passed the impugned order dt. 02.07.2022. Aggrieved by the said impugned order, the appellant has preferred the present appeal on the grounds among others that the appellant-herein and respondent No.2-herein has no relationship with each other and there was no marriage between them. The appellant has already married and he is having his wife and children. The respondent No.2 is also married and she is still residing with her husband and children. The respondent No.2-herein has not filed any proof of marriage of respondent No.2 with appellant. The appellant is unemployed and having no source of income as he is suffering from heart, BP and sugar and taking treatment from the doctor. The impugned order was passed without considering the above fact. The appellant shall suffer from irreparable losses and multiple damages which cannot be compensated by the money or any other terms in case the impugned order is not set aside. The appellant has prayed to set aside the impugned order dt.02.07.2022.
3. The respondent No.1 is a formal party being State. The respondent No.2 has filed reply to the appeal and raised the preliminary submissions that previous husband namely Shaukat Miyan left the respondent No.2 from long time and it was in the knowledge of the appellant. The respondent No.2 started working in the factory of the appellant who took the benefit of the situation and accepted her as his wife and started live in relationship with her. The relation between appellant and respondent No.2 and harassment by the appellant is mentioned in the DIR. The application/complaint u/s 12 of the said Act was filed on the basis of live in relationship between the parties-therein. The appellant is Crl. Appeal No. 11/2023 Kunwar Pal Vs. State & Anr. Page No. 2 of 5 duty bound to maintain the respondent No.2-herein.
4. I have heard the Ld. Counsel for the appellant and Ld. Counsel for the respondent No.2 and I have also gone through the order relied upon by the Ld. Counsel for the appellant and also the impugned order as well as materials available on record.
5. Ld. Counsel for the appellant has argued that there is no domestic relationship between the appellant and respondent No.2. In this regard, the respondent No.2 has also not filed any proof. The appellant is residing with his wife and children. Similarly, the respondent No.2 is also living with her husband and children. The appellant has no source of income and is unemployed and also suffering from various diseases. Without considering the said fact the impugned order was passed. The appellant is not liable to maintain the respondent No.2 and he shall suffer irreparable losses if the impugned order is not set aside.
6. Ld. Counsel for the respondent No.2 argued that the respondent No.2 was married to one Shaukat Miyan but he had left her since long time. When the respondent No.2 was doing job in the factory of the appellant, the said fact came in the knowledge of the appellant. The appellant took the benefit and accepted the respondent No.2 as his wife and also started in live-in-relationship with her. The appellant has also got prepared the Aadhar Card, Bank passbook etc. of the respondent mentioning wife of Kunwar Pal. After eight years of living together, the appellant threw the respondent No.2 from his life. DIR also mentions the harassment committed upon the respondent No.2 by the appellant-herein. The appellant is duty bound to maintain the respondent No.2.
7. Perusal of record reveals that in the present appeal, appellant-herein has taken the main ground that the respondent No.2 is not the wife of appellant and he has no liability to maintain her. However, the respondent No. 2 in her pleadings stated that she Crl. Appeal No. 11/2023 Kunwar Pal Vs. State & Anr. Page No. 3 of 5 shared the household with the appellant as live-in-relationship. Section 2 (f) of the said Act provides: "domestic relationship"
means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The respondent No. 2 has stated that she was living with the appellant as wife and the appellant also got her Addhar card wherein Kunwar Pal is mentioned as husband of Shakila Bano. The copy of the said Aadhar is also placed in the trial court record. Therefore, it can be presumed that the respondent No.2 had shared the household with the appellant-herein. It is pertinent to mention here that the appellant-herein has not assailed the summoning order against him passed by the Ld. MM. Now, he cannot raise such objection at this stage when the order of ad interim maintenance of Rs.3000/- pm has been passed against him. The appellant and the respondent No.2 claimed that they have no source of income. The respondent No.2-herein/complainant-therein is stated to be unemployed and has no source of income. There are catena of orders/judgments of the Hon'ble High Court of Delhi that ad interim / interim maintenance to the complainant/aggrieved person, which are for day to day necessity, should be considered by the court without any delay if the complainant / aggrieved person is not working and earning.
8. In view of the facts and circumstances of the case, documents, impugned order and the materials on record and also the discussions made above, I am of the considered opinion that the appellant-herein cannot escape from the liability to maintain the aggrieved person/respondent No.2-herein towards her maintenance for her day to day expenses as well as medical expenses as per his status and income, if the respondent No.2-herein is neither working Crl. Appeal No. 11/2023 Kunwar Pal Vs. State & Anr. Page No. 4 of 5 nor earning any amount. In the absence of income of the appellant, the minimum wages applicable in Delhi can be considered and the appellant must have been earning not minimum to the minimum wages applicable in Delhi. Vide the impugned order dt. 02.07.2022, ad interim maintenance of Rs.3,000/- is awarded to the petitioner- therein till disposal of the interim maintenance application u/s 23(2) of the said Act. Whether the appellant-herein is liable to maintain the respondent No.2 or not or quantum of maintenance are matter of trial. The judgment relied upon by the Ld. Counsel for the appellant is distinguishable from the facts and circumstances of the present case. Therefore, I do not find any infirmity or illegality in the impugned order dt. 02.07.2022 passed by the Ld. MM (Mahila Court-02), N/W, Rohini Courts, Delhi. Accordingly, this appeal is devoid of any merits and the same is dismissed. Nothing expressed hereinabove shall tantamount to an expression of opinion on the merits of the case. Trial Court record along with copy of this Judgment be sent back to the Ld. Trial Court. Parties as well as counsel are directed to appear before Ld. Trial Court on the date already fixed i.e. 18.04.2023. Appeal file be consigned to Record Room. Digitally signed by YASHWANT YASHWANT KUMAR KUMAR Date: 2023.03.06 15:55:57 +0530 Announced in the open court (YASHWANT KUMAR) today on 06 March 2023 th Principal District & Sessions Judge North-West, Rohini Courts, Delhi Crl. Appeal No. 11/2023 Kunwar Pal Vs. State & Anr. Page No. 5 of 5