Delhi District Court
Smt. Pooja vs Vivek & Ors. on 20 March, 2017
CA No.66/16
Smt. Pooja vs Vivek & Ors.
IN THE COURT OF VIKAS DHULL, SPL. JUDGE, (PC
ACT), CBI - 03, DWARKA COURTS, NEW DELHI
CA No. 66/16
IN THE MATTER OF :
Smt. Pooja
W/o Sh. Vivek Singh @ Hunny
D/o Sh. Amarjeet Singh
Presently R/o 302A, Sector-11,
Pratap Vihar, HIG Flats,
Ghaziabad, U.P.
Permanent resident of
Village Kisoli, P.S. Agauta
Distt. Bulandshahar, U.P. ... Appellant
Versus
Mr. Vivek Singh @ Hunny
S/o Sh. Dinesh Pal Singh
R/o Flat no.1404, Plot no.7,
Sector-6, Jan Shakti Appt.,
Dwarka, New Delhi ... Respondent
Date of institution of appeal : 19.09.2016
Date on which judgment reserved : 16.03.2017
Date on which judgment pronounced : 20.03.2017
JUDGMENT
1. The appellant is aggrieved by the order dated 1/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
09.8.2016 of the ld. trial court vide which her application u/s.23 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act) for interim maintenance was dismissed.
2. The brief facts leading to the present appeal are that the appellant/wife had filed an application u/s.12 of PWDV Act against respondent/husband and her in-laws. In the said petition, it was alleged that appellant was being tortured on account of bringing insufficient dowry. It was also alleged that the appellant was beaten up on account of non- fulfillment of dowry demands. It was also alleged by the appellant that on 07.5.2015, the respondent and her in-laws in a pre-planned manner, had administered some intoxicating substance to the appellant and thereafter, she was thrown on the bank of river at Village Narenderpur, P.S. Narsena, U.P. for which FIR u/s.307 IPC P.S. Narsena Distt. Bulandshehar, U.P. was registered. It was also alleged that the entire istridhan articles are under the custody of the respondent and her in-laws. Accordingly, she had 2/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
made a prayer for protection order, residence order, compensation and monetary relief.
3. During the pendency of the aforementioned application, the appellant had filed an application u/s.23 of PWDV Act for grant of interim maintenance of Rs.75,000/- per month. It was alleged in the application that appellant is a housewife and is not having any independent source of income to maintain herself whereas respondent is working as an Asstt. Manager in a MNC and is earning Rs.1,60,000/- per month.
4. A detailed reply was filed by the respondent to the said application. Thereafter, both the respondent and appellant had filed their income affidavits regarding their income and assets and ld. trial court after taking into account the allegation and income affidavit of both the parties and their educational qualification had, vide the impugned order, dismissed the application of the appellant/wife for interim maintenance. The application was dismissed primarily on the ground that the appellant is a graduate and is capable of earning and her passbook entries also show that 3/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
she was having an income of Rs.8,000/- to Rs.40,000/- per month in the past one year. Aggrieved by the impugned order, the appellant has approached this court.
5. Notice of the appeal was issued to the respondent, who on being served, had filed a detailed reply.
6. I have heard Sh. S.K.Singh, ld. counsel for appellant and Sh. Amarvir Singh Bhullar, ld. counsel for respondent. I have also summoned the trial court record and have carefully perused the same.
7. It was submitted by ld. counsel for the respondent that there is no illegality or infirmity in the impugned order of the ld. trial court. It was submitted that the appellant had to prima facie establish that she was subjected to domestic violence by the respondent but since the fact of she being subjected to domestic violence was not established, therefore ld. trial court rightly declined interim maintenance to the appellant. It was further submitted that even the FIR got registered by the appellant against the respondent and her family members vide FIR no.109/15 P.S. 4/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
Narsena, Distt. Bulandshehar, U.P. has been cancelled by the appellant as all the allegations made by the appellant that she was abducted and attempt was made to kill her by the respondent and his family members were found to be false.
8. It was further submitted that the respondent had produced before the ld. trial court CCTV footage as well as telephonic conversations to show that appellant was conspiring to falsely implicate the respondent and his family members and the alleged act of domestic violence had never taken place. It was further submitted that both the appellant and respondent are graduates and are unemployed. It was further submitted that since the appellant is a graduate, therefore she can easily obtain a job.
9. Lastly, it was submitted that as per the bank statement of appellant, she was having income of Rs.8,000/- to Rs.40,000/- per month in her account which shows that she was capable of maintaining herself. Therefore, ld. trial court rightly declined to grant interim maintenance to the appellant. Accordingly, a prayer was made to dismiss the 5/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
appeal.
10. On the other hand, ld. counsel for the appellant submitted that ld. trial court has committed grave illegality by denying maintenance to the appellant/wife. It was submitted that appellant is only a graduate i.e. B.Sc. in Physical Education and she was never employed anywhere and the qualification of the appellant is not of that level where she can easily obtain a job for herself.
11. It was further submitted that respondent had claimed himself to be working in MNC and having an income of Rs.1,60,000/- at the time of marriage and this fact is also admitted by the respondent in his reply to the application u/s.12 of PWDV Act. It was further submitted that respondent had intentionally not disclosed the name of the company where he was employed and neither he had filed his salary details or his bank statement post marriage. Therefore, the appellant had intentionally withheld his income details from his job. Therefore the ld. trial court ought to have believed the allegations made in the affidavit by the appellant regarding the employment status of 6/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
the respondent and his salary. It was further submitted that the amount in cash being deposited into the account of the appellant ranging from Rs.8,000/- to Rs.40,000/- per month were being deposited by the parents of the appellant in order to meet her monthly household expenses as respondent was not giving anything to the appellant to maintain her. It was submitted that since appellant was unemployed and respondent was not maintaining her, therefore appellant had to seek monetary help from her parents and the amount reflected in her accounts statement is the amount given by her parents in cash.
12. It was submitted by ld. counsel for appellant that although the police had initially canceled FIR no.109/15 P.S. Narsena but on the petition filed by the appellant, the respondent and his family members have been summoned vide order dated 16.2.2016. A copy of the said order was also filed on record during the course of arguments.
13. Lastly, it was submitted that the various complaints made to the police by the appellant 7/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
are her medical record coupled with the FIR no.109/15 P.S. Narsena were prima facie there on record to show that appellant was being treated with cruelty. However, the ld. trial court did not consider the same and had relied upon some telephonic conversations and CCTV footage, which were yet to be proved in the present matter. Accordingly, a prayer was made to set aside the impugned order and pass an appropriate order for grant of interim maintenance to the appellant.
14. I have considered the rival submissions and have carefully perused the trial court record.
15. The marriage of the appellant with the respondent is not in dispute. The appellant had filed on record various complaints made to the police alleging act of domestic violence i.e. dated 29.3.2015, 04.3.2015 and 05.3.2015 alongwith the MLC of DDU Hospital showing the injuries suffered by her. The appellant had also filed on record copy of FIR no.109/15 P.S. Narsena registered u/s.307/420/320/498-A IPC and Section 3 and 4 of Dowry Prohibition Act registered against the respondent and his family members. Aforesaid 8/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
complaints and the allegations made in the application prima facie showed that appellant was a victim of domestic violence. Therefore, the ld. trial court committed grave illegality by holding that the appellant has refused to live with the respondent without any justifiable reason.
16. The ld. trial court had relied upon the CCTV footage and the telephonic conversations filed on record by the respondent to come to the aforementioned conclusion. The approach of the ld. trial court in relying upon the CCTV footage and telephonic conversation to hold that appellant herself was living separately from the respondent without any sufficient reason, suffers from infirmity as prima facie CCTV footage and telephonic conversations could not have been relied upon at the interim stage as the same were not accompanied with any certificate u/s.65-B of Indian Evidence Act, 1872 regarding their authenticity. The ld. trial court could have taken into account CCTV footage and the telephonic conversations only after trial in case they were admissible in evidence as per Section 65-B of 9/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
Indian Evidence Act, 1872. Therefore, ld. trial court committed a grave illegality by relying upon CCTV footage and telephonic conversations and by ignoring the police complaints, MLC and FIR no.109/15 P.S. Narsena filed by the appellant. The various complaints made to the police, MLC of the appellant, FIR no.109/15 P.S. Narsena had prima facie established that appellant due to the act of domestic violence by the respondent had to leave her house.
17. The submissions made by the counsel for respondent that FIR no.109/15 P.S. Narsena was cancelled by the police as allegations were found to be false and fabricated deserves to be rejected as respondent and his family members stand summoned in the said FIR for the offence u/s.307/498-A/420 IPC and Section 4 of Dowry Prohibition Act by the Addl. Chief Judicial Magistrate, Bulandshehar vide order dated 16.2.2016, a copy of which has been filed on record by the appellant.
18. With regard to her income, the appellant had filed on record her affidavit wherein she had disclosed 10/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
that she was having B.Sc. in Physical Education Degree but was unemployed. With regard to respondent, she had alleged that he was working as Regional Manager in a MNC and was earning a salary of Rs.1,60,000/- per month. The respondent had not disputed the fact of appellant being unemployed. However, the appellant had claimed in his affidavit that he is unemployed due to marital problems and due to his suffering from depression. The appellant had filed her bank statement till 08.7.2016 whereas respondent had filed his bank statement only till 30.11.2014. The marriage of the parties in this case took place on 10.12.2014, meaning thereby that no bank statement post marriage was filed on record by the respondent.
19. The respondent, in his written statement in para 2 of reply on merits had admitted that respondent was gainfully employed at the time of marriage but due to the conduct of the appellant, he had to leave his job. The respondent had not filed any medical documents in support of his plea of his suffering from depression. The respondent also did 11/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
not provide the name of the company where he was employed at the time of marriage and the date of his leaving the said employment. Further, the bank statement filed on record by the respondent has an entry dated 07.5.2013 of salary to the tune of Rs.52,493.75. Therefore, the salary of respondent in July, 2015 must be more than Rs.52,000/- per month. Further, since the respondent had intentionally not disclosed about his employment and salary at the time of marriage and had also not intentionally filed his bank statement post marriage and having regard to the allegations made by the appellant/wife that respondent was employed as a Regional Manager in MNC, therefore this court assesses the income of respondent at Rs.70,000/- per month.
20. The denial of interim maintenance by the ld. trial court to the appellant on the ground that she is a graduate and is capable of earning is required to be rejected as there is no record to show that the appellant had ever worked anywhere prior to the marriage or post marriage. Further, the qualification of the appellant of being B.Sc. in 12/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
Physical Education was not a very high qualification, on the basis of which the appellant could have easily obtained a job. Further, being qualified is one aspect but based upon the qualification, a person being able to secure a job is another aspect. Just because a person happens to be educated does not necessarily mean that he would be able to secure a job. Therefore, the ld. trial court wrongly denied the maintenance to the appellant/wife on the ground that she was a graduate and was capable of earning. The ld. trial court forgot that the social obligation is that of the husband to maintain his wife. Therefore, the ld. trial court wrongly denied the interim maintenance to the appellant / wife.
21. The ld. trial court wrongly took into account the amount of Rs.8,000/- to Rs.40,000/- being credited into the account of the appellant for denying interim maintenance to the appellant. The bank statement of the appellant reflects that amount being credited into account of the appellant was not from any salary but was being credited on account of cash deposit. Therefore, at this stage, 13/15 CA No.66/16 Smt. Pooja vs Vivek & Ors.
the submission of ld. counsel for the appellant, that this amount was being deposited by the parents of the appellant to help her economically as respondent was not maintaining her, deserves to be accepted.
22. In the light of the above discussion, the impugned order is not sustainable in the eyes of law as ld. Magistrate has denied the right of interim maintenance to the appellant/wife by ignoring the acts of domestic violence committed by the respondent and by ignoring the fact of appellant being unemployed and the admission of respondent being gainfully employed at the time of marriage. Accordingly, the appeal is allowed. The impugned order is accordingly, set aside.
23. Having regard to the income of the respondent of Rs.70,000/- per month, the respondent is directed to pay interim maintenance of Rs.15,000/- per month to the appellant from the date of filing of the application u/s.23 of PWDV Act till the disposal of the case. The arrears of maintenance be cleared within 02 months of passing of this order.
14/15 CA No.66/1624. Future maintenance be paid by 10th of succeeding month.
25. Trial court record be sent back alongwith copy of the order.
26. Both the parties to appear before ld. trial court on the date already fixed.
27. Appeal file be consigned to record room.
Announced in the open court (Vikas Dhull) Dated : 20.03.2017 Spl.Judge (PC Act) CBI-03 Dwarka/New Delhi 15/15