Delhi District Court
Rajeev Dobson vs Suman Masih on 8 February, 2021
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
CA No. 148 of 2019
Rajeev Dobson
S/o Late Bala Prasad Dobson
R/o H.No. 249, Alok Nagar,
Near Anna Meep Public School,
Air Force Station, Izzat Nagar,
Bareilly - 243122, UP .......... Appellant
Versus
Suman Masih
W/o Sh. Rajeev Dobson
D/o Sh. Rehmat Masih
R/o A122, Rajeev Nagar, Begumpur,
Opposite Sector22, Rohini,
Delhi110086 .......... Respondent
Instituted on : 13.09.2019
Argued on : 03.02.2021
Decided on : 08.02.2021
JUDGMENT
1. The appellant has impugned the order dated 05.07.2019 vide which he has been directed to pay interim maintenance of Rs. 5000/ per month to the respondent as well as to her child.
2. The appeal is filed on the grounds that ld. Trial court has failed to assess whether domestic violence has been committed or not. Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 1 of 12 The decree of conjugal rights has been passed against the respondent so there is no question of domestic violence against her. No physical violence has taken place so there was no reason for the respondent to stay away from matrimonial home. The application u/s 125 CrPC of the respondent was dismissed and this fact was also brought to the notice of ld. Trial court. All these facts have not been taken into consideration while passing the impugned order. Hence, this appeal.
3. The appellant has also filed an application u/s 5 of Limitation Act on the grounds that order dated 05.07.2019 was not signed till 22.07.2019. The appellant has applied for the certified copies on 26.07.2019. The time was consumed for getting the certified copies. The appellant is permanent resident of Bareily who has to look after his sick and infirm mother alongwith school going daughter so it was not possible for him to travel to Delhi for drafting the appeal. The appeal has been filed after getting it signed from the appellant through email. The delay is neither intentional nor deliberate.
4. The respondent has filed a reply to the effect that petition u/s 125 CrPC was filed by some other advocate as such she was not Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 2 of 12 aware about the outcome of the proceedings. She was surprised to know that petition has been dismissed in default. The proceedings for restitution of conjugal rights have no effect on the proceedings under the Act. The appeal has been filed in order to harass her as appellant has no case against her.
5. The reply to the application u/s 5 of the Limitation Act is filed with the averments that appeal is time barred. The reason assigned by the appellant does not come within the ambit of sufficient cause so it be dismissed.
6. The facts of the case are like this. The respondent has filed an application u/s 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as an Act) with the averments that her marriage with the appellant has been solemnized on 29.04.2009 in accordance with Christian rites and customs wherein sufficient amount was spent by her parents. Two children namely Baby Carain and baby Sharan Dobson were born out of their wedlock. Baby Sharan Dobson is under her custody. The appellant has started harassing and torturing her for bringing less dowry and cash from her Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 3 of 12 parents. The appellant is a habitual drunkard. Her jewellery articles were taken on the pretext to keep them in safe custody. The appellant has demanded a sum of Rs. 10 lacs from her and she was beaten on failure to fulfill the demand. She was sexually assaulted and harassed by the appellant. She alongwith her children were not given proper food. She used to weak due to the torture as her life was made hell by the appellant. On 3.09.2015 the appellant, at the instance of his family members, has mercilessly beaten her and turned them out of the house. A complaint was lodged with CAW Cell upon which FIR no. 381/2016 PS, Begumpur was registered. The appellant is Manager at Mahindra and Mahindra Company and earning Rs. 30000/ per month who is also additionally earning Rs. 20000/ from the business of property dealing. Hence this petition.
7. The appellant has filed a reply wherein marriage and birth of children are not disputed. He has denied all the allegations of torture and beating. There was no dowry demand from him. Dowry was never demanded from the respondent. No domestic violence has taken place with the respondent. The respondent does not want to live at Bareily so she left Bareily and came to Delhi and false FIR was Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 4 of 12 lodged. The respondent has taken with her two years old daughter while leaving 4 years old daughter with him. He has filed a petition for conjugal rights against the respondent which was allowed. The application u/s 125 CrPC was filed against him which has been dismissed.
8. Both the parties have filed the affidavits of assets, income and expenditure. Ld. Trial court after perusing the record and hearing the ld. Counsel for the parties has granted interim maintenance to the respondent and her child.
9. Ld. Counsel for the appellant submitted that no dowry demand was ever raised by the appellant. He further submitted that there was no domestic violence with the respondent. He further submitted that respondent has left the matrimonial home of her own as she does not want to reside at Bareily. He further submitted that application u/s 125 CrPC of the respondent has been dismissed and even a decree of restitution of conjugal rights u/s 32 of the Special Divorce Act, 1869 has been passed in his favour. He further submitted that respondent is not entitled for any maintenance once decree of Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 5 of 12 restitution of conjugal rights has been passed. He further submitted that the respondent is not entitled for any maintenance.
10. Ld. Counsel for the respondent submitted that there was domestic violence on the part of the appellant. He further submitted that maintenance u/s 12 of the Act is an additional remedy and respondent can claim maintenance even if same is not granted u/s 125 CrPC. He further submitted that application u/s 125 CrPC was dismissed in default and decree of restitution of conjugal rights is an exparte decree. He further submitted that ld. Trial court has rightly granted the maintenance.
11. Heard and perused the record.
12. In Bharat Hegde Vs. Saroj Hegde, 140, (2007) DLT 16, their lordship has culled out following 11 factors, which can be taken into consideration for deciding the application under section 24 of Hindu Marriage Act, relevant portion of which reads as under :
"8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 6 of 12 compliance is the exception in this country. Therefore, in determining the interim maintenance, there cannot be mathematical exactitude. The Court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are :
(i) Status of the parties; (ii) Reasonable wants of the claimant;
(iii) The independent income and property of the claimant;
(iv) the number of persons, the non applicant has to maintain;
(v) the amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
(vi) Nonapplicant's liabilities, if any. (vii) Provisions for food, clothing, shelter, education, medical
attendance and treatment etc. of the applicant;
(viii) Payment capacity of the nonapplicant;
(ix) Some guess work is not ruled out while estimating the income of the nonapplicant when all the sources or correct sources are not disclosed;
(x) The nonapplicant to defray the cost of litigation; and
(xi) the amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act."
13. The wife is entitled to maintenance in consonance with the status of the husband which is the determinative of the quantum of maintenance to the wife.
Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 7 of 12
14. The grant of maintenance to the wife by the husband is a measure of social justice. It is the sacrosanct duty of the husband to render financial support even if the husband is required to earn money with physical labour, if he is able bodied. The husband cannot take the subterfuges to deprive the wife of the benefit of living with dignity and reasonable comfort. The husband is bound to give monetary support to the wife when she is unable to maintain herself and she has been neglected by the husband to maintain her.
15. In the instant case, the appellant has not disputed the factum of marriage as well as birth of the children. The respondent has levelled allegations of domestic violence against the appellant which are denied by him. The truth will come out only after letting in the evidence by both the parties, so at this stage the allegations of domestic violence cannot be brushed aside.
16. The income, the assets and expenditure affidavit of the appellant shows that he is 12th pass. He alongwith their daughter has been residing with his parents at Bareily. He does not own any property as house beating No. 249 Alok Nagar, Airforce Station is Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 8 of 12 owned by his mother.
17. On the other hand, the income, assets and expenditure affidavit of the respondent shows that she is 10 th pass. Her monthly expenditure is Rs. 20000/. She has been residing in her parental house with her parents. She is maintaining one daughter. She does not have knowledge about the assets and liabilities of the appellant. The appellant is Manager at Mahindra and Mahindra company, Bareily UP whose net income is Rs. 30000/ per month.
18. There is nothing on the record that respondent is having any source of income. The respondent has been maintaining herself as well as daughter.
19. It is a duty of the husband to maintain his wife. The obligation of the husband is on higher pedestal to maintain his wife. The respondent is also maintaining her daughter. She needs maintenance in order to survive herself as well as her child when cost of living is high. There is nothing on the record that appellant is contributing anything for the education and other expenses of the Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 9 of 12 child.
20. The application u/s 125 CrPC was not decided on merits. The application has been dismissed in default. The appellant has filed a petition titled as Rajeev Dobson vs Smt Suman Masih u/s 32 of Special Divorce Act 1869 for the restitution of conjugal rights which has been decided by the Principal Judge, Family Court, Bareily on 01.05.217. The said petition has been decided exparte in favour of the appellant.
21. The dismissal of the application u/s 125 CrPC does not have any effect on the proceedings under this Act as respondent can also claim maintenance under this Act. The appellant cannot draw any support from the decree of restitution of conjugal rights in his favour. The decree is exparte. The appellant has not intimated the respondent to join his company in terms of the decree of restitution of conjugal. The appellant has to show that respondent has willfully failed to comply with decree. The decree of restitution of conjugal rights can be enforced under Order 21 Rule 32 CPC. The appellant has also failed to show why steps were not taken to enforce the decree Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 10 of 12 under Order 21 Rule 32 CPC. All these facts show that appellant cannot draw any support from the decree.
22. The respondent cannot be denied maintenance even if she has refused to live with the appellant despite the decree of conjugal rights especially when allegations of domestic violence have been levelled. Reliance is placed upon Criminal Revision No. 325/2018 titled as Vimal Kumar Verma vs Kavita Verma and Another decided on 07.02.2018 by Hon'ble Mr. Justice Aniruddha Singh of Hon'ble High Court of Judicature at Allahabad.
23. The respondent has failed to show that appellant is earning Rs. 30000/ per month or he has some additional income from the business of property dealing. The respondent is wife of the appellant so it is his duty to maintain her alongwith the child.
24. There is no income proof on record of the appellant so ld. Trial court has rightly taken the minimum wages of unskilled worker fixed by Govt. of NCT of Delhi as income of the appellant per month. Rajeev Dobson vs Suman Masih - CA No. 148 of 2019 Page 11 of 12
25. The maintenance of Rs. 5000/ per month has been awarded to the respondent and her child. The maintenance cannot be said to be on the higher side specially when one is living in a metro city.
26. Ld. Trial court has considered the facts on record. I do not find any infirmity in the order dated 05.07.2019.
27. There is no merit in the appeal. The appeal is dismissed.
28. TCR alongwith copy of this judgment be sent to Ld. Trial Court.
29. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT SURESH Digitally signed by
SURESH KUMAR
IN PHYSICAL HEARING KUMAR GUPTA
Date: 2021.02.09
ON 8TH FEBRUARY 2021 GUPTA 14:46:26 +0530
(SURESH KUMAR GUPTA)
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
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