Delhi District Court
This Judgment Shall Dispose Of An Appeal ... vs 2137/01/07 on 5 May, 2008
IN THE COURT OF Ms. ANU MALHOTRA, ASJ,
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:28.01.2008
Judgment reserved on: 23.04.2008
Date of pronouncement:05.05.2008
Criminal Appeal No. 07/08
JUDGMENT:-
This judgment shall dispose of an appeal instituted U/s 29 of the Protection of Women from Domestic Violence Act, 2005 on 28.01.2008 by the appellant against the respondent seeking modification of the impugned order dated 24.12.2007 of the Ld. Trial Court in Complaint Case No. 2137/01/07, whereby qua an application U/s 12 of the Protection of Women from Domestic Violence Act, 2005 as amended, the Ld. Trial Court inter alia directed the respondent to that complaint i.e. the appellant herein that he shall not disposses the complainant from the said jhuggi built by her husband in which the complainant was residing without due process of law and further more the respondent through the complaint case i.e. the appellant herein was directed to pay monetary relief of Rs.2,000/- per month to the petitioner of that complaint case i.e. the respondent herein, to meet the expenses incurred and loss suffered by her apart from monetary monthly relief of maintenance of Rs.1,000/- for the male child of the petitioner i.e. the respondent herein w.e.f. 01.09.2007, with further directions that the monetary relief of Rs.1,000/- p.m. for the child shall be paid till the custody 1 of children was decided by the Court of law. Inter alia vide the impugned order dated 24.12.2007, the respondent to the petition i.e. the appellant herein was directed to make the payment of arrears from 01.09.2007 to 30.11.2007 of the monthly expenses of Rs.2,000/- for his wife and Rs.1,000/- for his child i.e. Rs.9,000/- as a lump sum amount to the respondent herein within 30 days of the impugned order.
It has been submitted on behalf of the Appellant through the present appeal that the appellant is earning a meagre sum of Rs.4,480/- which has not been denied by the respondent and that the same has also been accepted by the Ld. Trial Court and it has been submitted by the Appellant that the Ld. Trial Court did not appreciate the fact that if the Appellant pays Rs.3,000/- to the respondent, it will not be possible for the Appellant to maintain himself and his son, who is in his custody with the meagre sum of Rs.1,480/-. Inter alia the Appellant has submitted that he has to spend on food, lodging, clothing, medicines and transportation etc., and has also to maintain his aged parents, who are residing with him. The appellant has further submitted that the respondent is also earning some money by doing embroidery work for export houses and has admitted the same her in the petition.
It has further been submitted on behalf of the Appellant that he is also providing shelter to the respondent and undertakes that he shall keep on doing so. The Appellant has thus sought the amount of Rs.3,000/- be reduced to a reasonable amount which the appellant can afford and can easily pay to the respondent.
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The notice of the petition was issued to the respondent who has put in appearance and the records of the Ld. Trial Court were requisitioned and have been perused.
Arguments were addressed on behalf of either side by the Ld. Counsel. A perusal of the record before the Ld. Trial Court makes it apparent as observed by the Ld. Trial Court that the only document placed on the record is the salary certificate of the month of February, 2007 of the appellant showing his salary to be Rs.4,480/- p.m. Both the appellant and the respondent have one child each in their custody. The respondent has in her application U/s. 12 of the Protection of Women from Domestic Violence Act, 1995 before the Ld. Trial Court stated that she and her child were living at the mercy of his brother and that she is doing some embroidery work for export houses which is reached through middlemen, which is not sufficient to maintain herself and her child and cannot rely upon her brother for life long maintenance as he has a family to provide for. As per averments made in the application of the respondent, the appellant was allegedly working as a Group IV employee at the American Embassy earning Rs.15,000/- at least and it was further submitted on behalf of the respondent, that the appellant also had an Auto Rikshaw bearing No. DL 2170 which he let out on rent through which he earned Rs.6,000/- per month and thus had a total income of Rs.21,000/- which ,however, has been refuted on behalf of the Appellant herein in his reply submitting to the effect that apart form his salary, he had no other source of income and that the Auto Rikshaw was that of his younger 3 brother which he plied to earn his livelihood for his own family. The appellant further replied before the Ld. Trial Court has submitted that he was maintaining a motorcycle which was purchased by taking a loan and instalments were being paid on a monthly basis.
As per the pay slip of the appellant on record of the month of February, 2007 apart from compulsory deductions towards EPF and ESI of Rs.386/- and Rs.87/- respectively, there were no further deductions being made and the Appellant is indicated to be posted as a Senior Guard with the CJS, Security Services India Pvt. Ltd. There is no document that the respondent to the appeal has placed or had placed before the record of the Ld. Trial Court to indicate that the appellant had any other means of earning apart from his salary.
Taking into account thus the salary of the respondent of Rs.4,480/- of the month of February, 2007 which may have enhanced by Rs.2,00/- at the most, and taking into account the factum that the appellant also has one son aged 13 years in his custody and that the appellants also has to look after his parents, the grant of a sum of Rs.2,000/- for the wife in the circumstances of the case appears to be harsh as, as the amount of monetary relief to be paid to any aggrieved person cannot be crippling nor penal. In view thereof, the impugned order of the Ld. Trial Court dated 24.12.2007 is modified to the extent that in place of Rs.2,000/- granted to the respondent / wife w.e.f. 01.09.2007 onwards, the appellant is directed to make a payment of Rs.1,500/- to the respondent wife apart from Rs.1,000/- per month as already 4 ordered for the male child w.e.f. 01.09.2007 onwards in terms of the impugned order dated 24.12.2007. The amount if any paid in terms of the impugned order 24.12.2007 of the Ld. Trial Court by the appellant to the respondent / wife beyond the sum of Rs.1,500/- per month w.e.f. 01.09.2007 would be liable to be adjusted towards the future maintenance in terms of order herein above. The remaining directions in the impugned order dated 24.12.2007 of the Ld. Trial Court in complaint case No. 2137/01 however require no modification. The appeal is thus disposed of accordingly. Copy of this judgment be sent to the Ld. Trial Court forthwith along with Trial Court Record. The records of this appeal be consigned to the Record Room.
Announced in the open Court (ANU MALHOTRA)
today this the 5th day of May, 2008 ASJ/NEW DELHI
05.05.2008
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