Delhi District Court
Navneet Singh vs Amandeep Kaur on 7 March, 2022
IN THE COURT OF MR. SUDHANSHU KAUSHIK
ADDITIONAL SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
IN THE MATTER OF :-
CNR No.DLWT01-005177-2021
CRIMINAL APPEAL No.82/2021
NAVNEET SINGH
S/O SH. PRIT PAL SINGH
R/O S-2/65, OLD MAHAVIR NAGAR,
NEW DELHI-110018. .....APPELLANT
VERSUS
AMANDEEP KAUR
D/O SH. HARDEV SINGH
W/O SH. NAVNEET SINGH
R/O 3145B, GALI SATHGARHA,
PUNJABI BASTI, SUBZI MANDI,
MALKA GANJ, DELHI-110007. .....RESPONDENT
DATE OF FILING OF APPEAL : 31.07.2021
DATE OF CONCLUSION OF ARGUMENTS : 03.03.2022
DATE OF PASSING OF ORDER : 07.03.2022
ORDER
1. By way of present appeal, Navneet Singh (hereinafter referred to as 'appellant') has challenged the order dated 04.09.2020 passed by the court of Ms. Sonam Gupta, Ld. Metropolitan Magistrate, Mahila Court (West), Tis Hazari, Delhi whereby the application filed by his wife Amandeep Kaur (hereinafter referred to as 'respondent') under Section 23 CA No.82/2021 Navneet Singh Vs Amandeep Kaur 1 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act') was allowed and the appellant was directed to pay a sum of Rs.6,042/- per month each towards the maintenance of respondent and the minor child. The trial court further directed that the maintenance shall be paid from the date of filing of the application till further orders and the appellant shall clear the arrears within six months.
2. The brief background of the matter is that the respondent filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against the appellant as well as her father-in-law and mother-in- law alleging that she has been subjected to domestic violence. The facts alleged in the petition were that the marriage between the parties was solemnized on 27.03.2016 at a Gurudwara in Subash Nagar, Delhi. Respondent alleged that her parents performed the marriage according to best of their ability and also presented costly gift and gold ornaments and landed up spending a sum of Rs.15 lacs in the marriage. She alleged that soon after the marriage, her mother-in-law took over all the jewellery presented to her by her parents and her in-laws started taunting her for bringing less dowry. She alleged that she was subjected to mental and physical torture by her in-laws. On 26.07.2017, a male child was born out of the wedlock but there was no improvement in the behaviour of the respondents. Respondent alleged that prior to the marriage, she was doing a private job and earning around Rs.17,000/- per month but the appellant did not allow her to continue the job. The petition contained a detailed account of the alleged incidents of domestic violence but there is no point in referring to those incidents as the appeal is only directed towards the quantum of maintenance. During pendency of this petition, respondent moved an application under Section 23 of the Act seeking interim CA No.82/2021 Navneet Singh Vs Amandeep Kaur 2 maintenance for herself as well as for the child. The application was allowed by the trial court and vide impugned order dated 04.09.2020, appellant was directed to pay the interim maintenance.
3. The ground of appeal as mentioned in the petition are :-
a) That the order was passed in a mechanical manner without application of mind;
b) That the respondent concealed material facts from the court and she did not file her bank statement and other documents which were required to be filed in support of her income in view of the directions passed in case titled as "Kusum Sharma Vs Mahendra Kumar" by the Hon'ble High Court of Delhi in FAO No.369/1996 decided on 06.08.1996;
c) That the trial court ignored material facts while passing the impugned order and granted interim maintenance on the higher side beyond the financial capacity of the appellant;
d) That the respondent misled the court by not filing her bank statements for last three years along with her income affidavit and in the absence of this material, there was no material available with the court to assess the living standard and financial capacity of the respondent;
e) That the court, while awarding the maintenance, ignored the order dated 15.10.2020 passed by the Maintenance Tribunal, Raja Garden, New Delhi whereby the appellant was directed to pay a sum of Rs.7000 per month as maintenance to his parents;
f) That the court did not take into consideration that the appellant was earning a salary of Rs.24,170/- per month and from the said salary, he was also paying maintenance of his parents;CA No.82/2021 Navneet Singh Vs Amandeep Kaur 3
g) That the respondent was entitled to maintenance of one third of share of appellant income which is left after paying maintenance of Rs.7,000/- to his parents;
h) That the court failed to take into account that after paying the maintenance of Rs.7,000/- per month to his parents, the appellant was left with only a income of Rs.17,000/- in his hand;
i) That the court, while awarding maintenance, failed to appreciate that respondent is a graduate and she is capable of earning her livelihood and she has not mentioned any reason in the application as to why she was unemployed even after the fact that she is a graduate;
j) That the court did not take into account that after filing of the petition, appellant lost his job and he was jobless.
4. Notice of the appeal was issued to the respondent, who appeared through counsel and filed reply. She denied all the allegations leveled by the appellant. She pointed out that the impugned order was passed on 04.09.2020 while the order for the maintenance of parents of the appellant was passed subsequently on 15.10.2020. She alleged that the order of maintenance granted to the parents was a collusive order. She denied the contention of the appellant that he had lost his job. It was pointed out by her that the appellant stated in his affidavit filed before the trial court that he was employed with Yes Bank and HDFC Bank Car Loan Department at ITO but the alleged lay off letter was from a different company. She conveyed that appellant concocted a false story in order to defeat her genuine claim of maintenance. She disclosed that she is unemployed and managing herself & her son from the support of her family members. She submitted that appellant has not paid maintenance to her even after passing of the impugned order.
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 45. I have heard the arguments advanced by the respective counsels.
6. Counsel for the appellant supported the grounds raised by him in the appeal and mentioned that the interim maintenance has been granted on a higher side. He argued that the trial court failed to take into account that the appellant was under a legal obligation to maintain his parents. He contended that the court did not take into account that the Maintenance Tribunal, Raja Garden, Delhi had awarded a maintenance of Rs.7000/- per month in favour of his parents. He contended that the trial court passed the order in a mechanical manner and did not insist on the affidavit of income of respondent. He argued that the trial court failed to appreciate that the respondent did not even file a single document to disclose her income. He contended that respondent deliberately concealed her income and this fact was totally ignored by the trial court while passing the impugned order. He contended that respondent filed a false PAN Card and Aadhaar Card in the trial court so that her income might not be revealed. He contended that respondent concealed her actual income and the trial court did not take into account that she was educated and fully capable of earning. He has contended that the respondent disclosed in the petition filed before the trial court that she had incurred an expenditure of Rs.1,10,000/- towards litigation but the source of the funds was not disclosed. He conveyed that respondent is of sound financial standing and this is borne out from the fact that she had been engaging counsels to present her case. He pointed out that respondent had disclosed in the petition before the trial court that she had incurred an expenditure of Rs.40,000/- towards the maintenance of the child and the said amount was provided by her family members. Counsel mentioned that on the one hand, respondent disclosed in the petition that she had incurred the expenditure from the money provided by her family members, while on CA No.82/2021 Navneet Singh Vs Amandeep Kaur 5 the other hand, she mentioned in the petition that she had not taken any unsecured loan. He has submitted that it is not possible to reconcile this contradiction. He argued that trial court ignored all these material aspects while passing the impugned order and therefore, the order is bad in law.
7. On the other hand, counsel for the respondent argued that the order of interim maintenance is well reasoned. He argued that the order of maintenance of the parents of the appellant was passed subsequently and it has no bearing on the impugned order. He contended that it was a collusive order. He mentioned that proceedings of Maintenance Tribunal reveal that the appellant did not contest those proceedings. He contended that the appellant has not paid maintenance to the respondent and the execution petition is pending before the trial court. Counsel submitted that the argument that the respondent should be denied maintenance merely because she is an educated female is misconceived. He argued that educational qualification cannot be a ground for denying the maintenance to a wife. Counsel mentioned that respondent is under great financial distress and she has been surviving on the basis of the support given by her family members. He contended that respondent is also looking after her five-year-old son. He mentioned that the living expenses of the child including the expenses towards his food, clothing, residence, medical expenditure and education need to be considered while granting the interim maintenance. He mentioned that the idea behind granting interim maintenance is to provide immediate aid to the wife. He contended that appellant has already defeated the purpose and he has not paid even a single penny towards maintenance. He argued that the present appeal has no merit and the same should be dismissed.
8. In order to support the arguments, counsel for the respondent has relied on the following decisions :-
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 6(i) Arun Vats V/s Pallavi Sharma & Ors., 2019 SCC OnLine Del1187
(ii) Jaiveer Singh V/s Sunita Chaudhary, 2021(281) DLT 119
(iii) Rajesh Kumar Yadav V/s Seema Yadav, 2021 SCC OnLine Del 4434
(iv) Rajneesh V/s Neha & Anr., 2021 (2) SCC 324
(v) Reema Salkan V/s Sumer Singh Salkan, 2019 (12) SCC 303
(vi) Shalu Ojha V/s Prashant Ojha, 2018 (8) SCC 452
9. I have perused the record in the light of respective arguments. In the present matter, the trial court has awarded an interim maintenance of Rs.6,042/- per month each towards the maintenance of respondent and the minor child. The maintenance has been awarded from the date of filing of application and it has been specified by the trial court that the maintenance shall include the rent and other ancillary charges. Admittedly, the minor child is living with the respondent. It has been argued that the awarded interim maintenance is beyond the financial capacity of the appellant. Counsel for the appellant contended that the maintenance granted is on a higher side which is beyond the paying capacity of the appellant. It has also been argued by his counsel that the trial court failed to appreciate that respondent is capable of earning her livelihood. Counsel for the appellant has contended that although appellant is a graduate but she has failed to disclose any reason as to why she is unemployed. I do not find force in these contentions.
10. Section 20(2) of the Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home. The court, while awarding maintenance, must draw a careful and just balance between all the relevant factors. The test for determination of maintenance in matrimonial CA No.82/2021 Navneet Singh Vs Amandeep Kaur 7 disputes depends on the financial status of the respondent and the standard of living that she was accustomed to in her matrimonial home. The maintenance amount awarded needs to be reasonable and realistic. The court must avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent nor it should be so meager that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
11. The respondent is stated to be unemployed and she is residing along with her mother. She is also taking care of the minor child, who is stated to be around 5 years old. The maintenance is required not only for sustenance but also for a reasonable living. Sustenance cannot be equated with mere survival. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. The argument that respondent should be denied maintenance merely because she has a potential to earn has no merit. There is no substance in the argument that the maintenance should either be denied or reduced merely because respondent is an educated woman, who is capable of earning. It has been held by the Apex Court in "Shailja & Anr. Vs Khobbanna" 2018 (12) SCC 199 that 'capable of earning' and 'actual earning' are two different requirements. It was observed in this case that it would not be a sufficient ground to reduce the maintenance merely because the wife is capable of earning. Thus, the argument that lesser amount of maintenance should have been awarded merely because the respondent is capable of earning needs to be rejected. It is also an admitted position that respondent is also looking after her five year old son. One cannot ignore the fact that respondent's capacity to go out and work has been hampered by this reason.
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 812. Now, coming to the argument about the financial capacity of the appellant.
It has been argued that appellant is no longer employed and therefore, he is not in a position to pay maintenance. I do not find force in this line of argument. It has been held in "Manish Jain Vs Akanksha Jain" (2017) 15 SCC 801 that the plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. It has been held in "Chander Prakash Bodhraj Vs Shila Rani Chander Prakash" AIR 1968 Delhi 174 that an able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife & children and cannot contend that he is not in a position to earn sufficiently to maintain his family. The court observed in this matter that the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control.
13. In the present matter, the order of interim maintenance was passed on 04.09.2020 and at that time, appellant, as per his own admission, was employed. It is also an admitted position that till date, he has not paid the arrears of maintenance to the respondent. The maintenance awarded by the trial court is for the sustenance of the respondent and the minor child. The maintenance includes the expenses to be incurred on the food, clothing and eduction of the minor child. Respondent is entitled to lead a life in the similar manner as she would have lived in her matrimonial home. Appellant cannot take subterfuges to deprive respondent of the benefit of living with dignity. It is the obligation of the appellant as a husband to see that the respondent does not become a destitute or a bagger. It is sacrosanct duty of the appellant to render financial support to CA No.82/2021 Navneet Singh Vs Amandeep Kaur 9 the respondent even if he is required to earn money with physical labour. There is no escape route unless there is an order from the court that respondent is not entitled to maintenance. Therefore, the argument that appellant has no financial capacity to pay maintenance deserves to be rejected. The appellant is under a moral and legal obligation to maintain his wife & minor child and for that he is required to pay maintenance. He cannot wriggle out of his duty by taking the plea of financial incapacity.
14. One of the arguments raised by the counsel for the appellant has been that the trial court failed to take into account the fact that the Maintenance Tribunal, Raja Garden directed vide order dated 15.10.2020 that appellant should pay a sum of Rs.7,000 per month towards the maintenance of his parents. This argument is misconceived. Record shows that the impugned order was passed on 04.09.2020 whereas the order of maintenance of parents was passed subsequently on 15.10.2020. In view of this, the argument that the trial court ignored the said order while awarding maintenance to the respondent is absurd. Appellant has placed on record certified copy of order passed by the Maintenance Tribunal, Raja Garden. I have gone through the order dated 15.10.2020 passed by the Maintenance Tribunal. The proceedings revealed that appellant did not contest the claim of maintenance made by the parents and willingly conceded to pay a maintenance of Rs.7,000/- per month. In view of this, the argument that it was a collusive litigation cannot be brushed aside. It seems that appellant conceded in those proceedings with an idea to defeat the claim of maintenance of the respondent. This becomes obvious from the fact that although, the impugned order had already been passed against the appellant but he did not disclose this fact to the tribunal.
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 10
15. The argument that respondent should be considered as a woman of sound financial capacity merely because she incurred expenditure towards litigation also appears to be absurd. The respondent has mentioned that she has been overcoming the expenses of litigation and eduction of the child by taking help of her family members. Since, amount has been contributed by the family members, therefore, the question of showing this amount as unsecured debt does not arise. It is a matter of common understanding that the litigation involves expenditure. The respondent has a legal right to hire a competent lawyer, which cannot be curtailed. No inference about her financial capacity can be drawn merely because she has incurred expenditure towards litigation. Rather, it is more of a reason to grant maintenance.
16. The argument that respondent failed to furnish requisite details of her income and assets before the trial court does not find support from the record. The trial court record reveals that respondent filed a detailed affidavit disclosing her monthly income and expenditure as well as statement of her assets and liabilities along with the application under Section 23 of the Act. Although, the appellant took stand before the trial court that respondent is drawing a salary of Rs.30,000/- per month but he failed to produce any document to support these submissions. He stated before the trial court that in addition to salary, respondent is also earning a sum of Rs.15,000/- per month from home tuitions but no document was produced by him even in this regard. These were just bald pleas and the same could not have been considered while arriving at the quantum of interim maintenance. The petitioner's afore-mentioned contentions, in the absence of any supporting documents remains a disputed question.
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 11
17. I am of the considered opinion that the maintenance of Rs.6,042/- per month each towards the maintenance of the respondent and minor child cannot, by any standard, be considered to be on higher side. I find no infirmity in the order of the trial court. The amount has been awarded for the sustenance of respondent and the minor child. The awarded maintenance is already on a lower side. There appears to be no reason to reduce it. The trial court has rightly awarded the interim maintenance from the date of filing of the application. It has been held in "Lavlesh Shukla Vs Rukmani" (Crl. Revision Petition 851/2019, decided by the High Court of Delhi on 28.11.2019) that where the wife is unemployed and is incurring expenses towards maintaining herself and the minor child/children, she is entitled to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the financial crunch, which occurs on account of her separation from her husband. It is neither a matter of favour to the wife, nor any charity done by the husband. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependent spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependent from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court. It has been held by the Apex Court in Rajneesh Vs Neha & Ors. (supra) that even though, a judicial discretion is conferred upon the court to grant maintenance either from the date of application or from the date of the order but it would be appropriate to grant maintenance from the date of application.
CA No.82/2021 Navneet Singh Vs Amandeep Kaur 12
18. In view of the discussions made in the afore-mentioned paras, I find no merit in the grounds taken by the appellant. There is no infirmity or illegality in the impugned order. The appeal stands dismissed. The appellant is directed to pay all the arrears of interim maintenance till date within a week.
19. TCR be sent back forthwith along with a copy of this order.
20. File be consigned to Record Room after due compliance.
Pronounced in the open court on 07th March, 2022 (SUDHANSHU KAUSHIK) Additional Sessions Judge, West District, Tis Hazari Courts, Delhi.
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