Delhi District Court
Sh. Amit vs Smt. Sarika on 30 November, 2015
IN THE COURT OF Ms. POONAM CHAUDHRY, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
Crl. Appeal. No. : 1/15
Unique Case ID : 02401R0239832015
Sh. Amit
S/o Sh. Narender Kumar
R/o presently Flat No. 360
Sanjay Enclave, Delhi ......Appellant
Versus
Smt. Sarika
W/o Sh. Amit
D/o Sh. Jagdish Prasad
R/o E16/303, Tank Road,
Bapa Nagar, Karol Bagh,
Delhi ....... Respondent
Date of Institution on 12.05.2015
Judgment reserved on 20.11.2015
Judgment delivered on 30.11.2015
JUDGMENT
1. By way of present appeal, the appellant has assailed the Order of Ld. Trial Court dated 9.4.2015 whereby interim maintenance was fixed @ Rs. 13,000/ per month to be paid by the appellant to the respondent.
2. It is alleged that appellant was married with the respondent according to Hindu Rites and Customs and one child was born out of CA No. 1/15 Amit Vs Sarika 1/4 wedlock, who is in the care and custody of respondent.
3. It is further alleged that respondent/complainant left the matrimonial home because of her unreasonable demand and thereafter filed a complaint in the CAW cell. The matter was compromised in the CAW cell and parties started residing in a rented accommodation. But again the respondent deserted the appellant. The respondent thereafter filed a petition u/s 13(i)(a) of the Hindu Marriage Act whereas the respondent again filed a complaint in CAW Cell. The respondent also filed a petition under Domestic Violence Act claiming maintenance and other reliefs.
4. It is also averred that respondent filed reply opposing the petition stating interalia that he is not a man of means and he is employed as UDC in the Ministry of Defence and drawing salary of Rs. 27681/. It is further averred that appellant had got the job on companionsate grounds and he has to look after the members of his family which included his widowed mother, unmarried brother and two sisters. It is also alleged that appellant has taken loan which he has to repay. It is further alleged that impugned order is bad in law as it is based on surmises and conjectures. It is also alleged that Ld. Trial Court did not take into consideration the avernments of appellant at the time of passing the impugned order. It is prayed that the impugned order be setaside.
5. Petition was vehemently opposed by the Ld. Counsel for the respondent. It was submitted that there was no illegality in the impugned order.
6. I have heard the Ld. Counsels for the parties and perused the CA No. 1/15 Amit Vs Sarika 2/4 record. The factum of marriage and child being out of wedlock is an admitted fact. The Ld. Trial Court after perusing the affidavit of income and liability/expenditure of the parties and the documents , fixed the interim maintenance @ Rs. 13,000/ per month according to the status of the parties. The Ld. Trial Court was rightly of the view that it was duty of the appellant to maintain his wife who had no source of income and child.
7. To determine the quantum of interim maintenance, Ld. Trial Court relied upon the affidavit of income of the appellant wherein he had stated that he was in government service and was drawing net salary of Rs. 27,800/ per month. The fact that respondent/complainant is unemployed is not disputed. The only question to be decided in the present appeal is whether quantum of interim maintenance awarded by the Ld. Trial Court is just and calls for no interference. The quantum of maintenance has to be decided on the basis of material on record. The expression maintenance includes expenses for food, clothing, residence, medical and other expenses relating to normal pursuit of life. Thus, the needs and requirement of the wife and child for a moderate living, the earning of the husband, his capacity to earn are the relevant factors to be considered while determining the quantum of maintenance.
8. The order of Ld. Trial Court is based on the primafacie view of the case. The parties have yet to lead evidence to prove their allegations and counter allegations. The complainant had stated in her affidavit of income and liability that child is going to a play school, but the name of the play school and a copy of fee certificate has not been placed on record to CA No. 1/15 Amit Vs Sarika 3/4 substantiate the submission that a sum of Rs. 3,000/ per month is being paid. I am of the view that the amount of interim maintenance is on the higher side. Accordingly, I modify the interim order and fix Rs. 10,000/ per month as interim maintenance to be paid by the appellant to the respondent. The impugned order is modified to this extent. The amount being received by the respondent in any other proceeding is liable to be adjusted. The appeal is, accordingly, partly allowed. A copy of the order be sent to the Ld. Trial Court. Trial Court Record be sent back. The appeal file be consigned to Record Room.
Announced in the open court on this 30th day of November, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CA No. 1/15 Amit Vs Sarika 4/4