Delhi District Court
Presently At vs Avi Kaushik on 4 September, 2020
IN THE COURT OF NAVEEN GUPTA,
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS, DELHI
Crl. Appeal No. 42/2019
Case ID No. 159/2019
PS Jagatpuri
In the matter of:-
Deepti Sharma
W/o Sh. Avi Kaushik,
D/o Sh. Ram Niwas Sharma,
R/o B-742, IDPL,
Rishikesh (Uttrakhand)
Presently at:
H. No.35, Gagan Vihar Extension,
Shahdara, Delhi -110051. ..... Appellant
Versus
Avi Kaushik
S/o Sh. O.P. Kaushik,
R/o C-39, Jitar Nagar,
Delhi - 110 051. .....Respondent
Date of institution : 20.08.2019
Date of reserving the judgment : 19.08.2020
Date of judgment : 04.09.2020
JUDGMENT
1. This is an appeal filed by Deepti Sharma challenging the order dated 19.07.2019 of Ld. MM (Mahila Court-01), Shahdara, Karkardooma Courts, Delhi, whereby the Court has dismissed the application moved by the appellant herein/complainant for granting interim maintenance under Section 23 of the CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 1 of 6 PS Jagatpuri Protection of Women from Domestic Violence Act, 2005 (for short 'PWDV Act').
2. Brief facts of the case leading to the filing of present appeal are that the appellant herein/complainant Deepti Sharma filed a complaint under Section 12/18/19/20/21/22 and 23 of PWDV Act against the respondent herein, who is her husband, and two other persons of her in-laws family. Simultaneously, she filed an application for grant of interim maintenance and Rs.25,000/- as litigation expenses.
3. Vide the impugned order dated 19.07.2019, Ld. Trial Court decided the said application while observing that 'neither of the parties have filed any documents in support of their respective claims in their income affidavits. Complainant has not provided any document showing employment of respondent No. 1 or ownership of his property as claimed by her. Respondent No. 1 has filed copies of some cheques and photographs to show employment of complainant and her monthly income. He has also filed copy of order dated 09.05.2018 of Ld. Family Court dismissing maintenance application of complainant'. Ld. Trial Court has further observed that 'since complainant has not disclosed anything about her previous employment in her income affidavit, it appears that complainant has not approached the court with clean hands and therefore, her application is liable to be dismissed on this ground alone. Furthermore, the complainant has not filed any document to establish income or living status of respondent No. 1'. Ld. Trial Court has finally observed that 'without any justification for unemployment of complainant when she is well qualified and does not have children to take care of, the court is not inclined to grant any interim maintenance in favour of the complainant and accordingly, the present application is dismissed'. Hence, the appellant has filed the present appeal challenging the above-said order.
CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 2 of 6PS Jagatpuri
4. Arguments have been advanced by the respective Ld. Counsels for the appellant and for the respondent.
5. Ld. counsel for appellant has argued that Ld. Trial Court has not appreciated the facts and circumstances in right perspective. The respondent is doing a business under the name 'Heights Institute' near Udhyog Nagar Metro Station. He is earning about Rs.1,25,000/- per month. He has taken a false plea that he is a tutor and having income of Rs.10-12 thousand. Then, how he is able to pay rent of Rs.11,000/- per month. The appellant had seen the business and income of the respondent. But in the absence of any documentary proof of income of the respondent, the respondent has misled Ld. Trial Court. Ld. Trial Court has wrongly held that the complainant has not approached the court with clean hands. He has further argued that after leaving the matrimonial home, the complainant was unable to concentrate in the job and thus, she left the service. She shifted back to her parental house at Rishikesh and confined her to do house jobs like tuitions and teachings. Further, income affidavit of the appellant/complainant had been filed somewhere in the year 2016, while the application was argued in the year 2019. During this intervening period, much of the scenario has changed, which has not been considered by Ld. Trial Court. He has laslty argued that Ld. Trial Court must have atleast assessed the income of the respondent as per Minimum Wages Act and ought to have awarded maintenance accordingly.
6. Ld. counsel for respondent has argued that vide order dated 09.05.2018, Ld. Family Court has also dismissed the application moved by the appellant herein for interim maintenance under Section 125 Cr.P.C. Further, the respondent is residing, in a rented house, separately from his father and paying rent of Rs.2,800/- per month. He has further argued that the appellant is educated upto M.A. in English and CIA. She is employed as Sales Manager in Concept Automobile Pvt. Ltd. at Lajpat Nagar, Delhi and receives salary of CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 3 of 6 PS Jagatpuri about Rs.20,000/- per month. The said fact had been accepted by her in her complaint dated 01.05.2016 to the SHO, PS Jagatpuri. The appellant/complainant did not file statement of her bank account in which her salary was being deposited. She did not even file statement of her Axis Bank credit card account. Rather, to misguide the court, she filed statement of those bank accounts which were not being used by her. Further, she had never disclosed before Ld. Trial Court that she had left or resigned from the abovesaid service. Further, the averment of the appellant in the present appeal that she had shifted to Rishikesh is contradictory to her own version in the Memo of Parties that she is presently residing at Shahdara, Delhi. Ld. Counsel has lastly argued that even if, the version of the appellant is accepted that she is doing job like tuitions and teaching at Rishikesh, then, both the appellant and respondent are doing same nature of job and earning independently to maintain themselves. Thus, the present appeal shall be dismissed.
7. Perusal of trial court record shows that in her affidavit annexed with the complaint, the complainant/appellant stated in the column of occupation that 'preparation of job'. The said affidavit had been prepared on 13.05.2016. She had also annexed a copy of complaint given by her to SHO, PS Jagatpuri on 01.05.2016, wherein she has inter-alia alleged that her husband, mother-in- law and father-in-law used to take her salary from her. Further, in another communication dated 03.05.2016, she has inter-alia stated that her husband used to take Rs.10,000/- per month from her salary. These communications clearly make out that the complainant/appellant had been working and getting salary at that time. There is hardly any gap of time between the abovesaid communications dated 01.05.2016 and 03.05.2016 and the affidavit dated 13.05.2016. In the present appeal too, it is not the case of the appellant that she had left the job prior to filing of the abovesaid affidavit. Ld. Counsel for the appellant has argued that circumstances have changed after filing of the present CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 4 of 6 PS Jagatpuri complaint in the year 2016. It is worth mentioning here that the complainant could have filed additional affidavit informing Ld. Trial Court about the change of circumstances. But, no such step was taken by the complainant. Rather, she did not provide true information at the time of filing of present complaint itself.
8. The affidavit filed by the complainant alongwith her complaint shows that she has given particulars of her bank account as Account No. 20325231102, SBI, Lajpat Nagar, Delhi. But, surprisingly, she has filed only the copy of bank account statement of ICICI Bank and communication with HDFC Bank before Ld. Trial Court. The respondent has claimed that the appellant has deliberately not filed the statement of her bank account in which her salary was being deposited. Considering the abovesaid observations of this Court, the Court finds substance in the argument made on behalf of the respondent in this regard.
9. The appellant has admitted in the present appeal that she did not have any documentary proof of the income of the respondent. In this circumstance, Ld. Trial Court has rightly taken into consideration the claim of respondent herein in respect of his earning per month. Further, the claim of the appellant that respondent is paying rent of Rs.11,000/- per month does not find favour from trial court record. The affidavit of respondent filed before Ld. Trial Court shows that he has claimed payment of rent of Rs.2,800/- per month.
10. Further, the court is in agreement with the submission made by Ld. counsel for respondent that at one place, the appellant is claiming that she has shifted to Rishikesh, while in the Memo of Parties, she has claimed to be residing at Shahdara, Delhi. However, she has admitted that she is doing house jobs like tuitions and teaching. The respondent has also claimed that he is doing job as a private tutor and earning Rs.10,000/- to Rs.12,000/- per month. Surprisingly, the appellant has not stated anything in the present appeal as to CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 5 of 6 PS Jagatpuri how much amount, she is earning from the said house jobs. In this manner, both the appellant and respondent are engaged in similar nature of job/work and it shall be inferred that they must be earning almost the same amount per month. In these circumstances and when the appellant is also well qualified, the argument of Ld. Counsel for the appellant to assess the income of the respondent as per Minimum Wages Act would be equally applicable for assessing the income of the appellant.
11. At this stage, this Court is reminded of the observation made by the Hon'ble Delhi High Court in Kanupriya Sharma v. State & Anr., (2019) 261 DLT 349, that:
21. An application under Section 23(1) of the D.V. Act is an application for fixing interim maintenance. Interim maintenance is fixed on taking a prima facie view of the matter. Serious disputed questions of facts raised at that stage, requiring evidence cannot be gone into.
12. Thus, this Court does not find any incorrectness, illegality or infirmity in the findings of Ld. Trial Court vide order dated 19.07.2019.
Accordingly, appeal is dismissed. Appeal file be consigned to Record Room. Trial Court Record be sent back to Ld. Trial Court alongwith a copy of this order.
Announced in open Court NAVEEN GUPTA
on 4th day of September, 2020 Addl. Sessions Judge - 05
Shahdara District,
Karkardooma Courts, Delhi
CA No. 42/2019 (ID no.159/2019) Deepti Sharma v. Avi Kaushik Page 6 of 6
PS Jagatpuri