Delhi District Court
Diksha Sardana vs . Akshay Sardana on 9 June, 2020
Diksha Sardana Vs. Akshay Sardana
Case Registration No. 214/2019
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE02
DWARKA COURTS: NEW DELHI
Criminal Appeal No.: 25/19
Case Registration No: 214/2019
CNR No. DLSW010058372019
1. DIKSHA SARDANA
W/o Shri Akshay Sardana
2. KAVYA SARDANA (AGED 3 YEARS)
D/o Shri Akshay Sardana
Both Residents of :
Flat No. 664,
Princess Park Apartments,
Plot No. 33, Sector6,
Dwarka, New Delhi110075.
.... Appellants
VERSUS
AKSHAY SARDANA
S/o Late Chander Bhan Sardana
R/o House No. 295, Old Housing Board,
Sector13, Karnal (Haryana)132001.
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Diksha Sardana Vs. Akshay Sardana
Case Registration No. 214/2019
Also At:
Sardana Medical & Surgical Agencies
64, Jarnailly Colony, Opposite Kalpana Chawla
Medical College, Karnal132001.
.....Respondent
Date of institution : 03.05.2019
Date of reserving judgment : 17.02.2020
Date of pronouncement : 09.06.2020
JUDGMENT
1. This is an appeal preferred by appellants Under Section 29 of Protection of Women from Domestic Violence Act, 2005( PWDV Act) against impugned order dated 02.04.2019 passed by Ms. Neha, Ld. MM (Mahila Court), Dwarka Courts, New Delhi whereby interim application filed by appellants U/sec 20 of PWDV Act was disposed of while giving direction to respondent to pay Rs. 15,000/ per month towards maintenance of appellants and respondent was further directed to pay sum of Rs. 6,000/ towards rent.
2. The brief facts as mentioned in the appeal are as follows: Page no2 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019
3. Marriage between appellant no. 1 and respondent was solemnized on 23.04.2015 at Hotel Jewels, Karnal according to Hindu Rites and Ceremonies.
4. It is stated that out of the said wedlock, one female child namely appellant no. 2 was born on 22.01.2016 who has been under care and custody of appellant no. 1 since birth.
5. It is stated that respondent after few days of marriage started beating, harassing and abusing appellant no. 1 under instigation of his mother, three sisters and husband of middle sister in law depriving appellant no. 1 of food, demanding dowry and treating her like a slave /outsider. Appellant no. 1 was never given any money and she was left with no choice but to get help from her parents.
6. It is stated that appellant no. 1 was thrown out of her matrimonial home in wearing clothes by respondent and his family members on 06.10.2017. It is stated that appellant no. 1 and respondent are living separately since 07.10.2017.
7. It is stated that respondent did not give any maintenance to appellants on account of which appellants filed petition U/sec 125 Cr. P. C wherein as an ad interim measure, respondent was directed to pay Rs. 1 lac to appellants without prejudice to rights and contentions of respondent by court of Sh. B. R. Kedia, Ld. Principal Page no3 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 Judge, Family Courts, Dwarka.
8. It is stated that respondent is a man of sufficient means and has no other liability except to maintain appellants. It is stated that mother of respondent is self sufficient having her own source of income from widow pension. It is stated that respondent has three sisters and all of them are married to well off families. It is stated that respondent is owner of H. No. 295, Old Housing Board, Sector 13, Karnal, Haryana which is worth Rs. 4 crores approximately, is also owner of two storey shop in name of M/s Sardana Medical and Surgical Agencies worth Rs. 25 crores and one plot in Sector32, Karnal worth Rs. 1 crore. Respondent is also owner of one I20 car worth Rs. 8.5 lacs and one Baleno worth Rs. 10 lacs and also owns four two Wheelers.
9. It is stated that appellant No. 1 on the other hand is MBAHR and is a housewife taking care of appellant no. 2 aged about 3 years and is solely dependent on her parents and brother for all her expenses.
10. Appellant has taken following grounds to challenge impugned order:
a) Because Ld. Trial Court granted Rs. 6,000/ per month towards rent without considering new rent agreement dated Page no4 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 10.04.2018 as per which, rent of premises wherein appellants are residing is Rs. 15,000/ per month and besides this, Rs. 2,000/ is also being paid for electricity, water and society charges.
b) Because Ld. Trial Court failed to consider life style of respondent who is maintaining two cars i.e. one I20, one Maruti Baleno and Scooty having patrol bill of Rs. 6,000/ per month and is residing in 250 sq. yards building in posh colony of Sector13, Karnal, Haryana. Respondent is member of Gym Khana Club, Karnal, traveled to Singapore for Honeymoon, studied in Australia where he also served in five star hotels, visited various countries in Europe with friends, wear branded clothes, has four to five employees at shop on salary of Rs. 10,000/ to 15,000/ per month, paying Rs. 3,000/ per month to maid servant, spends Rs. 500/ each on car cleaning and is only son of his parents.
c) Because Ld. Trial Court has not considered monthly expenditure of appellants being between Rs. 40,000/ to 50,000/ per month and has granted maintenance of only Rs. 15,000/ per month which is arbitrary and without application of judicial mind.
d) Because Ld. Trial Court failed to appreciate that parents of appellant no. 1 are paying Rs. 5,000/ per month towards school fees, Rs. 1,000/ towards admission fee and Rs. 1,000/ per month Page no5 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 towards school transport of appellant no. 2. It is stated that monthly fees of appellant no. 2 increased to Rs. 5400/ and admission fee increased to Rs. 8800/ for academic year 20182019 for Pre Nursery Class and thereafter monthly school fee for Nursery Class increased to Rs. 5400/ and admission fee to Rs. 10,800/ for academic year 20192020.
e) Because Ld. Trial Court failed to appreciate that it is difficult to believe that respondent is earning only Rs. 31,000/ per month but his monthly expenditure is Rs. 56,000/ per month. It is stated that respondent has concealed his actual income and if respondent has expenditure of Rs. 56,000/ per month, respondent must be earning Rs. 2.50 lacs per month. Moreover, respondent is maintaining two cars out of income of Rs. 31,000/ per month.
f) Because Ld. Trial Court has not applied its judicial mind and held that appellant no. 1 was earning Rs. 17,000/ per month in year 2017 and still worked after birth of minor child. It is admitted that appellant no. 1 was working from 11.02.2017 to 30.09.2017 earning Rs. 17,000/ per month but had to discontinue her job as respondent and his family members did not allow her as appellant no. 2 was quite young. Ld. Trial Court failed to consider that since day of separation, appellant no. 1 is living all alone and taking care of her Page no6 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 minor daughter i.e. appellant no. 2 who is presently three years of age and is residing at rental accommodation and her circumstances does not allow her to work as appellant no. 2 is of tender age. When appellant no. 1 resided at her matrimonial home, respondent's mother took care of appellant no. 2.
g) Because Ld. Trial Court failed to appreciate that respondent has diploma in Hospitality Management and certificate in Commercial Cookery from Australia and is running wholesale medicine shop from two storey shop in the main market and having agencies of companies like Himalaya, Hegdre and Hegdre, Cipla etc and earning Rs. 4 to 5 lacs per month. Respondent has shown his turnover of the business to be Rs. 4.60 lacs per annum which is entirely false just to deprive maintenance to appellants.
h) Because Ld. Trial Court failed to appreciate that appellants are facing financial hardship and are not able to bear day to day expenses and totally dependent on her parents and brother in all respects. Father of appellant no. 1 has retired from LIC and is receiving pension of Rs. 47,000/ per month, mother of appellant is an acupuncture therapist earning Rs. 40,000/ per month and brother of appellant no. 1 is earning Rs. 30,000/ per month. Ld. Trial Court failed to appreciate that income of family members of appellant no.
Page no7 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 1 is not sufficient to bear financial expenses of themselves as well as appellants.
i) Because Ld. Trial Court erred in considering financial status of respondent and failed to appreciate that respondent has concealed his true income.
j) Because impugned order passed by Ld. Trial Court violates principles of natural justice besides violating constitutional rights of appellants.
k) Because Ld. Trial Court vide impugned order disposed of interim application for maintenance and passed order of Rs. 21,000/ per month which is bad in law as documents pertaining to appellants's expenses have not been considered by it.
l) Because impugned order dated 02.04.2019 passed by Ld. Trial court is illegal, arbitrary, perverse and based on conjectures and surmises without appreciating factual matrix of the case.
11. That appellants shall suffer irreparable loss and injury if impugned order dated 02.04.2019 is not set aside by this court.
12. It has been prayed to call for record from court of Ld. Trial Court and set aside impugned order in CC No. 24160/2017.
13. I have heard arguments addressed by respective counsels and perused the record including TCR.
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14. Vide order dated 02.04.2019, Ld. Trial Court disposed of three applications filed by appellant No. 1 i.e. one U/sec 23 of DV Act, another U/sec 19 of DV Act and third U/sec 20 of DV Act.
15. In application U/sec 19 of DV Act, appellant No. 1 prayed for grant of rent @ Rs. 10,000/ per month whereas in application U/sec 20 of DV Act, she prayed for maintenance of Rs. 50,000/ per month for both the appellants.
16. Ld. Trial Court in impugned order has observed that in income affidavit, appellant no. 1 has stated that she is a housewife having qualification of MBAHR. It is further noted that appellant no. 1 is living on rent.
17. Ld. Trial Court regarding stand of respondent in impugned order has observed that respondent has stated that he is graduate and running a business and earning about Rs. 31,000/ per month whereas his monthly expenditure is about Rs. 56,000/ per month. As per respondent, mother of respondent is dependent upon him. Respondent further took the stand that appellant no. 1 is working in a private company named EMBAUCHE HR Services Ltd. and is staying with her parents in their house. Respondent admitted that child is in custody of appellant no. 1 and he is willing to pay Rs. 6,000/ per month for the child.
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18. Ld. Trial Court in impugned order observed that respondent filed his ITR for assessment year 20172018 wherein his gross income was Rs. 4,60,000/ approximately. Respondent filed certificate issued by CA in respect of his medical and surgical agency with balance sheet to show that his income is not more than Rs. 4.6 lacs as shown in ITR. Ld. Trial Court further observed that Statement of Account filed by respondent shows that there has been regular deposit in his account and from 01.01.2017 till 31.12.2017, total credit in his account has been between Rs. 2 lacs to Rs. 2.5 lacs. Similarly from 01.01.2016 till 31.01.2016, credit in account of respondent is between Rs. 2 lacs to Rs. 2.5 lacs. Ld. Trial Court observed that there is nothing in the statement of respondent to show that he is earning about Rs. 4 to 5 lacs per month.
19. Ld. Trial Court in impugned order observed that it is difficult to believe that a person earning only Rs. 31,000/ per month would be in a position to spend approximately Rs. 56,000/ per month.
20. Ld. Trial Court observed that statement of account of appellant no. 1 shows that she was working in the year 2017 and was getting salary of about Rs. 17,000/ per month. It further observed that record makes it clear that appellant no. 1 is capable to work and maintain herself and that she is capable to earn about Rs. 15,000/ to Page no10 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 Rs. 18,000/ per month. It further observed that respondent is also capable to earn about Rs. 50,000/ to Rs. 55,000/ per month, only then he is able to spend Rs. 55,000/ per month. Child is in custody of appellant no. 1. It further observed that rent agreement placed by appellant no. 1 prima facie shows that appellant no. 1 is living on rent. It further observed that appellants are entitled to enjoy same standard of living as enjoyed by respondent.
21. It is irrational to believe stand of respondent that he is earning only Rs. 31,000/ per month but is spending about Rs. 56,000/ per month excluding repayment of personal loan (personal loan of Rs. 5 lacs has been shown by respondent in his income affidavit). How a person can spend about double the amount he earns has not been explained by respondent. In these circumstances, the income tax return acknowledgments and audit reports filed by respondent of his medical shop becomes doubtful at this stage.
22. Copy of bank statement of appellant no. 1 shows that she was working with one Vrinda Consulting / Vrinda Global Pvt. Ltd even after birth of appellant no. 2 and she lastly received salary till October, 2017 which shows that appellant no. 1 is capable of earning and is qualified (as she herself has mentioned her qualification to be MBA HR).
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23. No doubt it is well settled that while granting maintenance, capability of spouse to earn is to be taken into account but in present case, it is prima facie shown by appellant no. 1 by filing copy of rent agreement that she is residing separately from her parents in Delhi. Appellant no. 1 has also to take care of appellant no. 2 who is a minor but it cannot be ignored that in city like Delhi, there are so many options to rear child i.e. to keep maid or to get child admitted in crutches (which methods majority couples adopt when both are working) and it does not lie in mouth of appellant no. 1 that she is unable to join service on account of the fact that she has to take care of appellant no. 2.
24. I am unable to understand any logic in impugned order while granting rent to the tune of Rs. 6,000/ per month when appellant no. 1 has filed copy of rent agreement dated 10.04.2018 as per which rent of premises taken on rent by appellant no. 1 is Rs. 15,000/per month.
25. Ld. Trial Court in impugned order has observed that appellants are entitled to enjoy same standard of living as is enjoyed by respondent. No doubt it is settled law also. In the circumstances, when prima facie, appellant no. 1 has shown that she is residing in a property on rent regarding which, she is making payment of Rs.
Page no12 of 14 Diksha Sardana Vs. Akshay Sardana Case Registration No. 214/2019 15,000/ per month as rent, impugned order of Ld. Trial Court granting rent @ Rs. 6,000/ per month seems to be arbitrary and without logic and hence the same is set aside on this account. However, earlier appellant no. 1 in her affidavit filed before Ld. Trial Court has mentioned rent paid by her to the tune of Rs. 9,000/ per month. Hence, respondent is directed to pay house rent @ Rs. 15,000/ per month to appellant no. 1 starting from 01.04.2018 (as period of tenancy mentioned in copy of rent agreement filed by appellants). Prior to this period, the rent shall be paid by respondent as per copy of rent agreement to be produced by appellants.
26. Regarding maintenance of Rs. 15,000/ per month granted by Ld. Trial Court, I am of the view that at this stage, the same is not liable to be interfered as appellant no. 1 is qualified and competent to earn and should make efforts to find a job and reduce her miseries.
27. It is however made clear that nothing as observed in this order shall effect case of either appellants or respondent on merits before Ld. Trial Court as evidence regarding respective claims is yet to be led and their respective stand still to be proved by parties.
28. With these observations, appeal filed by appellants stands disposed of as partly allowed.
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29. Trial court record be sent back along with the copy of this judgment.
30. Appeal file be consigned to record room.
Digitally signed by SONU AGNIHOTRI SONU DN: c=IN, o=DELHI DISTRICT COURTS,
2.5.4.20=635ebcd96b3c06f85fede5ca7c8
87e3d73fe9aedd289dd442d8a6aa2ca9b
Dictated and Announced
AGNIHOTRI
3707, ou=DELHI HIGH COURT,CID -
6690510, postalCode=110075, st=Delhi,
cn=SONU AGNIHOTRI
in the open court on 09.06.2020 Date: 2020.06.09 15:37:17 +05'30'
(Sonu Agnihotri)
Additional Sessions Judge02,
(South West) Dwarka Courts,
New Delhi
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