Delhi District Court
Sh. Anil Kumar vs Smt. Rekha Sharma on 22 April, 2014
:1:
Criminal Appeal No. 12/14
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 12/14
Unique I.D. No. : 02402R0305852013
In the matter of :-
Sh. Anil Kumar
S/o Late Sh. Chatubhuj Sharma,
R/o H.No. C-66, Gali No.6, Dayalpur,
Karawal Nagar, Delhi-110094.
.....Appellant
VERSUS
Smt. Rekha Sharma
D/o Sh. Raghubir Singh Chauhan,
R/o H.No. C-53/9-A, Gali No. 2,
Mohanpuri, North Ghonda,
Delhi-110053. ..... Respondent
Date of Institution : 19/09/2013 Date of receiving the case in this court : 18/01/2014 Date of reserving order : 07/04/2014 Date of pronouncement : 22/04/2014 Decision : Appeal is dismissed. ORDER IN APPEAL
This is an appeal U/s 29 of the Protection of Women from Domestic Violence Act, 2005 directed against the order dated 23/08/2013, passed by Ms. Geetanjali, Ld. Metropolitan Magistrate, Shahdara District, Karkardooma Courts, Delhi, in the case bearing complaint case no. V- 230/13, PS-Bhajanpura, titled as "Rekha Sharma vs. Anil Sharma etc". Vide the impugned order, the trial court disposed of an application of the Page 1 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :2: Criminal Appeal No. 12/14 respondent herein for grant of interim relief and directed the appellant herein to pay Rs. 3,000/- per month as maintenance to the respondent from the date of filing of the petition till disposal of this case.
2) Briefly stated, the relevant facts of this case are as under:-
The respondent herein filed an application U/s 12 r/w Section 18/19/20 and 23 of the Protection of Women from Domestic Violence Act, 2005 against the appellant and others. In her application respondent alleged that she was married to the appellant on 25.01.2000, in accordance with Vedic Rites at Delhi and two children were born out of this wedlock. Master Abhijit was around 3 years old and Baby Priyanshi was around 10 months old, at the time of filing that application and both children were in the custody of the respondent herein. It was further alleged that the appellant used to harass the respondent and used to make demand for dowry. The respondent was thrown out of the matrimonial house in April 2008 along with her two minor children and since then she had been residing at her parental house. The respondent was not able to maintain herself along with her children, while the appellant was liable to maintain them. Therefore, she prayed that appellant be directed to pay maintenance to her in order to maintain herself and her two minor children.
3) The appellant challenged the application of the respondent by filing his written statement disputing the marriage with the respondent and the allegations of harassment. He also challenged his alleged liability to maintain the respondent and her two minor children.
4) Vide impugned order, the trial court while appreciating the rival contentions of the parties and the materials relied upon by them, held a prima-facie view that a domestic relationship existed between the appellant and the respondent herein. The trial court also assessed the Page 2 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :3: Criminal Appeal No. 12/14 rival contentions regarding income of both the parties and passed the aforesaid order.
5) In the present appeal, the appellant has challenged the impugned order mainly on the ground that the trial court failed to appreciate that respondent is not wife of the appellant because appellant never married her. It has been also alleged that two children were not born out of wed-lock between the appellant and the respondent. It is also alleged that the trial court ignored that present application was not maintainable because of doctrine of res judicata because the respondent had filed similar application in the past, which is already dismissed in default. It is also alleged that the trial court did not consider that the respondent had no locus standi to file this application against the appellant for want of any relationship and that respondent herself was doing the job in DTC getting a monthly salary of Rs. 10,000/-
approximately. Whereas, the appellant is working as field workman in private company, thus, his salary is lesser than the salary of the respondent.
6) During the arguments both the parties referred to the same documents, which were relied upon by them before the trial court. In addition to that, additional document was filed before this Court, which is the statement of ESIC relating to the respondent, wherein, it has referred her marital status to be unmarried and wherein, her monthly salary has been shown to be amount varying between Rs. 7,000/- to 9,000/- per month. In support of her plea, the respondent herein referred to the wedding card, the photographs of the marriage, the charge-sheet against the appellant for offence U/s 498 A IPC, the birth certificate of her children mentioning the name of appellant as father, the ration card mentioning the name of appellant as husband of the respondent, the fee card of the Page 3 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :4: Criminal Appeal No. 12/14 children mentioning the name of the appellant as father etc.
7) On the other hand, the appellant referred to the statement obtained from ESIC as well as some complaints made by appellant and Smt. Rita, thereby disputing the relationship with the respondent.
8) In Rajeev Preenja v. Sarika, 159 (2009) DLT 616, it was held by Hon'ble High Court of Delhi as under:
" The learned MM while deciding the question of payment of interim maintenance to a wife is only expected to form a prima facie opinion whether such wife was staying away from the husband without any sufficient reason. If the argument of the petitioner has to be accepted then it is only after the entire evidence is led that an order for interim maintenance can be passed. That would defeat the very purpose of providing for payment of interim maintenance in Section 125. What the learned MM is required to determine at the stage of grant of interim maintenance is to be prima facie satisfied, on the basis of the pleadings and any other material on record, that the wife has not stayed away from the husband without sufficient reason."
9) The aforesaid observations were made by Hon'ble Delhi High Court in respect of an interim order relating to maintenance in favour of wife, in a proceedings U/s 125 Cr.P.C. However, the proceedings under the Protection of Women from Domestic Violence Act, 2005, as far as it relates to grant of interim maintenance, is very much similar for the purpose of appreciating the material in order to frame a prima-facie view. At the initial stage, the trial court, as observed by Hon'ble Delhi High Court in aforesaid case, could not give a final finding in respect of rival Page 4 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :5: Criminal Appeal No. 12/14 contentions of the parties regarding their domestic relationship. The trial court was only supposed to frame a prima-facie view. The photographs and other documents which have been relied upon by the respondent herein, were alleged by the appellant to be manipulated documents. However, such contentions of appellant cannot be finally decided without holding a trial and all such documents, which have been relied upon by the respondent herein, do prima-facie show a relationship of husband and wife between the parties. These documents also go on to show that two minor children were also shown to be born out of this alleged wedlock. These materials were sufficient for the trial court to frame a prima-facie view in favour of existence of a domestic relationship between the appellant and the respondent. Hence, I do not find any illegality in the order passed by the trial court regarding this finding.
10) In the application, the respondent claimed that the appellant had been earning something around Rs. 40,000/- to Rs. 50,000/- per month, however, no supporting material was placed on the record. On the other hand, the appellant denied having such income and pleaded that he was having a monthly salary of Rs. 4,000/- per month only. The trial court rightly disbelieved such plea of the appellant by referring to the minimum wages. On the basis of assumed minimum income of the appellant, the amount of Rs. 3,000/- for the purpose of respondent and her two minor children, cannot be said to be exaggerated amount, specially keeping in view the cost of living of the present day. I say so, keeping in view the alleged income of the respondent in the form of her salary. The salary of Rs. 7,000/- to 8,000/- per month cannot be sufficient for the respondent to maintain herself and her two minor children.
11) The plea of res judicata does not help the appellant, as there cannot be application of principle of res judicata, on the basis of fact that a Page 5 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :6: Criminal Appeal No. 12/14 similar petition was dismissed in default. Such principle applies in respect of a finding and there was no finding given regarding relationship between the parties.
12) In view of my aforesaid observations, I find that the impugned order does not suffer from any illegality and the discretion exercised by the trial court is well within the parameters of powers granted to the trial court, to frame a prima-facie view. Hence, this appeal is dismissed.
13) The respondent shall be entitled to withdraw the amount deposited by the appellant in this Court, subject to condition that she furnishes indemnity bond in the sum of amount deposited by the appellant, thereby undertaking to refund amount paid to her, if so directed by the trial court or other court, in this case.
14) Trial court record be sent back to the concerned court through ld. CMM, Shahdara, Karkardooma Court, Delhi along with copy of this order. Both the parties shall appear before the trial court on 26/04/2014 at 2.00 PM.
File of appeal be consigned to record room, as per rules.
Announced in the open court today i.e 22.04.2014 (PULASTYA PRAMACHALA) Additional Sessions Judge Shahdara, Karkardooma Court, Delhi Page 6 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi