Delhi District Court
Sarabjit Kaur vs Jatinder Singh on 13 January, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 210 of 2022
CNR No. DLSE01-010173-2022
IN THE MATTER OF :
Sarabjit Kaur
W/o Sh. Jatinder Singh
R/o H.No. 54, Third Floor,
Lajpat Nagar, New Delhi-110024.
.......Appellant
Versus
Jatinder Singh
S/o late Sh. Jagjeet Singh
D/o Sh. Amir Ahmad,
R/o H.No. 54, Third Floor,
Lajpat Nagar, New Delhi-110024.
........Respondent
Instituted on : 02.11.2022
Reserved on : 20.12.2022
Pronounced on : 13.01.2022
AND
CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh
CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 1 of 9
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:20:08 +0530
CRIMINAL APPEAL NO. 188 of 2022
CNR No. DLSE01-009418-2022
IN THE MATTER OF :
Jatinder Singh
S/o late Sh. Jagjeet Singh
D/o Sh. Amir Ahmad,
R/o H.No. 54, Third Floor,
Lajpat Nagar, New Delhi-110024.
.......Appellant
Versus
Sarabjit Kaur
W/o Sh. Jatinder Singh
R/o H.No. 54, Third Floor,
Lajpat Nagar, New Delhi-110024.
........Respondent
Instituted on : 07.10.2022
Reserved on : 20.12.2022
Pronounced on : 13.01.2022
JUDGMENT
1. Vide this common judgment, I shall dispose of the instant two cross appeals filed by the parties, challenging the common order dated 19.09.2022, passed by the learned Metropolitan Magistrate-03, Mahila Court, South East District, Saket Courts, New Delhi in CT Cases No. 1569/2021 titled as 'Sarabjit Kaur vs. Jatinder Singh', filed under CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 2 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:20:15 +0530 provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') whereby Jatinder Singh/husband was directed to pay an interim maintenance of Rs.7,250/- per month to Sarabjit Kaur/wife from the date of filing of application u/s 12 DV Act till disposal of petition. For the sake of convenience, parties shall be referred as per their respective status before Ld. Trial Court.
2. Brief facts may be taken note of: A complaint under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act) seeking various reliefs came to be filed by the complainant/wife against the respondent/husband on the ground that she has been subjected to domestic violence by him. The said complaint was accompanied with an application under section 23 of DV Act seeking interim relief in the nature of interim maintenance, which stood disposed of by Ld. Trial court vide impugned order.
3. Vide said order, it was observed by Ld. Trial Court that marriage between the parties is not disputed and in view of allegations of domestic violence made by complainant/wife against respondent/husband, a prima facie case of domestic violence is made out against the respondent/husband. After considering the facts and circumstances of the case and material available on record, Ld. Trial court assessed the monthly income of appellant @ Rs.21,756/- per month as per Minimum Wages applicable in NCT of Delhi and awarded monthly maintenance of Rs.7,250/- in favour of complainant/wife.
CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh
CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 3 of 9
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:20:26 +0530
4. Appeal No. 210 of 2022 has been preferred by the complainant/wife Sarabjit Kaur seeking enhancement of interim maintenance. The sum and substance of the arguments addressed in support of the said appeal can be summarized as under :-
(i) That Ld. Trial Court has passed the impugned order in a mechanical manner;
(ii) That Ld. Trial Court erred by overlooking the submission of complainant/wife in her complaint regarding persistent threats to her life at the hand of respondent/husband;
(iii) That Ld. Trial Court vide impugned order has awarded interim maintenance @ Rs. 7,250/- per month whereas the monthly expenditure of complainant/wife comes to Rs. 30,000/-;
(iv) That the impugned order is suffering from legal and factual defects and same is liable to be set-aside.
4A Ld. Counsel for revisionist/wife has relied upon following judgments in support of contention :-
a) Jaiveer Singh vs. Sunit Chaudhary, Crl. Rev. P. 820/2018 & Crl. M.A. 32656/2018 by Hon'ble Delhi High Court.
b) Chaturbhuj vs. Sita Bai (2008)2 SCC 316;
c) Bhagwan Dutt v. Kamla Devi, (1975)2 SCC 386;
d) Rajnesh v. Neha, (2021) 2 SCC 324;
e) Manish Jain v. Akanksha Jain, (2017) 15 SCC 801;
f) Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303;
CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 4 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:20:35 +0530
g) V. Anusha vs. B. Krishnan, C.R.P. (PD) No. 1824 of 2022 and C.M.P. No. 9350 of 2022, pronounced on 11.08.2022 by Madras High Court
5. Per contra, Appeal No. 188 of 2022 has been preferred by the respondent/ husband Jatinder Kumar seeking setting aside of same impugned order. The sum and substance of the arguments addressed in support of the said appeal can be summarized as under :-
i) That the impugned order is illegal and devoid of merits;
ii) That Ld. Trial Court failed to consider the age of respondent/husband being 61 years.
iii) That Ld. Trial Court failed to consider that respondent/husband has been suffering from various old aged ailments like cataract (both eyes), cardiac issues, high blood pressure, diabetes etc.;
iv) That Ld. Trial Court failed to consider that due to old age, he is not able to earn his livelihood and is dependent upon his son;
v) That Ld Trial Court failed to consider the fact that complainant/wife has not placed on record any document to prove her expenditure claimed by her;
vi) That Ld Trial Court failed to consider the fact that complainant/wife is receiving interest @ Rs. 1 lakh as interest on FDRs amount to Rs. 20,54,110/- and her claim that the said FDRs belongs to her daughter is false;
vii) That Ld Trial Court has failed to appreciate that the complainant/wife has filed D.V. Act petition after 33 years of marriage;
viii) that Ld Trial Court failed to appreciate the fact that respondent has not come with clean hands and has concealed material facts;
6. I have heard rival contentions and perused the record.
CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh
CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 5 of 9
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:20:45 +0530
7. The contention of respondent/husband that he never subjected respondent/wife to any kind of domestic violence and it is she who had subjected cruelty upon him, can only be decided after parties lead their evidence and suffice it would be to observe that at this stage, there are no palpable reasons to disbelieve the version of complainant/wife that she has been subjected to domestic violence by respondent/husband.
8. Now coming to the legality of interim maintenance: Perusal of Trial Court record reveals that income affidavits by both the parties came to be filed before Ld Trial Court. In the affidavit filed by complainant/wife, she claims to be 12th standard pass having no income to support herself. She further claims that her monthly expenditure is Rs. 30,000/- per month and respondent/husband is having income of Rs. 1 lakh per month from his business. On the other hand, as per income / expenditure affidavit of respondent/husband, he claimed that he is graduate and is unemployed having no income. His monthly expenditure is stated to be Rs. 19,250/- per month. As per husband/respondent, his life time earnings of Rs. 16-17 lakhs are in possession of complainant/wife which have been converted by her in FDRs and she is getting interest thereon.
9. In the instant case, as rightly observed by Ld. Trial Court, apart from bare assertions, none of the parties brought on record any document in support of respective income of their counterparts and therefore, ld. Trial Court was left with no option but to assess the monthly income of CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 6 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:20:54 +0530 husband on the basis of Minimum Wages and approach of the Ld. Trial Court on this count cannot be faulted with. Though, the wife claims that husband is earning rent from his shop and also placed copy of rent deed with regard to same. However, as per respondent the said shop is not earning any rent at present due to its deteriorating condition. In view rival contentions of parties, I am of the considered view that the actual earning from the rent, if any, can be adjudged during the course of trial only once the parties are permitted to lead evidence.
10. Even otherwise, even if it is assumed that rent from the respondent's shop is @ Rs. 20,000/- per month as reflected from the copy of the rent deed for the year 2019, then also, apart from said document, no other document has been placed on record by the wife with regard to income of husband and therefore, the assessment of monthly income @ Rs. 21,756/- appears to be justified even if said deed is taken into consideration.
11. Though the husband claims that he is having nil income and suffering from various old age related ailments and therefore is unable to maintain himself as well as his wife, however, in my considered view, he cannot shy away from his responsibility of maintaining his wife that too in evening of her life. This court can take note of the fact that there is a tendency on the part of parties (in such type of litigations) to hide their true income and it appears that in the instant case also, appellant/husband withheld his true income and in such circumstances, Ld Trial Court was CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 7 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:21:02 +0530 left with no option but to make a guess work regarding monthly income of appellant on the basis of minimum wages and therefore, said approach of Ld Trial Court cannot be faulted with.
12. Hon'ble High Court in case Khem Chand Vs Bhagwati, Crl M.C. No.812/2016, Crl. M.A No. 3423/2016 dated 22.01.2019, has held as under :-
"5. The petitioner claims that he is non-matriculate and has no source of income, he having been engaged in earning his livelihood as a driver of three wheeler scooter (TSR) till 2006, cannot be acted upon. He has not disclosed as to how he has been surviving all along. It cannot be believed that a person who was capable of supporting a family by getting married and raising a child would all of a sudden become devoid of all sources of income.
6. It is clear and is evident from the order of the sessions that the petitioner is concealing facts, intentionally withholding information about his income. It is noted that the Metropolitan Magistrate faced with a situation wherein respondents were also unable to muster clear proof, has assumed the income notionally on the basis of minimum wages and on such basis has passed the order of interim maintenance. The approach of the Metropolitan Magistrate in these circumstances cannot be faulted."
13. Even otherwise Ld. Trial Court has only given a prima-facie view regarding monthly income of husband for the purpose of deciding the issue of interim maintenance and his exact income shall only be decided only during course of trial. Therefore, this court cannot and rather ought not to substitute its own view with that of Ld Trial Court that too at interim stage.
14. Once the monthly income of appellant @ Rs.21,756/- is found CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh CA No. 188/22 Jatinder Singh vs. Sarabjit Kaur Page No. 8 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:21:09 +0530 to be justified, the award of interim maintenance @ Rs. 7,250/- is just and reasonable keeping in view the 'principle of apportionment' as laid down by Superior Courts in Annurita Vohra vs. Sandeep Vohra, 110, (2004) DLT 546 and Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694, decided on 18-02-2021.
15. As far as prayer of wife regarding direction to shift the husband from shared household is concerned, I am in agreement with Ld. Trial Court that since the domestic violence is yet to be proved to the hilt, the extraordinary relief of eviction of husband from the shared household should not be granted to the wife.
16. With these observations, the both the instant appeal stands dismissed.
17. TCR be sent back along with copy of this judgment.
18. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:21:15 +0530
Announced in the open (ANUJ AGRAWAL)
court on 13th January 2023 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
CA No. 210/22 Sarabjit Kaur vs. Jatinder Singh
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