Delhi District Court
Deepak Jadhav vs Varsha Jadhav @ Charu on 11 October, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 63/2022
CNR No.: DLCT01-007233-2022
Deepak Jadhav
S/o Late Ashok Rao Jadhav
R/o D-51, Majnu Ka Tilla
Civil Lines, Delhi-110054
..... Appellant
VERSUS
Varsha Jadhav @ Charu
W/o Sh. Deepak Jadhav
R/o C-6/267, Sultan Puri
Delhi-110086
..... Respondent
Date of Institution : 02.05.2022
Date of Arguments : 11.10.2022
Date of Judgment : 11.10.2022
JUDGMENT
1. The criminal appeal under Section 29 of 'The Protection of Women From Domestic Violence Act, 2005' (Hereinafter referred to as 'DV Act') is directed against order dated 01.04.2022 (In short 'the impugned order') in complaint case vide CC No. 6056/2019 titled as 'Varsha Jadhav @ Charu vs. Deepak Jadhav & Ors.' whereby Ld. MM (Mahila Court-04), Central, Tis Hazari Courts, Delhi (In short 'the trial Court') directed the appellant to pay interim maintenance in the sum of Rs. 5,500/- per month to the respondent from the date of filing of the application under Section 12 DV Act till the disposal of the petition.
Crl. Appl. No. 63/2022 Deepak Jadhav vs. Varsha Jadhav @ Charu Page No. 1 of 9 BRIEF FACTS:
2. The respondent (In short 'the complainant') filed an application under Section 12 DV Act, inter alia, against the appellant for reliefs under Section 18, 19, 20 and 22 DV Act alongwith an application under Section 23 (2) DV Act, inter alia, for interim maintenance in the sum of Rs. 30,000/- per month on averments that the complainant was married to the appellant on 10.12.2018. The complainant alleged that she was subjected to physical, verbal, emotional and economic abuse. The complainant alleged that she was treated with cruelty for bringing insufficient dowry. There are allegations and counter- allegations with which we are not presently concerned. The complainant is residing with her parents since 05.02.2019.
3. The case of the complainant is that the appellant is earning about Rs. 50,000/- per month. The appellant has no other liability except to maintain the complainant. In reply, the appellant stated that the complainant deserted him without any justification on 06.02.2019 and he brought her back on 05.08.2019. The complainant again deserted him on 06.12.2019 and she has refused to join him. The appellant stated that he is a daily wager and earning Rs. 8,000/- per month approximately. He stated that he does not get job everyday. He stated that he is maintaining his aged mother also. He stated that he has no funds to provide maintenance to the complainant. He stated that the complainant is working as a 'maid servant' in Kirti Nagar and earning Rs. 10,000/- per month.
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4. Feeling aggrieved and dissatisfied with the impugned order, the appellant preferred the criminal appeal.
5. Ld. Counsel for the appellant contended that the appellant has not caused any kind of domestic violence. He contended that the complainant deserted the appellant without any reasonable excuse on 06.02.2019. He contended that the appellant brought the complainant back on 05.08.2019. He contended that the complainant again deserted the appellant without any justification on 06.12.2019. He contended that before the trial Court, the matter was amicably settled and the complainant joined him, as recorded in order dated 27.09.2019. He contended that the matter was again amicably settled, as noted in order dated 22.09.2021. He contended that the complainant is not entitled to interim maintenance as she voluntarily deserted the appellant. He contended that the complainant studied upto 12th standard and she is receiving substantial amount, as reflected in her bank account. He contended that the complainant is earning Rs. 10,000/- per month from her avocation as 'maid servant' in Kirti Nagar, Delhi. He contended that the complainant is capable of earning and therefore, she is not entitled to seek interim maintenance. He contended that the appellant studied upto 12 th standard and he is a daily wager. He contended that income of the appellant is not consistent and his average income is Rs. 8,000/- per month. He contended that the appellant has responsibility to maintain his aged and ailing mother.
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6. Ld. Counsel for the appellant contended that the trial Court wrongly considered entries in bank account of the appellant maintained with Kotak Mahindra Bank as credit entries. He contended that the appellant has taken the said amount as loan for the purpose of his marriage. He contended that the trial Court committed serious error of law in assuming monthly income of the appellant on the scale of minimum wages. He contended that the appellant and the complainant have similar academic qualifications and the complainant has capability and capacity of earning. He contended that the complainant has sufficient income to maintain herself. He contended that the trial Court committed serious error of law in awarding interim maintenance to the complainant. ANALYSIS AND DISCUSSION:
7. As regards contention that the complainant deserted the appellant without justification and therefore, she is not entitled to interim maintenance, it can be stated that the complainant has mentioned specific incidents of physical, verbal and emotional abuse. She specifically stated that the appellant and his mother were treating her with cruelty for bringing insufficient dowry. Admittedly, FIR No. 156/2020 was registered under Section 498A/406/34 IPC at PS Sultan Puri against the appellant and his family members. Therefore, there is prima facie material that the appellant and his mother committed domestic violence against the complainant. Moreover, such contention cannot be considered minutely at this stage.
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8. In Nakul vs. Padmini, (2016) SCC OnLine Bom 10624, Hon'ble High Court of Bombay held, as under:
"9. The contentions of the petitioner that the respondent wife has deserted him without any reasonable cause and therefore, she is disentitled to maintenance, cannot be considered in great details at the stage of determination of interim maintenance."
9. As regards contention that the complainant has similar academic qualifications and she is capable of earning, it can be stated that capacity to earn and actual earning are two different things. This proposition of law is laid down in the case of Kanupriya Sharma vs. State & Anr., (2019) 261 DLT 349 by the Hon'ble High Court of Delhi that 'actual earning' or 'qualified and capable of earning' are two different things. In Shailja & Anr. vs. Khobbanna, (2018) 12 SCC 199, Hon'ble Supreme Court of India held that whether the appellant is 'capable of earning' or whether she is 'actually earning' are two different things and merely because the appellant is capable of earning is not a sufficient reason to reduce the maintenance.
10. As regards contention that the complainant is earning Rs. 10,000/- per month from her avocation as a 'maid servant' and there are unexplained credit entries in the bank account of the complainant, it can be stated that there is no credible material regarding avocation and income of the appellant. Such contention has no foundation in the pleadings of the appellant. Besides credit entries for trivial amount, there is no substantial credit entry since 10.12.2018. The complainant has no regular or consistent income.
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11. As regards contention that entries in the bank account of the appellant with Kotak Mahindra Bank are related to loan availed by the appellant for his marriage, it can be stated that the date of marriage is 10.12.2018 whereas the said entries relates to post marriage period.
12. As regards contention that the appellant has responsibility to maintain his mother, it can be stated that the case of the appellant is that he is residing with his mother in the house owned by her as a licensee and further, there is no material that his mother is suffering from any age related ailment requiring medical expenses.
13. As regards contention that the appellant is a daily wager and earning Rs. 8,000/- per month, it can be stated that the appellant has not disclosed his avocation. Mere statement that the appellant is a daily wager in presence of frequent substantial credit entries to his bank account, it cannot be believed that the appellant is a daily wager. The appellant has not disclosed his true avocation. He has not disclosed his real income. The complainant has no source of income. She is not gainfully employed. She is residing with her parents. She is dependent upon her parents for her maintenance. The appellant has legal and moral responsibility to maintain the complainant. He has no other responsibility except to maintain the complainant. He cannot avoid his liability to maintain the complainant.
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14. In Anju Garg and Another vs. Deepak Kumar Garg, 2022 SCC OnLine SC 1314, Hon'ble Supreme Court of India held, as under:
"10.....The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able- bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute.....
15. In Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705, Hon'ble Supreme Court of India held as under:
"14.....Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able- bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.
17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning."
16. In Chander Parkash vs. Shrimati Shila Rani, AIR 1968 Del 174, Hon'ble High Court of Delhi held as under:
"7. But this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child....."
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17. The respondent is a able bodied person. He is not suffering from any ailment or disability preventing him from earning his livelihood. He cannot be permitted to contend that he has no sufficient income to maintain the complainant. The appellant has studied upto 12th standard. His monthly income must be assessed on the basis of minimum wages as applicable to matriculates in Delhi. The monthly income of the appellant is assessed at Rs. 17,991/-. In that view, the trial Court awarded just and reasonable interim maintenance in the sum of Rs. 5,500/- per month to the complainant. CONCLUSION:
18. This Court does not find any justiciable reason to interfere with the impugned order. Accordingly, the criminal appeal filed by the appellant is dismissed. A copy of judgment alongwith trial Court record be sent back to trial Court. Appeal file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.10.11
16:07:22 +0530
Announced in the open Court SANJAY SHARMA-II
on this 11th October, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
Crl. Appl. No. 63/2022 Deepak Jadhav vs. Varsha Jadhav @ Charu Page No. 8 of 9 Deepak Jadhav vs. Varsha Jadhav @ Charu CNR No.: DLCT010072332022 Crl. Appeal No. 63/2022 11.10.2022 Present : Mr. Ankur Manav, Advocate for the appellant.
The Court has heard arguments. Vide separate judgment, the criminal appeal filed by the appellant is dismissed. The appeal file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.10.11
16:07:33 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
11.10.2022
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