Delhi District Court
Jolly Ravin vs . Santosh Ravin on 22 May, 2012
Jolly Ravin vs. Santosh Ravin
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
Criminal Appeal No. 21/2012
ID No. 02401R0409492011
MS. JOLLY RAVIN
W/O SH. SANTOSH RAVIN
D/O SH. RADHA SWAMI,
R/O FLAT NO. 429, PKT-B
DDA MULTI STORIES FLAT
ATULYA APPARTMENT
SECTOR 18/B, DWARKA,
NEW DELHI-110075
............Appellant/Petitioner
Versus
SANTOSH RAVIN,
S/O LATE SH. RAM CHANDAR RAVIN,
R/O FLAT NO.238, PKT II
DDA FLAT, SECTOR-9, DWARKA
NEW DELHI.
...........Respondent
Date of Institution : 02.04.2012
Judgment reserved on : 10.05.2012
Date pronouncement of judgment : 22.05.2012
Present: Sh. Jawhar Raja and Sh. Rajat Kumar, Advocates,
counsel for appellant.
Sh. Prabhjeet Johar, Advocate, counsel for respondent
ORDER:
1. This Criminal Appeal has been filed against the impugned Crl. Appeal No. 21/12 Page 1 of 13 Jolly Ravin vs. Santosh Ravin order dated August 8, 2011 passed by Court of Ms. Kiran Gupta, learned Metropolitan Magistrate, Mahilla Court, Central District, Tis Hazari Courts, Delhi
2. Necessary facts in brief leading to filing the present criminal appeal are that appellant had filed an application under Section 12 of D.V. Act against the respondent seeking various relief including maintenance of ` 50,000/- per month. Vide impugned order, the interim application of the appellant moved under Section 23 of Domestic Violence Act was allowed directing the respondent to pay maintenance @ ` 6,500/- per month in favour of appellant and ` 3,500/- per month in favour of minor child who is presently in the custody of appellant and further directed that respondent no. 1 shall deposit the school fee of minor child @ ` 5,000/- per month without any failure from the date of passing of order till the disposal of main petition. It was further directed that amount of maintenance shall be paid from the date of filing of the present petition i.e. 26.02.2011 till appellant and minor child are legally entitled to receive or till the disposal of present petition, whichever is earlier. It was further clarified that the amount of maintenance shall also include the amount of alternate accommodation and has been fixed after considering the entire facts of the case.
3. Aggrieved by the said order, appellant has filed the present criminal appeal.
4. I have heard Sh. Jawahar Raja, Advocate, counsel for appellant and Sh. Prabhjeet Johar, Advocate, counsel for respondent and perused the record carefully.
5. Learned counsel appearing for appellant assailed the impugned Crl. Appeal No. 21/12 Page 2 of 13 Jolly Ravin vs. Santosh Ravin order on mainly two points; firstly that learned Trial Court had committed an error by assessing that the total income of the respondent was ` 46,120/- per month whereas the total income of respondent is above `75,000/- per month. It was further contended that learned Trial Court also committed an error by permitting the respondent to adjust the deduction i.e. installment of ` 11, 000/- towards loan taken by the respondent and `12,000/- per month towards rent of his house. It was submitted that the said deductions are not permissible at the time of determining the maintenance. In support of his contention, learned counsel has placed reliance on judgment titled as Chaturbhuj vs. Sita Bai AIR 2008 SC 530, Annurita Vohra vs. Sandeep Vohra, 110 (2004) DLT 546, Chandni Sharma vs. Gopal Dutt Sharma decided on 26.05.2011 in Crl. R. Petition No. 767/2010 by H. C. of Delhi.
6. Per contra, learned defence counsel appearing for respondent contended that there is no infirmity in the impugned order as learned Trial Court had also considered the income of appellant and her capability to earn income. It was submitted that the capacity of earning income can not be ignored at the time of determining the maintenance. It was submitted that appellant was running the business of catering. In support of his contention, he relied upon the judgment titled as Vijay Kumar vs. Harsh Lata Aggarwal decided on September 10, 2008 in CM (M) No. 539/08 by the High Court of Delhi and Smt. Mamta Jaiswal vs. Rajesh Jaiswal, II (2000) DMC 170.
7. I have perused the judgments relied upon counsel for the parties. At the outset, it is pertinent to state that all the judgments relied upon by the counsel for the parties pertain either to Section 125 Code of Criminal Procedure or section 24 of Hindu Marriage Act, none of the judgments deals with the provisions of The Protection of Women from Domestic Violence Act Crl. Appeal No. 21/12 Page 3 of 13 Jolly Ravin vs. Santosh Ravin (Act in short). Under Section 20 of the Act, it is provided that monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. We do not find these words either in Section 125 Cr.P.C or Section 24 of Hindu Marriage Act. No doubt through judicial pronouncements, it was held that the maintenance should be adequate, fair and reasonable. Thus, the intention of legislature is to be kept in mind at the time of determining the maintenance. Chaturbhuj v. Sita Bai (supra) deals with the object of maintenance as provided under section 125 Code of Criminal Procedure. Para no. 5 of the judgment is relevant and reproduced as under:
"object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself"
in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing Crl. Appeal No. 21/12 Page 4 of 13 Jolly Ravin vs. Santosh Ravin and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).
8. Annurita Vohra's case (supra) deals with the question what formula Courts should adopt at the time of determining the maintenance. In the said case, Court relied upon two other judgments i.e. Jasbir Kaur Sehal v. District Judge, Dehradun & other and Harminder Kaur v. Sukhwinder Singh. In the former case, it was observed that:
"No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate".Crl. Appeal No. 21/12 Page 5 of 13
Jolly Ravin vs. Santosh Ravin In the latter case, it was held that:
"one should not be oblivious of the fact that equal status has been given to the Indian women under Articles 14 and 16 of the Constitution and that she should live according to the status of her husband along with the child of the parties. The Learned Judge had ordered that the income has to be equitably apportioned for maintenance of wife and the child. In his opinion the income should have been divided into five units, two units for each of the parents and one for the young child. On a disposable income of ` 12,000/- he had granted ` 7,200/- per month for the maintenance of the wife and the child."
After considering the above judgments, it was held in Annurita's case that:
"In my view, a satisfactory approach would be to divide the Family Resource Cake in two portions to the Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members."
Same view was taken in Chandni Sharma v. Gopal Dutt Sharma (supra).
9. On the other hand in case Smt. Mamta Jaiswal v. Rajesh Jaiswal (supra) Court dealt with the issue whether qualification of wife and her professional experience are relevant factors for determining the maintenance. Para 6 and 8 are relevant, thus are reproduced as under:
Crl. Appeal No. 21/12 Page 6 of 13Jolly Ravin vs. Santosh Ravin "6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted:
Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get Crl. Appeal No. 21/12 Page 7 of 13 Jolly Ravin vs. Santosh Ravin service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, sit idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to Crl. Appeal No. 21/12 Page 8 of 13 Jolly Ravin vs. Santosh Ravin be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours."
8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarreling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitioris as early as possible. The Matrimonial Courts have to keep it in mind that the quarrels between the spouses create dangerous impact on minds of their off springs of such wedlocks. The off springs do not understand as to where they should see ? towards father or towards mother? By seeing them both fighting, making allegations against each other, they get bewildered.
Such bewilderedness and loss of affection of parents is Crl. Appeal No. 21/12 Page 9 of 13 Jolly Ravin vs. Santosh Ravin likely to create a trauma on their minds and brains.
This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents."
10. Similar view was taken by the High Court of Delhi in Vijay Kumar v. Harsh Lata Aggarwal (supra)
11. In the light of above proposition of law, facts of present case will be analysed to ascertain what would be the appropriate maintenance in this case?
12. To ascertain the appropriate maintenance, first of all, we should know what the actual income of the respondent. In his reply, respondent admitted that his monthly salary is ` 48,500/-. Though learned counsel appearing for the petitioner contended that the monthly salary of the respondent is more than ` 75,000/-, yet he failed to convince the Court on what basis he calculated the income of respondent at ` 75,000/- per month. On being asked, learned counsel submitted that respondent is running some business, but he failed to furnish any detail of the same. Thereafter, he submitted that he has some extra income from some other source, but again he failed to furnish any detail. In the absence of any cogent material on record, I do not find any substance in the contention of learned counsel for the petitioner that the income of the respondent is beyond ` 48,500/- per month. Since, respondent himself admitted his monthly salary as ` 48,500/-, we will consider the same for the purpose of determining the maintenance.
13. Learned counsel appearing for the respondent vigorously Crl. Appeal No. 21/12 Page 10 of 13 Jolly Ravin vs. Santosh Ravin contended that earlier respondent was working with IBM and also worked for Indigo and was getting monthly salary of ` 15,000/-. Learned counsel for the appellant submitted that appellant had to resign from the job at the instance of respondent to look after the child. Learned counsel for respondent further contended that respondent is presently running the business of catering and placed not only her visiting card but also menu of the catering and some bills showing that appellant is running the business of catering and also placed on record the conversation of appellant and her customer. Though the same were denied by the counsel for appellant, yet he failed to give any reasonable explanation of about the material placed on record. From, the above, one thing is clear that appellant was previously working in IBM and Indigo and appellant has capability of earning. Thus, this factor will also be considered at the time of determining the maintenance. Considering the previous experience and her capability of earning, one can safely presume that she can easily earn ` 8000/- per month.
14. Learned counsel for the respondent submitted that respondent has to pay the instalments of personal loan, which he had taken for the appellant and further contended that respondent had transferred ` 70,000/- in the account of appellant. On the other hand, learned counsel for appellant contended that respondent is not entitled for the deduction of instalments of loan amount as it was not statutory deductions. Record reveals that respondent had taken two personal loans of ` 1.50 Lac and ` 2.50 Lac. To repay the said loan amount, respondent has to pay ` 11,349/- per month. From the bank statement, it is clear that respondent had transferred ` 70,000/- in the account of appellant. Approximate monthly instalment of said amount of ` 70,000/- would be ` 1986/-. Since, the balance amount of loan was enjoyed by the respondent, he cannot claim deduction on the installment for the said amount. In other words, respondent cannot claim deduction over Crl. Appeal No. 21/12 Page 11 of 13 Jolly Ravin vs. Santosh Ravin the amount of ` 9363/- (` 11349- `1986).
15. Since, both the parties are residing in rented accommodation, respondent cannot claim deduction of rent from his salary to determine the maintenance.
16. Now, respondent has total monthly income of ` 46,514/- (` 48500-`1986). As per the formula fixed in Annurita's case (supra) this amount is to be divided in four parts i.e. ` 11,628.50 each. One portion for the appellant, one portion for child and two portion for respondent. Similarly, the income of appellant is also liable to be distributed. If we divide Rs.8000/- in four equal portion, appellant shall be entitled for ` 4000/-, her son would be entitled for Rs.2000/- and respondent would be entitled for ` 2000/-. Thus, the appellant would be entitled for monthly maintenance to the tune of ` 9,628.50 (`11,628.50- `2000), whereas her son will be entitled for ` 11,628.50 per month. Thus, their monthly maintenance is fixed at ` 9630/- and ` 11,630/- respectively. It is clarified that the amount of ` 11,630/- includes the school fee and other expenses of the child.
17. In view of the above discussion, I hereby modify the amount of maintenance as stated above. The maintenance at the modified rate shall be payable w.e.f. February 26, 2011 as directed by learned Trial Court. Balance amount of maintenance shall be paid by the respondent in three equal monthly instalments w.e.f. June 15, 2012. It is also clarified that the amount of maintenance shall include the amount for alternate accommodation. It is also clarified that whenever a substantial change in the circumstances occurs, the affected party can seek modification of interlocutory order such as interim maintenance.
18. Accordingly, the criminal appeal stands partly allowed. Copy of Crl. Appeal No. 21/12 Page 12 of 13 Jolly Ravin vs. Santosh Ravin order be sent to Ld. Trial Court immediately.
19. Criminal Appeal file be consigned to record room.
Announced in the open court
on this 22nd day of May, 2012 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
Crl. Appeal No. 21/12
Page 13 of 13