Delhi District Court
Smt. Aastha Jairath vs Sh. Vipul Jairath on 28 August, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CA No.21/2013
Smt. Aastha Jairath,
W/o Sh. Vipul Jairath,
R/o GH9/91, Second Floor,
Paschim Vihar, New Delhi - 110087. .....Appellant.
Versus
1. Sh. Vipul Jairath,
S/o Sh. Pawan Jairath,
R/o 1/16, Sunder Vihar,
Near Paschim Vihar, Delhi - 110087.
And also:
F185, First Floor, Vishnu Garden,
New Delhi - 110018.
2. Sh. Pawan Jairath,
S/o Not known,
R/o 1/16, Sunder Vihar,
Near Paschim Vihar, Delhi - 110087.
3. Smt. Anju Jairath,
S/o Sh. Pawan Jairath,
R/o 1/16, Sunder Vihar,
Near Paschim Vihar, Delhi - 110087. .....Respondents.
Date of filing of petition : 12.03.2012.
Date of arguments : 18.08.2015.
Date of judgment : 28.08.2015.
: J U D G M E N T :
1. Aggrieved by the order on interim maintenance dated 04.02.2012 (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.1 of pages 12 passed by Ld. MM (Mahila Court), West District, Tis Hazari Courts, Delhi in a case bearing No.408/1 titled as "Smt. Aastha Jairath Vs. Vipul Jairath etc." whereby the respondent no.1 Vipul Jairath was directed to pay an amount of Rs.10,000/ per month to the appellant herein (including the minor child of appellant) from the date of filing of petition i.e. 03.12.2010 till further orders; it was also directed that the petitioner/ appellant herein shall be entitled to claim the said amount until her remarriage or lifetime and the payment being made in any other case towards maintenance shall be adjusted and arrears were directed to be cleared withing a period of six months, the appellant has preferred the present petition on 12.03.2012 to set aside the impugned order and to direct Ld. Trial Court to hold further inquiry for summoning of the accused in respect of all the offences. It is pertinent to mention here that subsequently vide order dated 13.08.2013 upon moving of an application, the appellant was permitted to make necessary amendments in the prayer clause 'c' of the appeal and accordingly, the amended appeal was filed. The prayer clause 'c' is reproduced as under: "accept the appeal and enhance the maintenance to the tune of Rs.50,000/ as claimed by the appellant and further direct the respondents no.2 & 3 herein to pay maintenance as awarded or decided by this Hon'ble Court because of the reasons as mentioned in the appeal".
2. The appellant is impugning the impugned order on the following grounds:
(i). Ld. Trial Court has failed to appreciate that for the grant of maintenance, the family income is also to be (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.2 of pages 12 considered whereas in the present case, Ld. Trial Court has only concentrate on the income of respondent no.1. The story of debarring the respondent no.1 also stand falsified from the fact that the respondent no.2 is paying the rent of rented accommodation. Moreover, the respondent no.2 also moved an application for exemption on behalf of respondent no.1, which clearly shows that the due is having cordial relations with each other. More so, the respondent no.1 is always available on the face book and the respondent no.2 is one of his friends. Hence, it is necessary to consider the family income especially when the respondent no.1 had produced false evidence such as the Income Certificate.
(ii). Ld. Trial Court has failed to consider that there are certain admissions as made by the respondent no.1 in his reply where he admitted that he is working under his father. It shows that the respondent no.1 is still doing the family business and is getting handsome amount because the family has a good income from their business.
(iii).Ld. Trial Court has rightly considered that the respondent no.1 had made every attempt to hide his income and bank account but the punishment (the maintenance) as awarded by the Ld. Trial Court is not sufficient. The Statement of Account of one bank clearly shows that the respondent no.1 transferred Rs.40,000/ to his maternal (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.3 of pages 12 aunt. The respondent no.1 tried to wash his dirty linens by filing an additional affidavit on the ground that he is an illiterate person but the additional affidavit was an attempt to cover up the lacuna but failed to do so since the witness, who came from LIC deposed that the respondent no.1 is having another account. The person, who withhold the best evidence, the presumption will go against him. In the order, the said presumption was considered but even then the orders qua the interim maintenance were on lower side.
(iv).Ld. Trial Court has further failed to appreciate that the appellant had also filed the list of properties of the respondents but the respondents failed to give any reply to the same which amounts to an admission on their part.
3. Notice of the petition was issued to the respondents and accordingly respondents no.2 & 3 put their appearance alongwith their counsel and led their arguments in the matter, whereas, respondent no.1 Vipul Jairath was proceeded against exparte vide order dated 03.01.2013.
4. In their reply/written submission to the present appeal, it has been submitted by respondents no.2 & 3 that the present appeal has been filed by the appellant in order to grab the property of the respondents no.2 & 3 i.e. 1/16, Sunder Vihar, Paschim Vihar, New Delhi110087, wherein respondent no.1 and appellant has no right, tile or interest. The appellant is seeking maintenance and enhanced maintenance from the respondents no.2 & 3, who happens to be fatherinlaw and motherinlaw of the (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.4 of pages 12 appellant. They have debarred their son/respondent no.1 and daughterin law/appellant herein from their properties and business (photocopy of notification enclosed). Further the respondent no.1 is absconding and there are three FIRs pending against the respondent no.1. The respondents no.2 & 3 have nothing to do with the matrimonial life of the appellant and the respondent no.1. Further the respondent no.1 and appellant started living separately from the respondents no.2 & 3 at a rented accommodation and therefore, the respondents no.2 & 3 have no role to play in the matrimonial life of the appellant and respondent no.1. The appellant has not filed even a single document which shows that there is a joint family business of the respondent no.1 and the respondent no.2, whereas, the business of respondent no.2 is the sole proprietorship business. The impugned orders suffers from no infirmity as in the impugned order itself at the time of arguments at para no.2 of the order, it is clear that at the interim stage the petitioner is praying for the maintenance from the respondent no.1 only and there is no prayer at the time of arguments, the respondent no.2 & 3 should not be burdened with interim maintenance, if any. The appellant does not fall within the definition of aggrieved person under the Domestic Violence Act as she is teaching in a reputed school and is also taking tuitions and the Domestic Violence Act petition has been filed in order to harass and humiliate the respondents no.2 & 3. Further during the Domestic Violence Act petition, the affidavit of only appellant and respondents no.1 were called for and no arguments or affidavit were called from the respondents no.2 & 3. Even it is evident from the prayer of para 3 part (ii) of the Domestic Violence Act (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.5 of pages 12 petition that the appellant has sought maintenance from the respondent no.1 only. The prayer of the present appeal has been amended once and now the prayer seeks maintenance from respondents no.2 & 3 and not from the respondent no.1. Further the application U/s 391 Cr.P.C has not been decided yet and the appellant has every option during the evidence and trial stage of the petition filed under Domestic Violence Act to prove her case and to bring documentary evidence and as such the instant appeal is not maintainable as the interim order dated 04.02.2012 has taken into account each and every aspect. Further the documents which are sought to be added under Section 391 Cr.P.C, even also if taken on record, does not show that the respondent no.1 and respondent no.2 have joint business. Further an adverse inference against the respondent no.1 has taken in the interim order while stating that the respondent no.1 is not disclosing his correct income and it is only during the evidence that the true picture/true income can come on record and the petitioner ha every opportunity to prove the income of respondent no.1 during the trial of case. Further it is clear law that fatherinlaw and motherinlaw can not be burdened with the maintenance as the duty is cast upon the husband to maintain his wife and not fatherinlaw and motherinlaw.
5. In support of her appeal, the appellant has relied upon the following judgments: i. Kusum Sharma Vs. Mahinder Kumar Sharma, passed in a case bearing FAO No.369/1996 by Hon'ble High Court of Delhi on 14.01.2015.
ii. Anup Avinash Varadpande Vs. Anusha Anup (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.6 of pages 12
Varadpande passed in a Writ Petition no.5338/2009 by Hon'ble High Court of Judicature at Bombay on 11.01.2010.
iii. Archan Vs. Munmun Roy, passed in a C.O. No.740/2013 by Hon'ble Kolkatta High Court.
On the other hand, respondents no.2 & 3 have placed reliance upon the following judgments: i. Sanjay Bhardwaj and Ors. Vs. State and Anr. II (2010) DMC 574.
ii. S.R. Batra and Anr. Vs. Tarun Batra I (2007) DMC 1 (SC).
iii. Duggi Verappa Vs. D. Maheshwari and Anr. II (2012) DMC 868.
iv. Lalit Bhola Vs. Nidhi Bhola and Anr. II (2013) DMC 271.
6. Having heard the rival submissions of Ld. Counsel for the appellant as well as of Ld. Counsel for respondents no.2 & 3 and carefully perusing the entire material placed before me particularly the contents of appeal specially the grounds taken therein and also going through the case law relied upon by the parties, I have come to the considered opinion that the appeal as filed by the appellant is devoid of merits as there is no material irregularity or illegality in the impugned order which is a reasoned order and, therefore, there is no reason to interfere therein.
The provisions contained in the Protection of Women from Domestic Violence Act, 2006 is a measure to achieve the goal of gender justice and specially enacted to protect women and falls within the (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.7 of pages 12 constitutional sweet of Article 15 (3) reinforced by Article 39 to protect the weaker section like women and children. The object is to compel a man to perform the moral obligation which he owns to society in respect of his wife, parent and children so that they are not left beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
In Suresh Mandal Vs. State of Jharkhand reported as (2006) 1 AIR Jhar R 153 it has been held, "in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited. The Revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate."
In Radhika Vs Vineet Rungta 2004 (II) AD (Delhi) 629 Cr. PC , it was held that "While granting maintenance it is incumbent on the court to make such monetary arrangements as would be conducive to the spouses continuing a life style to which they were accustomed before the matrimonial discord."
In Bharat Hedge Vs Saroj Hedge 2007 (96) DRJ 110, it was held that: "While considering a claim for interim maintenance, the Court has to keep in mind the status of the parties, reasonable wants of the applicant the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.8 of pages 12 and additionally the other family members to be maintained by the non applicant have to be taken into all.
It was further held that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comforts as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay."
7. Moreover, by way of impugned order, the Trial Court has merely ordered for grant of interim maintenance and the plea and contentions, as raised in the instant petition, is a matter of trial and the same can very well be taken up at the later stage of trial. Further the amount of interim maintenance as fixed by Ld. Trial Court does not seem to be unreasonable in the facts and circumstances of the case. As regards to the plea regarding claiming of maintenance from respondents no.2 & 3 (the father inlaw and motherinlaw of the appellant) by the appellant is concerned, it has no substance therein for the reasons firstly the appellant has not filed even a single document on record till now, which could show that there is a joint family business of respondent no.1 and respondents no.2 & 3 particularly respondent no.2. Further the relationship of husband and wife still exists between appellant and respondent no.1 and it is not in dispute that respondent no.1 is still alive. It is significant in the circumstances where at the interim stage, the appellant is praying for maintenance from respondent no.1 only and there was no prayer before the Trial Court that respondent no.2 & 3 should also be burdened with interim maintenance, if any. Moreover, during the DV Petition, the affidavit of only the appellant (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.9 of pages 12 and respondent no.1 were called for and no arguments or affidavits were called from respondents no.2 & 3. The instant appeal has been preferred against the interim order, which has been passed on the basis of the affidavit and each and every allegations can not be examined meticulously at this stage. In the DV Petition, the appellant herself sought maintenance from respondent no.1 only which is evident from prayer of para 3 of part (ii) wherein the appellant has sought maintenance from respondent no.1 only and now at the stage of appeal, the prayer of appellant qua the interim maintenance from respondent no.2 & 3 can not be considered in the court of appeal particularly in the circumstances, when the same was not prayed for before the Ld. Trial Court at the time of passing of interim maintenance order. As regards to the application filed U/s 391 Cr.P.C, vide which the appellant has sought permission to adduce additional evidence, is concerned the same can not be entertained in the circumstances where the appellant has not pressed for the disposal of same. Even otherwise, vide the impugned order, only the quantum of interim maintenance has been decided and evidence of the parties are yet to be started, therefore no question of adducing of additional evidence at this stage arises.
Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance is that it should not be disturbed while exercising jurisdiction in appeal/revision until or unless there is any material irregularity or illegality.
8. In view of aforesaid, the appeal as filed by the appellant deserves dismissal and same stands dismissed accordingly. (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.10 of pages 12
9. Both the parties are directed to appear before Ld. Trial court on 23.09.2015.
10. Trial Court Record alongwith the copy of judgment be sent to the Ld. Trial Court for information and for proceeding further in the matter as per law.
11. Appeal file be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR1)
Court on 28th August, 2015) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
(Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.11 of pages 12
CA No.21/2013
Smt. Aastha Jairath Vs. Vipul Jairath & Ors.
28.08.2015
Present: Ld. Counsel for appellant.
Respondent no.1 Vipul Jairath was proceeded exparte vide order dated 03.01.2013.
Ld. Counsel for respondents no.2 & 3.
Vide a separate judgment, appeal of the appellant stands disposed off.
Both the parties are directed to appear before Ld. Trial court on 23.09.2015.
Trial Court Record alongwith the copy of judgment be sent to the Ld. Trial Court for information and for proceeding further in the matter as per law.
Appeal file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ/Spl. Judge (NDPS) (West) 28.08.2015 (Smt. Aastha Jairath Vs. Sh. Vipul Jairath & Ors.) (CA No.21/2013) Page No.12 of pages 12