Delhi District Court
Avanti Mathur vs Praneet Gupta on 7 January, 2023
IN THE COURT OF ADITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 428 of 2019
CNR No. : DLST01-008226-2019
AVANTI MATHUR
W/O PRANEET GUPTA
R/O C-2/43, 2ND FLOOR
SAFDARJUNG DEVELOPMENT AREA (SDA)
NEW DELHI - 110016 ......APPELLANT
VERSUS
PRANEET GUPTA
S/O RAM GOPAL GUPTA
R/O C- 4/107
SAFDARJUNG DEVELOPMENT AREA (SDA)
NEW DELHI - 110016 ...... RESPONDENT
DATE OF INSTITUTION : 10.12.2019
JUDGMENT RESERVED ON : 07.12.2022
DATE OF JUDGMENT : 07.01.2023
JUDGMENT
1. In a Domestic Violence Act proceeding, the Ld. Tiral Court opined that the aggrieved wife was sufficiently earning and therefore, declined to direct interim maintenance in her favour but for the child, she MM allowed Rs.1 lakh per month as interim maintenance. The aggrieved wife has challenged the order as interim maintenance was declined and the husband has challenged the order as excessive interim maintenance was given for the child. In such manner, two appeals against the same order dated 19.11.2019 have been filed and are pending consideration.
2. The arguments of both the sides have primarily revolved around the fact that aggrieved wife is well educated, well qualified and is running a shop and therefore, a decision has to be taken as to whether in such a situation any maintenance should be given to the aggrieved wife or not and whether she should also contribute towards maintenance of the child or not.
3. Though, the Ld. Counsels of both the sides advanced lengthy arguments and cited several judgments (sent via e-mail), this court is of the opinion that at the stage of interim application, no opinion should be expressed in respect of merits of the case, which can only be established by way of evidence. For example, whether earnings of aggrieved wife is on higher side or she is CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 1 of 14 facing loss in the business cannot be decided either on the basis of the newspaper report or on the basis of the submissions or pleadings or even affidavit. This can be decided only after facts are established in terms of evidence and not otherwise. Similarly, whether earnings of husband is on higher side or his expenditure is more cannot be decided at this stage.
4. During the course of arguments, Ld. Counel for the appellant has relied upon the following judgments :
i) Jaiveer Singh vs. Sunita Chaudhary, (20221)281 DLT 119
ii) Annurita Vohra vs. Sandeep Vohra, 110 (2004) DLT 546
iii) Kulbhushan Kumar vs. Raj Kumari & Ors. (1970) 3 SCC 129
iv) Nitin Sharma & Ors. vs. Sunita Sharma & Ors. 2021 III AD (Delhi) 210
v) Jaspreet Singh vs. Swaneet Kukreja, MANU/DE/0698/2022
vi) Amit Kumar and ors. vs. Charu Makin, 2017 SCC OnLine Del 7861
vii) Rajnesh vs. Neha & Ors. AIR 2021 SC 569
On the other hand, Ld. Counsel for the respondent has relied upon the following judgments:
i) Satish Chander Ahuja vs. Sneha Ahuja (2021) 1 SCC 414
ii) Padamja Sharma vs. Ratan Lal Sharma, 2000 4 SCC 266
iii) KN vs. RG 2019 SCC OnLine7704
iv) Rupali Gupta vs. Rajat Gupta, 2016 SCC OnLine Delhi 5009
v) Mamta Jaiswal vs. Rajesh Jaiswal, 2000 SCC OnLine MP 580
5. Both sides have been heard. Record perused.
6. While deciding an application in a proceeding under Domestic Violence Act, the Trial Court has to concentrate more on the expenses/expenditure/loss suffered as a direct result of Domestic Violence. It is this thing which is covered under the concept of monetary relief envisaged in Section 20 of the DV Act. Though the Ld. Trial Court has used "interim maintenance" in her order, this court is of the opinion that such usage is misnomer. What is contemplated in DV Act is a "monetary relief" of which a 'maintenance' amount is just a part. The court has to award monetary relief whether at interim or at final stage.
7. Section-2(k) of the Act defined "monetary relief" to mean the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence.
CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 2 of 147.1. It is clear from the definition that an amount which is awarded to meet the expenses incurred and the losses suffered to meet the expenses incurred and the losses suffered is called monetary relief. Meaning thereby that this can be granted only when the aggrieved person is able to show that she has to incurr some expenses or she has suffered some losses as a direct result of the domestic violence. How the monetary relief is to be calculated is given in Section-20 which reads as under:
"20. Monetary reliefs.- (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent".
7.2. The aforesaid provision clarifies the concept in following manner:
What:- Even a cursory look at the provision will show that the purpose for grant of monetary relief is "to meet the expenses incurred and losses suffered". This is also mentioned in the definition of the term monetary relief.CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 3 of 14
Who:- Further, the losses must have been suffered or expenses must have been incurred by the aggrieved person or her child.
How:- The losses or expenses must have been the result of domestic violence.
7.3. Once the aforesaid three conditions are satisfied in a given case, the Magistrate becomes empowered to direct monetary relief.
7.4. The aforesaid provision also contemplates four specific items for which monetary relief may be allowed. While providing these four items of calculation for monetary relief, Section-
20(1) has used an expression "such relief may include, but not limited to". Meaning thereby that the monetary relief though is inclusive of these four items but is not limited thereto. Such monetary relief may also encompass several other things. The only pre-condition is that such other things must be in relation to any expense incurred or loss suffered due to domestic violence. As such, the aggrieved person may also provide for other items on which she may have incurred expenses or have suffered losses. For convenience, we may indicate the residuary factor as "X".
The monetary relief = X + loss of earnings + medical expenses + loss related to property + maintenance.
7.5. We may now deal all these factors one by one.
(i) the 'X' factor:- This may include the residual losses or expenses which the aggrieved person would not have to bear but for the incident of domestic violence. The aggrieved person has to plead the details of such expenses or losses.
(ii) the loss of earnings:- If as a result of domestic violence, the aggrieved person is unable continue her job, profession or business or losses her prospects to do so or her earning is decreased, loss of earnings may be accepted. This can happen due to physical abuse or even through mental manipulation. Even a situation of economic deprivation created by the respondent may result in loss of earning of the aggrieved. The loss of earning shall come under "losses suffered" envisaged by the provision.
(iii) the medical expenses:- This clearly contemplates a situation where as a physical abuse, the aggrieved has to incur expenses for medical treatment. In some cases, domestic violence may have created mental problems requiring psychiatric treatments, which can also be treated as CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 4 of 14 covered under the concept of medical expenses. The medical expenses shall come under "expenses incurred" envisaged by the provision.
(iv) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person:- This is interesting. It nowhere says that aggrieved person should be the owner of the property. It is sufficient if the property is under the control (either actual or constructive) of the aggrieved person. If such property is destructed, damaged or removed in any manner which results in any type of loss which can be quantified in terms of money, such loss shall come under "losses suffered" envisaged by the provision.
(v) the maintenance for the aggrieved person as well as her children:- Last item in the provision is maintenance. The maintenance envisaged herein can be inclusive of one contemplated by Section-125 CrPC or any other law. Clearly, therefore, this maintenance is wider in scope.
(a) The word "including" herein governs both the expressions i.e. "an order under" and "in addition to an order of maintenance under". It is clear that these provide for two different situations which can be included while calculating the Maintenance.
(b) Here, this word Maintenance = Y + an order under Section-125 CrPC or any other maintenance law or an order in addition to Section-125 CrPC or any other maintenance law.
(c) If the claimant (aggrieved person) is entitled for maintenance under Section-125 CrPC or any other maintenance law and the respondent is obligated under those laws, the court can include an order under those laws while calculating the maintenance herein. Similarly, if the claimant (aggrieved person) is entitled for maintenance under Section-125 CrPC or any other maintenance law and has already received maintenance under those laws, the court can still award money in addition to the maintenance already received under those laws. Herein, the court has to take note of the money already awarded.
(d) Now, remains the "Y" factor for calculating the maintenance. Domestic Violence Act proceeding is not meant only for wife. It is for all the women in general. There may be several categories who are not covered under Section-125 CrPC or other maintenance laws. For example, a woman being a sister is not entitled for maintenance under Section-125 CrPC or other maintenance laws. A woman is not entitled to claim maintenance from her grandmother or grandfather under Section-125 CrPC or other maintenance laws. But that does not mean that such women are not protected under the Domestic Violence Act. Once it is established that such CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 5 of 14 woman living in a domestic relationship in a shared household has been subjected to domestic violence at the hands of her grandmother, grandfather, brother etc, she becomes entitled for the available relief including that of monetary relief under Section-20. Therefore, the law in Section-
20(1)(1) has provided the concept of maintenance in general term and not confined to persons who are entitled under other maintenance laws.
(e) Reason is obvious. Maintenance laws are very specific about the person who can claim relief such as wife, mother, son, daughter, father. This shows that claimant can be of any gender and normally the liable person would be a male who has statutory obligation. However, under DV Act, the aggrieved person has to be a female and the liable person can be anyone (male or female whether statutorily liable or not). This shows that the Maintenance contemplated in Section-20 is not confined to maintenance laws either Section-125 CrPC or any other law.
(f) Section-125 CrPC obliges a person, to maintain someone (irrespective of gender) dependent on him. This is further conditioned by two requirements: firstly, the person should have sufficient means and secondly, such dependent is found to be unable to maintain himself/herself. It is here that the Magistrate is required to take note of financial capacity of aggrieved and respondent. Meaning thereby that while calculating the sum of money under item-(d) of Section-20(1), if the Magistrate wants to include an order under Section-125 CrPC, he is required to consider the financial capacity of aggrieved and respondent. If, however, the Magistrate does not want to include an order under Section-125 CrPC, he can calculate the wider maintenance envisaged in the provision.
(g) However, at this stage, it needs to be noted that Family Courts Act, 1984 prohibits a Magistrate from exercising powers under Section-125 CrPC or any other maintenance laws. Explanation of Section-7(1) indicates that a suit or proceeding for maintenance shall be dealt with by the Family Court and Section-8 says that other courts shall not deal with such matters and further that no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974).
(h) Since in Delhi, family courts have been established in every district, no Magistrate can exercise powers under Section-125 CrPC or any other maintenance laws. As such, a Magistrate dealing with the DV Act proceedings need not to detain himself to the requirements of Section- 125 CrPC or any other maintenance laws. So far calculation under Section-20(1)(d) is concerned, CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 6 of 14 the Magistrate has to award wider maintenance which can be in addition to Section-125 CrPC or any other maintenance laws.
7.6. It is clear that the aggrieved person has to first plead the losses and expenses, if any, in respect of the aforesaid items provided in Section-20(1) and then to prove it by evidence. The Magistrate has to arrive at a clear figure on each pleaded count and then to add all the figures to calculate the ultimate amount of monetary relief. It is not sufficient to assume any figure either by own estimation or on the asking of the aggrieved person.
8. Pertinently, Section-20(2) of the DV Act says that monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. This can be explained in following terms:
Adequate:- The monetary relief contemplated under Section-20 must be adequate to cover the expenses and losses. For example, the respondent cannot say that the aggrieved person should not have gone for a specialist for her medical treatment and he will only provide an amount related to a general doctor.
Fair:- The monetary relief should obviously be just. What is fair can be decided on the basis of factual position presented in the case. Monetary relief should be realistic.
Reasonable:- The money so awarded should not be excessive. It should take into account the paying capacity of the respondent. It would be a futile exercise to burden the respondent with such an amount which he will not be able to pay. The amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
Consistent:- The respondent cannot say that the aggrieved person should start living in poverty or at bare minimum. If the wife was accustomed to a particular living standard when she was residing with the husband, the monetary relief should provide her the same comfort. There is a difference between the equalization of earnings of both the parties and providing for similar living standard. For example: If earlier the family used to travel by business class in flights, the respondent cannot now claim that the wife should start traveling by economy class and he will pay only that amount. For a non-earning wife, the entire fare of business class has to be borne by the CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 7 of 14 husband. For an earning wife, the relief may be decreased by an amount which she was earlier contributing or which she can still afford. If the child was earlier studying in a good school (which might be charging significant amount), the respondent cannot say that child should now start going to some other school else he will not bear such charges.
9. One more thing needs to be noted here. While Section-125 CrPC or other maintenance laws have emphasized on the point that the claimant should be unable to maintain herslef, Section-20 DV Act does not provide for such prohibition. Furthermore, Section-27 which talks about the court within whose jurisdiction the aggrieved person might have been employed or might have doing business. This itself contemplates that only because the aggrieved person is employed or is doing business, relief under DV Act cannot be denied to her. Further, it needs to be noted that monetary relief under the Act is not premised on the necessity of maintenance unlike other laws, but it is based on a culpability i.e. action of the respondent in causing domestic violence. For example, if some crime is committed against a person having sufficient means, can we say that if the case resuls in conviction, compensation should not be awarded to such person merely becuase he is sufficiently earning. Or for that matter, can compensatory liability of person culpable for defaming the other waived of only because the other person is sufficiently earning. The answer is bound to be in negative. In such circumstances, it is difficult to accept that earning capacity of the aggrieved person will have much impact on the relief claimed.
10. In addition to the monetary relief, the Magistrate can also pass compensation orders which can be given at all the three stages i.e. ex-parte, interim and final disposal but for the same, the aggrieved person has to make a formal application as required in terms of Section-22 which reads as under:
"22. Compensation orders.- In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent".
10.1. In terms of Section-28, proceedings are to be governed by CrPC. In terms of Section-2(y) of CrPC, IPC definitions are applicable. In terms of Section-44 of IPC, the word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. This definition of injury has to be read in Section-22 of the DV Act which says that a respondent in any DV Act proceeding can be directed to pay compensation & damages for the injuries caused by the acts of domestic violence. Meaning thereby that if by the act of domestic violence, any harm has CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 8 of 14 been caused to the aggrieved person in body, mind, reputation or property, compensation & damages can be awarded.
(i) Harm in body will obviously take in its fold physical harm. Here it may be noted that it is in addition to monetary relief under Section-20 and therefore, there would hardly be any requirement to show proof of medical expenses as the same would already be covered under Section-20.
(ii) Harm in mind will take in the mental torture and emotional distress. Obviously, these cannot be quantified in terms of money. But an amount has to be fixed show solace.
(iii) Harm in reputation can clearly be referrable to the compensatory factor which governs the quantification of compensatory amount in defamation proceedings.
(iv) Harm in property can include such losses in respect of the property of aggrieved person which are not covered under Section-20(1)(c).
10.2. Aforesaid requirements have to be pleaded by the aggrieved person to claim the compensation and damages under Section-22.
11. Now, monetary relief or compensatory relief can be granted at three stages:-
(i) Firstly, when the proceeding under the Act is initiated. Section-23(2) contemplates an ex-parte order even under Section-20 and 22 which relates to monetary relief. For this, the Magistrate need not to wait for issuance of notice to the respondent. He can rely upon the affidavit of the aggrieved person and if he finds, the requirements of Section-20 or 22 satisfied, he can grant ex-parte monetary relief.
(ii) The second stage is when an interim order is prayed for. Section-23(1) contemplates any type of order which may be made at interim stage. Clearly, interim monetary relief can also be granted under this provision. Herein, both the sides will be present and the Magistrate will have the benefit of pleadings from both the sides and may also have income affidavits.
(iii) The third stage is the final disposal. At this stage, the Magistrate will have the benefit of all the evidences and thereupon, he can calculate each and every pleaded count envisaged in Section-
20(1) and 22 and as pleaded by the aggrieved person.
CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 9 of 1412. In the present case, we are dealing with the second stage i.e. the relief awarded at interim stage.
12.1. It is clear from the above explanatory discussion that earnings of the aggrieved wife cannot be a sole factor to deny her the monetary relief and/or compensatory relief. Quantification of monetary and compensatory relief which is the result of a domestic violence cannot be done by entirely and blindly following the parameters hitherto adopted under no-fault liability laws related to maintenance. Capacity of aggrieved person to sustain herself or financial capacity of respondent may be one of the factors to be taken into consideration while calculating the maintenance which is merely one of the factors of monetary relief, but the same cannot be the sole factor for computing the overall monetary relief and compensatory relief, as the same goes beyond the concept of sustenance or maintenance.
12.2. Clearly, the aggreived wife will be entitled for monetary relief and compensatory relief once she proves the act of domestic violence and consequential result. No doubt, even if it is assumed that the aggrieved wife is earning handsomely, the same by itself cannot be a ground to deny her the monetary relief and compensatory relief. In ultimate analysis after completion of evidence in the case, the Trial Court may even arrive at a conclusion that aggrieved persons should be given money despite her own earnings. The reason is obvious. The monetary relief will cover several aspects as detailed above which has no concern with the earning capacity and also the aspect of similar living standard, for which the earnings may not be found to be sufficient. Additionally, the concept of compensatory relief has no concern with the earnings of aggrieved person at all and the same has to be awarded irrespective of the money available with the aggrieved person like the compensatory aspect in Motor Accident cases or defamatory suits or compensatory aspect of criminal prosecutions.
12.3. But the issue herein is whether only because the wife can get ultimate final relief, interim relief should also be granted to her?
12.4. We can, therefore, consider if interim maintenance was required to be awarded to the aggrieved wife herein in the factual position. Interim stage is quite a different thing. Even if an aggrieved wife is able to claim final relief, it is not necessary that she should be granted relief at interim stage also. Law nowhere says that if something can be given at the final disposal, the same thing should (in lesser proportion) be given mandatorily during the pendency of the proceedings.
CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 10 of 14It is for the court, empowered to do so, to take a conscious decision having regard to the needs of the aggrieved, the factum of urgency in a given case.
12.5. In the case on hand, the aggreived wife is doing business. Husband has cited newspapers to show that her business is flourishing. Wife has claimed that newspaper reports cannot be taken as evidence. This court is of the opinion that stage of interim relief does not normally contemplate the requirement of evidence and therefore, it is not the proper time to decide as to whether such reports should be relied upon in this case or not. The parties will have opportunity to establish their respecitiv cases. However, at interim stage, the only question which needs to be answered is as to what material the trial court can allow to influence her mind.
12.6. The Ld. Trial Court has denied the prayer saying "Thus, considering the sales volume and media coverage of the shop of the aggrieved and practice of overstatement of expenses and understatement of sales in the business, I am not inclined to believe that the aggrieved is incurring losses. However, even assuming that aggreived is incurring losses, it cannot be said that she is not capable of maintaining herself".
12.7. Clearly, the Ld. Trial Court has taken a conscious decision based on her perception from the available material. It has not merely relied upon the media coverage. It has relied upon addition materials. If the business is continuing, it cannot be said that the person running the said business is not able to maintain herself or that she is in such a position that without the grant of interim maintenance, she will have no roof, no food, no water or she will not able to bear the legal expenses or she will have to beg for her sustenance. Ld. Trial court has nowhere said that the aggrieved wife is not entitled for relief. She has only opined that there is no necessity of interim maintenance in the avilable circumstances.
12.8. Even if two views were to be possible, the appellate court should not substitute its views in place of the views of the Ld. Trial Court. Of course, in case of glaring illegality appearing from the record or when the perception of the trial court is found to be not emerging from the record, it is open for the appellate court to substitute its views. But herein there is nothing to shows that the Ld. Trial Court committed any illegality or made up its mind on the basis of extraneous materials.
12.9. The Judgments relied upon by the Ld. Counsel for the aggrieved wife nowhere say that in every situation, the Court has to allow interim monetary reliefs. As discussed above, interim relief is a concept which is discretionary in nature and if Trial Court has taken a view, the same should not be reversed unless glaring illegality or exceptional circumstaces are shown.
CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 11 of 1412.10. One thing however needs to be clarified. The Ld. Trial Court has observed that if the aggrieved wife is incurring losses in the business, the same is a result of her choice and the husband cannot be expected to provide maintenance while she continues to incur loss. This observation of the Ld. Trial Court is apparently based on her opinion that it is the aggreived wife who has chosen to run a business instead of taking up any employment. This court is of the view that neither the opinion of the Ld. Trial Court nor her observation is proper. Choice of profession is fundamentally ensured. If a woman is business oriented or is desirour to run a business to secure her future, she cannot be compelled to adopt some employment only because domestic violence is inflicted on her. For instance, can it be said that husband will not take care of needs of the wife in cases where the wife is residing happily with the husband but is incurring losses in her business? Answer will be in negative. Now, only because the wife has to live separately due to domestic violence, the husband cannot be absolved from his responsibility of taking care of the needs of wife. It is therefore, clarified that the Ld. Trial Court shall not allow herself to be influenced by her observations made in the order dated 19.11.2019.
13. Finding no galring infermites in the order of Ld. Trial Court, this court is of the view that denial of interim maintenance in the factual position of this case is not arbitrary or illegal and therefore, the appeal filed by the aggrieved wife is not sustainable.
14. In the appeal filed by the husband, the prayer is to set aside the order dated 19.11.2019. Obviously, this prayer would be in respect of the interim maintenance of Rs.1 lakh awarded in respect of the son. There is no dispute that the son has been residing with the aggrieved person. The Magistrate has prima facie accepted the existence of domestic violence. The husband was only giving some money for school expenses. It is clear that he was not paying adequate maintenance. If a person refuses to maintain the aggrieved or her child, this itself will become an economic abuse. Form-IV appended to the Domestic Violence Rules 2006 gives an example to this effect. Since economic abuse is a form of domestic violence as per its definition available in Section-3 of the Act, if there is an allegation that the person has neglected or refused to maintain the wife or child, the court has to prima facie accept that domestic violence exists. Therefore, a vicious circle has come into existence and the domestic violence has been in continuance.
14.1. As such, there cannot be any denial in respect of a monetary relief concerning the son.
14.2. From the arguments and the appeal papers, what can be gathered is that the husband/father wants some reduction of interim maintenance amount primarily on the ground that maintaining a CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 12 of 14 child is joint responsibility of both the parents and therefore, the wife/mother should also contribute and as such, the amount obligated on him should be reduced.
14.3. In the factual situation available in the present case, I am not inclined to grant the relief prayed for:
i. Firstly, husband/father is a well earning person having sufficient means and can reasonably take the financial burden.
ii. Secondly, a father does always have a higher duty towards his son to maintain him for the future life. This will also include a duty to financially support the requirements of the son. iii. Thirdly, the son is residing with the mother/wife and she will devote her significant amount of time in taking care of the son. This necessarily has to be at the cost of other things which she could do for her own future prospects. Time of the husband/father on the other hand will be significantly saved. If the concept of sharing maintenance were to apply, this 'time-investment' of mother will cover her share.
iv. Fourthly, this interim maintenance is awarded in a domestic violence proceeding which is predicated on the existence of domestic violence. Meaning thereby that the husband/father, in loose sense, is culprit (though may not be termed as an offender) and therefore, equity does not lie in his favour. Applying the concept of sharing maintenance (by father and mother) may not be suitable for such cases.
v. Fifthly, the interim maintenance is in reality a stop-gap arrangement till the final disposal of the case. If ultimately, the final monetary relief is found to be less, the Magistrate can always issue a direction for return of the excess amount.
vi. Sixthly, it is not as if the husband/father will become incapable of maintaining himself if he pays Rs. 1 lakh from his sources.
vii. Seventhly, grant of interim maintenance is a discretion exercised by the Ld. Magistrate and unless some patent illegality is pointed out, the appellate court should not interfere in the exercise of discretionary powers.
14.4. The Judgments relied upon by the Ld. Counsel for the husband do not take a different view from what I have taken in the preceding paragraphs. Further, most of the Judgments are related to different maintenance laws whereas the present case pertains to the actions of the husband in causing domestic violence. While applying the laws enunciated in the judgments, factual position needs to be the same. I do not find anything in the judgments which can be of much help for the husband for reduction of amount in respect of the child.CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 13 of 14
14.5 I, therefore, for the reasons abovesaid, decline to grant any relief to the husband/father in respect of monetary relief granted to the son and dismiss his appeal.
15. During the course of arguments, Ld. Counsel for aggreived wife submitted that since custody dispute is pending before the Hon'ble High Court, the prayer mentioned in the appeal regarding custody/visitation may not be decided by this court. It is clear that those prayers are not being pressed at this stage by the concerned party and therefore, this court will refrain from commenting on those prayers.
16. In view of the discussion held in the foregoing paragraphs of the present opinion, both the appeals preferred against the order dated 19.11.2019 passed by the Ld. Trial Court are dismissed and her order is upheld.
17. A copy of this Judgment alongwith the trial court record be sent to the Ld. Trial Court.
18. The appeal file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 7th DAY OF JANUARY, 2023 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 428/19 Avanti Mathur vs. Praneet Gupta Page 14 of 14