Delhi District Court
Ms. Manisha Mehra (Minor) vs Sh. Munish Mehra on 18 September, 2007
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IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 113/05
1. Ms. Manisha Mehra (Minor)
Aged about 6 ½ years
R/o. E-13, Gali No.4, Radha Puri
presently at E-138, Preet Vihar
First Floor, Delhi.
Through Smt. Ratna Mehra
Natural Guardian & next friend
2. Smt. Ratna Mehra
W/o. Sh.Munish Mehra
R/o. E-13, Gali No.4, Radha Puri
presently at
E-138, Preet Vihar, First Floor,
Delhi.
...Plaintiff/Petitioner
VERSUS
Sh. Munish Mehra
S/o. Sh. Surender Kumar
r/o.E-13, Gali No.4, Radha Puri
Krishna Nagar, Delhi.
Also at :
E-12, Gali No.4
Radha Puri, Krishna Nagar,
Delhi.
Also at :
House No.13-A, Village Hasanpur
Opp. Patparganj Depot
Patparganj, Delhi.
...Defendant/Respondent
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Date of Institution of the Suit: 28.05.2005
Date on which the judgment has been reserved: 13.08.07
Date of delivery of judgment: 18.09.2007
SUIT/PETITION FOR MAINTENANCE/RESIDENCE U/S.18
R/W.SECTION 20 OF HINDU ADOPTION & MAINTENANCE
ACT, 1956
JUDGMENT
1. By this judgment I shall dispose of the suit/petition for maintenance/residence u/s.18 R/w. Section 20 of Hindu Adoption & Maintenance Act, 1956 filed by the plaintiffs/ petitioners against the defendant/respondent.
2. In the plaint it is submitted that plaintiff no.2 got married with the defendant on 02.02.1998 at Saha Auditorium, Raj Niwas, Delhi as per Hindu rites and ceremonies and parties have one minor daughter i.e. plaintiff no.1 in the present case, from their marriage and plaintiff no.2 is the natural guardian of plaintiff no.1 in the present case. It is submitted that presently the plaintiff no.1 is residing in a rented accommodation at E-138, Preet Vihar, Delhi-92 with the plaintiff no.2. It is further submitted that on 26.04.2005, 2/30 //3// defendant parents Sh.Surendra Kumar Mehra and Smt.Shanta Mehra residing at E-12, Radha Puri, Gali No.4 gave a public notice declaring that they had severed their all relation with defendant. It was further stated in the public notice that defendant will not have any right, title and interest in the movable, immovable properties and in the business of his parents and it was further stated that defendant is residing separately.
It is further submitted that on 29.04.2005 the defendant filed a divorce petition bearing HMA No.331/2005 against the plaintiff no.2 which is pending in the court of Sh.K.S.Pal, ADJ, Tis Hazari, Delhi. It is submitted that plaintiffs were residing till 03.11.2004 at E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi with the defendant and on 04.11.2004 the plaintiffs were shifted to a rented accommodation at E-138, Preet Vihar, Delhi. It is submitted that the property no.E-13, Radhapuri, Gali No.4, Krishna Nagar, Delhi was the matrimonial home of the plaintiff and the defendant and they occupied the said house with their minor daughter till 03.11.2004.
It is further submitted that the defendant has treated 3/30 //4// the plaintiffs with grave cruelty and has refused to live with the plaintiff no.2 after 04.04.2005 and plaintiff no.2 has filed a suit for restitution of conjugal rights which is pending before the Ld.District Judge, Tis Hazari, Delhi. It is submitted that the plaintiff stayed in the said house for about seven years.
It is submitted that the defendant is the exclusive owner and is in possession of first and second floor of property no. E-1, Radhapuri, Gali No.4, Krishna Nagar, Delhi and the property no.E-13, Radhapuri, Gali No.4, Krishna Nagar, Delhi is jointly owned by the defendant, by Sh.Mukesh Mehra and Manoj Mehra. It is further submitted that on 01.02.2005 defendant sold the ground floor of the property no. E-1, Radhapuri, Gali No.4, Krishna Nagar, Delhi in favour of her mother without the knowledge of the plaintiff no.2. It is submitted that the defendant has the estate consisting of the following properties which are owned by the defendant jointly and individually capacity as well as the co-partner of the following properties:
i. E-1, Radhapuri, Gali No.4, Krishna Nagar, Delhi-110 052. ii. E-13, Radhapuri, Gali No.4, Krishna Nagar, Delhi-110 052. iii. Shop no.1074-1075, Jyoti Market, Gandhi Gali, Fatehpuri, Delhi-110 006.
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//5// iv.258, Kucha Sanjoghi Ram, Naya Bans, Khari Baoli, Delhi-6. v. Properties no.3645 and 3647, Lohewali Gali, Chawri Bazar, Delhi-110 006.
It is submitted that the marital relations between the parties came to an end in April, 2005 when the defendant deserted the plaintiffs without any reasonable cause in a rented accommodation in property no.E-138, Preet Vihar, Delhi-92 and the since then defendant has made no efforts to reconcile with the plaintiffs.
It is submitted that defendant is guilty of neglecting the plaintiffs and guilty of separating the plaintiff from his company since 04.04.2005. It is submitted that the plaintiff no.2 is the legally wedded wife of the defendant therefore, she has right to maintenance against the defendant. It is submitted that the right of maintenance also includes the right of residence of the plaintiff by the defendant who is living separately in some other place and has no chance of coming back to the plaintiff.
It is further submitted that the defendant is engaged in the construction business and has got the distributorship of Kuber & Co. and is running the business in the name and style 5/30 //6// of M/s.Mehra & Sons for the last ten years. It is submitted that the plaintiff has been living in the house no.E-13, Gali No.4, Radhapuri, Krishna Nagar since she got married with the defendant and thus plaintiff is entitled to be maintained by the defendant in the house in question and the defendant was not entitled to remove the plaintiff from E-13, Gali No.4, Radhapuri, Krishna Nagar but she was removed from the house with some ulterior motive to a rented accommodation where she was deserted on 04.04.2005.
Plaintiff submits that she has been living alone in the rented house E-138, Preet Vihar, Delhi where the landlord has disconnected the electricity and water due to non payment of rent for the last two months in May, 2005. It is submitted that keeping in view the age, financial condition of the plaintiff and minor daughter and her security the rented accommodation at E-138, Preet Vihar is not suitable to the plaintiff. It is submitted that if property no. E-13, Gali No.4, Radhapuri, Krishna Nagar, Delhi is given to the plaintiff for maintenance, the ends of justice would be served.
It is submitted that the plaintiff has a pre existing rights for maintenance against the husband under the Hindu 6/30 //7// Adoption and Maintenance Act and has also a right to a separate residence as provided u/s.18(2) of the said Act.
It is further submitted that the motive behind filing suit for divorce by the defendant is extra marital relationship and cruelty and defendant does not want to live with the plaintiff no.2 and has deserted and abandoned the plaintiff and therefore the plaintiff no.2 is entitled to claim a separate residence by way of maintenance from the defendant.
Plaintiff further submits that the cause of action arose in favour of the plaintiffs and against the defendant; that this court has jurisdiction to try the present petition and that the petition has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiffs seeks the following relief's:
a. Decree for maintenance in favour of the plaintiff and against the defendant and the house no. E-13, Gali No.4, Radhapuri, Krishna Nagar may be given to the plaintiff by way of their separate residence towards their right to maintenance against the defendant u/s.18 Clause 2 of the Hindu Adoption and Maintenance Act, 1956;
b. Decree of Permanent Injunction in favour of plaintiffs and against the defendant thereby restraining the defendant from transferring, selling or 7/30 //8// alienating and/or mortgaging the property no.E-1 and E-13, Gali No.4, Radhapuri, Krishna Nagar, Delhi;
c. ................
3. Defendant was duly served and filed W.S. wherein he has raised several preliminary objections that the petition/ suit as filed and framed is not maintainable; that the petition is liable to be dismissed u/o. 7 Rule 11 CPC; that relief sought by the plaintiff cannot be granted in as much as the property does not belong to the defendant nor the same are in the power and possession of the defendant; that no relief can be sought by the plaintiff no.1 under the provisions of Section 18 of Hindu Adoption & Maintenance Act; that plaintiff no.1 being minor cannot claim right to alleged separate residence and as such in the absence of any prayer and in absence of any claim the present petition filed by the plaintiff no.1 is false and that the petition has not been properly valued for the purposes of court fees and jurisdiction.
In reply on merits, it is denied that plaintiff no.1 is allegedly living in rented accommodation on E-138, Preet Vihar, Delhi. It is submitted that during the pendency of anticipatory bail application, plaintiffs had been illegally and 8/30 //9// unauthorisedly left the premises and shifted to D-15, Pandav Nagar, Delhi. It is submitted that plaintiff no.2 after selling all dowry articles including jewellery etc. which were lying in E- 138 had shifted to another accommodation.
Defendant submitted that his parents severed all relationship with defendant because of misdeeds which were done by plaintiff no.2. It is further submitted that defendant has been forced to live in a small rented accommodation after he was thrown away from the house on 04.04.2005 for which he also lodge a complaint in the PS, Krishna Nagar, Delhi.
It is submitted that on 04.11.2004 the plaintiff no.2 forced the defendant to shift to rented accommodation bearing no.E-138, Preet Vihar, Delhi-92. It is further submitted that defendant was residing on the ground floor of E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi separately from the entire family and the said property was subsequently sold.
Defendant denied E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi to be matrimonial home of the plaintiff and the defendant. It is further denied that defendant has refused to live with the plaintiff allegedly after 04.04.2005. It is submitted that plaintiff no.2 has driven the defendant away on 9/30 //10// 04.04.2005 from the rented accommodation at E-138 and thereafter she has not allowed the defendant to enter.
It is denied that defendant is in possession of first and second floor of property no.E-1 or is owned and possessed by the defendant jointly with Sh.Mukesh Mehra or Sh.Manoj Mehra of property no.E-13.
So far as selling of ground floor of property no.E-1 is concerned it is states that the selling of said property is within the knowledge of plaintiff no.2 and the entire money of sale consideration is being kept and spent by plaintiff no.2.
It is stated that property no.E-1, Radhey Puri, Gali no.4, Krishna Nagar, Delhi and E-13, Radhaey Puri, Gali no.4, Krishna Nagar, Delhi had already been disposed of much prior to filing of the present petition. It is stated that other properties as mentioned in para no.10 of the plaint are rented properties and are not in power and possession of the defendant.
It is stated that in the light of admission of the plaintiff that matrimonial relationship between the parties come to an end in April, 2005, the plaintiff no.2 is now not the wife of defendant.
It is stated that due to the problem caused by 10/30 //11// plaintiff no.2, the defendant lost all right, title and interest in any of the business and as such defendant has not without any source of income.
Accordingly, it prayed that the plaintiffs are not entitled to any of the reliefs and petition be dismissed with costs.
4. After the completion of pleadings following issues were framed by my Ld. Predecessor on 10.11.2005:
1. Whether plaintiff no.2 had deserted defendant, if so, its effect?OPD.
2. Whether plaint has not been valued properly for the purpose of court fee and jurisdiction?OPD.
3. Whether plaintiffs are entitled to decree for separate residence as prayed for?OPP.
4. Relief.
5. In evidence on behalf plaintiff, plaintiff no.2 deposed as PW1; Sh.Manoj Kapoor, the brother of plaintiff no.2 deposed as PW2; Sh. Ashok Makkar deposed as PW3;
Sh.Sunil Kumar deposed as PW4 and Sh.Vijai Kumar Bajaj deposed as PW5.
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6. Ms.Ratna Mehra and mother of plaintiff no.1 deposed as PW1. In her affidavit she deposed on the same lines as mentioned in the plaint.
In her cross examination PW1 admitted that she is living in the rented accommodation. PW1 deposed that his father is paying the rent. PW1 denied that before marriage she was working. PW1 deposed that even after marriage she was not working for gain nor engaged in any business. PW1 admitted that when defendant left the home he left bare handed. PW1 denied that LIC policies are in her possession. PW1 admitted that the bank locker no.425999 is in joint possession. PW1 deposed that she shifted to rented accommodation at the insistence of defendant. PW1 admit that Court of Sh.K.S. Pal, ADJ in a suit for divorce filed by defendant has ordered defendant to pay Rs.8,000/- towards interim maintenance. PW1 deposed that her father spends expenses of her children.
7. PW2/Sh.Manoj Kapoor in evidence by way of affidavit deposed that plaintiff no.1 and 2 resided with defendant at E-13 till November, 2004. PW2 deposed that he 12/30 //13// came to know through neighbour of defendant that her sister was shifted to a rented accommodation in the month of November, 2004 under the conspiracy by members of defendant's family. PW2 further deposed that defendant has deserted plaintiff no.1 and 2 in her rented accommodation E- 138 and this fact was also told to him by landlord of the property bearing no.E-138 where plaintiffs were abandoned. PW2 deposed that defendant has no source of income and whatever money she has, the same was taken away by the defendant and his parents.
In his cross examination PW2 deposed that he came to know that plaintiff no.1 and 2 shifted to E-138, Radhey Puri to Preet Vihar in the month of November, 2004 and that plaintiff no.2 did not disclose the reason of shifting and selling of the property and debarring of the defendant from the property of his mother and father. PW2 further deposed that he do not know about the properties of defendant and plaintiff no.2 told him about the properties of defendant after she was deserted by the defendant. PW2 deposed that the landlord of the tenanted property told to him that defendant has abandoned his sister. To a specific question PW2 answered 13/30 //14// that the girl which is shown in Ex.PW2/A to PW2/F is the girl with whom defendant wants to get second marriage. PW2 denied that defendant shifted to another house due to torture of plaintiff no.2.
8. PW3/Sh.Ashok Makkar in evidence by way of affidavit deposed that plaintiffs were his neighbor till November, 2004. PW3 deposed that in November, 2004 defendant left the house no.E-13 and after few month defendant came back to the property no.E-13 but plaintiff no.2 did not return back. PW3 further deposed that defendant live in E-13, Radhey Puri while plaintiff no.2 live in Pandav Nagar. PW3 further deposed that plaintiffs have been deserted by defendant in a rented accommodation. PW3 deposed that defendant left his own house in month of November, 2004 with plaintiff no.2 in order to throw her out from the matrimonial home and now defendant has come back to his own house and is residing in E-13.
In his cross examination PW3 deposed that he has received the information from the father of the defendant that plaintiff no.2 is residing at Pandav Nagar. PW3 denied that 14/30 //15// defendant had left the residence bearing no. E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi and after few months returned back to property no.E-13. PW3 denied that defendant is staying at house no.13A, Village Hasan Pur, Opp. Parparganj Depot. PW3 denied that defendant had not deserted the plaintiffs.
9. PW4/Sh.Sunil Kumar in evidence by way of affidavit deposed that he attended the marriage of plaintiff no.2 and defendant. PW4 further deposed that defendant had left the plaintiffs in some rented accommodation and is now residing in H.No. E-13, Radhey Puri, Gali no.4, Krishna Nagar, Delhi.
In his cross examination PW4 admit that parents of plaintiff no.2 are his neighbours at Charkewallan. PW4 denied that defendant is residing in E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi.
10. PW5/Sh. Vijai Kumar Bajaj, landlord of property bearing no.E-138, Preet Vihar, Delhi in evidence way of affidavit deposed that defendant took on rent his first floor and the tenancy commenced from November, 2004. PW5 deposed 15/30 //16// that later on, in the month of April, 2005 defendant left the plaintiffs in the rented accommodation. PW5 further deposed that when defendant could not pay the rent he advise the plaintiff to leave the rented accommodation and therefore, he vacated the rented premises in the month of July, 2005.
In his cross examination PW5 admit that defendant came to his house with all goods including TV, Beds and household articles. PW5 deposed that defendant has given rent till March, 2005 and when he left the house he did not took his goods with him. PW5 denied that defendant was thrown out of the house by plaintiff and her brother. PW5 further deposed that defendant had left the premises out of his own will.
11. Despite various opportunities, defendant failed to file any affidavit in lieu of evidence. Accordingly, vide order dt. 27.02.2007 defendant's evidence was closed. Subsequently, defendant filed an application u/o.9 Rule 9 R/w. Section 151 CPC to set aside the order dt.27.02.2007 which was dismissed vide order 14.03.2007.
12. Final arguments heard.
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13. In the arguments, Advocate of plaintiff argued that defendant has left and abandoned the plaintiffs and since it is duty of the defendant to maintain the plaintiffs, the relief's sought in the present petition be granted. It is further stated that issues no.1 and 2 were OPD. There was no evidence on behalf of defendant rather the plaintiff has examined as many as 5 witnesses including herself to disprove the defence of the defendant. Advocate of plaintiff further states that the plaintiff has proved that defendant has abandoned the plaintiff.
So far as issue no.2 is concerned, it is stated by advocate of plaintiff that the value put by the plaintiff is correct and defendant neither factually nor legally proved that the value put by the plaintiff is incorrect. This issue was also OPD and defendant has failed to lead any evidence or to argue on this issue. It is not stated by the defendant that how the value is incorrect and what should be the value of the petition.
Advocate of plaintiff further states that an ad interim maintenance has been granted by the Court of Sh.K.S. Pal, Ld. ADJ, however despite this, plaintiff no.2 is entitled for a residence for her and her daughter.
It is stated that as many as five PW's were 17/30 //18// examined and the testimonies of these PW'scould not be shaken in their cross examination on material particulars. Hence, the present petition filed by the plaintiffs against the defendant is proved and the plaintiff is entitled for the decree as prayed for.
14. In the arguments, advocate of defendant argued that since another Court has already granted the maintenance to the plaintiff, no further maintenance can be granted on any reasons.
It is further stated by advocate of defendant that defendant was thrown out by plaintiff no.2 out of the rented premises and since he was thrown out by plaintiff no.2, he is not responsible for the maintenance of the plaintiffs.
It is further stated that petition has not been properly valued and since the maintenance has already been granted to the plaintiff, the plaintiff is not entitled to any decree in the present petition.
15. During the course of arguments 1996 V AD (Delhi) 765 filed.
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16. My findings with respect to the issues are as follows:
REGARDING ISSUE NO.1 ''Whether plaintiff no.2 had deserted defendant, if so, its effect?OPD.'' This issue was OPD i.e. onus to prove this onus was on the defendant.
The case of the plaintiff is that defendant has abandoned the plaintiffs and did not returned back while the case of the defendant is that he was thrown out of rented house by plaintiff no.2.
I have seen the pleadings, evidence and documents on record and feel that issue being OPD, the defendant has failed to prove this issue on the following grounds:-
firstly, the peculiar facts of the present petition is that the defendant was owner in possession of the property bearing no. E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi and this was the matrimonial house for the plaintiff no.2 also. The defendant and plaintiff no.2 had occupied and resided in this house till 03.11.2004. Thereafter, the defendant took on rent the property no. E-138, Preet Vihar, Delhi-92. 19/30
//20// It is very surprising that the defendant despite owing the several properties, decided to take on rent the property no. E-138, Preet Vihar, Delhi-92. This fact shows the ill motive of the defendant towards the plaintiffs.
Secondly, the couple resided in tenanted premises i.e. E-138, Preet Vihar, Delhi-92 together from 03.11.2004 till 04.04.2005 when suddenly defendant stopped coming to this house. Several addresses have been shown as the residence of the defendant. It is for the defendant to prove that he was thrown out of the tenanted premises but neither factually nor through evidence, the defendant proved that he was thrown out of rented premises bearing no.E-138, Preet Vihar, Delhi-
92.
Thirdly, instead of defendant, plaintiff has proved that the defendant has withdrawn himself with the company of the plaintiff from the tenanted premises i.e. E-138, Preet Vihar, Delhi-92.
In the evidence, plaintiff no.2 tendered the affidavit of herself as PW1, her brother Sh.Manoj Kapoor tendered the affidavit as PW2; Sh. Ashok Makkar who is an independent 20/30 //21// witness tendered the affidavit as PW3, Sh.Sunil Kumar tendered the affidavit as PW4 and Sh.Vijai Kumar Bajaj tendered the affidavit as PW5.
Plaintiff no.2 as PW1 clearly deposed in his evidence that defendant has abandoned her in the matrimonial house of E-138, Preet Vihar, Delhi-92. This evidence could not be shaken in the cross examination. The other witnesses also corroborated the version of the plaintiff and their testimonies could not be shaken in the cross examination as there is no defence evidence or documents to shake the testimonies of these witnesses.
Fourthly, the relevant date is 04.04.2005. For almost 20 days, there is no police complaint by the defendant that the plaintiff has thrown him out of the tenanted premises bearing no. E-138, Preet Vihar, Delhi-92. For the first time defendant filed the complaint to SHO, PS Krishna Nagar on 22.04.2005 which to my mind appears to be after thought.
Fifthly, on record there is letter dt.04.06.2005 written by PW5/landlord of property bearing no. E-138, Preet Vihar, Delhi-92 to the Police Station stating that his tenant 21/30 //22// Sh.Munish Mehra has left the house on 01.04.2005 and not paying rent and other charges.
Accordingly, instead of defendant, plaintiff has proved that the defendant abandoned the plaintiff on 04.04.2005 from the rented premises bearing no. E-138, Preet Vihar, Delhi-92 . The issue no.1 is decided against the defendant and it is held that defendant has failed to prove that plaintiff no.2 had deserted defendant. REGARDING ISSUE NO.2 ''Whether plaint has not been valued properly for the purpose of court fee and jurisdiction?OPD.'' Plaintiff has valued the suit/petition for the purposes of court fees and jurisdiction at Rs.3,05,000/- taking the value the property no. E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi and accordingly, court fees of Rs.5,325/- was paid. Plaintiff also claimed the relief of permanent injunction and valued the same at Rs.200/- and accordingly, paid the ad valorem court fees of Rs.20.
Defendant merely stated that the petition has not been properly valued for the purposes of court fees and jurisdiction.
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//23// The onus to prove this issue was on the defendant. The defendant has neither led any evidence nor filed any document nor advance any argument to show that the value of the present petition can be morethan Rs.3,05,000/- on the following grounds:-
firstly, usually the value of court fees and jurisdiction as affixed by the plaintiff is accepted by the Court except where the defendant otherwise shows or the Court comes to the conclusion that the value affixed by plaintiff with respect to court fees and jurisdiction is totally unreasonable and disproportionate.
Defendant has not proved that the value put by plaintiff is unreasonable and disproportionate.
Secondly, defendant has not given any basis in the WS as to how the value affixed by the plaintiff with respect to court fees and jurisdiction is incorrect. It is already stated that there is no evidence on behalf of defendant. I feel that value put by plaintiff with respect to court fees and jurisdiction is correct.
Accordingly, defendant has failed to discharge 23/30 //24// the onus and the issue no.2 is decided against the defendant. It is held that the petition/suit has been valued properly for the purposes of court fees and jurisdiction. REGARDING ISSUE NO.3 ''Whether plaintiffs are entitled to decree for separate residence as prayed for?OPP.'' I have seen pleadings, documents, evidence on record and judgment cited by the parties and feel that the plaintiff has proved the issue and issue be decided in favour of the plaintiff on the following grounds:-
firstly, there is allegation by the plaintiff that till 03.11.2004, E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi was her matrimonial home (it may be noted that this property was owned by defendant). Thereafter in the second week of November, 2004, defendant shifted alongwith plaintiffs to E-
138, Preet Vihar, Delhi-92 in a rented accommodation despite being owner of two properties i.e E-1 and E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi. What prompted the defendant to shift to a rented accommodation, has not been explained by 24/30 //25// the defendant. I feel there is malice and ill will in shifting process.
Secondly, plaintiff further alleged that on 04.04.2005, defendant withdrawn himself from the company of the plaintiffs. Vide issue no.1 it has already been held that the defendant has failed to prove that plaintiff no.2 had deserted the defendant. This shows that defendant himself and voluntarily deserted the plaintiff on 04.04.2005 from the rented accommodation no. E-138, Preet Vihar, Delhi-92.
Thirdly, record shows that after deserting the plaintiffs, defendant executed a Release Deed with respect to property no. E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi in favour of Sh.Mukesh Kumar Mehra and Sh.Manoj Kumar Mehra i.e. his brothers. Thereafter, plaintiff executed a Sale Deed dt.21.04.2005 in favour of his mother Smt.Shanta Rani in respect of property no. E-1, Radhapuri, Gali no.4, Krishna Nagar, Delhi.
The series of happenings and incidents, first from shifting to E-138, Preet Vihar, Delhi-92 and then withdrawing 25/30 //26// from the company of the plaintiffs in the rented accommodation and then transferring the two properties of E-1 and E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi in favour of his brothers and mother, shows the ill will and malice on behalf of defendant. Defendant has not shown any need or necessity of transferring the properties no.E-1 and E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi.
Fourthly, u/s.18(2) of The Hindu Adoptions and Maintenance Act, 1956 a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance on the grounds given from (a) to (g). Ground (a) is with respect to when the husband is guilty of desertion or abandoning his wife.
In the present suit plaintiff no.2 has proved that defendant had deserted her on 04.04.2005 and thereafter consistently neglecting to maintain and to provide shelter to the plaintiffs. Under this provision a Hindu wife can claim separate residence and maintenance where the husband has abandoned his wife and there is refusal to maintain her and to provide residence. No reasonable excuse or ground has been 26/30 //27// given by the defendant. All that the defendant maintained is that it is not he deserted the plaintiff rather plaintiff thrown him out but that fact has not been proved by the defendant. Desertion of a wife by the husband is the breach of a matrimonial duty and entitles the wife to live separately and also entitles to a separate residence.
Plaintiff had examined herself alongwith 4 independent witnesses. All PW'si.e. PW2 to PW5 consistently supported the story of the plaintiff and could be shaken in the cross examination by the defendant on material particulars.
Fifthly, there is also letter on record dt.04.06.2005 of the PW5/landlord of E-138, Preet Vihar, Delhi-92 which he had written to the Police stated that defendant has left the rented accommodation.
Sixthly, during the cross examination of PW2, PW2 place on record photographs Ex.PW2/A to Ex.PW2/F showing another girl with whom the defendant wants to get second marriage. However, there are no negatives.
In defence there is suggestion that these 27/30 //28// photographs were before marriage. Anyhow the photo of defendant is there in the photographs and after seeing photographs, I feel that the photographs are not of before marriage. These photographs show and supports the story of the plaintiff.
Seventhly, it is stated by the defendant that he has already make to pay a monthly maintenance of Rs.8,000/- vide order passed by Sh.K.S. Pal, Ld. ADJ and plaintiff is not entitled to morethan this.
In my view plaintiff alongwith the maintenance is also entitled to a separate residence to be provided by the defendant. The order of Ld.ADJ is with respect to the maintenance and does not includes the provision of residence for the plaintiffs.
Eighthly, plaintiff seeks residence at house no.E-1 or E-13, Radhapuri, Gali no.4, Krishna Nagar, Delhi but these house are already transferred by the defendant in favour of his brothers and mother.
In the other properties i.e. Shop no.1074-1075, 28/30 //29// Jyoti Market, Gandhi Gali, Fatehpuri, Delhi-110 006; 258, Kucha Sanjoghi Ram, Naya Bans, Khari Baoli, Delhi-110 006 and properties no.3645 and 3647, Lohewali Gali, Chawri Bazar, Delhi-110 006, the defendant is having the lease hold right. This shows that defendant has sufficient means to provide maintenance and to provide separate residence for the plaintiffs.
In view of above I feel that the plaintiff has proved the issue and it is held that the plaintiffs are entitled to a decree of separate residence as prayed for. The issue no.3 is decided in favour of plaintiffs and against the defendant.
RELIEF'S The plaintiffs are entitled to the following relief's:-
1. The defendant is directed to provide a two room set to the plaintiffs with Kitchen, W.C. and Toilet immediately;
2. or pay a rent Rs.6,000/- per month in the alternative.
3. The rent shall be paid with effect from the date of filing of the present suit.
17. On the basis of findings given on all issues, the suit/petition filed by the plaintiffs/petitioners for 29/30 //30// maintenance/residence u/s.18 R/w. Section 20 of Hindu Adoption & Maintenance Act, 1956 against the defendant/ respondent is decreed with cost.
18. Decree Sheet be prepared accordingly.
19. File be consigned to Record Room.
Announced in open court DAYA PRAKASH today on dated 18.09.2007 ADDITIONAL DISTRICT JUDGE DELHI 30/30