Delhi District Court
Vijay Kumar vs State on 9 January, 2025
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 265 OF 2023
CNR NO. DLST01-009131-2023
IN THE MATTER OF
Vijay Kumar
S/o Sh. Gamman Ram,
R/o D-1, House No. 86,
Madangir, New Delhi. ........ Appellant
Versus
1. State (GNCT of Delhi)
Through Ld. Additional PP
2. Raj Kumari
W/o Vijay Kumar
R/o House No. L-1, 2535,
Gali No. 15, Sangam Vihar,
New Delhi.
3. Jyoti
R/o House No. L-1, 2535,
Gali No. 15, Sangam Vihar,
New Delhi. ........ Respondents
DATE OF INSTITUTION : 20.09.2023
DATE OF RESERVING ORDER : 17.12.2024
DATE OF PRONOUNCEMENT : 09.01.2025
JUDGMENT Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:57:54
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 1 of 34
The present appeal under Section 29 of the Protection
of Women from Domestic Violence Act, 2005 (hereinafter referred
to as the 'DV Act') has been preferred against the impugned order
dated 20.05.2023 pronounced by Ld. Metropolitan
Magistrate/Mahila Court-03, South District, Saket Courts, New
Delhi (hereinafter referred as 'Ld. MM') on an application under
Section 12 of the DV Act in Complaint Case No. 470050/2016 titled
as Raj Kumari Vs Vijay Kumar & Ors.
2. The brief facts, as culled out from the appeal, are that
the marriage of the appellant Vijay Kumar and respondent no. 2 Raj
Kumari was solemnized on 27.04.1990 as per Hindu rites and
customs and out the said wedlock, respondent no. 3 Jyoti (daughter)
was born on 02.03.2000. Thereafter, respondent no. 2 lodged an FIR
No. 623/2001 under Section 498A/406/34 of the Indian Penal Code,
1860 (IPC) against the appellant and his family members in which
appellant and his family members were acquitted on 08.01.2004.
Thereafter, respondent no. 2 left her matrimonial home on
25.02.2015 and on 10.12.2015, she lodged the complaint against the
appellant and other family members of the appellants. In the said
complaint case, vide order dated 20.05.2023, Ld. MM directed the
appellant to pay the maintenance to respondent no. 02 and 03,
relevant extract of which is as under :
"42. The aggrieved and her Digitally
daughter are entitled to receive
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:01
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 2 of 34
an amount of Rs.5000/- from the
date of filing of application till
31.03.2016, an amount of Rs.
6000/- from 01.04.2016 till
31.03.2017, an amount of Rs.
7000/- from 01.04.2017 till
01.03.2018.
43. Since the daughter attained
majority on 02.03.2018, the
amount is being segregated
thereafter. From 02.03.2018 till
31.03.2019, the aggrieved and
the major daughter are entitled
to a sum of Rs. 4000/-each, from
01.04.2019 till 31.03.2020, the
aggrieved and the major
daughter are entitled to a sum of
Rs. 4500/-each, from 01.04.2020
till 31.03.2021, the aggrieved
and the major daughter are
entitled to a sum of Rs. 5000/-
each, from 01.04.2021 till
31.03.2022, the aggrieved and
the major daughter are entitled
to a sum of Rs. 5500/-each; from
01.04.2022 till 31.03.2023, the
aggrieved and the major
daughter are entitled to a sum of
Rs. 6000/-each and from
01.04.2023, the aggrieved is
entitled to a sum of Rs. 6500/-
till further orders and the major
daughter is entitled to a sum of
Rs. 6500/- till her marriage or
her obtaining a job, if an
application is moved in that
behalf by respondent in future.
The arrears are directed to be
cleared within a period of eight
months.
44. The amount of maintenance
is to be paid from the date of this
order directly into the bank of
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
the aggrieved on or before 10th
2025.01.09
17:58:06
+0530
of every month. Maintenance
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 3 of 34
that may have been received, or
being received by the aggrieved
in interim or in any other case
shall be adjusted. The
respondent is also entitled to
claim waiver of paying the
maintenance/ amount for the
period that he was in JC in FIR
No. 375/2016 PS Ambedkar
Nagar.
45. The aggrieved has adduced
sufficient evidence in the form
of medical documents Ex.
CW1/4 regarding physical injury
received by her and has even
specified date and time of the
alleged physical tortind Hence,
she is also entitled to receive a
one time compensation of Rs.
5,000/-."
3. The said impugned order has been challenged on
various grounds that Ld. MM has assumed that appellant must be
earning the minimum wages as prescribed by the Government of
NCT of Delhi and respondent no. 2 was not able to maintain herself,
Ld. MM has failed to appreciate that no cause of action has arisen as
no specific incident of domestic violence has been mentioned in the
complaint, respondent no. 3 has attained the age of majority on
02.03.2018, Ld. MM has wrongly relied upon the MLC dated
14.03.2012 wherein the respondent no. 2 levelled allegations of
beating and throwing her on the road by the appellant whereas the
respondent no. 2 fell at the house of her father at Sangam Vihar and
sustained injuries, appellant did not make any PCR call, respondent
no. 2 was working but her income was not considered by Ld. MM
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 4 of 34
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:11
+0530
while granting the maintenance, Ld. MM granted maintenance to
respondent no. 3 after attaining the age of majority, however, as per
Section 20 of the DV Act, children are entitled for maintenance till
they attained the age of majority, Ld. MM had passed the impugned
order without considering the evidence on record.
4. On behalf of respondents no. 2 and 3, written
arguments were filed wherein the grounds of the appeal have been
denied. It is stated that the present appeal is a gross abuse of law and
is full of conjectures and surmises and has been filed with malafide,
fraudulent and ulterior motive to harass the respondents. It is further
stated that the present appeal is hopelessly time barred as it has been
filed after a period of 56 days from the date of the order and no
plausible explanation has been tendered for the delay. It is further
submitted that the impugned order is not bad in law in any manner
and has been passed on the basis of evidence available on record. It
cannot be said that the monetary award passed is excessive or
exorbitant. Respondent no.2 has disclosed all the incidents of the
domestic violence in her complaint which have been rightly taken
into consideration by the court.
5. Sh. Anoj Kumar Singh, Ld. Counsel for the appellant
and Sh. Rizwan Ali, Ld. Counsel for respondents no. 2 and 3
advanced the arguments. Written synopsis along with supporting
judgments came to be filed on behalf of the appellant.
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:14
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 5 of 34
6. I have combed through the appeal as well as the Trial
Court Record and have heard Ld. Counsel for appellant and Ld.
Counsel for respondent.
7. At the outset, the application for condonation of delay
in filing the appeal is being considered. Though, the whys and
wherefores of the delay in filing the appeal as mentioned in the
application is that the appellant could not contact a lawyer of his
own choice causing delay of 56 days and thereafter father of the
appellant has arranged the fee of the counsel, which ground is not at
all tenable, however, in order to afford an opportunity to the
appellant to challenge the impugned order on merits, without
adopting a hyper-technical approach, I deem it expedient to condone
the delay and proceed to return a finding on the appeal on merits.
8. The first substantive ground raised in the appeal on
behalf of the appellant is that no cause of action has arisen in favor
of respondent no.2 as no specific incident of domestic violence has
been mentioned in her complaint, respondent no.2 herself deserted
the appellant on 25.02.2015, the complaint was filed to extort the
money from the appellant and respondent no.2 suffered the injuries
by falling at her father's house.
8.1. Apropos above, the relevant discussion in the
impugned judgment is reproduced herein under:
Digitally
signed by
"26. The aggrieved has examined
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:18
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 6 of 34
herself and her daughter in evidence
as CW1 and CW2 respectively for
proving the commission of domestic
violence against her and her
daughter. CW1 has reiterated the
contents of her complaint wherein
she has alleged various instances of
physical beatings as well as mental
harassment against the respondents.
In particular, the allegation of
14.03.2012 is relevant wherein she
has levelled specific allegation
against respondent no.1 for giving
beatings to her and throwing her on
the road. She has even relied upon
medical documents in support of
such allegation which are Ex.CW1/4
(colly 3 pages). In such document, it
has been mentioned "alleged history
of assault on March 14 2012" and
the diagnosis therein can be seen as
nasal bone fracture which also
corroborates her version that due to
the beatings she suffered fractures of
bone in her mouth and nose. In reply
to the said allegation, the respondent
merely stated that the same are false
and that when the aggrieved was at
her father's house at Sangam Vihar
she fell from the stairs and suffered
from the alleged injury. He had
stated that no complaint or PCR call
was made by anyone. However, no
cross examination of the aggrieved
was done by the respondent upon
this point when the aggrieved had
entered into the witness box. Thus,
the version of the respondent is not
believable.
27. Furthermore, the allegation of
25.02.2015 is also relevant as she
has again specified the episode of
beatings given by respondent no.1 to
her as well as her daughter. To
support her allegation, she has relied
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 7 of 34
upon copy of a complaint MARK D
and in the said complaint as well, the
allegations of beatings are reiterated.
On this point as well, there is no
cross examination conducted by the
opposite counsel.
28. The only argument raised by the
counsel for respondent at the time of
final argument was that in the
medical document Ex.CW1/4, it has
not been mentioned that it is assault
by husband and merely assault has
been written. He therefore, argued
that such document does not prove
the allegations levelled by the
aggrieved. He further argued that no
PCR call was made on 14.03.2012.
Further, as far as incident of
25.02.2015 is concerned and MARK
D complaint is concerned, it has
been argued that the same is merely
a hand written complaint which
cannot be relied upon.
29. The arguments raised by the
opposite counsel do not stand any
ground and the aggrieved has been
able to prove the commission of
domestic violence by respondent
no.1 by deposing on oath and relying
upon the above mentioned
documents and has discharged the
burden of proof of preponderance of
probabilities. Not making a PCR call
on 14.03.2012 or the absence of
'husband' in Ex.CW1/4 is not
material as the same are not a sine
qua now for proving an incident
while she has stepped in witness box
to depose regarding the said incident
and her testimony has not been
shaken. The respondent on the other
hand, has failed to rebutt the case of
the aggrieved as he has not cross
examined the aggrieved on the
incident alleged by her which she
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 8 of 34
has deposed on oath and has not
even given specific denial in his
reply. The Respondent examined
himself in evidence as RW1. His
evidence has also not been sufficient
for rebutting the case of the
aggrieved. He further examined
RW2, a neighbour, however, her
testimony is also not relevant for
rebutting the case of the aggrieved as
she admitted in her cross
examination that she does not
remember any specific date when
the aggrieved used to cause scuffle
or fight with the respondent."
8.2. It is manifest from the above extract of the impugned
judgment that Ld. MM has comprehensively dealt with the afore-
noted ground and it stands sufficiently established that respondent
no.2 suffered domestic violence at the hands of the appellant.
Medical documents Ex.CW1/4 (colly) clearly demonstrate the
alleged history of assault on 14.03.2012 which was diagnosed as
nasal bone fracture, which fact undergirds the version of respondent
no.2 that due to beatings inflicted by the appellant, she suffered
fracture of bone in her nose. Mere bald submission on behalf of the
appellant that she suffered fall at her father's house is not sufficient
to dispel the documentary evidence in the form of MLC of
respondent no.2 and her specific allegation. The fact that no PCR
call was made by the respondent no.2 cannot be said to be sufficient
enough to discard the medical documents as the injuries suffered by
the respondent no.2 speak volumes about the violence meted out to
her. Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:23 +0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 9 of 34
8.3. Ld. MM has also noted the allegation pertaining to
25.02.2015 wherein the episode of beating given by the appellant to
the respondents were mentioned in support of which complaint
Mark D was filed. Ld. MM also rightly noted that no specific cross
examination of respondent no.2 was conducted by the appellant on
these counts. Thus, this ground on behalf of the appellant does not
hold any merit.
9. The next substantive ground on behalf of the appellant
is that the appellant is a pauper, totally dependent upon his parents,
his father is getting a pension of Rs.8000/- and that respondent no.2
has suppressed her monthly income in order to extort money from
the appellant.
9.1. In the impugned judgment, Ld. MM has sufficiently
dealt with this ground as under:
"35. The respondent no. 1 has
remained evasive about his income.
When his income affidavit was filed
before the court, he stated that he
was working as a temporary
gardener and earning Rs.5000/- to
Rs.6000/- per month. Even in his
evidence by way of affidavit, he has
stated that earlier he was working as
gardener in different houses, but
after litigations started by the
aggrieved, he could not continue his
work and became unemployed and
he is not earning anything and that
he also does not have and property
in Delhi, Noida and Rajastha and
anywhere else and he has no income
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 10 of 34
at all. In his cross-examination, he
again goes on to state that he used to
work as a gardener, but presently he
is not doing the same. He was
confronted with certain photographs
Ex.RW1/E (OSR) wherein he is seen
outside a plant nursery on a Maruti
800, a bike and another car. He
stated that the photographs are of
his, but he has no concern with the
cars and plant nurseries shown in the
photographs.
36. In his income affidavit as well
as in his cross examination, he has
stated that he is not residing with his
father as his father has disowned
unemployed, the same cannot be
believed. He must at least earning
income equivalent to a minimum
wager of an unskilled labour which
is around Rs.17,234/- in NCT of
Delhi at present."
9.2. As noted above, appellant remained evasive about his
income. In his income affidavit, he professed to be working as a
temporary gardener and earning Rs.5000 to Rs.6000/- per month but
after litigation started by respondent no.2, he could not continue his
work and became unemployed. Ld. MM, after considering the
evidence on record, concluded that the appellant being unemployed
and disowned by his father cannot be believed and that he must be
deemed to be earning income equivalent to a minimum wages of an
unskilled labor which was around Rs.17,234/- in NCT of Delhi at
the time of impugned judgment.
9.3. Apart from the above, it is also worthwhile to note that
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date: 2025.01.09
17:58:30 +0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 11 of 34
in the appeal the appellant has claimed that he works as painter in
private house but has not divulged his monthly income out of the
said work, therefore, adverse inference can be drawn against the
appellant. Also, there is disharmony in the stand of the appellant in
appeal as on one hand, he claims to be totally dependent upon his
parents and on the other hand, he claimed the maintenance awarded
to be exorbitant as he has to survive along with his societal
responsibilities, being only the son of his parents. This shows the
vacillating stand of the appellant whether he is dependent on his
father or being the only son his parents are dependent upon him.
10. It is also one of the grounds in the appeal that
respondent no.2 herself left her matrimonial home and that earlier
also she had filed FIR no. 623/2001 under Section 498A/406/34 in
which appellant was acquitted. As against this, the stand of the
respondents is that after the said FIR, the appellant and his family
members settled the case with them and in the hope of saving her
matrimonial alliance and for the future of respondent no.3, she did
not support her FIR before the court on the basis of which appellant
and his family members were acquitted.
10.1. As regards the afore-said ground also, the appellant has
failed to furnish any material to strengthen the argument that
respondent no.2 herself left the matrimonial home. There is no
material on record to indicate that the appellant made any efforts to
bring back the respondents to the matrimonial home. The cross
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 12 of 34
examination of respondent no.2 also does not reveal that any such
suggestion was posed to her that she herself deserted the
matrimonial home.
11. The last substantive ground on behalf of the appellant
is that respondent no.3 has attained majority and the domestic
violence act is applicable only for aggrieved and her minor children
and since respondent no.3 is neither aggrieved nor minor any more,
she is not entitled for any maintenance under the act. To buttress this
argument, Ld. Counsel for the appellant referred to the judgments of
High Court of Karnataka in Sri G Kalasegowda Vs. Smt. N K
Nethravathi, Criminal Revision Petition No.795/2015, dated
23.08.2023 and the Supreme Court in Amrendra Kumar Paul Vs.
Maya Paul and Ors, dated 04.08.2009, 2009 AIR SCW 6568.
11.1. The High Court of Karnataka has held in paragraph 10
and 12 that under the provision of DV Act, the unmarried daughter
is not entitled for maintenance and only aggrieved persons or
children are entitled for maintenance. It also propounded that the
major daughter can claim maintenance under the provision of
Hindu Adoption and Maintenance Act. For reference, those
paragraphs are reproduced as under:
"10. The monitory benefit is awarded
under Section 20 of the protection of
women from Domestic Violence Act.
Under Section 20(1)(d) there is a
provision for awarding maintenance Digitally
to the aggrieved person as well as the signed by
NAVJEET
NAVJEET BUDHIRAJ
children. The definition of the child is BUDHIRAJ Date:
2025.01.09
17:58:37
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 13 of 34
given in Section 2(d) of the act
wherein child is described as any
person below the age of 18 years and
it includes adopted, step or foster
child. Hence, under the provisions of
Section 20, maintenance can be
awarded only to aggrieved person and
children. But admittedly, in the
instant case the daughters are now
major and when the petition was filed
they were minors. However, the
learned Magistrate has awarded
maintenance till their marriage. But
under the provisions of the DV Act,
the unmarried daughter is not entitled
for maintenance and only aggrieved
persons or children are entitled for
maintenance .
........
12. No doubt all these citations are under the provisions of Hindu Adoption Act or under Section 125 of Cr.P.C. But it is evident that the maintenance can be claimed by daughters under the provisions of Hindu Adoption Act if they are unable to maintain themselves. But in the instant case, admittedly, the major daughters are not parties and they have not sought any maintenance independently. They have got remedy under the provisions of Hindu Adoption Act to seek the maintenance on attaining majority in case they are unable to maintain themselves. Hence, under the provisions of Domestic Violence Act, question of awarding maintenance till marriage of the daughters does not arise at all and the maintenance can be granted till the attainment of age of majority by the child. "
11.2. The judgment of the Supreme Court in Amrendra CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 14 of 34 Kumar Paul Vs. Maya Paul and Ors pertains to execution of an order passed under section 125 of Cr.P.C and is not directly applicable to the facts of present case.
11.3. Having noted the view point of Karnataka High Court on the issue of whether adult daughter would be entitled for maintenance under DV Act, I wish to spell out the view of Allahabad High Court in a recent judgment delivered on 10.01.2024 in Naimullah Sheikh and Another Vs. State of UP and 3 Ors, Neutral Citation no. 2024 AHC:4853. The High Court in this judgment has reiterated the object of the DV Act, import of section 20, definition of aggrieved person in section 2(a) of the DV Act and also whether an independent substantive right for monetary relief flows from section 20 of the DV Act. The germane paragraphs are reproduced herein under:
"5. The Protection of Women from Domestic Violence Act, 2005 has been enacted with an object to provide for 'more effective protection to women', guaranteed under the Constitution, who are the victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The use of the word 'more' before the phrase 'effective protection of rights of woman' is not an insignificant addition. The matter shall be further elaborated at appropriate places in the judgment.
6. Under the aforesaid Act of 2005, Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.01.09 17:58:42 +0530 CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 15 of 34 any aggrieved person may apply to the Magistrate for seeking one or more relief under the Act. Broadly the reliefs available under the Act are titled as "Right to reside in a shared household under section 17, Protection orders under section 18, Residence orders under section 19, Monetary reliefs under section 20, Custody orders under section 21 and Compensation orders under section
22."
Section 20 under which monetary relief may be granted to an aggrieved person has been worded as below:-
(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 is 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, NAVJEET BUDHIRAJ fair and reasonable and consistent Digitally signed by with the standard of living to which NAVJEET BUDHIRAJ Date: 2025.01.09 17:58:45 +0530 the aggrieved person is accustomed CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 16 of 34 (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. Perusal of the above provision demonstrates that any aggrieved person including any child of the NAVJEET aggrieved person, who has been BUDHIRAJ subjected to domestic violence, may Digitally signed by NAVJEET BUDHIRAJ Date:
claim monetary relief to meet the 2025.01.09 17:58:49 +0530 expenses incurred and losses suffered as a result of domestic violence and also monetary relief for such incidental matters like monetary relief for loss of earnings, medical expenses, loss of any property and also for maintenance. This provision of law further CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 17 of 34 provides that such reliefs of monetary nature can also be claimed which do not fall under the categories enumerated above as the provisions clearly lay down that reliefs need not be limited to reliefs as described under section 20(1), 20(1)(a), 20(1)(b), 20(1)(c) and 20(1)(d). Section 20(1)(d) of the DV Act further expands the scope of monetary relief for maintenance. For better understanding I am reproducing section 20(1)(d) again as below:-
"(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."
This part of the provision of law says that not only the aggrieved persons but also her children, if any, may claim maintenance 'under' and 'in addition' to order of maintenance under section 125 Cr.P.C. And further that the maintenance can be claimed under or in addition to any other law for the time being in force. The way provision has been worded, gives a clear indication that section 12 of the DV Act is essentially a procedural law, which can be resorted to by any aggrieved person, Digitally signed by NAVJEET NAVJEET BUDHIRAJ who draws a substantive right for BUDHIRAJ Date:
2025.01.09 17:58:55 +0530 maintenance from any other law, whether under section 125 Cr.P.C. or personal law applicable to the parties or any other law for the time being in force. Thus law is quite clear to the extent that maintenance can be claimed under any law which provides for the same. Further that CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 18 of 34 even if maintenance has already been granted under one law, the aggrieved person can ask for monetary relief for maintenance under any other law in addition, under the provisions of the DV Act. Thus this law seeks to avoid multiplicity of proceedings. Now a question may arise that when rights have been provided for elsewhere, why such enactment was needed at all? In my opinion the legislature has, keeping up with the objective of this enactment, has cut down the procedural formalities and facilitated grant of quicker reliefs.
Section 20(2) of the DV Act says that the monetary relief granted under this section shall be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The scope for grant of particular kind of monetary relief that is "maintenance" is further widened in section 20(3) of the DV Act which says that an appropriate lump-sum may be ordered to be paid as maintenance in the nature of circumstances of a particular case. In my opinion, if the provisions of section 20(1)(d) of the DV Act are interpreted in harmony with rights given to an aggrieved person under any other law, it appears that the substantive right to receive maintenance may emanate from other laws, however quick and shorter procedure to obtain the same, has been provided in the the DV Act, 2005. The rights which the parties may have under other laws whether civil or criminal, have been given a NAVJEET cutting edge by the Act. In my view, BUDHIRAJ this explains the use of words "more Digitally signed by NAVJEET BUDHIRAJ Date: 2025.01.09 17:58:59 +0530 CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 19 of 34 effective protection to women" in the foreword which described the reasons behind this enactment.
8. Having said that, now I come to some other provisions in the DV Act which strengthen and fortify the above view regarding giving more effective protection to women.
Section 2(a) of the DV Act defines "aggrieved person" as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. The woman who has been in domestic relationship with the respondent and who has been subjected to any domestic violence, is entitled for relief under the Act, irrespective of her minority or majority. The rights of an aggrieved person flow from the fact that she has been subjected to violence which may be of physical, mental, sexual, verbal and emotional nature and may even in the nature of the economic abuse. The other essential requirement is that the aggrieved person has been living in a shared household or had, at any point of time lived together in a shared household with the respondent, who is related to her by marriage, adoption, consanguinity or living together, in a joint family as a family member.
9. Now an important question is whether an independent substantive right for monetary relief flows from section 20 of the DV Act or whether NAVJEET section 20 read with section 12 of BUDHIRAJ the DV Act, 2005 merely provides Digitally signed by NAVJEET for procedure and no more? BUDHIRAJ Date: 2025.01.09 17:59:04 +0530 ..........
11. With the above perspective in CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 20 of 34 mind, lets go through some of the judgments of the Supreme Court and the High Court as below:-
In Noor Saba Khatoon vs. Mohd. Quasim; (1997) 6 SCC 233, before the Supreme Court, a Muslim woman claimed maintenance from her husband for herself and her three minor children under section 125 Cr.P.C. The trial court allowed the application and directed the OP (her husband) to pay maintenance to his wife as well as his children till attaining the age of majority. The respondent divorced her wife and thereafter filed an application seeking modification of the order dated 19.01.1993 in view of the provisions of the Muslim Women (protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act of 1986'). The trial court modified the order on the ground that after divorce, she was entitled for maintenance for 3 months only i.e. period of 'iddat', as per the provisions of the aforesaid Act of 1986, while maintaining the maintenance order for children. The respondent thereupon filed a petition before the High Court and the High Court, accepting his plea held that the Muslim woman was entitled to claim maintenance from her previous husband, for her minor children only up to the period of 2 years. However the Supreme Court held that the children of Muslim parents have an independent right to claim maintenance under section 125 Cr.P.C. and that the right cannot be allowed to be defeated except through clear provisions of a statutes. The Muslim father's obligation, like a Hindu father to CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 21 of 34 maintain his minor children, as contained in section 125 Cr.P.C. is absolute and is not at all affected by section 3(1)(b) of the Act of 1986. In para no. 10, it was held as below:-
"10. Thus, both under the personal law and the statutory law (Sec. 125 Cr. P. C.) the obligation of a muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife."
In Jagdish Jugtawat vs. Manju Lata and Others; (2002) 5 SCC 422, the Supreme Court applied the law laid down in Noor Saba Khatoon vs. Mohd. Quasim (supra) and drawing force from the aforesaid judgments held that the right of a minor girl to obtain maintenance from the appellants even after attaining majority till her marriage, is recognized in Section 20(3) in the Hindu Adoptions and Maintenance Act, 1956 and therefore the order for granting maintenance was right. The relevant portion is as below:-
"3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim , AIR 1997 SC 3280 : 1997 (6) SCC 233 : 1997 SCC (Cri) 924 relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 22 of 34 children. This Court while accepting the position that Section 125, CrPC does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(l)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl.
4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 CrPC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforesated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for."
The High Court of Andhra Pradesh in Menti Trinadha Venkata Ramana vs. Menti Lakshmi and Others; 2021 SCC Online AP 2860, observed in para nos. 4 and 5 as below:-
"4. While dealing with a similar issue in Jagdish Jugtawat v. Manju Lata and others1, a three Judge Bench of the Hon'ble Apex Court held though a girl, on attaining majority, may not be entitled to CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 23 of 34 maintenance from her parents under Section 125 of Cr.P.C., such right can be traced to Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act of 1956') and on a combined reading of the two provisions, the Family Court is entitled to grant maintenance to an un-married daughter even after attaining majority, provided she is unable to maintain herself. However, the aforesaid observations in Jagdish Jugtawat (supra) were recently clarified by another three Judge Bench of the Hon'ble Apex Court in Abhilasha v. Parkash and others2, wherein the Bench inter alia observed though a Family Court is entitled to grant maintenance to a major un-married girl by combining the liabilities under Section 125 Cr.P.C. and Section 20(3) of the Act of 1956, a Magistrate exercising powers under Section 125 of Cr.P.C. is not authorized to do so.
5. However, it may be apposite to note that the Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 (for short, 'the DV Act') and grant monetary relief i.e., to meet the expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established. A conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is NAVJEET BUDHIRAJ or was living with her father in a Digitally signed by NAVJEET BUDHIRAJ domestic relationship by way of Date: 2025.01.09 17:59:10 +0530 consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 24 of 34 irrespective of the fact whether she is a minor or major. In the present case, the relationship between the parties as father and daughter is admitted and they had stayed together in a shared household. In view of the fact that the petitioner neglected to maintain the 1st respondent-wife and 2nd respondent-daughter, proceedings under section 125 Cr.P.C. came to be instituted and maintenance was awarded to respondents including to the 2nd respondent. As the award was not paid, the learned Magistrate issued the impugned order, dated 14.03.2012, directing recovery of maintenance to the tune of Rs. 22,000/- for a period of 11 months from 17.12.2009 to 16.11.2010. In the aforesaid facts, the order of learned Magistrate may be traced to his powers to grant monetary relief under the DV Act and by a combined reading of the provisions of Section 125 of Cr.P.C. and Section 20 of the DV Act, the said order cannot be said to be illegal on the mere ground that the 2nd respondent had become a major. I am further fortified to arrive at such finding as the relief under the DV Act can be granted in addition to other reliefs available to the aggrieved person as envisaged under Section 26(2) of the DV Act."
The Allahabad High Court in Mustakim vs. State of U.P. and Another; 2015 (3) ADJ 693, has observed in para nos. 10, 11 and 12 as below:-
"10. Now a look at the judgment of this Court in the case of Amod Kumar Srivastava v. State of U.P. and others, 2008 (62) ACC 591. This CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 25 of 34 judgment takes a view that upon attaining majority an illegitimate/legitimate child including an unmarried daughter, is not entitled to claim maintenance, but it does not take into consideration the judgments of the Apex Court in the cases of Noor Saba Khatoon and Jagdish Jugtawat (both supra), wherein it has been held that notwithstanding the ineligibility of a major unmarried daughter to claim maintenance under Section 125 Cr.P.C, yet an order granting maintenance to such a daughter is not liable to be interfered with a view to avoid multiplicity of proceedings provided she has a right to claim maintenance from her father under the personal law.
11. The Apex Court in the case of Noor Saba Khatoon (supra), after examining the personal law of muslims, has already held that a muslim father is liable to maintain his major daughter till such time she is not married. It is not disputed that O.P. No.2 is major and that she is not yet married.
12. It is held that notwithstanding the ineligibility of a muslim major unmarried daughter to claim maintenance under Section 125 Cr.P.C, yet an order granting maintenance to her is not liable to be interfered, with a view to avoid the multiplicity of proceedings, as such a daughter, who is unable to maintain herself can claim maintenance from her father under the personal law."
The Supreme Court in Ajay Kumar vs. Lata @ Sharuti & Others; 2019 0 Supreme (SC) 612, in the light of the provisions of section 12 and section CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 26 of 34 20(1) of the DV Act held that the monetary relief may include but is not limited to an order of maintenance of the aggrieved persons as well as his children, if any, including an order under or in addition to order of maintenance under section 125 Cr.P.C. or any other law for the time being in force. The Supreme Court thereafter alluded to the definition of 'respondent' as given in section 2(q) of the DV Act, definition of 'domestic relationship' as given in section 2(f) of the DV Act and definition of 'shared household' as given in section 2(s) of the DV Act and went on to observe in para no. 15 as below:-
"15. All these definitions indicate the width and amplitude of the intent of Parliament in creating both an obligation and a remedy in the terms of the enactment."
12. In my opinion, in the above words, the Supreme Court has recognized that the scope of DV Act, 2005 is quite wide. The statement of object and reasons which finds place at the top of any particular enactment may be of utility while interpreting the provisions of law.
NAVJEET BUDHIRAJ The objective of enacting this Act Digitally signed by NAVJEET BUDHIRAJ Date: 2025.01.09 has been worded as below:-
17:59:16 +0530 "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matter connected therewith or incidental thereto."
.........
14. From perusal of the judgments as have been referred to earlier, there CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 27 of 34 remains no doubt that unmarried daughter, whether Hindu or Muslim has a right to obtain maintenance, irrespective of her age. This is made clear again that the courts have to look for other laws applicable when the question pertains to right to be maintained. However, where issue does not pertain to mere maintenance, the independent rights are available to an aggrieved under section 20 of the DV Act itself."
11.4. In the afore-noted judgment, the Allahabad High Court has referred to three judge bench view of Apex Court in Abhilasha Vs. Parkash, AIR 2020 SUPREME COURT 4355 wherein the court held that a conjoint reading of section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with his father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person irrespective of the fact whether she is a minor or major.
11.5. The above exegesis settles the position that under DV Act, a major unmarried daughter can claim maintenance from her father in her own right as an aggrieved person.
11.6. At this juncture, Ld. Counsel for appellant argued that since respondent no.3 was not an independent party before Ld. MM and there is nothing on record that she is an aggrieved person therefore she cannot be awarded any maintenance. This argument also deserves to be shot down as there is specific allegation that CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 28 of 34 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.01.09 17:59:23 +0530 respondent no.3 was also beaten by the appellant which has been taken note of by Ld. MM in the impugned judgment. Further, the fact that there is nothing on record to suggest that the appellant in any manner desired to have the company of respondent no.3 with him, respondent no.3 was compelled to leave the house with respondent no.2 her mother. All these circumstances, taken cumulatively, would bring her case as well within the domain of section 2(a) of the DV Act. Further, there is no legal bar in awarding maintenance to a daughter who during the pendency of petition attained majority even if she has not separately sued as an independent person along with her mother.
12. Now, on the quantum of maintenance awarded by Ld. MM, a discussion is warranted. Ld. MM has assessed and quantified the monthly income of the appellant to be Rs.17,234/- which is the minimum wages of unskilled labor in the NCT of Delhi. The assessment of monthly income equivalent to minimum wages of an unskilled labor by Ld. MM cannot be faulted with in view of the settled proposition that the appellant being the husband of respondent no.2 and father of respondent no.3 is duty bound to provide maintenance to them as has been held by Apex Court in case of Anju Garg Vs. Deepak Kumar Garg, 2022 SC 805. In that case, the court also came to the conclusion that if the husband engages himself in labor work, he may earn as an unskilled labor about Rs.350/- to Rs.400/- per day as a minimum wages. Thus, in case aggrieved person is unable to establish the monthly income of Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 29 of 34 2025.01.09 17:59:27 +0530 the party from whom the maintenance is claimed and the other party claims to be involved in menial jobs, the criteria of his income being equivalent to minimum wages of an unskilled labor prevalent in a particular state can be adopted.
13. Now, as per the impugned judgment, the entitlement of maintenance to the respondents has been directed as under:
"42. The aggrieved and her daughter are entitled to receive an amount of Rs.5000/- from the date of filing of application till 31.03.2016, an amount of Rs.6000/- from 01.04.2016 till 31.03.2017, an amount of Rs.7000/- from 01.04.2017 till 01.03.2018.
43. Since the daughter attained majority on 02.03.2018, the amount is being segregated thereafter. From 02.03.2018 till 31.03.2019, the aggrieved and the major daughter are entitled to a sum of Rs.4000/- each, from 01.04.2019 till 31.03.2020, the aggrieved and the major daughter are entitled to a sum of Rs.4500/- each, from 01.04.2020 till 31.03.2021, the aggrieved and the major daughter are entitled to a sum of Rs.5000/- each, from 01.04.2021 till 31.03.2022, the aggrieved and the major daughter are entitled to a sum of Rs.5500/- each; from 01.04.2022 till 31.03.2023, the aggrieved and the major daughter are entitled to a sum of Rs.6000/- each and from 01.04.2023, the aggrieved is entitled to a sum of Rs.6500/- till further orders and the major daughter is entitled to a sum of Rs.6500/- till her marriage or her obtaining a job, if an application is moved in that behalf by respondent in future. The arrears are directed to be cleared within a Digitally signed by NAVJEET NAVJEET BUDHIRAJ CA No. 265 of 2023 Vijay Kumar Vs State & Others BUDHIRAJ Page No. 30Date:
of 34 2025.01.09 17:59:32 +0530 period of eight months."
14. It is manifest from above that out of the afore-noted monthly income of the appellant, both respondent no.2 and 3 have been directed to be entitled to receive a sum of Rs.6500/- each, though as record respondent no.3 her entitlement has been qualified till her marriage or her obtaining a job. However, this portion of finding of Ld. MM needs to be interfered with in the light of the judgment of High Court of Delhi in Annurita Vohra Vs. Sandeep Vohra, 2004(74) DRJ 99 wherein it was opined that the access income of the family is to be divided into two portion, one to the husband and other to the wife and other members. Relevant observations are note herein under:
"2. In other words the court must first arrive at the net disposable income of the Husband or the dominant earning spouse. If the other spouse is also working these earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which is exactly what happens when the spouses are one homogeneous unit. Ms. Geeta Luthra, learned counsel for the Respondent, had fervently contended that normally 1/5th of the disposable income is allowed to the Wife. She has not shown any authority or precedent for this proposition and the only source or foundation for it may be traceable to Section 36 of the Indian Divorce Digitally CA No. 265 of 2023 Vijay Kumar Vs State & Others signed by NAVJEET Page No. 31 of 34 NAVJEET BUDHIRAJ BUDHIRAJ Date:
2025.01.09 17:59:37 +0530 Act, 1869. This archaic statute mercifully does not apply to the parties before the Court, and is a vestige of a bygone era where the wife/woman was considered inferior to the husband as somewhat akin to his chattels. The law has advanced appreciably, and for the better. In the face of Legislatures reluctant to bring about any change over fifty years ago the Courts held that the deserted wife was entitled to an equal division of matrimonial assets. I would be extremely loath to restrict maintenance to 1/5th of the Husband's income where this would be insufficient for the Wife to live in a manner commensurative with her Husband's status or similar to the lifestyle enjoyed by her before the marital severance. 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.
3. Observations in similar vein have been made by a Learned Single Judge of this Court in Harminder Kaur vs. Sukhwinder Singh, 2002 VI AD (DELHI) 797. S.N. Kapoor, J. had opined 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 CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 32 of 34 parents and one for the young child. On a disposable income of Rs.12,000/- he had granted Rs.7,200/- per month for the maintenance of the wife and the child. "
15. In light of the afore-noted judgment of High Court of Delhi, since in the present case the income of the appellant has been assessed to be minimum wages and as on 01.04.2023, the minimum wages prevalent in NCT of Delhi was Rs.17,234/- per month, half of the same can be allocated to the respondents for the said period and similarly for the previous years, the maintenance can be calculated on the basis of the applicable minimum wages for the said period, which would warrant modification in the impugned judgment. It is, thus, held that the entitlement of the respondents to receive the maintenance stands modified as under:
15.1. Respondent no.2 (wife) and respondent no.3 (daughter) are entitled to receive an amount of Rs.4500/- from the date of filing of application till 31.03.2016, an amount of Rs.5000/- from 01.04.2016 till 31.03.2017, an amount of Rs.6700/- from 01.04.2017 till 01.03.2018.
15.2. Since respondent no.3 attained majority on 02.03.2018, the amount is being segregated thereafter as done by Ld. MM in the impugned judgment. From 02.03.2018 till 31.03.2019, respondent no.2 and respondent no.3 are entitled to a sum of Rs.3500/- each, from 01.04.2019 till 31.03.2020, respondent no.2 and respondent no.3 are entitled to a sum of Rs.3750/- each, from 01.04.2020 till Digitally signed by NAVJEET NAVJEET BUDHIRAJ CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 33 of 34 BUDHIRAJ Date:
2025.01.09 17:59:49 +0530 31.03.2021, respondent no.2 and respondent no.3 are entitled to a sum of Rs.3900/- each, from 01.04.2021 till 31.03.2022, respondent no.2 and respondent no.3 are entitled to a sum of Rs.4000/- each;
from 01.04.2022 till 31.03.2023, respondent no.2 and respondent no.3 are entitled to a sum of Rs.4200/- each and from 01.04.2023, respondent no.2 is entitled to a sum of Rs.4400/- and respondent no.3 is entitled to a sum of Rs.4400/- till her marriage or her obtaining a job, if an application is moved in that regard by appellant in future.
The amount deposited, if any, by the appellant in favor of the respondents towards the maintenance stands adjusted accordingly.
16. In the result, the appeal is partly allowed in above terms and is disposed of.
PRONOUNCED IN OPEN COURT
ON THIS 9th DAY OF JANUARY 2025 Digitally signed
by NAVJEET
BUDHIRAJ
NAVJEET Date:
BUDHIRAJ 2025.01.09
17:59:55
+0530
(NAVJEET BUDHIRAJA)
ASJ-02/SOUTH/SAKET COURTS NEW DELHI/09.01.2025 CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 34 of 34