Delhi District Court
Shailender Singh vs Smt. Poonam on 3 March, 2023
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-
WEST DISTRICT, ROHINI COURTS, DELHI
Crl. Appeal No. 190/2022
CNR No.DLNW01-010499-2022
Shailender Singh
S/o Sh. Nagdev Singh
R/o Village Jantua
Post: Jai Hind Tendua
PS Mali, Distt. Aurangabad, Bihar
.... Appellant
Versus
1. Smt. Poonam
W/o Shri Shailender Singh
R/o U-477, Mangol Puri
P.S. Mangolpuri, Delhi-110083
2. Shri Nikhil Kumar
S/o Not known
R/o U-477, Mangol Puri
P.S. Mangolpuri, Delhi-110083
3. State of Delhi
Through its Secretary
Ministry of Home
Secretariat, New Delhi
......Respondents
Date of Filing : 19.10.2022
Date of Arguments : 28.02.2023
Date of Judgment : 03.03.2023
JUDGMENT
1. The appellant has filed this criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as "said Act") against an order dated 14.12.2015 (hereinafter referred as "impugned order") passed by Ld. MM (Mahila Court), North-West District, Rohini, Delhi in a complaint case bearing CC No.315/4 (New CC No. 4410/2016) titled 'Poonam & Anr.Vs. CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 1 of 11 Shailender Singh & Ors.', whereby the Ld. MM, while disposing off the interim application of the respondent No.1- herein/petitioner No.1-therein, directed the respondent- therein/appellant-herein to make the payment of Rs.4,500/- pm to the petitioner No.1-therein/respondent No.1-herein for petitioner-therein herself as well as minor child i.e. respondent No.2-herein/petitioner No.2-therein which includes expenses for food, clothing and alternate accommodation towards the maintenance upto 10th of each English Calendar month from the date of filing of the said application i.e. 26.07.2013 till the final disposal of the case as interim maintenance to the petitioner-therein.
2. The brief facts, as set out in the present appeal, are that marriage between appellant-herein and respondent No.1- herein was solemnized on 25.06.1999 at village Jantua, District Aurangabad, Bihar. After ten days of marriage, the respondent No.1 came back to Delhi and till date never went to her matrimonial home. The respondent Nos.1 & 2-herein filed petition u/s 12 of the said Act along with an application u/s 23 of the said Act against the appellant-herein and his family members. In the said complaint case, the Ld. MM passed the impugned order dt.14.12.2015. Aggrieved by the said impugned order, the appellant has preferred the present appeal on the grounds among others that the application filed by the respondents on 26.07.2013 at Rohini Courts under the said Act is blatantly delayed without any justified reason, and there is no continuing offence, therefore, the same is impermissible and devoid of merits. The appellant is permanent resident of village Jantua, PS Mali, Distt. Aurangabad, Bihar and all the acts alleged by the respondent have taken place at village CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 2 of 11 Jantua, PS Mali, District Aurangabad, Bihar, as such, the cause of action, if any is at Bihar and not in Delhi. Therefore, this court has no jurisdiction and the petition is not maintainable in Delhi. The impugned order is manifestly erroneous because the minimum wages Act/Rules of Bihar has to be taken into account while determining the maintenance and not the minimum wages of Delhi. The JD is permanent resident of Bihar and his all source of income, if any is at village Jantua, PS Mali, Distt. Aurangabad, Bihar and not in Delhi. The respondent is not entitled to any maintenance as she has been living in adultery since July 1999 and gave birth to child in November 2001 without any cohabitation with appellant for more 29 months. Without any sufficient reason she deserted the appellant till filing of the DV petition. Moreover, in the DV report, the respondent has categorically refused to live with her husband/appellant. The DV petition was filed in the year 2013 and the alleged incident is averred to had been committed by the accused/applicant without any sufficient evidence. The application for domestic violence has been filed after inordinate and unexplained delay of 14 years in July 2013 in Delhi. The Ld. MM has passed the impugned order on the erroneous basis of minimum wages of unskilled labour applicable in Delhi. Whereas, the appellant has specifically stated in his income affidavit that he is permanent resident of village Janatua, Aurangabad, Bihar and is an agriculturist and moreover, his monthly income from agriculture divided among father, mother and the brother are not more than one thousand five hundred per month. The respondent-herein ought to have filed the complaint within the limitation period as mentioned in Section 468 CrPC which is applicable in view of the CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 3 of 11 provision of Section 28 and 32 of the said Act read with the rule 15(6) of the Protection of Women Against Domestic Rule, 2006. The impugned order has been passed overlapping the order dt. 23.02.2015 passed by the Ld. Judge, Family Court, Rohini, Delhi in M.T. Case No. 20/2014. The appellant has prayed to set aside the impugned order dt. 14.12.2015.
3. The respondent No.3 is a formal party being State. The respondent Nos. 1 & 2 have filed reply to the present appeal and raised the preliminary objections that the present appeal is barred by the limitation as there is delay of six years, 10 months and five days in filing the present appeal. The appellant has also taken the benefit of concealment of his second marriage which was solemnized by him without taking the divorce from the respondent No.1-herein. The amount of interim maintenance of Rs.4500/- is just substance allowance to fulfill basis needs. The appellant is the guilty of concealment of source of income, value of his actual income, details of his agriculture land, and other properties in para No. E of preliminary objections of written statement, para No. 4(b) and 4(R) of parawise reply of written statement. The trial court has been functioning within the jurisdiction of Delhi, therefore, the trial court shall pass the order only on the basis of Minimum Wages applicable in Delhi. In parawise reply, the respondents have stated that in para No. 3 of information letter before the court of Ld. MM Aurangabad, Bihar, it is mentioned that my wife left the company of the appellant on dated 11.08.2004 for Nehar with her brother Sushil Kumar Singh. In para 11 of the information letter before the court of the Ld. MM Aurngabad, Bihar, the appellant admitted that a son was born out of the said marriage due to his cohabitation with his CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 4 of 11 wife Poonam. In paragraph No. 11 of the said information letter, the appellant admitted that the son of the respondent is his son. The respondent No.1-herein is legally wedded wife of the appellant. He has been concealing his actual employment, income, details of his property and his agriculture land in his native village, his second marriage solemnized in the year 2012 or 2013 from the courts. In his application dt. 20.03.2014 before the Women Cell, he has mentioned that "the respondent and his family members were pressuring him to sell his entire property and asking him to live in the town". The appellant did not file any documentary evidence of employment of the respondents. The respondent also filed a complaint case u/s 200 CrPC along with application u/s 156(3) CrPC with regard to his second marriage, which is pending. Section 468 CrPC is not applicable in the economic offence, maintenance case u/s 125CrPC and 12 of DV Act. It is clearly lay down in Section 32 of the said Act that the offences lay down u/s 31(1) by the respondent/accused shall be cognizable and non bailable. The affidavit dt. 14.12.2015 of the appellant was on record of the trial court at the time of passing of the impugned order.
4. I have heard the Ld. Counsel for the appellant and Ld. Counsel for the respondent Nos. 1 & 2 and I have also gone through the written arguments filed on behalf of the parties, the judgments relied upon by the Ld. Counsel for the appellant and the impugned order as well as the materials available on record.
5. Ld. Counsel for the appellant argued that the marriage of the appellant and respondent No.1 was solemnized on 25.06.1999 in Bihar and respondent only remained for ten days with the appellant after the marriage and at that time the CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 5 of 11 appellant was 14 years old. Even the marriage between them was not consummated. The respondent is also not entitled to any maintenance as she has been living in adultery since July 1999 and gave birth to child/respondent No.2-herein in November 2001 without any cohabitation with appellant. The appellant-herein has also filed an application for conducting DNA test of the child Nikhil Kumar / respondent No.2-herein. The appellant and respondent Nos. 1 & 2 have been living separately since July 1999. The complaint case u/s 12 of the said Act was filed in the year 2013. There is no continuing offence. No justified reason is given for delay in filing the present appeal and also the complaint case u/s 12 of the said Act. The complaint u/s 12 of the said Act should have been filed within the limitation period as mentioned in Section 468 CrPC, as such the same is barred by limitation. The court has no territorial jurisdiction to try and entertain the case as the appellant is permanent resident of district Aurangabad, Bihar and his marriage was also solemnized at Aurangabad, Bihar. The minimum wages applicable in Delhi was considered instead of minimum wages applicable in Bihar as the appellant is resident of Bihar. The appellant is 08 th class passed and earning Rs.5000/- pm by doing the agriculture work with his family members and agriculture income is divided into his father, mother and brother and he only gets a meager amount of about Rs.1500/- pm. In support of his arguments, Ld. Counsel for the appellant has relied upon the judgments in the cases of Balpreet Singh V. State of U.P. and Ors. MANU/UP/3460/2018 and Nagin and Ors. Vs. Purnima Nagin Dhanresha and Ors. MANU/MH/1078/2020.
CA No. 190/2022Shailender Singh Vs. Poonam & Ors. Page No. 6 of 11
6. Ld. Counsel for the respondent Nos. 1 & 2 argued that the present appeal has been filed after a period of 6 years, 10 months and 5 days, as such, it is barred by limitation. The appellant has concealed about his second marriage without taking divorce from the respondent No.1. The interim maintenance amount of Rs.4500/- is a meager amount and it requires to be enhanced. In his application dt. 20.03.2014 before the Women Cell, he has mentioned that respondent and family members were pressuring him to sell his entire property, which means he is in possession of some property. He has also concealed his source of income. The appellant in his information letter before the Ld. MM, Aurangabad admitted the son of the respondent No. 1 as his son. The Ld. MM has rightly considered the minimum wages applicable in Delhi as it is functioning within the jurisdiction of Delhi. Section 468 CrPC is not applicable in the cases u/s 125 CrPC and in DV matter.
7. Perusal of record reveals that there is a dispute about the marriage, relationship of husband and wife between the parties. The relationship of son is also disputed by the appellant who pleaded that respondent No.2-herein is not his son. As far as the plea of appellant regarding the said paternity is concerned, the respondent No.1-herein has filed copy of the affidavit of the appellant-herein in which he admitted the respondent No.2-herein as his son. The appellant-herein has also admitted that after marriage in June 1999 the respondent lived with him for 10 days. Meaning thereby, the respondent No.1 shared the household with the appellant. The appellant- herein has also raised the plea that the complaint case u/s 12 of the said Act filed before the Ld. MM is not within the period of CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 7 of 11 limitation. The respondent/wife filed her complaint/petition u/s 12, seeking relief(s) u/s 17, 18, 19, 20 & 22 of the said Act in July 2013. The order u/s 18 & 19 of the said Act are not penal in nature as the husband is under legal and social obligation to maintain his wife/aggrieved person and also to provide other benefits as indicated under sections 18 to 22 of the said Act, for which cause of action is certainly a continuous one. Therefore, there cannot be restriction of limitation in seeking basic requirement under the said Act. Further, the issue of limitation in DV cases may be applicable only in cases of proceedings u/s 31 of the said Act since sub-section (1) of Section 31 contemplates punishment in the event of breach of the order under the said Act. The provisions of Section 31 of the said Act do not come into play till an order in an application u/s 12 is passed and till the same is breached. Even, the appellant-herein had every right and liberty to assail the summoning order which he did not avail, hence, the said plea of limitation cannot be taken by him at this stage in the present appeal.
8. The appellant / husband is duty bound to maintain his wife/aggrieved person and minor child for their day to day and the medical expenses as per his status, if the respondent / aggrieved person is neither working nor earning any amount. In the case of Bhuwan Mohan Singh Vs. Meena & Ors. 2014 AIR (SC) 2875, it was held by the Hon'ble Supreme Court on the concept of sustenance and obligation of husband that " the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 8 of 11 husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs that field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds. No fault found with award of maintenance from the date of application".
9. In view of the facts and circumstances of the present case, income affidavits of the parties, documents, impugned order dt.14.12.2015, materials on record and also the above judgment of the Hon'ble Supreme Court, I am of the considered opinion that in M.T. Case No. 20/2014, an application had been moved by the appellant-herein before the Ld. Judge, Family Court, N/W, Rohini, Delhi for conducting DNA test of the child Nikhil Kumar / respondent No.2-herein. The Ld. Family Court also directed the respondent- therein/appellant-herein to pay a sum of Rs.3000/- to the petitioner/Smt. Poonam without prejudice to the rights and contention of the parties as ad interim maintenance from the date of filing of the application till the disposal of the application for interim maintenance. The appellant-herein in the present appeal admitted that the said application for conducting the DNA test is pending. The interim maintenance of Rs.4500/- pm was awarded for the petitioner-therein as well CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 9 of 11 as her minor child/respondent No.2-herein. Ld. MM also ordered that the amount paid or payable by the respondent- therein to the petitioner-therein either in that case or in any other proceedings shall be adjusted accordingly. Neither the appellant nor the respondents have filed any document to show the alleged income of each other. Detailed income affidavit of the parties-herein have also been perused by this court. The factum of income is yet to be considered and decided after leading evidence by both the parties before the Ld. Trial Court. In the absence of the any income proof of the appellant-herein and as the respondent No.1/aggrieved person along with her child is staying in Delhi and has to incur day to day expenses as per the requirement of Delhi, the Ld. MM has awarded the interim maintenance of Rs.4500/- pm to the respondent Nos.1 & 2-herein. In her evidence by way of affidavit, the respondent No.1/Poonam has stated that her marriage was solemnized in June 1999 and one son was born from the said wedlock on 30.11.2001. The respondent No.2 was minor at the time of passing of the impugned order dt. 14.12.2015 and Ld. MM has also awarded the interim maintenance of Rs.4500/- to the petitioner-therein and her minor child. Meaning thereby, the interim maintenance amount for the minor child would be applicable till he attains the age of majority. Evidence is going on before the Ld. MM and it is a matter of trial before the Ld. MM whether the respondents are entitled to maintenance or not. However, considering the above discussion, day to day expenses, the living standard and also the minimum wages in Delhi, the interim maintenance of Rs.4500/- pm awrded to the petitioner-therein and her minor child is just, fair and reasonable amount, which needs no interference by this court.
CA No. 190/2022Shailender Singh Vs. Poonam & Ors. Page No. 10 of 11 The judgments relied upon by the Ld. Counsel for the appellant are distinguishable from the facts and circumstances of the present case. Therefore, this appeal is devoid of any merits and the same is accordingly dismissed. Nothing expressed hereinabove shall tantamount to an expression of opinion on the merits of the case. Trial Court record along with the copy of this Judgment be sent back to the Ld. Trial Court. Appeal file be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR KUMAR Date: 2023.03.03 13:47:41 +0530 Announced in the open court (YASHWANT KUMAR) today on 03rd March 2023 Principal District & Sessions Judge North-West, Rohini Courts, Delhi CA No. 190/2022 Shailender Singh Vs. Poonam & Ors. Page No. 11 of 11